author: Pope, Presiding Judge.

text:
    A01A0078.
    MILLER v. GRAND UNION COMPANY.
    (552 SE2d 491)
   Pope, Presiding Judge.

This is the second appearance of this case before this Court. In the first action, Grand Union Company d/b/a Big Star Food Markets appealed from the trial court’s denial of its motion for summary judgment in an action filed by Lolita E. Miller. Miller’s action asserted claims for malicious prosecution, false imprisonment, and negligent hiring, retention, and supervision arising from an incident in which she was arrested for shoplifting in a Grand Union grocery store. This Court reversed the trial court’s order, holding that Grand Union should have been granted summary judgment on all counts of Miller’s complaint. Grand Union Co. v. Miller, 232 Ga. App. 857 (503 SE2d 49) (1998). In particular, we held in Division 2 of that opinion that the trial court erred in denying Grand Union’s motion for summary judgment on Miller’s claims of false imprisonment and assault and battery on a theory of respondeat superior based upon the conduct of its employee Fox. This Court found that because Miller had signed a covenant not to sue Fox, she was barred from pursuing any claims against Grand Union for respondeat superior based upon his conduct. Grand Union, 232 Ga. App. at 860-861 (2).

The Supreme Court of Georgia granted certiorari in the case and reversed our holding in Division 2. Miller v. Grand Union Co., 270 Ga. 537, 539 (2) (512 SE2d 887) (1999). The court concluded that “the execution of either a covenant not to sue or a release in favor of an employee does not discharge an employer who is alleged to be vicariously liable for the tortious acts or omissions of that employee, unless the instrument names the employer.” Id. at 537. The Supreme Court specifically noted, however, that its holding as to Division 2 “does not affect the Court of Appeals’ reversal of the trial court’s denial of summary judgment as to the remaining claims.” Id. at 539 (2). This Court subsequently issued an opinion in accordance with the Supreme Court’s ruling, Grand Union Co. v. Miller, 237 Ga. App. 453, 454 (517 SE2d 533) (1999).

Following the return of the remittitur, the trial court entered an order stating that Miller’s respondeat superior claims for false imprisonment and assault and battery, based upon Fox’s conduct, along with her claims for punitive damages and attorney fees, remained for adjudication and granting summary judgment on the remaining claims. Grand Union moved for reconsideration of that order on the ground that this Court’s ruling on Miller’s respondeat superior claims for false imprisonment and assault and battery based upon the conduct of its second employee, Strickland, effectively precluded any recovery on the remaining claims. The trial court agreed and granted Grand Union’s motion. Miller appeals from that order and from the trial court’s order granting Grand Union costs on the initial appeal.

1. Miller contends that the trial court’s grant of Grand Union’s motion for reconsideration is in direct conflict with the Supreme Court’s opinion in Miller and overlooks Fox’s role in her arrest. She asserts that an issue of fact exists as to her remaining claims because Fox later signed an affidavit stating that he did not believe that she had participated in the shoplifting.

As an initial matter, we note that the trial court’s order is not in direct conflict with the ruling of the Supreme Court in Miller. Both this Court and the Supreme Court addressed only the effect of the covenant not to sue Fox in relation to Miller’s claims against Grand Union arising out of Fox’s conduct. Neither court addressed the underlying merits of the claims. Because the trial court’s ruling, in contrast, turns on the merits of the claims, there is no inherent conflict.

By the same token, the prior appellate decisions did not, as the trial court found, definitively decide all the remaining issues. Rather, the trial court’s order granting Grand Union’s motion for reconsideration as to some of the claims was, in effect, an order granting summary judgment on the remaining claims. We now review the trial court’s ruling in that light.

(a) As to the claim of false imprisonment, this Court ruled that Strickland’s actions did not constitute false imprisonment because the facts related by Fox to Strickland provided “a reasonable basis for Strickland’s detention of Miller.” Grand Union, 232 Ga. App. at 861 (3) (a). We also found that Strickland’s actions were not in violation of the store’s policies. Id. at 862 (3) (b). Nevertheless, Miller argues that Fox’s later statements that Miller did not assist in the shoplifting demonstrate that the information Fox provided Strickland was not true. Therefore, she contends that Grand Union could still be liable for Fox’s misstatements, which resulted in her detention.

Subsequent to Miller’s arrest for shoplifting, Fox signed an affidavit in exchange for a covenant not to sue from Miller. In that affidavit, prepared by Miller’s counsel, Fox stated that at the time of the incident it was his opinion that Miller “was not guilty of assisting in the shoplifting involving Ms. Nicely.” He also stated that he did not see Miller attempt to assist Nicely in shoplifting cigarettes.

In his deposition, however, Fox clarified these statements. He said that when Nicely put the cigarettes in her purse, he saw Miller walk down to the end of the aisle and look back and forth. At that point he had the impression that she was watching out so Nicely could put the cigarettes in her purse. But later, when Fox observed Miller walking away from her friend and head out the store, he said that he believed that she had changed her mind about participating in the shoplifting. Therefore, by the end of the occurrence, he did not believe that Miller should be arrested for shoplifting.

When Fox told Strickland to intercept Miller and Nicely, he believed that he had observed firsthand that Nicely had attempted to conceal or take possession of Grand Union’s merchandise and that Miller may have been serving as a lookout for Nicely to shoplift. Because Fox had reasonable cause to believe that shoplifting was in progress, Fox was authorized to instruct Strickland to intercept the two women and investigate further. See Brown v. Super Discount Markets, 223 Ga. App. 174, 175 (477 SE2d 839) (1996); Brown v. Winn-Dixie Atlanta, 194 Ga. App. 130, 132 (389 SE2d 530) (1989); OCGA § 51-7-60. Therefore, a reasonable basis existed for Miller’s initial detention by Grand Union’s employees, and no claim for false imprisonment exists on that basis.

And as we previously noted in Grand Union, the fact that Fox later decided that Miller should not be arrested could provide support for her claim for malicious prosecution. 232 Ga. App. at 861 (3) (a). But we also held that summary judgment was appropriate on that claim because the termination of her prosecution had been secured through compromise. Id. at 860 (1). This same evidence does not, however, support a claim for false imprisonment:

False imprisonment is an intentional tort, not a tort of negligence. In an action to recover damages for illegal arrest or false imprisonment the only essential elements are the arrest or detention and the unlawfulness thereof. With regard to the element of unlawfulness in the tort of false imprisonment, the law has always made a fundamental distinction between a detention effectuated pursuant to process and detention which is not predicated on process. An action for false imprisonment will lie where a person is unlawfully detained under a void process, or under no process at all, and cannot be maintained where the process is valid, no matter how corrupt may be the motives of the person suing out the process or how unfounded the imprisonment may be. . . . Where the arrest is by valid process regularly sued out, action for malicious prosecution is the only remedy.

(Citations and emphasis omitted.) Joseph v. Home Depot, 246 Ga. App. 868, 872 (3) (542 SE2d 618) (2000).

Accordingly, we find that the trial court properly granted summary judgment on Miller’s respondeat superior claim of false imprisonment arising from Fox’s actions. See Costrini v. Hansen Architects, 247 Ga. App. 136, 137 (1) (543 SE2d 760) (2000) (grant of summary judgment must be affirmed if right for any reason).

(b) Similarly, we find that Miller’s claims for assault and battery also were subject to summary judgment. The evidence in the record showed that Strickland, not Fox, physically detained Miller by placing her in the “escort position.” Under this method, the security personnel reaches behind the suspected shoplifter and puts his hands on the back of the arms to control the suspect. In Grand Union, we held that Strickland’s actions did not give rise to claims for assault and battery. 232 Ga. App. at 862 (4). And we have now held that Fox’s actions in instructing Strickland to detain Miller were lawful. Because there is no evidence that Fox himself touched Miller in any way, we agree with the trial court that Miller has no claims for assault and battery against Grand Union in connection with Fox’s actions.

Decided July 10, 2001

Reconsideration denied July 26, 2001

Steven L. Beard, Steven A. Cook, for appellant.

Hall, Booth, Smith & Slover, Robert L. Shannon, Jr., for appellee.

2. Miller next asserts that the trial court erred in awarding appellate costs in the amount of $1,040.90 to Grand Union pursuant to OCGA § 5-6-5. That statute states: “If there is a judgment of reversal, the appellant shall be entitled to a judgment for the amount of the costs in the appellate court against the appellee as soon as the remittitur is returned to the court below.” OCGA § 5-6-5. Miller notes that although Grand Union won a complete reversal in this Court, the Supreme Court’s subsequent reversal as to Division 2 made Grand Union’s victory incomplete. Therefore, she argues that it is not entitled to an award of costs.

Even though Grand Union did not ultimately secure a complete reversal, it did obtain a substantial modification of that original order when this Court reversed the trial court’s denial of summary judgment and the Supreme Court affirmed as to all but two of Miller’s claims. Accordingly, we find no error in the trial court’s award of costs. See Burritt v. Media Marketing, 242 Ga. App. 92, 95 (4) (527 SE2d 890) (2000).

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

       The facts underlying this case are more fully set out in this opinion.


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A01A0823.
    STEWART v. BOURN et al.
    (552 SE2d 450)
   Mikell, Judge.

John Daniel Stewart appeals the trial court’s denial of his summary judgment motion in the declaratory action he filed to determine the appropriate distribution of settlement proceeds from a wrongful death case. The issue presented is one of first impression in this state: when a decedent is survived only by siblings and the children of deceased siblings, are the surviving siblings the only “next of kin” under OCGA § 51-4-5 (a), or should the settlement proceeds be distributed in accordance with, the statute of descent and distribution. For the reasons stated below, we hold that the “next of kin” entitled to recover under OCGA § 51-4-5 (a) should be determined based upon the laws of descent and distribution, and the proceeds should be distributed in accordance therewith. Therefore, we affirm the judgment.

The facts are undisputed. Susie Fair, one of seven siblings, was killed in an automobile accident on November 7, 1993. Fair was not survived by a spouse, child, or parent, but was survived only by four siblings and the three children of the two siblings who predeceased her. The parties stipulated that all of these persons were the decedent’s heirs at law under OCGA § 53-4-2 (5).

Stewart, one of the four surviving siblings, is the executor of the decedent’s estate. In that capacity, he brought a wrongful death action against the driver of the other automobile. Stewart settled the action for $525,000. After he paid the legal fees and other costs, $338,000.04 remained for distribution. Stewart divided the sum into six equal shares and distributed one share to each surviving sibling, including himself. Stewart filed a declaratory action to determine which heirs should receive the remaining two shares.

In his motion for summary judgment, Stewart argued that “next of kin” as utilized in OCGA § 51-4-5 (a) includes only the decedent’s surviving siblings. The trial court denied Stewart’s motion and ordered the distribution of one of the remaining shares equally to Patricia Ann Bourn and Lisa Allen Clancy, the children of one of Fair’s deceased siblings, and the other share to William O. Johnson, Jr., the son of Fair’s other deceased sibling. Stewart appeals.

1. In 1846, the British Parliament enacted Lord Campbell’s Act, which created a statutory cause of action for wrongful death. Prior to then, there was no common law or statutory cause of action that arose from the death of another. In 1850, Georgia patterned its first wrongful death statute after Lord Campbell’s Act. In 1933, the Georgia legislature enacted Code Ann. § 105-1309, which “created and established a new property cause of action in favor of the next of kin of the deceased, which had not previously existed.” It provided:

In cases where there is no person entitled to sue under the foregoing provisions of this Chapter, the administrator or executor of the decedent may sue for and recover and hold the amount recovered for the benefit of the next of kin, if dependent upon the decedent, or to whose support the decedent contributed. In any such case the amount of the recovery shall be determined by the extent of the dependency or the pecuniary loss sustained by the next of kin.

In 1969, an amendment to the statute eliminated the dependency requirement as to the right and amount of recovery. The amended Code Ann. § 105-1309 provided: “[I]n cases where there is no person entitled to sue under the foregoing provisions of this Chapter, the administrator or executor of the decedent may sue for and recover and hold the amount recovered for the benefit of the next of kin. In any such case the amount of the recovery shall be the full value of the life of the decedent.” The statute was redesignated as OCGA § 51-4-5 (a) in 1981, but the content remained virtually unchanged.

2. In this case, we are asked to construe the term “next of kin” as it is utilized in OCGA § 51-4-5 (a). In doing so, we must comply with the following, recent directive from the Supreme Court:

Being in derogation of common law, the scope of the Wrongful Death Act must be limited in strict accordance with the statutory language used therein, and such language can never be extended beyond its plain and ordinary meaning. The express language of the Act will be followed literally and no exceptions to the requirements of the Act will be read into the statute by the courts.

In interpreting statutes, we seek to determine the legislature’s intent. However, our inquiry must also include an examination of the courts’ interpretation of the statute because

[t]he applicable rules of statutory construction provide that once the court interprets the statute, the interpretation has become an integral part of the statute. This having been done, (over a long period of history) any subsequent “reinterpretation” would be no different in effect from a judicial alteration of language that the General Assembly itself placed in the statute.

We discussed the meaning of “next of kin” as it was utilized in Code Ann. § 105-1309 in Jackson v. Central &c. R. Co. We held that “the expression ‘next of kin’ needs no construction. It means what it says, the ‘next of kin,’ as against all others not entitled to sue under the Code §§ 105-1306 and 105-1307.” Appellant argues that this language supports his contention that the “next of kin” does not include the appellees. A closer review of Jackson, however, warrants the contrary result.

Similar to this case, the decedent in Jackson was not survived by a spouse, parent, or child. The question on appeal was whether the next of kin was the decedent’s aunt, who was dependent upon the decedent, the decedent’s brother of full blood, or her half-brother. To determine the decedent’s next of kin in Jackson, we utilized Code Ann. § 113-903, the statute of descent and distribution in existence at that time. We held thát as against the decedent’s aunt, the brother of full blood was the decedent’s next of kin because under the statute, he stood in the second degree from the decedent. In this case, the children of the siblings who predeceased the decedent stand in the place of their deceased parents. Thus, like the surviving siblings, they stand in the second degree from the decedent. Therefore, we agree with the trial court that one of the remaining shares should be distributed equally to Bourn and Clancy and the other share to Johnson.

Although we reach the conclusion urged by appellees, we reject their argument that when the Supreme Court treated the terms “next of kin” and “heirs at law” as equivalent in Butts v. Trust Co. of Ga. and Gresham v. Gannon, its interpretation became a part of OCGA § 51-4-5 (a). Neither Butts nor Gresham involved the construction of OCGA § 51-4-5 (a) or any of its predecessors. Furthermore, both cases involved will interpretation, which requires the application of rules of construction different from those involved in statutory construction.

To construe this statute, OCGA § 51-4-5 (a), we follow the example of our decision in Jackson, and again look to the law of descent and distribution. Fair died in 1993, before the substantial changes to our probate code in 1996 and 1997. Under the scheme of descent and distribution in effect in 1993, siblings of a decedent stood in the second degree for purposes of calculating priority of interest in an intestate’s estate. After the major revisions of the probate code, effective January 1,1998, siblings of an intestate are in the third degree. But under the former law, as under present law, the children of deceased siblings, i.e., the nieces and nephews of the decedent, would take per stirpes the share to which their parent would have been entitled.

Like the trial court, we see no reason not to apply the law of descent and distribution to the interpretation of OCGA § 51-4-5 (a), and we therefore agree with the trial court that the two remaining shares should be distributed per stirpes to the nieces and nephew. Though the decisions of courts in other states do not bind this court, we note that several states utilize their laws of descent and distribution to determine the beneficiaries in wrongful death actions. Further, this interpretation of OCGA § 51-4-5 (a) comports with Georgia’s longstanding practice of allowing representation by children of deceased siblings. Indeed, the legislative trend is to broaden representation. Prior to 1998, the statute of descent and distribution specified that “[t]he children or grandchildren of deceased brothers and sisters shall represent and stand in the place of their deceased parents, but there shall be no representation further than this among col-laterals.” The statute in effect since 1998 omits the emphasized restrictions and broadly extends representation to all “descendants” of the deceased sibling. Our holding is in harmony with the legislature’s intent when it added the contested section to the Wrongful Death Act in 1933, with our prior decision in Jackson, and with the command of our Supreme Court that “all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and . . . their meaning and effect will be determined . . . with reference to other statutes and the decisions of the courts.”

Decided July 6, 2001

Reconsideration denied July 26, 2001

Chambers, Chambers & Chambers, Timothy D. Chambers, for appellant.

Spears & Spears, John W. Spears, Jr., Malane T. Spears, Kanes & Benator, Panos J. Kanes, for appellees.

Judgment affirmed.

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

       At the time of the decedent’s death, the law of descent and distribution was codified at OCGA § 53-4-2. The statute has since been revised and is now codified at OCGA § 53-2-1.

       This statute provided in relevant part: “The children or grandchildren of deceased brothers and sisters shall represent and stand in the place of their deceased parents, but there shall be no representation further than this among collaterals.” OCGA § 53-4-2 (5), repealed by Ga. L. 1996, p. 504, § 10.

       One of the siblings died after the decedent, so that share was distributed to that sibling’s estate.

        Thompson v. Watson, 186 Ga. 396, 397 (197 SE 774) (1938); Eldridge’s Ga. Wrongful Death Actions (3rd ed.), § 1-3. Lord Campbell’s Act read as follows:
      “Whenever the death of any person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.”
      Id.

        South-Western R. Co. v. Paulk, 24 Ga. 356, 362 (1858).

        Walden v. Coleman, 217 Ga. 599, 600 (124 SE2d 265) (1962). The first act read as follows:
      In all cases hereafter where death shall ensue from or under circumstances which would entitle the deceased, if death had not ensued, to an action against the perpetrator of the injury, the legal representative of such deceased shall be entitled to have and maintain an action at law against the person committing the act from which the death resulted — one half of the recovery to be paid to the wife and children, or the husband of the deceased, if any, in case of his or her estate being insolvent.
      Eldridge’s Ga. Wrongful Death Actions (3rd ed.), § 1-4. The statute has been amended several times. Both Thompson, supra, and Walden, supra, outline the development of the statute.

       (Emphasis omitted.) Patellis v. King, 52 Ga. App. 118, 120 (182 SE 808) (1935).

       (Punctuation omitted.) Montgomery v. Southern R. Co., 78 Ga. App. 370, 375 (2) (51 SE2d 66) (1948).

        Miller v. Tuten, 137 Ga. App. 188, 189, n. 1 (223 SE2d 237) (1976).

       (Citation and punctuation omitted.) DeLoach v. Floyd, 160 Ga. App. 728, 729 (2) (288 SE2d 65) (1981).

       OCGA § 51-4-5 (a) provides
      When there is no person entitled to bring an action for the wrongful death of a decedent under Code Section 51-4-2 or 51-4-4, the administrator or executor of the decedent may bring an action for and may recover and hold the amount recovered for the benefit of the next of kin. In any such case the amount of the recovery shall be the full value of the life of the decedent.

       (Punctuation and footnotes omitted.) Tolbert v. Maner, 271 Ga. 207, 208 (1) (518 SE2d 423) (1999).

       See OCGA § 1-3-1 (a); Givens v. Ichauway, Inc., 268 Ga. 710, 718 (3) (493 SE2d 148) (1997) (Fletcher, P. J., dissenting).

       (Citations and punctuation omitted.) Abernathy v. City of Albany, 269 Ga. 88, 89 (495 SE2d 13) (1998).

       86 Ga. App. 557 (71 SE2d 899) (1952).

       Id. at 559. Code Ann. § 105-1306 provided that a husband and/or child shall recover for the wrongful death of a wife. Walden, supra at 601. Code Ann. § 105-1307 provided that a husband and/or wife shall recover for the wrongful death of a child. Garden City Cab Co. v. Ransom, 86 Ga. App. 247, 250 (1) (71 SE2d 443) (1952).

       This case was decided before the dependency requirement was eliminated from Code Ann. § 105-1309 and before half-siblings were considered equally with the whole-blood.

        Jackson, supra at 560.

       See former OCGA § 53-4-2 (5), which was applicable at the time of the decedent’s death.

       See id.

       209 Ga. 787 (75 SE2d 745) (1953).

       243 Ga. 269 (253 SE2d 748) (1979).

       In will construction, courts look to the interpretation which carries out the provisions of the statute of distribution. Butts, supra at 790.

       Supra.

       See former OCGA § 53-4-2 (5).

       See OCGA § 53-2-1 (b) (5).

       See Reiser v. United States, 786 FSupp. 1334 (N.D. Ill. 1992); Ellis v. Sill, 190 Kan. 300 (374 P2d 213) (1962); Wynkoop v. Carpenter, 574 NW2d 422 (Minn. 1998); Silva v. Gulf Oil Corp., 1958 OK 2 (320 P2d 711) (1958); Harding v. DeAngelis, 39 Mass. App. Ct. 455 (657 NE2d 758) (1995).

       (Emphasis supplied.) Former OCGA § 53-4-2 (5).

       See OCGA § 53-2-1 (b) (5); see generally Unif. Prob. Code §§ 2-103 (1); 2-106 (b).

       (Citation and punctuation omitted.) Atlanta Cas. Co. v. Jones, 247 Ga. 238, 239-240 (1) (275 SE2d 328) (1981).


author: Phipps, Judge.

text:
    A01A1597.
    THOMPSON v. THE STATE.
    (552 SE2d 130)
   Phipps, Judge.

In 2001, Thompson filed a motion for an out-of-time appeal from a conviction of theft by receiving stolen property entered against him in 1992 based on a negotiated plea of guilt. Thompson appeals the superior court’s denial of the motion.

“The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent abuse of such discretion.” [Cit.] [Thompson], as the movant, bears the burden of showing “good and sufficient” reason entitling him to an out-of-time appeal. [Cit.] Also, an out-of-time appeal is a remedy for a frustrated right of appeal; therefore, [Thompson] must show that he was entitled to a direct appeal. [Cit.] Because a criminal defendant has no unqualified or absolute right to file a direct appeal from a judgment of conviction and sentence entered upon a guilty plea, [Thompson] can meet his burden in this case only by setting “forth the questions he would raise should the appeal be granted, and showing that the questions could be resolved by facts appearing in the appellate record.” [Cits.] Finally, the disposition of a motion for out-of-time appeal hinges on who bore the ultimate responsibility for the failure to file a timely appeal. [Cit.] An out-of-time appeal is not authorized if the delay was attributable to the appellant’s conduct, either alone or in concert with counsel. [Cit.]

Although at his sentencing hearing Thompson expressed a desire to file a direct appeal, he acknowledges that in habeas corpus proceedings his defense attorney testified that the two of them later decided there were no grounds to appeal. Moreover, Thompson seeks to raise questions such as whether he received a proper court-ordered psychiatric evaluation, and these questions cannot be resolved by facts appearing in the meager appellate record (which includes little more than Thompson’s motion for out-of-time appeal and the transcript of his sentencing hearing). We can find no abuse of discretion by the superior court in denying the motion for untimely appeal in this case.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided July 11, 2001

Reconsideration denied July 26, 2001

Charles Thompson, pro se.

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

       (Emphasis omitted.) Syms v. State, 240 Ga. App. 440, 441 (1) (523 SE2d 42) (1999).


text:
    A01A1758.
    SELLERS et al. v. SEBASTIAN COVE HOMEOWNERS ASSOCIATION, INC.
    (552 SE2d 498)
   Phipps, Judge.

The Sebastian Cove Homeowners Association, Inc. (SCHA) sued Jim Sellers and the Airstrip Homeowners Association, Inc. (AHA) for declaratory judgment and injunctive relief. SCHA’s complaint is that Sellers intends to construct an airport hangar on a lot within Sebastian Cove Subdivision, that restrictive covenants referred to as the Sebastian Cove Covenants (the Covenants) require Sellers to obtain SCHA’s approval, and that Sellers does not intend to seek such approval. Sellers’s argument is that use of his lot is governed by a set of covenants referred to as the Airstrip Covenants and that AHA, which is responsible for their enforcement, has approved his plans to construct the hangar. The trial court held that Sellers’s property is subject to both sets of covenants and granted SCHA’s requests for declaratory and injunctive relief. We agree and affirm.

Sebastian Cove Subdivision is a residential subdivision originally developed by Middle Georgia Woodlands, Inc. on Sections 1 and 2 of tracts collectively referred to as the Middle Georgia Property. In 1986, the developer recorded the Sebastian Cove Covenants and made them applicable to Sections 1 and 2. In the Covenants, the developer reserved the right to subdivide additional portions of the Middle Georgia Property and subject such subdivided property to the Covenants. The Covenants require that all lots be restricted exclusively to single-family residential use and provide that no structure shall be placed on any lot unless plans and specifications have been approved by SCHA’s Architectural Control Committee. “Structure” is defined as “anything or object the placement of which upon any lot may affect the appearance of such lot.” The Covenants set forth a nonexclusive list of structures, such as garages, gazebos, sheds, patios, swimming pools, and driveways. The Covenants also allow an “accessory structure” to be constructed on a lot concurrently with or subsequent to the construction of a dwelling with the approval of the Architectural Control Committee. The Covenants do not define the term “accessory structure,” but state that “[a] detached accessory structure may be placed on a lot to be used for a playhouse, a swimming pool, tennis court, a tool shed, a mail box, a dog house or a garage.”

Sometime during or before 1987, the developer subdivided Section 6 of the Middle Georgia Property into 16 lots adjacent to an Airstrip also in Section 6. In 1987, the developer recorded the Airstrip Covenants and made them applicable to the Airstrip and to the 16 Airstrip lots. These covenants, enforced by AHA’s Airstrip Control Committee, regulate use of the Airstrip and parking of planes on Airstrip lots. The Airstrip Covenants permit the construction of both special parking areas and enclosures for aircraft on the Airstrip lots.

The developer sold the first five Airstrip lots, and all deeds expressly bound the purchasers to the Sebastian Cove Covenants. First Union, the successor bank to the original lender, foreclosed on the developer’s remaining property in 1994 and took title to the unsold Airstrip lots. Acting as successor developer, First Union recorded an amendment to the Sebastian Cove Covenants making these covenants applicable to virtually all of the remaining Airstrip lots, including the one now owned by Sellers. First Union did not seek to amend the Airstrip Covenants. Currently, there is only one structure on a lot in Section 6, a house whose construction was approved by SCHA’s Architectural Control Committee.

The trial court ruled that Sellers’s lot is subject to the Sebastian Cove Covenants, that an airplane hangar is both a “structure” and an “accessory structure” within the meaning of the Covenants, and that Sellers therefore must construct a dwelling on his lot and obtain SCHA’s Architectural Control Committee’s approval before constructing a hangar.

Sellers’s argument is that the Sebastian Cove Covenants cannot be applied to the Airstrip lots because they do not permit nonresidential structures, whereas the Airstrip Covenants which are exclusively applicable to the Airstrip lots expressly permit construction of enclosures for airplanes. Sellers additionally argues that even if the Sebastian Cove Covenants apply to the Airstrip lots, the Covenants do not require him to construct a dwelling on the lot as a condition of construction of an airport hangar because the Covenants define “accessory structure” in such a way as to exclude airport hangars.

Clearly, the Sebastian Cove Covenants have been made applicable to Sellers’s Airstrip lot. Unquestionably, they restrict lots within Sebastian Cove Subdivision exclusively to single-family residential use. The record shows that the Airstrip lots are part of Sebastian Cove Subdivision. As we interpret the Covenants, they do not prohibit construction of an airport hangar on a lot used for residential purposes. Construction of garages (enclosures for the parking of cars) is, of course, expressly permitted. An airport hangar is nothing more than a garage-type structure for the storage of airplanes and would fall within the Covenants’ broad definition of “structure.” As we read the Covenants, they do not define the term “accessory structure.” In our opinion, an airport hangar could be included within the meaning of this term. However, even if an airport hangar did not constitute an accessory structure under the Covenants, it is clear from operation of the Covenants’ requirement that lots be restricted to single-family residential use that such a structure could not be built unless the lot was being used for residential purposes.

Decided July 11, 2001

Reconsideration denied July 26, 2001

Martin L. Fierman, for appellants.

Dwyer & White, William W White, for appellee.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.


author: Barnes, Judge.

text:
    A01A1053.
    UNDERWOOD v. THE STATE.
    (552 SE2d 915)
   Barnes, Judge.

A jury convicted James R. Underwood of raping his wife, as well as aggravated assault and false imprisonment. The trial court sentenced him to the mandatory minimum of ten years to serve concurrently on each count. He appeals, arguing that his wife recanted her initial story and the trial court erred in admitting hearsay evidence of his wife’s statements regarding the crimes. He also asserts that his trial counsel was ineffective for failing to advise him that the statements could be admitted under the res gestae exception to the hearsay exclusion rule, causing him to decline the State’s offer of a plea to a lesser charge and recommendation of a probated sentence. We affirm the trial court’s admission of the hearsay testimony and conclude that Underwood waived his claim of ineffective assistance of counsel.

1. Underwood asserts the trial court erred in admitting hearsay evidence concerning the victim’s statements made to others. OCGA § 24-3-3 provides that “Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” In this case, the Underwoods’ next-door neighbor testified that early on March 15, 1999, she saw the victim outside her window, carrying her youngest child. The victim looked “scared” and “startled” and indicated by gesture she wanted to use the phone, but the neighbor shook her head that she did not have one. The neighbor then opened the door and asked the victim if she was “okay” and offered to take the child. The victim handed over the baby and said no, she was not “okay,” and her husband was on crank and trying to kill her. She then walked off, leaving her daughter with the neighbor.

A clerk from a convenience store next to the apartments where Underwood and the victim lived testified that the victim came into the store early one morning in mid-March, wanting to use the phone to call the police. She was shaking, nervous, and crying and said her husband was trying to kill her with a pair of scissors, had cut her hair, and kept her hostage overnight until he fell asleep and she escaped.

A sheriff’s deputy testified that he went to the store in response to a call regarding a domestic situation, where he spoke with the victim. It was 7:00 a.m. and cold outside, but the victim was barefoot. She had been crying and appeared upset, drained, and mentally and physically worn out. She told the deputy sheriff that her husband had raped her, would not let her leave the apartment all night, threatened to kill her, forced her to have sex with him, cut her hair, and held a pair of scissors to her throat. She cried intermittently while telling her story and said the abuse had begun around 1:00 or 2:00 that morning. She waited until Underwood was definitely asleep, which was not long before she got her child, went to her neighbor’s house to try to get help, and called the sheriff’s office.

The deputy sheriff testified that he asked the store clerk to hide the victim in the back of the store while he and his partner watched the front and rear of the apartment house and waited until the investigating detective arrived. While they were watching, Underwood came out and went to his car as if to leave, but the officers detained him. Once the detective arrived, the deputy sheriff took Underwood to the sheriff’s office while the detective interviewed the victim and investigated the scene.

The detective testified that he interviewed the victim at her apartment and collected evidence for more than an hour. He was cordial and took his time with the victim, who appeared to understand the substance of their conversation. With the victim’s assistance, the detective collected a pair of scissors from the bed, short pieces of hair from the trash can and sofa, took a picture of the victim’s bare feet, and took pictures of a bra he retrieved from the trash, showing that it was fastened in the back and cut in the front. These pictures and items were admitted into evidence.

The trial court held a Jackson-Denno hearing and concluded that Underwood’s subsequent statement was voluntary and therefore admissible. The detective testified that, after concluding his investigation at Underwood’s apartment, he interviewed Underwood at the sheriff’s office, where he read him his Miranda rights and had him review the waiver form. Underwood signed the form and said he was willing to talk, so the two began by discussing the victim’s statement. The detective transcribed what Underwood said, then gave him the document to review and correct if necessary. Both subsequently signed the statement. The trial court admitted it into evidence to be read to the jury, and the statement was read as follows, with the bracketed portions being what the detective described as errors in transcription, substituting “my wife” for the victim’s name and deleting crossed-out sections:

I wanted to have sex Saturday night but [my wife] wouldn’t. Sunday [my wife] was mad all day up until I went to work. I went to work at 7:00 p.m. and I got off at 11:30 p.m. because I forgot my lunch and went to check to see if [my wife] was home. I stayed and waited for awhile. I went to Ringgold to her sister’s and told [my wife] for us to go home. When we got home I told her [my wife] how I felt. I was sick of this stuff. I couldn’t let her leave because I love her. I should have let her leave. I did point the scissors at her and told her to shut up. [My wife] said to put the scissors down because she thought I would hurt her. I did take her keys away. I didn’t want her to leave. We also had sex last, I told her I was in trouble for rape, but she said I didn’t rape her. [My wife] really did [not] want to have sex but she did anyway. When she was sitting on the couch I did cut small pieces of her hair. It was stupid but I did. I was mad. I threw my wedding [band]. I did cut her bra. [My wife] said I do love you. I haven’t taken my wedding [band] off. [My wife] was scared out of her wits. I did want sex. I really know she didn’t want to wholeheartedly want to have sex. Last night I knew she really didn’t want to have sex with me. Your [sic] are going back to her old ways and when I came home it flew all over me when I got home. My wife asked me if I could get off when I was on top of her. We had sex on both couches in the living room and had sex in the bedroom.

After the State presented its case but did not call the victim, she testified on Underwood’s behalf that she had lied in the statements she made to the neighbor, store clerk, a detective, and two deputy sheriffs, because she was mad at her husband and wanted to set him up so he would not leave her.

We affirm a trial court’s decision to admit res gestae statements unless that decision is clearly erroneous. Robinson v. State, 197 Ga. App. 600, 601 (2) (399 SE2d 94) (1990).

What is res gestae of a given transaction must depend upon its own peculiarities of character and circumstances. The real test is whether the subject declarations are part of the occurrence to which they relate. Courts must allow some latitude in this matter. The admissibility of the declarations does not depend upon any arbitrary time or general rule for all cases, hut is left to the sound discretion of the court in determining from the time, circumstances and statements in question, whether declarations meet the statutory requirements of being free from all suspicion of device or afterthought.

(Citations and punctuation omitted.) Williams v. State, 180 Ga. App. 562, 563 (1) (349 SE2d 797) (1986). The evidence here shows that the victim’s statements to her neighbor, the store clerk, the deputy sheriffs, and the detective were all consistent and delivered within a few hours of the time she said she escaped captivity. In ruling on Underwood’s objection to the testimony, the trial court held that

[r]unning out half dressed, writing out a statement in her own hand, giving the officer a similar statement and the statement being corroborated by some things that the defendant said, all of that would persuade me that this would be a trustworthy statement, notwithstanding the fact that she may have changed her story now that she and her husband are back together again.

We cannot say the trial court clearly erred in concluding that the statements were free from suspicion of device or afterthought to allow their admission as an exception to the hearsay exclusion. Park v. State, 230 Ga. App. 274, 280 (5) (495 SE2d 886) (1998).

2. Underwood asserts that his trial counsel was ineffective for not telling him he could be convicted on res gestae evidence and assuring him the State would lose because his wife, the victim, had recanted. The State and appellant agreed at the sentencing hearing that the State had offered to allow Underwood to plead to a lesser included offense. The trial court indicated that it would have considered a probated sentence in this case, but that because Underwood was convicted of rape, false imprisonment, and aggravated assault, the trial court reluctantly sentenced him to the mandatory minimum of ten years to serve.

However, Underwood’s appellate attorney did not file a motion for new trial after the trial court granted an out-of-time appeal, and thus, his ineffective assistance of counsel claim has never been considered or ruled on by the trial court.

Decided July 26, 2001

Todd M. Johnson, for appellant.

Kermit N. McManus, District Attorney, John S. Helton, Assistant District Attorney, for appellee.

[T]he grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial. It follows from that holding and from the requirement that a claim of ineffective assistance of counsel be determined by means of an evidentiary hearing at the earliest practicable moment, that a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing.

Ponder v. State, 260 Ga. 840, 841-842 (1) (400 SE2d 922) (1991). Accordingly, Underwood waived his ineffective assistance of counsel argument by failing to raise it at the earliest practicable opportunity. Ball v. State, 233 Ga. App. 859 (1) (506 SE2d 149) (1998).

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


author: Blackburn, Chief Judge.

text:
    A01A1334.
    PARKER v. THE STATE.
    (552 SE2d 919)
   Blackburn, Chief Judge.

Following a jury trial, Bobby Parker appeals his conviction for theft by taking, contending that the trial court erred by denying his motion for a directed verdict of acquittal. For the reasons set forth below, we affirm the conviction.

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

Decided July 26, 2001.

G. Martin Adcock, for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

(Punctuation omitted.) Jackson v. State. See also Jackson v. Virginia.

Viewing the evidence in this light, the record shows that Commercial Hauling Company employed Parker as a truck driver and provided him with a company credit card to be used only for the purchase of gasoline. Parker often stopped for gas at Cone Oil, where he befriended Misty Evans, one of the cashiers. Evans testified that, with Parker’s agreement, she used the Commercial Hauling credit card to obtain cash and cigarettes from the store, while falsely indicating on the credit receipts that gas had been purchased. Parker and Evans shared the misappropriated money and merchandise. In corroboration of Evans’ testimony, another driver for Commercial Hauling testified that Parker showed him how to misappropriate money with Evans’ help, and another cashier at Cone Oil stated that Parker used the credit card to purchase cigarettes from her.

This evidence amply supports Parker’s conviction for theft by taking.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

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

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


text:
    A01A1528.
    REYES v. THE STATE.
    (552 SE2d 918)
   Phipps, Judge.

Maxiliano Reyes appeals his conviction for aggravated assault and cruelty to children in the second degree, contending that the evidence was insufficient. Because we find the evidence was sufficient, we affirm.

E. B. testified that between 7:30 and 8:30 p.m. on June 23, 2000, as she was driving with her two-year-old son in the car, the driver of a truck behind her flashed its headlights for her to stop. After she stopped, she realized that Reyes was driving the truck. She had recently dated Reyes for about two months, during which time he had slapped her. E. B. rolled down her window and told Reyes that “it was over” because she did not want to be hit again. When she refused Reyes’s request to get out of the car, he hit her on her mouth, grabbed her arm, and took her into a wooded area. Holding onto E. B.’s arm, Reyes hit her with his belt ten to fifteen times on her legs and buttocks. E. B.’s son cried as he watched the incident. Because Reyes warned E. B. that if she went to the police, he would “do something worse” to her, she did not report the incident to police until three days later. An investigator took photographs of E. B.’s injuries, and the pictures showing severe bruises were admitted at trial.

Although Reyes attacks E. B.’s credibility and further points to evidence which he claims establishes his alibi, the victim’s testimony alone is sufficient for a conviction. “The testimony of a single witness is generally sufficient to establish a fact. That another witness may provide contradictory evidence goes only to the weight of the evidence and the credibility of the testifying witness. . . .” After a criminal conviction, this court views the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility but only determine whether under the standard of Jackson v. Virginia the evidence is sufficient to support a verdict of guilt. Conflicts in the testimony of the witnesses are for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the crime, the jury’s verdict will be upheld. Under the circumstances here, the evidence was sufficient to authorize the jury to find Reyes guilty beyond a reasonable doubt of aggravated assault by striking E. B. repeatedly with a belt on her legs and body, as alleged in the indictment. Further, the evidence that Reyes committed the forcible felony of aggravated assault knowing that E. B.’s small child was present and watching was sufficient to authorize Reyes’s conviction for cruelty to children in the second degree.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided July 26, 2001.

Avrett, Ponder & Withrock, William B. Barnwell, for appellant.

Kermit N. McManus, District Attorney, Dixon A. Lackey 111, Assistant District Attorney, for appellee.

       See Kinney v. State, 234 Ga. App. 733, 734 (1) (506 SE2d 441) (1998).

       (Punctuation and footnotes omitted.) Vickers v. State, 246 Ga. App. 734, 735 (1) (541 SE2d 694) (2000).

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

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

        Bartlett, supra, 244 Ga. App. at 50.

       Id.

       Id.

        Jackson, supra, 443 U. S. 307; OCGA § 16-5-21 (a) (2); see Johnson v. State, 238 Ga. App. 677, 678 (1) (520 SE2d 221) (1999); see also Kinney, supra, 234 Ga. App. at 734-735.

        Jackson, supra, 443 U. S. 307; OCGA § 16-5-70 (c) (1); see Bartlett, supra, 244 Ga. App. at 51.


author: Eldridge, Judge. Andrews, Presiding Judge,

text:
    A01A0651.
    SNIPES et al. v. HOUSING AUTHORITY OF DEKALB COUNTY et al.
    (552 SE2d 133)
   Eldridge, Judge.

Mr. and Mrs. Snipes, individually and on behalf of their daughter T. S., appeal from the trial court’s grant of summary judgment to the Housing Authority of DeKalb County; Spring Chase, Inc.; Southeast RS, Inc. d/b/a Trammell Crow Residential Services-Southeast; and Property Dynamics, Inc. in their suit for damages arising out of an assault on T. S. at Spring Chase Apartments. Some six depositions were taken in the case ánd were relied upon by all the parties in their briefs and arguments for the grant of summary judgment. The trial court in granting the motions for summary judgment did not consider the depositions, because some party or parties failed to file the depositions with the clerk or cannot now be found by the clerk, if filed. There is a dispute as to who made the request to file the depositions, where the original depositions are now, and whether the trial court relied upon the citation to the depositions in ruling on the motions. Thus, as a matter of fundamental fairness and justice, we vacate all the judgments and remand with directions that the trial court consider all the original depositions or replacement copies certified by the court reporter prior to ruling on the motions; the trial court is not to consider any other subsequently filed evidence after the date of grant of the summary judgment other than the six depositions or the replacement copies.

The defendants as well as the plaintiffs were under the belief that the six depositions were filed with the Clerk of the Superior Court of DeKalb County at the time that the trial court considered and ruled upon the motions for summary judgment, because citations were made to such depositions in trial briefs before the trial court by all the parties. Since all the parties before the trial court relied upon the depositions in their briefs in the trial court, then it must be inferred that the trial court relied upon such citation to such depositions made either by brief or oral argument as if the depositions were filed and opened in deciding such motions. The trial judge must be presumed to know the law and to have “faithfully and lawfully performed the duties devolving upon it by law.” Sullivan v. Brownlee, 174 Ga. App. 813, 814 (1) (331 SE2d 622) (1985). In this case, such involved the consideration of deposition evidence relied upon by movants by the trial court by brief but not filed of record as well as the respondents. Thus, this Court infers that the trial court considered such depositions in rendering its judgments, although not properly filed with the trial court clerk. See Green v. Sun Trust Banks, 197 Ga. App. 804, 805 (1) (399 SE2d 712) (1990). Defendants in making their motions for summary judgment treated the depositions as filed with the Clerk of DeKalb Superior Court, but no one today can find the originals. Therefore, since the trial lawyers and trial judge believed that the depositions were filed with the clerk, then we remand the case for the trial judge to in fact reconsider the motions with the filed copies of the depositions as if filed at the time that the motions were filed. See Miller Grading &c. v. Ga. Fed. Sav. &c. Assn., 247 Ga. 730, 734 (3) (279 SE2d 442) (1981). Thus, we vacate and remand with direction that such depositions be considered. See Whisenant v. Fulton Fed. Sav. &c. Assn., 194 Ga. App. 192 (390 SE2d 100) (1990); compare Dominiak v. Camden Tel. &c. Co., 205 Ga. App. 620, 623 (422 SE2d 887) (1992); Sheffield v. Darby, 244 Ga. App. 437 (1) (535 SE2d 776) (2000).

Judgments vacated and remanded with directions.

Johnson, P. J., Smith, P. J., Ruffin, Miller and Ellington, JJ, concur. Andrews, P. J, dissents.

Andrews, Presiding Judge,

dissenting.

I must vigorously dissent from the majority’s opinion which, basically, ignores all procedural requirements for summary judgment proceedings in trial courts as well as our appellate standards for review of lower court actions.

Appellants’ motion to supplement the record with six depositions was filed in this Court on January 12, 2001. The order granting summary judgment was entered by the trial court on November 5, 1999, and this case was docketed here; on November 20, 2000. On January 21, 2001, appellants also filed a motion in the trial court to supplement the record with the same six depositions, which depositions were filed in the trial court during January 2001. While granting this motion by order of March 1, 2001, the trial court noted that it “disagree [d] with [appellants’] assessment of its reliance on the depositions at issue” in granting the summary judgment to defendants/ appellees. It is not disputed that these six depositions were not filed of record, in the trial court at the time the motion for summary judgment was filed by defendants!appellees and ruled upon by the trial court.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence.” (Punctuation omitted.) Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 392-393 (2) (469 SE2d 469) (1996). In rebutting this prima facie case, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in (OCGA § 9-ll-56)[,] must set forth specific facts showing that there is a genuine issue for trial.” OCGA § 9-11-56 (e). See also Lau’s Corp., supra.

(Emphasis supplied.) Entertainment Sales Co. v. SNK, Inc., 232 Ga. App. 669-670 (502 SE2d 263) (1998).

Prior to the majority’s carte blanche approach to civil procedure, a party either making or opposing a summary judgment motion had the burden of filing depositions and other discovery material upon which the party relied in making or opposing the motion. Sheffield v. Zilis, 170 Ga. App. 62, 64 (2) (316 SE2d 493) (1984). See also OCGA § 9-11-29.1; Whisenant v. Fulton Fed. Sav. &c. Assn., 194 Ga. App. 192, 193 (390 SE2d 100) (1990); Jacobsen v. Muller, 181 Ga. App. 382, 383 (3) (352 SE2d 604) (1986). Now, apparently, if a party merely alludes to depositions not on file with the court, that satisfies the burden, according to the majority.

The numerous statements in the parties’ briefs regarding who had the originals of these six depositions and the contents of them cannot be considered here, as acknowledged by the majority. Riverbend Ford-Mercury v. Kirksey, 196 Ga. App. 307, 308 (395 SE2d 898) (1990). All that is apparent from the record before us, even considering the supplemental record provided pursuant to the trial court’s grant of the motion to supplement, is that plaintiffs/appellants did not file, in opposition to the motions for summary judgment filed by defendants/appellees below, the depositions upon which they rely here in an effort to reverse the trial court’s grant of summary judgment. While this Court may remand to a trial court for reconsideration of a summary judgment motion in light of depositions which, while timely filed in the trial court, remained sealed upon filing in this Court, Miller Grading &c. v. Ga. Fed. Sav. &c. Assn., 247 Ga. 730, 734 (3) (279 SE2d 442) (1981), that is not the situation here.

The majority’s citations to the record allegedly showing reliance by all parties below on the disputed depositions are, at a minimum, misleading. For example, the references in the second paragraph of the majority opinion are to, respectively, a certificate of service for an application for leave of absence of counsel, the second and fourth pages of appellants’ amended and restated complaint, the first and second pages of Trammell Crow’s answer to the amended and restated complaint, and the second page of defendant Property Dynamics’ motion for summary judgment, along with portions of the statement of facts of its brief in support thereof. While Property Dynamics’ statement of facts and brief do refer to portions of some of the disputed depositions, the majority ignores the fact that Trammell Crow did file portions of these disputed depositions which were, therefore, properly before the trial court and could be relied upon by other parties. Mountain Bound, supra.

On appeal, the burden is on the appellant to establish error. See, e.g., Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981). “Clearly it is not the function of the appellate court to prosecute an appeal on appellant’s behalf.” Id. at 465.

The depositions contained in the supplemental record, having not been filed below by plaintiffs/appellants in response to the motions for summary judgment and, therefore, having not been before the trial court or relied upon by the trial court in deciding the defendants/appellees’ motions for summary judgment, should not and, prior to the majority’s rewriting of trial and appellate procedure, would not have been considered here, or below, now. Dominiak v. Camden Tel. &c. Co., 205 Ga. App. 620, 623 (3) (422 SE2d 887) (1992); see also Sheffield v. Darby, 244 Ga. App. 437 (1) (535 SE2d 776) (2000).

I dissent.

Decided July 13, 2001

Reconsideration denied July 27, 2001.

L. Katherine Adams, Guy J Notte, for appellants.

Wasson, Sours & Harris, Gene E. Massafra, Devlin & Robinson, Mark E. Robinson, Seacrest, Karesh, Tate & Bicknese, Gary L. Seacrest, Jeffrey P. Raasch, for appellees.

       Opposition to the motion to supplement was filed by all defendants/appellees in this Court.

       This order renders the motion to supplement pending before this Court moot.

       The majority’s contention that these depositions are now not to be found is, at a minimum, disingenuous.

       Defendants/appellees did, in moving for summary judgment, attach copies of the portions of some of the depositions at issue upon which they relied, which is appropriate. Mountain Bound v. Alliant FoodService, 242 Ga. App. 557, 558 (1) (530 SE2d 272) (2000).


text:
    A01A1295.
    CORLEY COMMUNICATIONS, INC. v. NORTHWINDS CENTER, L.P. et al.
    (552 SE2d 131)
   Phipps, Judge.

Siebel Systems, Inc. leased space in an office building from Northwinds Center, L.P., the building owner. Siebel hired Continental Communications, Inc. to install certain wiring in the office. Continental subcontracted the work to Corley Communications, Inc. Continental fired Corley before the work was finished. Corley sued Continental and Northwinds to recover for labor and materials. The question is whether Corley can enforce a materialman’s lien against Northwinds. The trial court answered this question in the negative and awarded partial summary judgment to Northwinds, on grounds that Corley did not install the wiring at the instance of Northwinds or anyone acting on behalf of Northwinds. We affirm.

Siebel contracted with Continental, and Continental subcontracted with Corley, for the installation of telephone, data, and cable wiring in the office space. Continental became dissatisfied with Corley’s work performance and ordered Corley to cease work before completion of the project.

Within the time required by law, Corley filed a materialman’s lien on Northwinds’ office building as well as the underlying real estate and then brought this action against Northwinds and Continental for recovery of $82,940 for labor and materials. Counts 1 and 4 of Corley’s complaint seek enforcement of the materialman’s lien against Northwinds, Count 2 seeks a recovery against Northwinds for unjust enrichment, and Count 3 seeks a recovery against Continental for breach of contract.

In reliance on Meco of Atlanta v. Super Valu Stores, Continental moved for partial summary judgment as to Corley’s claim against Northwinds for enforcement of the materialman’s lien. Meco holds that by contracting for improvements to be made upon leased premises, a tenant does not create a basis for imposing a materialman’s lien against the landlord’s interest in the premises “unless there is some relation existing between him and his landlord other than that of lessor and lessee, by virtue of which the landlord expressly or impliedly consents to the contract under which the improvements are made.” As stated in OCGA § 44-14-361 (b), a materialman’s lien may attach to the real estate for which the labor, services, or materials were furnished if they are furnished “at instance of the owner” or “some person acting for the owner.” As recognized in F. S. Assoc. v. McMichael’s Constr. Co., a materialman’s lien can be enforced against the property interest of the landlord only to the extent that the tenant was the agent of the landlord in contracting for the work.

In opposition to Continental’s motion for partial summary judgment, Corley advanced two arguments. First, Corley argued that Continental lacks standing to assert defenses on behalf of Northwinds. Second, Corley claimed that under McMichael’s, supra, Siebel was acting as Northwinds’ agent in contracting for the work that Corley performed. McMichael’s holds that a tenant acts as an agent for the landlord, to the extent that the landlord has contracted with the tenant to pay for the improvements to the property. In McMichael’s, the lease gave the tenant a $59,400 allowance to defray the costs of improvements which the tenant made to the premises. Costs on the contract between the tenant and his contractor amounted to over $200,000. The landlord paid the $59,400 allowance to the tenant, who remitted the payment to the contractor. We held that the contractor could not enforce its materialman’s lien to hold the landlord liable for a balance due of $129,109.

The lease in this case, as in McMichael’s, contained a tenant improvement allowance. The allowance in this case was in the approximate amount of $307,000. But under the lease, Northwinds was obligated to pay only for telephone, data, and cable wiring to the extent of any funds remaining in the tenant improvement allowance after Siebel was reimbursed for its costs in making other improvements to the property. Moreover, the lease required Siebel to make a written request for reimbursement within 90 days after the work commenced. Specifically, the lease provided that

[i]n the event the tenant improvement allowance exceeds the amount of tenant improvements costs, landlord shall, at tenant’s written request, reimburse tenant for the actual costs paid by tenant (up to the amount of such excess tenant improvement allowance) for: (i) the installation in the premises of voice and data wiring and cabling; (ii) the purchase and installation of a new telephone system within the premises . . . provided that in all events such written request of tenant is received by landlord within ninety (90) days after the commencement date. . . .

Decided July 11, 2001

Reconsideration denied July 27, 2001

Peevy & Lancaster, G. Wayne Lancaster, for appellant.

Phears & Moldovan, Victor L. Moldovan, Kilpatrick Stockton, Craig E. Bertschi, Burleigh L. Singleton, for appellees.

After Corley filed its opposing brief, Northwinds moved for summary judgment on its own behalf for the reasons given in support of Continental’s motion. Corley then filed a brief in opposition to Northwinds’ motion based on the same reasons Corley opposed Continental’s motion. The court later entered an order granting Continental’s motion for partial summary judgment, thereby awarding summary judgment to Northwinds on Counts 1 and 4 of the complaint.

1. Because Northwinds filed its own motion for summary judgment to which Corley responded, issues relating to Continental’s lack of standing are moot.

2. Under McMichaeVs, Corley’s materialman’s lien is enforceable against Northwinds if payment of the amount due under the lien was payable by Northwinds to Siebel under the tenant improvement allowance.

Adams Little, who is employed by Northwinds’ property management company, submitted an affidavit unopposed by Corley. This uncontroverted affidavit leaves no doubt that Siebel made no timely, written request to be reimbursed for the cost of installing the subject wiring. Consequently, Northwinds had no responsibility for payment, and Corley’s materialman’s lien is not enforceable against Northwinds.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       215 Ga. App. 146 (449 SE2d 687) (1994).

       (Citations and punctuation omitted.) Id. at 148 (1).

       197 Ga. App. 705 (1) (399 SE2d 479) (1990).


author: Ellington, Judge.

text:
    A01A0862.
    CANNON v. THE STATE.
    (552 SE2d 922)
   Ellington, Judge.

A Rabun County jury convicted James Bentley Cannon of rape, OCGA § 16-6-1; burglary, OCGA § 16-7-1; and aggravated assault, OCGA § 16-5-21. Following the denial of his motion for new trial, Cannon appeals, contending the trial court erred in denying his motion to set aside a prospective juror for cause, in admitting certain scientific evidence, and in not merging the offenses of aggravated assault and rape. Cannon also argues he received ineffective assistance of counsel. For the reasons which follow, we reverse.

1. Cannon contends the trial court abused its discretion in denying his motion to set aside a prospective juror who was friends with the victim and was acquainted with Cannon, who had had a detailed conversation with the victim about the crime, and who expressed doubts about her ability to be impartial. We agree.

The test for disqualification for favor or partiality under OCGA § 15-12-164 (a) is whether a potential juror’s mind is not “perfectly impartial between the state and the accused.” See Jordan v. State, 247 Ga. 328, 339 (6) (276 SE2d 224) (1981). Despite being inclined in favor of either party, a juror will not be disqualified for cause if she will be able “to set the opinion aside dnd decide the case based upon the evidence or the court’s charge upon the evidence.” (Citations omitted.) Johnson v. State, 262 Ga. 652, 653 (2) (424 SE2d 271) (1993). This court will reverse a trial court’s decision regarding whether to discharge a prospective juror on grounds of favor only when the record as a whole shows an abuse of discretion. Brown v. State, 246 Ga. App. 60, 65 (2) (539 SE2d 545) (2000).

In this case, when the panel was asked whether anyone knew Cannon, the prospective juror at issue responded, ‘Yes, I know him from when he was a young boy in school. ... I worked in the cafeteria.” The prosecutor asked whether her acquaintance with Cannon would affect her ability to serve as a fair and impartial juror. The juror responded, “It might.” The prosecutor asked whether the juror could base a verdict solely on the evidence and the law as given by the court. The juror responded, “I would try.” The court then instructed her to give a “yes or no” answer and asked, ‘Would you be able to lay aside any previous experience or knowledge of [Cannon] and . . . decide this case based solely on the evidence that you hear and the law that I read to you in this case.” The juror responded, “Yes, sir.”

The prosecutor asked whether any of the jurors had talked to anyone with first-hand knowledge of the case. The same juror responded that she had talked to the victim. The prosecutor asked whether her discussion with the victim would influence her ability to be a fair and impartial juror. The juror responded, “I’m just not sure. I just couldn’t answer that.” The court asked, “Could you lay what /all have talked about aside and render a verdict in this case based solely on the evidence that you hear and the law I read to you?” The juror responded, ‘Yes.”

Cannon’s counsel followed up by asking how long the juror had known the victim. The juror responded, “For a few years. I work in a little gift shop, and she was one of my customers.” Counsel asked whether the juror and the victim had discussed the events forming the basis of the charges. The juror responded affirmatively and indicated that the conversation was “right after the incident happened.” Counsel asked how the conversation started, and the juror responded, “We were friends. . . . She just kind of told me.” The juror indicated they talked for 20 to 30 minutes. Counsel asked how her relationship with the victim and their conversation about the crime would affect her service as a juror. The juror responded, “I’m just not sure,” and stated that it might affect her emotionally. Counsel asked whether the juror would be able to treat the victim’s testimony like that of any other witness. The juror responded, “Probably so. Yes. I think I can.”

Cannon’s counsel moved to excuse the juror for partiality based on her relationship with the victim and her extrajudicial knowledge of the crime. Without farther explanation, the trial court ruled as follows: “[B]ased on the responses [she] gave[,] I’m going to keep [her] in the case.” Cannon exercised a peremptory strike to excuse the juror.

“[A] juror may be found disqualified even though he insists he is not biased; therefore, the juror’s opinion of his qualification is by no means determinative.” Jones v. State, 232 Ga. 324, 330 (206 SE2d 481) (1974). “When ruling on a potential juror’s qualifications, the trial court must make a factual determination based on all the circumstances known to the court, including, but not limited to, the juror’s own opinion of his impartiality.” Lively v. State, 262 Ga. 510, 511 (1) (421 SE2d 528) (1992). “[A] trial court may not rely solely on a prospective juror’s assurances of his impartiality where the record shows on its face that the juror has a compelling bias or interest in the outcome of the case” such as a close relationship with either the defendant or the victim. (Citations omitted.) McClain v. State, 267 Ga. 378, 380-381 (1) (a) (477 SE2d 814) (1996).

In this case, after the juror revealed her relationship with the victim and expressed doubts about her ability to be impartial, the trial court followed the common practice of “rehabilitating” the juror by asking whether she could lay aside her reasons for being partial and decide the case based solely on the evidence and the law as given by the court. Wilson v. State, 271 Ga. 811, 815 (5) (a) (525 SE2d 339) (1999); Johnson, 262 Ga. at 653 (2). Neither the trial court nor the prosecutor, however, asked the juror questions to elicit sufficiently detailed information about the nature of the juror’s relationship with the victim and the contents of their conversation about the crime to allow the court to make an objective evaluation of her partiality. See McClain, 267 Ga. at 381 (1) (a). Having reviewed the record as a whole, we conclude the effect of the court’s questions in this case about laying aside her knowledge of the victim and the crime was “more an instruction on the desired answer than a neutral attempt to determine the juror’s impartiality.” (Punctuation omitted.) Walker v. State, 262 Ga. 694, 696 (2) (424 SE2d 782) (1993). Further, the trial court did not articulate on the record its reasons for denying Cannon’s request to set the juror aside. See McClain, 267 Ga. at 381 (1) (a); Garland v. State, 263 Ga. 495, 496-497 (1) (435 SE2d 431) (1993); Lively, 262 Ga. at 511 (1). Because the record shows on its face that the juror had a compelling interest in the case and that the trial court denied the motion to set aside the juror for partiality based only on her statement (under pressure) that she could be impartial, we must conclude the trial court abused its discretion in denying Cannon’s motion to set aside the juror. Lively, 262 Ga. at 511 (1).

We deplore the significant burden a retrial will impose on the victim, her family, and her community. We are particularly troubled by the trial court’s willingness to infect a trial with this kind of error when a solution (excusing the juror for partiality) was so readily available. As this Court recently observed:

A trial judge should err on the side of caution by dismissing, rather than trying to rehabilitate, biased jurors because, in reality, the judge is the only person in a courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury. . . . The trial judge, in seeking to balance the parties’ competing interests, must be guided not only by the need for an impartial jury, but also by the principle that no party to any case has a right to have any particular person on their jury.

(Footnote omitted.) Walls v. Kim, 250 Ga. App. 259, 260 (549 SE2d 797) (2001).

Even in the face of overwhelming evidence of guilt, however, we are precluded from finding the trial court’s abuse of discretion harmless. Since at least 1879, our appellate courts have held that requiring a litigant to exhaust peremptory strikes on unqualified jurors is harmful error. Melson v. Dickson, 63 Ga. 682, 685-686 (1) (1879). As our Supreme Court has observed, the selection of an impartial jury is the cornerstone of the fairness of trial by jury, and, in this process, “peremptory strikes are invaluable.” Bradham v. State, 243 Ga. 638, 639 (3) (256 SE2d 331) (1979). An accused is entitled to a full panel of qualified jurors (that is, jurors not subject to being excused for cause) to which to direct his peremptory strikes. Menefee v. State, 270 Ga. 540, 542 (2) (512 SE2d 275) (1999); Walker, 262 Ga. at 696 (2); Lively, 262 Ga. at 512 (2); Harris v. State, 255 Ga. 464, 465 (2) (339 SE2d 712) (1986); Bass v. State, 183 Ga. App. 349, 352-353 (358 SE2d 837) (1987). See OCGA §§ 15-12-135; 15-12-160; 15-12-163; 15-12-164.

2. Cannon contends the trial court erred in admitting certain expert testimony because the State failed to establish that the testing procedure used had reached a scientific stage of verifiable certainty, citing Izer v. State, 236 Ga. App. 282 (511 SE2d 625) (1999), and Harper v. State, 249 Ga. 519 (292 SE2d 389) (1982). We note initially that Cannon failed to preserve this enumeration for appellate review by failing to object to the court’s implicit acceptance of the witness as an expert. Moss v. State, 216 Ga. App. 711, 712-713 (3) (455 SE2d 411) (1995). Because this issue may recur on retrial, however, we address it on the merits.

A plastics and trace evidence expert from the state crime lab testified that, using a light table, she visually compared a plastic bag found at the crime scene with a plastic bag found in Cannon’s home and concluded the bags had once been joined on a roll. The State presented no evidence that visual comparison of plastic bags to determine whether they had once been joined had reached a scientific stage of verifiable certainty. But the Supreme Court of Georgia has held that expert opinions which are based only on “observation and comparison of physical objects,” are “matters not of [scientific principles] but of skill and experience.” Belton v. State, 270 Ga. 671, 674 (4) (512 SE2d 614) (1999) (shoeprint evidence). Therefore, expert opinions based only on the observation and comparison of physical objects are excluded from the application of Harper. Belton, supra. See OCGA § 24-9-67.

We conclude the standards of admissibility set forth in Harper are not applicable to this evidence because the visual comparison of the physical characteristics of two plastic bags does not involve the analysis of scientific data. See Carr v. State, 267 Ga. 701, 703 (1) (482 SE2d 314) (1997). “Since Harper and its standards are not applicable to the testimony involved in this case, the trial court did not err in failing to apply it.” Belton, 270 Ga. at 674 (4).

3. Cannon contends the trial court erred in failing to merge the aggravated assault conviction into the rape conviction. See OCGA §§ 16-1-6 (1); 16-1-7 (a) (1). Again, because this issue may recur on retrial, we address it on the merits. Contrary to the State’s argument, Cannon preserved this issue by raising it in his amended motion for new trial. Williams v. State, 233 Ga. App. 217, 220-221 (4) (504 SE2d 53) (1998) (merger issue may be preserved by objection to the sentences imposed at the time of sentencing, by motion for new trial, or by motion in arrest of judgment).

Aggravated assault may merge into another violent crime where there was no “gratuitous violence employed against the victim in addition to” the force needed to complete the other offense. Smith v. State, 193 Ga. App. 208, 209 (1) (387 SE2d 419) (1989) (armed robbery). In this case, the indictment charged Cannon with assaulting the victim with a handgun and with raping the victim. Construed in favor of the verdict, the evidence showed the following: Cannon broke into the victim’s home when she was alone and went to her bedroom. They struggled, and Cannon struck the victim on the head with a handgun. After the victim stopped struggling, Cannon tied her hands with rope and put a plastic trash bag over her head. He then moved her through the kitchen, removing the plastic bag and tying it over her eyes. In another bedroom, he forced her on the bed and raped her while her hands were tied and her eyes were covered.

There is no issue as to the victim’s lack of consent to the sex acts. The element of force necessary for a rape conviction was supplied by one or more of the acts by which Cannon overcame the victim’s resistance or induced her not to resist, that is, attacking the victim alone in a house where no one could come to her aid, tying her hands, blindfolding her, physically overpowering her, and putting her in fear of bodily harm. See Roberts v. State, 242 Ga. App. 621, 626-627 (4) (530 SE2d 535) (2000) (force by intimidation); Seagraves v. State, 191 Ga. App. 207, 208-209 (1) (381 SE2d 523) (1989) (force shown by tying hands, blindfolding, and putting victim in fear of injury). Even though the jury might have found that Cannon’s continued control of the handgun was the force used during the rape, a rational trier of fact could reasonably have concluded that the aggravated assault with the handgun was completed before Cannon forced the victim to another location and raped her; therefore, the offenses do not merge as a matter of fact. Culver v. State, 230 Ga. App. 224, 232 (8) (496 SE2d 292) (1998) (no merger where rapist assaulted the victim by shoving a gun against her face as she drove, then ordered her to drive to another location, where he raped her). Because the assault with the handgun constituted gratuitous physical violence separate from the forced sex acts, the trial court did not err in imposing judgment on both counts. Taylor v. State, 202 Ga. App. 671, 672 (415 SE2d 483) (1992).

Decided July 27, 2001.

Scott B. Barloga, for appellant.

Michael H. Crawford, District Attorney, Robert D. Cullifer, Assistant District Attorney, for appellee.

4. Cannon’s contentions regarding effectiveness of counsel are moot in light of our holding in Division 1.

Judgment reversed.

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

        See Rucker v. State, 270 Ga. 431, 432-433 (2) (510 SE2d 816) (1999); Garland v. State, 263 Ga. 495-497 (1) (435 SE2d 431) (1993); Brown, 246 Ga. App. at 65 (2); Fuller v. State, 230 Ga. App. 219-220 (1) (496 SE2d 303) (1998).

       We note that the record shows that Cannon exhausted his allotment of peremptory strikes. See OCGA § 15-12-165. Whether a defendant uses all of his peremptory strikes plays no role, however, in the evaluation of the harm caused by the refusal to strike an unqualified juror. Harris v. State, 255 Ga. 464, 465 (2) (339 SE2d 712) (1986). Thus, a defendant’s failure to exhaust his peremptory strikes before the last juror is selected does not render the error (the trial court’s refusal to strike an unqualified juror) harmless. Id.; Hayes v. State, 261 Ga. 439, 441 (2) (405 SE2d 660) (1991); Beam v. State, 260 Ga. 784, 785 (2), n. 3 (400 SE2d 327) (1991); Scruggs v. State, 227 Ga. App. 35 (1), n. 1 (488 SE2d 110) (1997); Thompson v. State, 212 Ga. App. 175 (1) (442 SE2d 771) (1994); Day v. State, 188 Ga. App. 648, 649 (4) (374 SE2d 87) (1988); Bass v. State, 183 Ga. App. 349, 352-353 (358 SE2d 837) (1987). But see McKenye v. State, 247 Ga. App. 536, 537 (1) (a) (544 SE2d 490) (2001) (defendant showed no harm where trial transcript did not show that he exhausted his peremptory strikes); McGriff v. State, 232 Ga. App. 546-547 (1) (502 SE2d 482) (1998) (same).

       We disapprove the contrary statement in Smith v. State, 234 Ga. App. 586, 589 (2) (506 SE2d 406) (1998) (“Under OCGA § 15-12-160, a defendant in a non-death penalty felony trial is entitled to a panel of 30 jurors, of which at least 12 jurors must be qualified to serve.”). It is not necessary to overrule Smith, however, inasmuch as the facts therein reveal the language regarding the requirements of OCGA § 15-12-160 is obiter dicta. Id. at 589-590 (2). See Dunagan v. State, 269 Ga. 590, 593, n. 4 (502 SE2d 726) (1998).

       OCGA § 15-12-160 was amended by Ga. L. 1992, p. 1981, § 1, to require a panel of 30 jurors in a noncapital felony trial and 42 jurors in a capital felony trial.


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    A01A0973.
    WHITE v. THE STATE.
    (552 SE2d 927)
   Ellington, Judge.

A Thomas County jury convicted Bonnie Ann White of armed robbery, OCGA § 16-8-41 (a). She appeals, contending the trial court erred in denying her motion for a directed verdict because the evidence was insufficient to support her conviction. Finding no error, we affirm.

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

(Citations and punctuation omitted.) Jackson v. State, 236 Ga. App. 260-261 (511 SE2d 615) (1999). Viewed in this light, the record reveals that on April 19, 2000, a woman and her male accomplice robbed Willie Williams of $30 by the use of a handgun while Williams waited in his parked car for his place of employment, a fast food restaurant, to open. As Williams sat in his car, the woman walked up to him and asked when the restaurant opened. While Williams was distracted by the woman, her accomplice put a pistol to his head and demanded money. After taking Williams’ money, the accomplice and the woman discussed whether to take Williams’ car. They decided not to because Williams’ car was not a “good get away car.” The two then fled on foot.

Decided July 27, 2001.

Walter E. Van Heiningen, for appellant.

J. David Miller, District Attorney, James E. Hardy, Robert R. Auman, Assistant District Attorneys, for appellee.

Williams gave the police a detailed description of the woman. He was not able to identify the accomplice, however, because he was too upset by the handgun the man was pressing to his temple. Shortly after the robbery, police investigators showed Williams a photographic lineup of women fitting the description he gave. Williams told the officers that the woman he saw was not in the lineup.

Two days later, following up on a lead provided by another officer, the investigators interviewed White who was staying at a motel with her boyfriend. White, who fit Williams’ description, denied knowing anything about the robbery. After the interview, White agreed to have her photograph taken. When Williams was shown a second photographic array which included White’s picture, he immediately picked her out. Williams also identified White in court. In White’s second police interview, she said that her boyfriend Leon and another person committed the robbery.

We find this evidence sufficient to uphold White’s conviction for armed robbery as a party to the crime under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Nealy v. State, 239 Ga. App. 651, 654-655 (5) (522 SE2d 34) (1999).

Judgment affirmed.

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


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    A01A1343.
    ARMSTRONG v. THE STATE.
    (552 SE2d 920)
   Mikell, Judge.

A jury found Kendrick V. Armstrong guilty of aggravated assault. He appeals, arguing that the trial court erred in refusing to give his requested jury instruction on justification and transferred intent. We disagree and affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on the night of June 13, 1998, Armstrong was drinking at a club with four other men, all of whom belonged to the “Bloods” gang. After leaving the club, the men encountered another car with several members of the “Crips” gang in it in the parking lot of a fast food restaurant. Armstrong began to follow the second car, when gunfire erupted from it. At least one person in Armstrong’s vehicle returned fire, striking Mark Johnson, an innocent bystander, in the neck. Armstrong and his passengers fled the scene and were later apprehended by police.

The evidence further shows that Armstrong and two of the passengers in the car he was driving had guns; that passenger Andre Ross’ gun jammed and did not fire; and that Armstrong and passenger Carlos Jordan fired their weapons.

At trial, Armstrong requested that the court give the following jury instruction on transferred intent and justification: “I charge you that, if the defendant was justified in shooting at the intended victim, he does not have the requisite intent to commit an assault at all. The fact that an unintended victim was struck does not create the intent which was not there in the first place. Smith v. State, 204 Ga. App. 173, 174 (1) (419 SE2d 74) (1992).”

The court declined to give Armstrong’s requested charge. Instead, it gave the pattern jury instruction on transferred intent promulgated by the Council of Superior Court Judges: “If one intentionally commits an unlawful act, yet the act harmed a victim other than the one intended, it is not a defense that the defendant did not intend to harm the actual person injured.” Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, Part 2 (I) (2). The court further instructed the jury on the defense of justification using the following pattern charge:

If you find that the defendant’s conduct was justified, this is a defense to prosecution for any crime based on that conduct. A person is justified in threatening or using force against another person when, and to the extent that, he . . . reasonably believes that such threat or force is necessary to defend himself ... or a third person against the other’s imminent use of unlawful force. A person is justified in using force which is intended or likely to cause death or great bodily harm only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to himself ... or a third person or to prevent the commission of a forcible felony. The State has the burden of proof beyond a reasonable doubt that the defendant was not justified.

Decided July 27, 2001.

William D. Phillips, for appellant.

Howard Z. Simms, District Attorney, Myra H. Kline, Assistant District Attorney, for appellee.

(Citations omitted.) Id. at Part 3 (AA) (l)-(2).

Armstrong assigns error to the court’s refusal to give his requested charge; however, we find his argument meritless. It is well settled that “[i]t is not reversible error to fail to charge in the exact language requested when the charge given adequately covers the correct legal principles. (Cits.)” (Punctuation omitted.) Parker v. State, 270 Ga. 256, 258 (3) (507 SE2d 744) (1998), citing McGee v. State, 172 Ga. App. 208 (1) (322 SE2d 500) (1984). After reviewing Armstrong’s requested charge and the charge as given, we conclude that the pattern charge fairly covered the legal principles contained in the requested charge, and that it was an adequate expression of the law and was adjusted to the evidence. Christopher v. State, 269 Ga. 382, 383 (3) (497 SE2d 803) (1998); Griffin v. State, 268 Ga. 177, 178 (2) (486 SE2d 179) (1997). Accordingly, we find no error in the court’s refusal to give Armstrong’s charge as submitted.

Judgment affirmed.

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

       Armstrong’s first appeal, Case No. A01A1115, was dismissed by this Court on February 9, 2001. The trial court granted Armstrong’s motion to allow filing of an out-of-time appeal, and the present appeal was docketed on March 5, 2001.


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    A01A1346.
    HOPKINS v. THE STATE.
    (553 SE2d 173)
   Ellington, Judge.

A Seminole County jury convicted Christopher D. Hopkins of aggravated assault, OCGA § 16-5-21 (a). Following the removal of Hopkins’ trial counsel, the trial court granted Hopkins’ motion for an out-of-time appeal. Hopkins appeals, challenging the sufficiency of the evidence. Finding this assertion without merit, we affirm.

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. To sustain the conviction,' the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Kapua v. State, 228 Ga. App. 193 (1) (491 SE2d 387) (1997).

Viewed in this light, the evidence showed that between 6:00 and 6:30 p.m. on December 26, 1995, a man and a woman traveled to Donalsonville, Seminole County,' for the purpose of buying crack cocaine. The two drove to the back parking lot of a grocery store where they had bought drugs before. Three men approached the car and said, “We want all of your money.” The assailant on the driver’s side of the car then pulled a semi-automatic handgun. After the three assailants again demanded the victims’ money, the male victim grabbed the barrel of the gun and pointed it toward the windshield. While the male victim struggled with the gunman, the other two assailants hit him. The gunman pulled the gun away from the male victim and fatally shot the female victim. The three assailants then ran away.

At trial, an eyewitness who assisted the victims after the shooting identified Lavacus Antwane Graham as the gunman. The surviving victim identified Hopkins, whom he recognized from many previous drug purchases, as one of the assailants who beat him during the attempted robbery. The eyewitness also identified Hopkins as one of the men who approached the victims’ car prior to the attempted robbery. The jury convicted Hopkins of aggravated assault of the male victim but acquitted him of murder, felony murder, and aggravated assault of the female victim.

Hopkins argues, correctly, that there was no evidence that he was the gunman. He contends that the evidence was insufficient to support a conviction of aggravated assault of the male victim in that there was no evidence he assaulted the victim with the intent to rob, OCGA § 16-5-21 (a) (1), or that he was a party to Graham’s assault with a deadly weapon, OCGA §§ 16-2-20 (a); 16-5-21 (a) (2). At trial, Hopkins advanced the defense theory that he was not associated with Graham, the gunman, but that he was merely present at the time of the shooting as a competing drug dealer seeking to make a sale.

Hopkins contends that testimony of the eyewitness who drove the victims to the hospital supported his defense that he approached the car only with the intent to make a drug sale, not to commit a robbery. Specifically, the eyewitness testified that when Hopkins approached the male victim’s side of the car, the victim asked to “see the stuff” and Hopkins asked to first “see the money.” Hopkins further contends that the testimony of the male victim that the three assailants approached the car and immediately demanded all their money was “successfully impeached” by proof of the victim’s pretrial testimony that, when Hopkins first came up to his window, he asked, “What’s up?” Hopkins contends this testimony supported his defense that he was merely hoping to make a drug sale and that there was no evidence he was a participant in Graham’s attempted armed robbery and assault with a deadly weapon.

Decided July 27, 2001.

Billy M. Grantham, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

These conflicts in the evidence identified by Hopkins do not support his argument that the evidence was insufficient to convict him.

The weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness, or others, for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.

(Citations omitted.) Anderson v. State, 237 Ga. App. 595, 596 (3) (516 SE2d 315) (1999). The jury’s verdict demonstrates that it resolved the conflicts and found beyond a reasonable doubt that Hopkins was guilty of aggravated assault. As detailed above, the evidence showed that Hopkins approached the victims’ car with Graham and that he demanded the victims’ money. Further, the evidence that he did not flee when Graham drew his weapon — but rather stayed to assist in the assault by hitting the victim as he struggled for control of the gun — undermined his defense that he was merely a bystander. The evidence was sufficient for a rational trier of fact to find Hopkins willingly participated in an attempted armed robbery in which Graham threatened the victim with a handgun; therefore, the evidence was sufficient to convict him of aggravated assault. Glore v. State, 241 Ga. App. 646, 647-648 (1) (526 SE2d 630) (1999).

Judgment affirmed.

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

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