author: Eldridge, Judge.

text:
    A00A1168.
    JOHNSON v. THE STATE.
    (534 SE2d 480)
   Eldridge, Judge.

Appellant Jason Wayne Johnson and his cousin, Jerry Lee Lancaster, committed a home invasion wherein they donned Halloween masks, approached the home of the 70-year-old victim (their longtime neighbor), kicked in her front door, held a knife to her throat, took her purse, forced her into her kitchen, and took the money she had saved and hidden under a cereal box in her bottom kitchen cabinet. A Forsyth County jury found Johnson guilty of armed robbery, burglary, kidnapping with bodily injury, simple battery, false imprisonment, and possession of a knife during the commission of a crime. Johnson appeals. We affirm.

Recitation of the following facts is necessary for disposition of the issues raised on appeal: the armed robbery of the victim occurred on March 2, 1997. Co-defendant Lancaster was arrested four days later on March 6, 1997. That same day, Lancaster gave a confession to the police, admitting that he and Johnson robbed the victim and split the money between them. In his statement, Lancaster told the police in detail how the robbery occurred; where he and Johnson found the masks and knives; how they forced the victim into the kitchen; where they found her money; and how they each spent the money. Lancaster admitted that he threatened to kill the victim if she did not show them where her money was hidden. Thereafter, he helped the police find the two masks and one of the knives used during the robbery, as well as the victim’s purse that he and Johnson had thrown into a shallow pond. Lancaster told the police that he was a drug addict and had committed the robbery to get money for drugs; that the robbery was his idea, not Johnson’s; that he kicked the victim’s door open, not Johnson; that he held the knife to the victim’s throat and threatened her, not Johnson; and that his confession was the “least I can do for [the victim],” who had taken care of his mother when she died.

Following his March 6, 1997 arrest for the instant armed robbery, Lancaster was incarcerated in the Forsyth County Detention Center (“jail”). After Lancaster had been incarcerated several months, Deputy Sheriff B. H. began working at the jail. B. H. and Lancaster began a drug and cigarette smuggling operation in the jail. Lancaster would collect money from inmates for drugs and/or cigarettes, and contact would be made with drug dealers on the outside to fill the orders. B. H. would get the money from Lancaster, obtain the drugs from the dealers, and bring the drugs into the jail for distribution by Lancaster to the waiting inmates. According to Lancaster, “[t]he first couple of weeks that we started doing it everything was going good you know. And then he started slacking up on giving me my cut out of it.” When B. H. started shorting Lancaster on the drugs ordered by the inmates — drugs for which they had already paid —■ the “business” soured. Lancaster began to receive death threats from inmates and was involved in several fights. By July 20, 1997, after a particularly severe beating, Lancaster decided to tell all. He approached the Officer-in-Charge (“OIC”) of the night shift at the jail and gave a detailed statement regarding the drug activities therein. Lancaster asked to be given a drug test to verify the presence of drugs in the jail; he tested positive for marijuana and barbiturates. The OIC gave all the information to his Captain. The Captain interviewed Lancaster the next day, July 21, 1997, and tape recorded his statement. Following the interview, Deputy B. H. abruptly “resigned.” At his own request, Lancaster was transferred to a different jail for his protection.

Eight months later, on March 3, 1998, Lancaster pled guilty under the instant indictment to armed robbery, burglary, kidnapping, and possession of a knife during the commission of a crime. Pursuant to plea negotiations, which had been ongoing throughout his incarceration, Lancaster was sentenced to 35 years imprisonment, to serve 15, and the balance probated. At the time of the plea, Lancaster also had outstanding charges of escape, forgery, and burglary in Hall County.

Appellant Johnson pled “not guilty” and went to trial on September 22, 1998 — six months after Lancaster pled guilty and began serving time on his sentence and more than a year after Lancaster blew the whistle on the drug smuggling activity in the Forsyth County jail. At Johnson’s trial, Lancaster was called as a witness for the State. His testimony mirrored the statement he gave to the police on the day of his arrest regarding his and Johnson’s armed robbery of the victim. Also, during the course of both direct and cross-examinations, Lancaster testified regarding his negotiated guilty plea and sentence to the instant charges. He testified that there was no “deal” with the State for his testimony. He testified to his pending charges in Hall County. He testified to his three prior convictions for motor vehicle theft, forgery, and abandonment. Lancaster also testified that, at one point during his incarceration, he had briefly changed his story about Johnson’s participation in the armed robbery because he was “torn between my family,” and because Johnson’s mother had begged him “[d]on’t take my baby boy away from me”; shortly thereafter (long before trial), Lancaster determined it would be better to “do the right thing” and admit that the original statement he gave to the police was the truth of the matter. Lancaster also volunteered the following testimony on direct examination: “I got mixed up in some stuff while I was at the county jail. I got involved with a deputy there and he was bringing me drugs and I was turning around and selling them.”

During defense counsel’s lengthy cross-examination of Lancaster, the subject of drug sales at the Forsyth County jail was not broached. When court recessed for the night, defense counsel “made occasion to go down to the jail last night and [Lancaster] has spilled his entire guts on the issue.” When court reconvened the next day, the State rested. Thereafter, defense counsel made motion to recall Lancaster in order to cross-examine him regarding the entire drug selling scheme at the jail. Defense counsel proffered that Lancaster had been threatened with increased jail time on his current sentence if he spoke to anyone about the drug selling scheme at the jail; defense counsel argued that this evidence showed that Lancaster was “terrified” of law enforcement, which in turned showed why Lancaster testified for the prosecution and thus “lied” about Johnson’s participation in the armed robbery. The State made a motion in limine with regard to this evidence, claiming it had no relevance to the trial of the instant case. The trial court agreed and granted the State’s motion, finding:

Based on what’s been presented to me, I find that the proposed subject matter of the examination, that there’s minimal, if any, relevance to the issue which this Court has been convened to try. And while they are matters that need attention in other arenas, it is not in the course of trying this case. I think, in addition, that whatever minimal relevance, if any, there is, is substantially outweighed by the prejudice that the entry into this area would involve, we’re going to try this case; not try other problems that may exist in the law enforcement arena of Forsyth County.

The jury convicted Johnson as charged, and he filed a motion for new trial raising, inter alia, the issue regarding Lancaster’s involvement in drug sales at the jail, as well as an alleged Brady violation. At the hearing on the motion, Johnson called the deputy who transported Lancaster to and from the jail during trial. The deputy testified that, mid-trial, he informed the prosecutor that Lancaster was the inmate who had been involved in selling drugs at the jail; he testified that the prosecutor instructed him not to tell defense counsel.

At the hearing, Johnson also called Lancaster to the stand. Lancaster testified in detail as to his participation in the drug smuggling scheme at the jail. Johnson, however, never stated that his trial testimony was in exchange for any “deal” with law enforcement; he never stated that his testimony was in anyway colored by “terror” of law enforcement; and he never stated that his testimony regarding Johnson’s participation in the armed robbery of the victim was in anyway untrue. Notably, defense counsel did not ask those questions or pursue such line of inquiry, although that was the basis for the proffer of Lancaster’s testimony during trial. Instead, the defense argued at the motion for new trial that neither Lancaster nor B. H. was prosecuted for drug activities at the jail because of a law enforcement effort to “cover up” the incident and that such evidence should have been admitted at trial as valuable impeachment evidence.

After hearing evidence and argument of counsel, the trial court reaffirmed its prior ruling and found that the drug sale evidence was irrelevant to the issues on trial. The court also found that, during trial, defense counsel learned far more about Lancaster and his involvement in the drug smuggling scheme than the prosecutor had and, thus, no evidence was “withheld” from him as contemplated by Brady. The trial court denied the motion for new trial. Held:

1. Evidence of Lancaster’s involvement in drug sales at the jail went before the jury. However, Johnson contends that the trial court erred in granting the State’s motion in limine as to further cross-examination on Lancaster’s involvement in the drug sales. Johnson contends that such ruling denied him a thorough and sifting cross-examination on material impeachment evidence. He claims, based on Davis v. Alaska, 415 U. S. 308, 316 (94 SC 1105, 39 LE2d 347) (1974), as interpreted in Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982), that such evidence was relevant to show the possibility of bias in favor of the prosecution, as well as Lancaster’s motivation for testifying, i.e., to curry favor with the prosecution. We disagree.

A criminal defendant has the right to cross-examine a witness concerning pending criminal charges against the witness in order to expose a witness’ motivation in testifying, e.g., bias, partiality, or agreement between the government and the witness. Davis v. Alaska, supra at 316-317; Hines v. State, supra at 259-260. At the same time, the extent of cross-examination is within the sound discretion of the trial court. Kennebrew v. State, 267 Ga. 400, 402-403 (3) (480 SE2d 1) (1996).

The bias ... of Davis v. Alaska, supra, must be specific to the case, arising from a self-interest or self-preservation motive that could be reasonably inferred to cause testimony to be shaded or distorted. ... [A] generalized attitude would not satisfy such interest of the witness, especially when such attitude arises after the fact. Absent such foundational facts such as a pending criminal charge about which the witness seeks assistance from the prosecution, there can be no cross-examination on such subject, because a dismissed charge or an old conviction could not be the basis of a motive to shade or distort testimony.

(Citation omitted.) Farley v. State, 225 Ga. App. 687, 690 (484 SE2d 711) (1997). Further, where an appellant fails to prove either that there had been a deal or that a witness has any hope of a deal, it is not error for the trial court to refuse to allow appellant to attempt to impeach the witness with impermissible character evidence. Wright v. State, 266 Ga. 887, 889 (471 SE2d 883) (1996); Mulkey v. State, 250 Ga. 444, 446 (298 SE2d 487) (1983).

(a) Here, it is uncontroverted that Lancaster has not been arrested for and has no pending charges related to drug sales at the jail. Absent pending charges, the jail scheme provides no basis by which “the partiality of [Lancaster] may be exposed by proof that he hopes to benefit in related cases from his cooperation with the prosecution in this case.” Kinsman v. State, 259 Ga. 89, 91 (376 SE2d 845) (1989). To allow defense counsel to cross-examine Lancaster on specific instances of bad conduct at the jail is a prohibited form of impeachment. OCGA § 24-9-84. “If appellant wished to impeach [Lancaster] with proof of [his] bad character, the introduction of evidence of specific acts was not the proper method of doing so.” (Citations and punctuation omitted.) Kennard v. State, 180 Ga. App. 522 (1) (349 SE2d 470) (1986).

(b) The evidence shows that many months before Lancaster became involved in drug sales at the jail, he decided to cooperate with the prosecution of this case and gave a detailed statement to the police regarding his and Johnson’s armed robbery of the victim. Lancaster’s trial testimony mirrored that statement without deviation. Thus, the substance of his trial testimony was not connected with the drug sales; it was established long before, and one did not “shade” the other.

(c) The jail scheme evidence was not relevant on the trial of the instant case. We agree with the trial court’s well-reasoned conclusion that defense counsel’s evidence showed egregious incidents of abuse at the jail. And by this opinion, we in no way intend to minimize the seriousness of such abuses. However, counsel failed to create a nexus between the jail scheme and this case so as to form a basis for impeaching Lancaster’s testimony regarding Johnson’s participation in the armed robbery. The drug sales evidence did not prove or disprove the substance of the charges against Johnson; such evidence did not demonstrate conviction of a crime of moral turpitude so as to impeach Lancaster; and such evidence did not demonstrate either (i) the feelings between Lancaster and Johnson or (ii) the possibility of an attempt by Lancaster to curry favor with the district attorney in relation to pending charges, so as to discredit his testimony through bias and/or prejudice.

In support of his contention, Johnson argues that (i) Lancaster was threatened with an increased amount of service time on his current sentence if he spoke to anyone about the jail scheme, and (ii) he received benefits in jail as long as he did not mention the jail scheme. However, his argument misses the point. Regardless of the validity of these assertions, there is no evidence of a nexus between such threats or benefits, which were allegedly given in exchange for silence about the jail scheme, and Lancaster’s testimony about Johnson and the armed robbery so as to impact on the truth of such testimony. And, in any event, Lancaster willingly told the Sheriff’s Department what happened at the jail; he volunteered to the jury that he had participated in illegal drug sales at the jail; he told defense counsel what happened at the jail; he told the transporting officer the name of the deputy who had helped him sell drugs at the jail; and he told the trial court on motion for new trial what happened at the jail. Lancaster’s obvious willingness to break his silence about the jail scheme negates the inference that prior threats or benefits might have influenced him in any way.

Evidence of Lancaster’s involvement in drug sales at the jail was before the jury. The trial court simply disallowed further testimony concerning it. Because such further evidence had neither exculpatory nor proper impeachment value, “we find that the trial court did not abuse its discretion by granting the State’s motion in limine.” Stewart v. State, 210 Ga. App. 474, 476 (6) (436 SE2d 679) (1993).

2. “A Brady violation does not exist where the information sought by the defendant becomes available at trial. [Cit.]” Jenkins v. State, 269 Ga. 282, 292 (18) (498 SE2d 502) (1998); Knight v. State, 271 Ga. 557, 560 (521 SE2d 819) (1999). Here, contrary to Johnson’s contentions, there was no Brady violation. The trial court correctly determined that the “evidence about which [Johnson] complains came out during trial, thereby rendering his Brady challenge merit-less.” Thomas v. State, 239 Ga. App. 460, 461 (2) (c) (521 SE2d 397) (1999).

Further, our decision in Division 1, supra, renders the instant enumeration of error meritless, since the evidence cannot meet the materiality prong of Brady. See Walker v. State, 264 Ga. 79, 80-81 (4) (440 SE2d 637) (1994); Smith v. State, 234 Ga. App. 586, 591 (506 SE2d 406) (1998).

Although reversal is not warranted, we find troubling the prosecutor’s conduct in specifically instructing the transporting deputy, “don’t tell Jim [defense counsel]” about Lancaster’s participation in drug sales at the jail. The prosecutor’s conduct may have had no more nefarious a motivation than desire to avoid the protracted arguments the issue ultimately engendered (and by such conduct, more weight may have been given to the issue than full disclosure would have caused). However, an appearance of impropriety exists here, and we specifically disapprove the prosecutor’s conduct.

3. Under Georgia law, Johnson may not be convicted on the uncorroborated testimony of Lancaster, an accomplice. OCGA § 24-4-8. Accordingly, Johnson challenges the sufficiency of the independent corroborating evidence introduced against him.

The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. The corroborating evidence may be circumstantial.

(Citations and punctuation omitted.) Short v. State, 234 Ga. App. 633, 635 (507 SE2d 514) (1998).

In this case, consistent with Lancaster’s testimony, Johnson’s sister-in-law, Virginia Blackwell, gave a statement to the police in which she stated that Lancaster and Johnson were very close to each other and were always together; she stated that, approximately a week before the robbery, Johnson helped Lancaster escape from the Hall County Diversion Center and they both came to stay with Blackwell and their half-brother, her husband Billy Blackwell. Virginia Blackwell stated that neither man held a job.

Blackwell also stated that Lancaster and Johnson had plans to be together on the night of the robbery, March 2,1997, and that Lancaster told her that “I’ve got to go. I’ve got to meet Jason [Johnson].” Blackwell stated that she went to the store at 7:00 p.m. and when she returned, Lancaster had gone to meet Johnson.

The victim testified that the robbery was committed by two men at approximately 10:00 p.m. on March 2, 1997. Blackwell stated that Lancaster and Jolmson returned to her house together at approximately 2:00 a.m., and Lancaster immediately paid Billy Blackwell $40 that he owed to him. At 6:30 a.m., when Virginia Blackwell awoke, she found Lancaster and Johnson asleep in her children’s bedroom.

In addition, Lancaster testified that he and Johnson split the money from the armed robbery of the victim and that Johnson had gone, shopping the next day with his sister, Felicia Johnson, and spent his share of the robbery money on clothes. Felicia Johnson confirmed that the day after the robbery, Johnson bought a pair of blue jeans, two shirts, and a pair of black Everlast tennis shoes. These items were recovered from Johnson’s brother’s house; their date of purchase was confirmed by the respective stores in which they were bought. Lancaster also stated that Johnson spent the robbery money on lunch with Felicia Johnson and on a haircut. Felicia Johnson confirmed that Johnson bought them lobster tail for lunch and had a haircut thereafter.

The evidence showed that several days later, Lancaster and Johnson were arrested together at Johnson’s mother’s house. Johnson had been asleep on the couch. When the police arrived at the residence, Johnson’s mother told them “she had not seen Jerry Lancaster in over a year; didn’t have any idea where he was.” Lancaster was hiding in the attic.

The sufficiency of the corroboration evidence is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient. The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime.

Decided May 3, 2000

Reconsideration dismissed May 22,2000.

James E. Hardy II, for appellant.

Philip C. Smith, District Attorney, Jennifer L. Pirrung, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Bradford v. State, 262 Ga. 512, 513 (421 SE2d 523) (1992).

In the present case, independent evidence (a) that Johnson helped Lancaster escape from the diversion center and they stayed together thereafter; (b) that the armed robbery was committed by two men; (c) that Johnson was with Lancaster immediately before the armed robbery and arrived at home with him after the armed robbery; (d) that following the armed robbery, the unemployed Johnson was in possession of money; and (e) that Johnson continued to stay with Lancaster up to their arrest provides sufficient independent corroborating evidence to uphold the jury’s determination that it was Johnson who aided Lancaster during the armed robbery of the victim in the instant case. Bradford v. State, supra; Edmond v. State, 267 Ga. 285, 287 (476 SE2d 731) (1996).

4. We have reviewed Johnson’s remaining enumeration of error and find it to be a restatement of the prior claims of error. Accordingly, we find it meritless.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       Lancaster is not before this Court.

        Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

       The prosecutor did not deny giving such instruction but asserted no recollection of the conversation with the deputy.

       To the extent that the instant enumeration of error also contains a claim under Giglio
        v. United States, 405 U. S. 150 (92 SC 763, 31 LE2d 104) (1972), that Lancaster received a “deal”/reduced sentence in exchange for his testimony against Johnson, such issue was explored on cross-examination. Lancaster testified that there was no deal. His trial testimony did not differ from his original statement to the police, given well before plea negotiations with the State. See McWhorter v. State, 271 Ga. 461, 462 (3) (519 SE2d 903) (1999). Further, Lancaster had already begun serving his sentence on the indictment at the time of Johnson’s trial, and the State could not resentence him thereon depending on the favorability of his testimony; this fact further undermines the notion that Lancaster’s sentence was contingent upon his trial testimony.

       At trial, Blackwell contradicted almost the entire statement she had previously given to the police. However, “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence.” Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982).

       Lancaster testified that, after the robbery, he and Johnson spent time running from the law and getting rid of evidence.

       The trial testimony of Felicia Johnson also contradicted much of the statement she had previously given to the police. But see footnote 5, supra.


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A00A0323.
    VEHAUN v. THE STATE.
    (534 SE2d 873)
   Barnes, Judge.

Charles M. Vehaun appeals his convictions of two counts of aggravated child molestation, two counts of child molestation, and two counts of cruelty to children. He contends the trial court erred by admitting evidence of his convictions of earlier sex crimes because those convictions were too remote in time, erred by permitting the prosecution to question him about whether he had been accused of rape in another state, and erred by failing to give a limiting instruction on the use to which the evidence about this allegation could be made. We disagree and affirm.

1. Relying upon Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) (1991), Vehaun’s first enumeration of error contends only that the trial court erred by admitting evidence of his earlier convictions for taking indecent liberties with a child in 1976 and for child molestation in 1975 because they were too remote in time. This enumeration is without merit. The time elapsed between Vehaun’s earlier convictions and his trial in April 1999 was less than the time of the similar crimes evidence that was excluded in Gilstrap. Id. at 799. Further, the time elapsed between the prior offenses and the current trial goes to the weight to be accorded the similar crime evidence and not its admissibility. Gibbins v. State, 229 Ga. App. 896, 899 (4) (495 SE2d 46) (1997). This evidence was not too remote in time to be admissible. Condra v. State, 238 Ga. App. 174, 175 (2) (518 SE2d 186) (1999); Ryan v. State, 226 Ga. App. 180, 181 (2) (486 SE2d 397) (1997).

2. Vehaun contends that the trial court erred by allowing the prosecution to impeach his testimony with questions about whether he fled another state and adopted another name because he had been accused of rape. Although he was found to be using an alias and had in his possession identification as Charles Vehaun and Steven Randall, Vehaun explained that he had adopted the Randall name to protect himself because of continuing problems he had in North Carolina with a girlfriend’s ex-husband. Subsequently, the prosecutor questioned him, over his objection, about whether he changed his name because the authorities in North Carolina were looking for him because he had been accused of rape in that state. Vehaun denied that he left North Carolina for this reason and denied that any such charge was made against him.

We find no error. A defendant, like any other witness, may be impeached “by disproving the facts testified to by him.” OCGA § 24-9-82. Here, the State was entitled to question Vehaun whether the reason he gave in his direct examination to explain changing his name and leaving North Carolina was untruthful. Smith v. State, 237 Ga. App. 582, 585 (4) (516 SE2d 92) (1999). Although Vehaun objected below that his reasons for leaving North Carolina have nothing “to do with this case” and argues on appeal that the trial court should not have allowed this method of impeachment because it concerned an immaterial matter, we find no merit to this argument. Vehaun introduced this area of inquiry by offering this reason for leaving North Carolina to explain having two sets of identification in his possession when he was arrested. Under the circumstances, we do not find that the trial court abused its discretion by allowing the State to question Vehaun on this subject.

3. Vehaun’s contention that the trial court erred by failing to give a limiting instruction after he was questioned regarding the rape allegation in North Carolina is also without merit. Immediately after the trial court denied his motion for a mistrial, upon Vehaun’s request, the trial court gave a limiting instruction. This instruction informed the jury that the questioning related to a matter that could be considered for impeachment only and not for any other purpose. This limiting instruction was repeated in the court’s charge to the jury at the conclusion of the trial. Under the circumstances, no factual support exists for the enumeration.

Decided May 22, 2000.

Donna L. Avans, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       Although not introduced in evidence, the prosecutor had evidence of the charge.


author: Phipps, Judge.

text:
    A00A0727.
    CHAMBERS v. THE STATE.
    (534 SE2d 879)
   Phipps, Judge.

Rafael Chambers appeals his conviction for aggravated assault. He asserts that the evidence was insufficient to support the verdict. We find that the evidence was sufficient and affirm his conviction.

Viewed in the light most favorable to the verdict, the evidence authorized the jury to find that the following occurred. In the early morning of May 31, 1998, Chambers, DeWayne Harrison and Thaxter Swindle went to a party also attended by William Smith. Smith was intoxicated from alcohol and drug consumption. Harrison approached Chambers and Swindle about robbing Smith. Next, Harrison borrowed a car from another person at the party, and he, Chambers and Swindle approached Smith and offered to “carry [him] to a freak.” The four of them left the party in the borrowed car, and, under the guise of locating a prostitute for Smith, Harrison drove to two trailer parks. At the second trailer park, Harrison parked, and he and Chambers got out and walked through a wooded area and behind an unoccupied trailer. From there, they called to Smith, “Here she is,” and told him to get out of the car. Swindle and Smith went to join Chambers and Harrison. Then one of the three repeatedly told Smith to “Give it up.” Smith did not give them anything and ran. Chambers, Harrison and Swindle caught him and again told him “to give it up.” As Smith hesitated and reached toward one of his attackers, one of them shot him in the stomach. Then they put a gun to Smith’s head and demanded his money. Smith finally handed over his wallet, and Chambers, Harrison and Swindle ran back to the car and drove away. Chambers received $40 of the money taken from Smith.

Chambers, Harrison and Swindle were jointly indicted for armed robbery and aggravated assault. Swindle pled guilty to a reduced charge of robbery by force and testified against Chambers and Harrison, who were tried together. The jury found Chambers and Harrison guilty of aggravated assault but could not reach a verdict on the armed robbery charge.

Chambers argues that the trial court erred in denying his motions for a directed verdict of acquittal and a new trial. Both motions were based on claims that the evidence was insufficient tó support a guilty verdict.

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. . . . [M]oreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

Chambers asserts that he was not a party to the crime of aggravated assault. Because he was intoxicated during the incident, Smith was not able to identify the person who shot him. Swindle testified that he and Chambers did not express assent to Harrison’s desire to rob Smith and that it was Harrison who shot Smith. Neither Chambers nor Harrison testified at trial, but a statement made by Chambers was introduced. In it, Chambers stated that he did not witness the shooting although he was at the trailer park.

Under OCGA § 16-2-20, “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” One is concerned in the commission of a crime if he “[fintentionally aids or abets in the commission of the crime.”

Decided May 22, 2000.

Alfred F. Zachry, for appellant.

Peter J. Skandalakis, District Attorney, Monique L. Fouque, Nigel R. Lush, Assistant District Attorneys, for appellee.

Viewed in the light most favorable to the jury’s verdict, we find that the evidence was sufficient to go to a jury and to authorize the jury’s finding of guilt of aggravated assault beyond a reasonable doubt. Chambers’s conduct before, during and after the offense authorized the jury to find that he was not only present when the crime was committed but also actively aided and abetted the commission of the crime. The trial court did not err in denying the motions for a directed verdict of acquittal and a new trial.

Judgment affirmed.

Johnson, C. J., and McMurray, Senior Appellate Judge, concur.

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

       OCGA § 16-2-20 (b) (3).

       See McWhorter v. State, 198 Ga. App. 493-494 (1) (402 SE2d 60) (1991).


author: Johnson, Chief Judge.

text:
    A00A0812.
    ANGLIN v. HARRIS et al.
    (534 SE2d 874)
   Johnson, Chief Judge.

Tracy Anglin filed a personal injury action against Larry Harris and his employer, Simbeck, Inc., on October 15, 1998, for injuries allegedly sustained on October 15, 1996, when the tractor-trailer Harris was driving collided with Anglin’s car. Harris and Simbeck, Inc. (collectively “Simbeck”), answered in November 1998, alleging that the accident actually occurred on October 14, 1996, and asserting that the two-year statute of limitation expired before the lawsuit was filed. In April 1999, Simbeck moved for summary judgment, which the trial court granted. Anglin appeals. We affirm.

1. Anglin contends that the trial court erred in granting summary judgment when a genuine issue of material fact exists as to the date on which the accident occurred. We disagree.

The date of the accident is material because, if the accident occurred on October 15,1996, the filing date of October 15,1998, falls within the limitation period; if the accident occurred on October 14, 1996, the suit is time-barred.

In support of its motion for summary judgment, Simbeck submitted a Newnan Hospital admission summary showing Anglin was admitted to the emergency room and treated for accident-related injuries on October 14, 1996. The summary includes an “ACCIDENT DATE” of October 14, 1996. Simbeck also submitted a bill from a radiologist showing a typewritten service date of October 14, 1996, a hospital radiology report showing the date of exam as October 14, 1996, and a hospital bill showing the same admission date. In addition, Simbeck relied on a hospital consent to treatment form signed by Anglin’s husband and a witness, on which the date “10-14-96” is handwritten three times. An emergency department medical record also shows a treatment date of October 14, 1996; the date appears in both typed and handwritten form. A typewritten emergency room note shows the date of visit as October 14, 1996.

Simbeck also presented the affidavit of the officer who arrived on the accident scene. In his affidavit, the officer states that the collision occurred on Monday, October 14, 1996, contrary to his erroneous entry on a written police report showing the incident occurred on Monday, October 15, 1996.

In opposition to Simbeck’s motion for summary judgment, Anglin relied on the written accident report as originally prepared by the police officer, in which he indicates that the accident occurred on Monday, October 15, 1996. Anglin also relies on her own affidavit and her deposition in which she states that she is “sure” the accident occurred on October 15, which she says was a Monday, Tuesday or Wednesday and that the medical records and the officer’s affidavit are all wrong.

When a moving party makes a prima facie showing that it is entitled to judgment as a matter of law, the opposing party must come forward with rebuttal evidence at that time or suffer judgment against her; the adverse party may not rest on mere allegations or denials, but her response must set forth specific facts showing there is a genuine issue for trial.

Simbeck met its burden of showing that the accident occurred on October 14, 1996. Anglin, on the other hand, failed to meet her burden of showing that it happened on October 15, 1996. Despite her conclusory statement that she is sure of the date, she equivocated on this issue. In her affidavit, she says the accident happened on October 15, then adds “I do not know if it was a Monday, Tuesday or Wednesday. But I do remember it being October 15, 1996. The calendar may show this to be Tuesday, but I do not agree.” On deposition, when asked why she insists that the accident occurred on October 15, she simply replies “That’s the date it was.” When asked what day of the week that was, she answers “I believe it was a Monday, Monday or Tuesday.” When told that the officer’s report indicates the accident happened on a Monday and asked whether she would dispute that, Anglin replies that she would not. And when asked “If it occurred on a Monday, would you concede that it occurred on October 14th, 1996?”, she responded ‘Yes, sir.”

Similarly, when asked on deposition why he maintains the accident occurred on October 15, 1996, Anglin’s husband states “It was just — It was the 15th.” The husband adds that his statement is based on the police report. When asked what day of the week that was, he replies, “Monday or Tuesday. Monday, I believe. Tuesday. It was the first of the week.” Her husband, therefore, was also unsure of when it happened. We note that he bases his date of October 15 solely on the police report, but the officer who authored it has since testified that the date he wrote on the report is incorrect.

Thus, Anglin’s own evidence is, at best, equivocal as to the day and date of the accident. The testimony of a respondent on summary judgment is to be construed against her where it is self-contradictory, vague, or equivocal. In light of this principle, and considering the unequivocal medical records showing October 14 as the accident date and taking judicial notice of the calendar indicating that the second Monday in October 1996 was the fourteenth, there is no genuine issue of material fact as to when the accident happened. “A shadowy semblance of an issue is not enough to defeat the motion for summary judgment.” The trial court correctly concluded that no genuine issue of material fact exists as to the date and that the applicable statute of limitation expired before the action was filed.

2. The only issue remaining for our consideration, therefore, is whether Anglin has presented evidence which would toll the statute. As she points out, the two-year statute of limitation provided by OCGA § 9-3-33 may be tolled where a plaintiff is mentally incompetent to handle her affairs. In order to survive Simbeck’s motion for summary judgment, Anglin was required to present some evidence of mental disability which would toll the statute of limitation. The test is whether she suffered from such unsoundness of mind or imbecility as to be incapable of managing the ordinary affairs of life.

In support of her position that she was mentally disabled for several days after the accident, Anglin relies on her own affidavit in which she states that she became upset and very depressed after the accident, primarily due to her concern about her 16-month-old daughter, who was in the car at the time the tractor-trailer struck their car but was not physically injured. We note that Anglin, who was admitted to the emergency room complaining of arm, head, neck, and back pain, was diagnosed as having no acute injuries and was discharged about an hour later in good condition.

In her deposition given in February 1999, Anglin testifies that starting the evening of the accident she “just laid in bed” but remarked that she did so because of neck and back pain. She states that she stayed in bed for the next few days as well as a result of the neck and back pain. She adds that she “was just totally out of it with the pain and everything that happened,” that she slept and “sometimes just laid there and hurt” When asked why she was “out of it,” Anglin responds “[bjecause of the pain being so severe.” She agrees that her husband suggested going to see a doctor during those first few days but that they mutually decided to wait several days to see how she was feeling. She further agrees that she was unable to take care of her children at that time as a result of the pain in her neck and back.

In an affidavit executed in May 1999 and filed in response to Simbeck’s motion for summary judgment, Anglin avers that she was delirious, confused, disoriented, and “in a daze” for three or four days after the accident. She says that she stayed in bed on the evening of the accident primarily because of her mental condition. Anglin says she was unable to take care of her children or perform any household chores and that she was worried and “completely out of it.” Anglin says she “could not understand what was going on” and “could not understand what [my husband] was relating to me.”

When asked if she was mentally incapacitated during this time, Anglin replies that she was “totally out of it. Didn’t know what was going on.” She avers that she sought no treatment for mental incapacity. She also states that she knew where she was and knew who her husband, sister, and children were, but that she was unable to handle her normal activities because of the pain in her neck and back.

In his deposition, Anglin’s husband states that on the evening after the accident Anglin became “[d]isoriented, really out of it.” He states that she stayed in bed for three days and was unable to do anything around the house. He says she was not speaking clearly and not making sense. As examples, he states that he would tell her to take a shower and she would reply that she did not need a shower. Or he would tell her to get out of bed, and she would remark that she was staying in bed. Or he would offer her food, and she would respond that nothing sounded good to eat. He adds that he was concerned about Anglin’s mental state but that he did not take her to a mental health professional because they had no means of paying for treatment.

In contrast, Simbeck has pointed to evidence indicating that Anglin was not mentally incapacitated after the accident. For example, Simbeck notes that Anglin was able to give an insurance adjuster a statement upon leaving the hospital after the accident and she was able to tell her husband the details of the collision on the same day. Simbeck also points to evidence suggesting that her inactivity during the days following the collision was due to physical pain rather than any mental incapacity and correctly points out that only mental, not physical, disability tolls the statute.

Anglin bore the burden of proving the mental incapacity which she alleges tolled the running of the statute. The evidence in this case does not establish a tolling of the statute.

This court recently decided a nearly identical case. In Walker v. Brannan, the plaintiff filed a personal injury action about two weeks beyond the limitation period. In her deposition, the plaintiff alleged physical injuries and made no mention of any mental incapacity. Then, after the defendant moved for summary judgment based on the running of the statute of limitation, the plaintiff filed an affidavit claiming she was mentally incapacitated for 20 days after the accident. In a whole court decision, we held that the plaintiff could not extend the statute of limitation by simply filing a belated and conclusory self-serving affidavit which contradicted the plain import of her deposition testimony. We agree with Walker and find it controlling here.

As the majority points out in Walker, OCGA § 9-3-90 serves the legitimate and laudable purpose of protecting those who are in fact legally incompetent due to mental illness or disability. At the same time, OCGA § 9-3-33 promotes the legitimate public policy goal of promoting justice and furthering the certainty of time limitations while preventing unfair surprise. The sort of physical pain and discomfort described by Anglin in the instant case, while perhaps very real, are not the mental incapacity contemplated by the tolling statute. Indeed, on deposition Anglin gives a rational explanation for staying in bed after the accident: her physical pain resulted in her not wanting or not being able to get up or do anything, and she and her husband decided to wait a few days to see if her physical condition improved before taking her to see a doctor about the pain. Like the plaintiff in Walker, Anglin does not support her position with any medical evidence. We note that the examples Anglin’s husband gave of Anglin “not making sense” actually indicate that she did understand what he was saying, was communicating well, and was making decisions during those critical first few days after the accident.

Decided May 22, 2000.

Charles E. Muskett, for appellant.

Carter & Ansley, Keith L. Lindsay, for appellees.

The determination of whether one is mentally incapacitated within the meaning of the tolling statute can be made by the trial court as a matter of law. The trial court was authorized to find that the evidence relied upon by Anglin does not demonstrate that she was mentally incompetent as required by the statute. Because the record presents no genuine issue of material fact as to Anglin’s mental competence, the grant of summary judgment was proper.

Judgment affirmed.

Phipps, J, and McMurray, Senior Appellate Judge, concur.

       See Davis v. DESA Intl., 209 Ga. App. 318 (433 SE2d 410) (1993) (personal injury action filed on second anniversary of injury not time-barred); Weems v. Munson Transp., 210 Ga. App. 766 (1) (437 SE2d 640) (1993) (action filed one day after second anniversary barred).

        Kem Mfg. Corp. v. Sant, 182 Ga. App. 135, 141 (5) (355 SE2d 437) (1987).

        Hickey v. Askren, 198 Ga. App. 718, 722 (4) (403 SE2d 225) (1991).

       (Citation and punctuation omitted.) Owen v. M & M Metro Supply, 198 Ga. App. 420, 422 (2) (401 SE2d 612) (1991).

       See OCGA §§ 9-3-90 (a); 9-3-91; Chapman v. Burks, 183 Ga. App. 103 (357 SE2d 832) (1987).

       See Woodward v. Sickles, 239 Ga. App. 505, 506 (521 SE2d 211) (1999).

        Jacobs v. Littleton, 241 Ga. App. 403, 406 (3) (b) (525 SE2d 433) (1999); Hickey, supra at 721 (4).

        Chapman, supra at 107 (2).

       See Jacobs, supra.

       243 Ga. App. 235 (533 SE2d 129) (2000).

       We also find it noteworthy that in both Walker and the instant case, the plaintiffs were represented by attorney Charles E. Muskett. In both cases, the statute of limitation expired days before the suit was filed. And in both cases, after the defendant raised the statute of limitation defense, the plaintiff testified that she suffered from mental incapacitation for a number of days after the accident. In fact, both plaintiffs said they were “delirious” and they either “were not aware of the goings on” or “could not understand what was going on.” Coincidentally, both plaintiffs were “out of it” just long enough to cover the amount of time by which the attorney missed the filing deadline. We also note that in this case, Anglin retained attorney Muskett on December 22, nearly 22 months before the statute expired. It is not clear how long Muskett had the case in Walker.

        Carter v. Glenn, 243 Ga. App. 544 (533 SE2d 109) (2000).

       See Jacobs, supra; Charter Peachford &c. v. Kohout, 233 Ga. App. 452, 460 (d) (504 SE2d 514) (1998) (physical precedent only); Whisnant v. Coots, 176 Ga. App. 724, 726 (337 SE2d 766) (1985).

       See Stone v. Radiology Svcs., 206 Ga. App. 851, 855 (3) (426 SE2d 663) (1992).


author: Blackburn, Presiding Judge.

text:
    A00A0976.
    REED v. THE STATE.
    (534 SE2d 871)
   Blackburn, Presiding Judge.

Following a jury trial, Anthony Bernard Reed appeals his conviction of possession of cocaine contending that the evidence was insufficient to support the verdict. For the reasons set forth below, we affirm.

[O]n appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. Conflicts in the testimony of the witnesses [are] a matter of credibility for the jury to resolve.

(Punctuation omitted.) Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in the light most favorable to the verdict, the evidence reveals that Reed was sitting in the passenger seat of a vehicle that was backed into a residential driveway. Three other individuals were also in the car. As the officer approached the vehicle, he saw Reed reach down to the floorboard of the car twice. The officer did not observe any other passenger in the vehicle reach down to the floorboard of the vehicle. After the officer asked to talk to the individuals in the car, Reed exited the vehicle with a small plastic bag containing marijuana in his hand. The officer looked inside the car and saw a small clear plastic bag containing crack cocaine on the right front floorboard of the car where Reed had been sitting. Reed also had a small brown cigar which had been used as a “blunt” to smoke marijuana. Reed admitted that the marijuana was his. The passenger who was sitting in the back seat behind Reed claimed ownership of the cocaine. That passenger testified that he had kicked the cocaine under the front seat as the officers arrived. The same passenger also testified that he pled guilty to possession of the cocaine in juvenile court.

[Reed] argues that mere presence in the vicinity of contraband, without more, does not establish possession, and there must be a showing of constructive possession by [Reed] other than mere spatial proximity. While we agree with those principles of law, they are inapplicable here. Possession may be joint or exclusive, and actual or constructive. Garvey v. State, 176 Ga. App. 268, 274 (6) (335 SE2d 640) (1985). Such evidence would authorize a finding that [Reed and the other passengers] had equal access to the cocaine and were in joint constructive possession of the drug. Id. By showing circumstantially that the [passengers] had equal access to the cocaine, the evidence established that [Reed and the other passengers] were parties to the crime, and thus, guilty of joint constructive possession of the cocaine. Brownlee v. State, 173 Ga. App. 138, 139 (1) (325 SE2d 815) (1984). Such evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, supra.

Decided May 22, 2000.

Harold M. Walker, Jr., for appellant.

Lydia J. Sartain, District Attorney, E. Paul Stanley, Assistant District Attorney, for appellee.

(Punctuation omitted.) Lowe v. State, 223 Ga. App. 172, 173 (477 SE2d 341) (1996).

In the present case, the cocaine was found on the floorboard of the front passenger seat, literally at Reed’s feet. The officer testified regarding Reed’s furtive movements and to the fact that the other passengers made no such movements. Furthermore, the jury is authorized to believe or disbelieve all or any part of the testimony of witnesses. Storey v. State, 205 Ga. App. 610, 611 (1) (422 SE2d 879) (1992). The evidence was sufficient to establish constructive joint possession. See Blaise v. State, 185 Ga. App. 653 (1) (365 SE2d 499) (1987). Evidence has been found sufficient where the drugs were both in the vicinity of and visible to the defendant. See Lowe v. State, 223 Ga. App. 172 (477 SE2d 341) (1996); Shropshire v. State, 201 Ga. App. 421 (411 SE2d 339) (1991); Chitwood v. State, 166 Ga. App. 62 (1) (303 SE2d 307) (1983).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A00A1050.
    SCHUCK v. BLUE CROSS & BLUE SHIELD OF GEORGIA, INC. et al.
    (534 SE2d 533)
   Eldridge, Judge.

Harvey E. Schuck, M.D., sued Blue Cross & Blue Shield of Georgia, Inc. and Atlanta Healthcare Partners, Inc. (“AHP”) for wrongful termination in his fourteenth month of employment after he had a heated argument with and said you are a “f-g liar” to Gordon Church, Vice-President and Local Market Manager/Atlanta of Blue Cross and President of AHP, when he was told that he would not receive a first-year bonus that he believed had been promised to him. The defendants contend that plaintiff was terminated for insubordination and misconduct and was, in any event, an at-will employee. Schuck disputes that the contract was an at-will employment for an indefinite period; he contends that the initial contract for one year was automatically renewed for a second year. The trial court granted summary judgment, because the employment subsequent to the first year was at will for an indefinite period of time. The initial documents show that the contract was clearly and unambiguously for a definite one-year period of time, thereby taking the contract of employment outside employment at will; however, the Georgia law of employment at will applied beyond the first year when there was only an indefinite period of time regarding the employment. OCGA § 34-7-1.

Plaintiff’s sole enumeration of error is that the trial court erred in granting summary judgment in finding that the employment contract, when read in its entirety from many documents, created an at-will employment status. We do not agree and affirm.

When all the possible documents that can possibly be construed to make up the employment contract are read together, the employment contract clearly specified a minimum initial one-year period to the employment contract to induce the plaintiff to come from Florida, which placed such minimum one-year employment outside employment at will for the first year only. See OCGA § 34-7-1; Ga. Power Co. v. Busbin, 242 Ga. 612, 613 (1) (250 SE2d 442) (1978); Meeks v. Pfizer, Inc., 166 Ga. App. 815, 816 (305 SE2d 497) (1983). However, where a definite minimum contract period has been established by the contract of employment, only such minimum employment period falls outside the employment at will, and any future contract period comes under the employment at will. Here, such documents also state that there is employment at will beyond the first year and, therefore, negate any presumed rollover of the one-year term of employment. See Wojcik v. Lewis, 204 Ga. App. 301, 303-304 (1) (419 SE2d 135) (1992). After such initial definite contract period, the contract became terminable at will, because the employment was for an indefinite period. Id. at 304; see also Marshall v. W. E. Marshall Co., 189 Ga. App. 510, 511 (1) (376 SE2d 393) (1988). Since the definite contract period of one year was only an inducement for that year alone, then it cannot be construed as the intent of the parties for this contract term to roll over in the next year with all of the expressions to the contrary regarding employment at will. Ikemiya v. Shibamoto America, 213 Ga. App. 271, 273 (1) (444 SE2d 351) (1994).

Plaintiff contends that construing all the documents together creates an ambiguity as to the intent regarding any term of employment beyond the initial fixed minimum term and that the ambiguity must be construed against the employer since it drafted the documents, so that a rollover of the one-year term occurs. See McLean v. Continental Wingate Co., 212 Ga. App. 356, 358 (1) (442 SE2d 276) (1994). The rule regarding construction of ambiguous contracts against the drafter applies to general contracts and also applies to employment contracts as to terms of compensation or terms other than the period of employment; however, since there was no ambiguity in the contracts, no such construction is necessary. Id. at 358. However, the public policy of Georgia is clear and unambiguous that, absent a definite term of employment, the contract is terminable at will and such definite term cannot be inferred, read in when absent, or supplied by a rule of construction when missing outside the statute, because “[t]here is no room for this exception in Georgia as this rule is statutory and the statute . . . does not encompass the exception.” (Citation omitted.) Goodroe v. Ga. Power Co., 148 Ga. App. 193, 194 (1) (251 SE2d 51) (1978); see OCGA § 34-7-1; Ikemiya v. Shibamoto America, supra at 273 (1); American Standard v. Jessee, 150 Ga. App. 663, 665 (1) (258 SE2d 240) (1979); cf. Empire Box v. Moore, 87 Ga. App. 57, 67 (73 SE2d 63) (1952) (nothing to show a contrary intention the term rolls over under the statutory language); Nat. Manufacture &c. Corp. v. Dekle, 48 Ga. App. 515 (173 SE 408) (1934).

Decided May 8, 2000

Reconsideration denied May 23, 2000.

Hurt, Levine & Papadakis, David N. Levine, Ralph J. Hiers, for appellant.

Ogletree, Deakins, Nash, Smoak & Stewart, Debra L. Dewar, Martha C. Perrin, for appellees.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A00A0898.
    BENNETT v. THE STATE.
    (534 SE2d 881)
   Eldridge, Judge.

Torey Joseph Bennett, Sr. appeals from his October 1999 battery conviction. He also challenges the trial court’s earlier denial of his motion for discharge and acquittal. Finding no error, we affirm.

Bennett was indicted on October 6, 1998, on two counts of cruelty to children. On October 21, 1998, Bennett’s attorney filed an entry of appearance and six motions. The first document was entitled “Entry of Appearance, Waiver of Arraignment, and Request for Jury Trial” and stated that “Defendant hereby waives formal arraignment, pleads not guilty, and requests a jury trial pursuant to OCGA § 17-7-170.” When Bennett was not tried during the July and November 1998 terms of the trial court, he moved for discharge and acquittal pursuant to OCGA § 17-7-170.

During the motion hearing, Bennett presented an affidavit from the trial court’s deputy clerk which showed that there were available jurors who were qualified and impaneled on October 21,1998, as well as during the November 1998 term of court. After hearing arguments, however, the trial court denied Bennett’s motion for discharge and acquittal, noting that the demand was legally insufficient and was presented in such a way that it appeared to be an attempt to find a “technicality with which to possibly get [Bennett] off.”

Following a jury trial, Bennett received a directed verdict on one count of cruelty to children and was convicted of the lesser included offense of battery on the other cruelty charge. This appeal followed. Held:

1. In his first enumeration of error, Bennett contends that the trial court erred in finding that his demand for speedy trial was insufficient to place the State on notice and, based upon such finding, in denying his motion for discharge and acquittal pursuant to OCGA § 17-7-170.

OCGA § 17-7-170 provides that when a person makes a demand for [speedy] trial he is entitled to be discharged and acquitted of the offense charged if he is not tried during the term in which his demand for trial is made or at the next succeeding regular term, and there were juries impaneled and qualified to try him at each of those terms.

(Citation and punctuation omitted; emphasis supplied.) Scott v. State, 206 Ga. App. 17 (424 SE2d 325) (1992).

In determining whether a defendant is entitled to the extreme relief of discharge and acquittal, the trial court must decide whether the defendant’s “demand, considering both its caption and its text, can reasonably be construed as a demand for a speedy trial under the provisions of OCGA § 17-7-170.” (Emphasis supplied.) Green v. State, 191 Ga. App. 873, 875 (383 SE2d 359) (1989). See also State v. Allen, 192 Ga. App. 730, 732 (2) (386 SE2d 394) (1989); Verscharen v. State, 188 Ga. App. 746 (374 SE2d 349) (1988); State v. Prestia, 183 Ga. App. 24 (1) (357 SE2d 829) (1987); Edwards v. State, 177 Ga. App. 557 (1) (340 SE2d 229) (1986); State v. Adamczyk, 162 Ga. App. 288, 289-290 (290 SE2d 149) (1982). This Court holds that the minimum acceptable standard for such demand requires that the defendant’s demand for trial be coupled with some other language that places the State on reasonable notice that a speedy trial under the sanctions of OCGA § 17-7-170 is being invoked, i.e., a reference to trial at the next term, reference to a “speedy trial,” use of the language of the Code, or reference to the Code section. Such minimum acceptable standard is exemplified in Green v. State, supra at 873-874, wherein the defendant’s motion included both a demand for trial and a reference to the speedy trial statute, OCGA § 17-7-170.

In contrast, Bennett’s motion in this case requested a jury trial and referenced OCGA § 17-7-170. A “request” is not a “demand.” See State v. Adamczyk, supra at 289. The use of the term “request” instead of “demand” cannot “reasonably be construed” to demand a speedy trial, because it is likely to mislead the State as to the true intention of the motion, as it clearly did in this case. Since Bennett’s motion failed to demand a trial pursuant to OCGA § 17-7-170, the motion failed to meet the minimum acceptable standard for asserting the defendant’s right to a speedy trial. See Green v. State, supra. The trial court did not err in denying his motion for discharge and acquittal.

2. In his second enumeration of error, Bennett contends that the trial court erred in charging the jury on the lesser included offense of battery. According to the trial court, the State requested such charge during an off-the-record charge conference. Bennett objected to the battery charge. Under OCGA § 16-1-6, a defendant may be convicted of an offense which is included in the crime for which he is indicted when:

(1) [the offense] is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) [the offense] differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person or a lesser kind of culpability suffices to establish its commission.

(Citation and punctuation omitted.) Fulton v. State, 232 Ga. App. 898-899 (503 SE2d 54) (1998). See also Stephens v. Hopper, 241 Ga. 596, 599-600 (247 SE2d 92) (1978).

[T]he lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. Thus, whether a lesser offense is included in a greater offense as a matter of fact must be determined on a case-by-case basis, depending upon the facts alleged in the indictment and the evidence presented at trial.

Decided May 23, 2000.

Turner & Willis, Brett D. Turner, Teresa O. Weiner, for appellant.

(Citations, punctuation and emphasis omitted.) Strickland v. State, 223 Ga. App. 772, 774 (479 SE2d 125) (1996). See also Haynes v. State, 249 Ga. 119, 120 (2) (288 SE2d 185) (1982).

Bennett had been indicted for cruelty to children under OCGA § 16-5-70 (b). The indictment read in part as follows: that Bennett “did unlawfully and maliciously cause [his minor child] excessive physical pain by hitting him on his back and buttocks with his hand causing bruising.” The jury was charged with the statutory language under OCGA § 16-5-70 (b). The jury was then given a charge on battery under OCGA § 16-5-23.1 (a), to wit:

[t]he definition of battery is that a person commits the offense of battery when that person intentionally causes substantial physical harm or visible bodily harm to another. The term “visible bodily harm” means bodily harm capable of being perceived by a person other than the alleged victim.

The evidence presented in this case was sufficient to authorize the jury to find that Bennett repeatedly struck his nine-year-old child on the back, buttocks, and legs with his hand, leaving several visible, handprint-shaped bruises. As such, battery was a lesser included offense of cruelty to children as a matter of fact under OCGA § 16-1-6 (1). “Where the evidence authorizes a charge on the lesser included offense, it is not error for the trial court to charge the jury on such lesser offense. [Cit.]” Fulton v. State, supra at 899. See also Rodriguez v. State, 211 Ga. App. 256, 257 (439 SE2d 510) (1993) (the trial court may sua sponte give a jury charge on a lesser included offense of that included in the indictment).

3. In his third enumeration, Bennett claims that, because battery is not a lesser included offense in this case, the jury was required to find him either (a) guilty of cruelty to children or (b) not guilty under parental discipline justification, OCGA § 16-3-20 (3). This argument is moot in light of our decision in Division 2, supra.

Judgment affirmed.

Blackburn, P. J, and Barnes, J., concur.

Lydia J. Sartain, District Attorney, Lisa A. Jones, Assistant District Attorney, for appellee.

       Under OCGA § 16-3-20 (3), a person’s conduct is justified as a defense to prosecution based upon such conduct “[w]hen the person’s conduct is the reasonable discipline of a minor by his parent or a person in loco parentis.”


text:
    A00A0983.
    GRANADOS v. THE STATE.
    (534 SE2d 886)
   Johnson, Chief Judge.

A jury found Miguel Granados guilty of sale of cocaine and trafficking in cocaine. Granados appeals from the convictions entered on the verdict, alleging (1) the evidence was insufficient to support his conviction for trafficking in cocaine, (2) the trial court erred in its charges to the jury, (3) the trial court erred in admitting his custodial statement, and (4) the trial court erred in allowing the investigator who obtained his statement to translate the statement at trial. Because each of these contentions is without merit, the convictions are affirmed.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that on August 14,1997, an undercover narcotics officer met with Granados. Granados spoke in English, discussed future cocaine sales, and gave the officer his telephone and pager numbers. On August 19, 1997, Granados agreed on the telephone to sell a half-ounce of cocaine to the officer for $500. The next day, Granados arrived at the designated location for the sale. He arrived in a car with co-defendant Tony Mendoza. Granados sold the undercover officer a half-ounce of cocaine for $500. He told the officer he could get more cocaine through a friend named Tony and gave the officer Mendoza’s pager number. Granados told the officer that the more the officer bought, the more money Granados would make.

The officer contacted Mendoza and arranged to buy one kilogram of cocaine from Mendoza for $25,000 on August 26, 1997. Although Granados was not involved in the negotiations for the sale of the kilogram of cocaine, the agreement could not have taken place without his assistance. When the officer arrived at the designated sale site, Granados and Mendoza drove up ánd got out of their car. The particulars of the drug deal were discussed. Mendoza wanted to go to a hotel room; the officer refused. It was agreed that Mendoza would go retrieve the cocaine while Granados waited with the officer. Five to ten minutes later Mendoza returned, his trunk was opened, and the officer examined the cocaine. At this point, a signal was given, and the surveillance team arrested Granados and Mendoza. Granados claims he did not know about the drug deal until Mendoza began talking to the officer.

Shortly after his arrest, Granados was interviewed in Spanish by an officer fluent in English and Spanish. Granados told the officer he was to receive $100 from Mendoza for his presence at the drug deal. He stated he did not know the quantity of drugs. The interview was recorded on audio and videotape. It was played for the jury and testified to by the officer who took the statement.

Under OCGA § 16-2-21, one who intentionally aids and abets in the commission of a crime is a party to the crime and may be convicted of the commission of the crime. Contrary to Granados’ trial testimony that he was merely present at the scene and did not know about the drug deal, his statement to police immediately following his arrest and his presence, conduct, and companionship with Mendoza before and during the offense are circumstances from which his aiding and abetting may be inferred. A jury could have reasonably concluded from the evidence that Granados was a party to the crime of trafficking in cocaine. Therefore, the evidence was sufficient to sustain Granados’ conviction under the standard established in Jackson v. Virginia.

2. The trial court did not err in charging the jury that “[a] 11 the witnesses did take an oath to speak the truth, and the witnesses are presumed to have spoken the truth.” This charge has been approved by the United States Supreme Court. Although this charge has been criticized as possibly being misleading, the charge is not unconstitutional and has not been found to constitute reversible error.

3. Granados contends the trial court erred in refusing to charge on conspiracy as a lesser included offense of trafficking in cocaine. However, contrary to Granados’ contention, the evidence introduced at trial established without dispute that the trafficking in cocaine offense had, in fact, been committed. While there may have been some dispute regarding Granados’ participation in the trafficking offense, there was no dispute that the offense occurred. Thus, a charge on the lesser included offense of conspiracy was not warranted: “The failure to charge on conspiracy under these circumstances is not error, because, if the crime has in fact been committed, the co-conspirators are guilty as parties to the commission of the crime under OCGA § 16-2-20.” This enumeration of error lacks merit.

4. The trial court properly admitted Granados’ custodial statement into evidence. At the pretrial Jackson-Denno hearing, an investigator testified concerning the circumstances surrounding Granados’ custodial statement. The investigator testified that he gave the required Miranda warnings in Spanish and that Granados stated he understood his rights. There was no evidence of any threats, violence, coercion, or promises made to induce the statement. Based on the totality of the evidence presented at the hearing, the trial court found that Granados made the statement freely and voluntarily. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. In the present case, the trial court’s findings were amply supported by the evidence.

Decided May 23, 2000.

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

5. Granados contends the trial court erred by allowing the investigator who obtained his custodial statement to translate that statement from Spanish to English for the jury. According to Granados, the investigator’s credibility was impermissibly bolstered when the court allowed the investigator, rather than a neutral interpreter, to translate the statement.

It appears from a review of the trial transcript that this is the first time Granados has raised this particular objection. His only objection at trial was based on his motion to exclude the statement because it was not freely and voluntarily given. In fact, during the Jackson-Denno hearing, the state played portions of the taped statement and asked the investigator to translate what was being stated on the tape. Granados did not object to the investigator’s translation and at one point agreed on how the investigator would translate one portion at trial. It is well settled that objections not raised at trial are waived. Granados cannot now complain on appeal that the trial court erred in allowing the investigator to translate the taped statement.

Judgment affirmed.

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

        Eason v. State, 234 Ga. App. 595, 597 (1) (507 SE2d 175) (1998).

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

        Cupp v. Naughten, 414 U. S. 141, 143-147 (94 SC 396, 38 LE2d 368) (1973).

        Noggle v. State, 256 Ga. 383, 385-386 (4) (349 SE2d 175) (1986); Frost v. State, 200 Ga. App. 267, 271 (5) (407 SE2d 765) (1991).

       See generally OCGA § 16-4-8.

       (Citation and punctuation omitted.) Byram v. State, 189 Ga. App. 627, 628 (3) (376 SE2d 909) (1988); see also Williams v. State, 191 Ga. App. 913, 915 (4) (383 SE2d 344) (1989).

        Gober v. State, 264 Ga. 226, 228 (2) (b) (443 SE2d 616) (1994).

       See Kight v. State, 242 Ga. App. 13, 18 (3) (500 SE2d 914) (2000); Allen v. State, 224 Ga. App. 324, 326 (5) (480 SE2d 328) (1997).


text:
    A00A1367.
    In the Interest of M. D. et al., children.
    (534 SE2d 889)
   Eldridge, Judge.

The mother appeals from the denial of her motion for new trial, which followed the October 1999 termination of her parental rights to one daughter and the determination that another daughter was deprived. Finding no error, we affirm.

The facts, viewed in the light most favorable to the State as appellee, are as follows: M. D. was born to the mother and her boyfriend in July 1997. The Fulton County Department of Family & Children Services (“DFACS”) removed M. D. from her parents’ custody shortly after birth, because they were homeless, unemployed, and unable to care for her. In addition, the hospital had reported to DFACS that the mother was schizophrenic. M. D. was adjudicated as deprived and placed in foster care. The mother did not appeal from the deprivation order or from subsequent renewals thereof.

DFACS created reunification plans for the parents and arranged for them to visit M. D., but the visits were sporadic. The parents often missed confirmed appointments to see M. D. and failed to make any significant progress on the case plans. In August 1998, DFACS filed a petition to terminate the parental rights of both the mother and the father.

The mother secured a public housing lease in February 1999, although the father admitted during the termination hearing that he is living there without authorization, potentially jeopardizing the mother’s lease. Shortly thereafter, in March 1999, the mother gave birth to K. K. D., also by the father of M. D. The Fulton County Juvenile Court immediately placed custody of K. K. D. with DFACS on the basis that the child was deprived.

On August 6, 1999, the Fulton County Juvenile Court conducted a hearing on DFACS’ termination/deprivation petition. During the hearing, the State presented the testimony of a clinical psychologist, Dr. Carolyn N. Johnson, who testified extensively about her opinions regarding the mental and emotional health of the mother and the father. See Division 2, infra. In addition to this testimony, Dr. Johnson also noted that a child who has been in foster care her whole life, such as M. D., is susceptible to “reactive attachment disorder.” This disorder results from a lack of permanency in a young child’s life and prevents her from forming emotional attachments with others.

The father testified in great detail about the mother’s mental condition and his role as caregiver, i.e., in ensuring that she takes her medication each day. The mother did not testify. After hearing the evidence, the trial court terminated the mother’s parental rights to M. D. It also found that K. K. D. was deprived and granted DFACS continued custody with the goal of eventual reunification of the child with her parents. The mother appeals from the trial court’s order. Held:

1. The mother contends that the trial court erred in allowing Dr. Johnson, an adolescent psychologist, to testify as to the possible effects schizophrenia may have on caring for children, because Dr. Johnson is not a psychiatrist. This enumeration appears to be an attack on Dr. Johnson’s alleged lack of experience.

When the State moved the trial court to accept Dr. Johnson as qualified as an expert in clinical psychology, the mother’s counsel subjected her to voir dire. Dr. Johnson,testified that she is an adolescent psychologist and reviewed her credentials. The trial court found that Dr. Johnson was an expert in clinical psychology. Dr. Johnson then testified for the State without objection.

As such, the mother “did not object to the court’s [explicit] acceptance of the witness as an expert, and thus failed to preserve this enumeration for appellate review.” (Citation and punctuation omitted.) Moss v. State, 216 Ga. App. 711, 712-713 (3) (455 SE2d 411) (1995). Further, the mother failed to cite any authority for this enumeration in her brief, so it is abandoned. Court of Appeals Rule 27 (c) (2).

2. In her second enumeration, the mother contends that the trial court erred in allowing the expert to testify that she suffered from schizophrenia, when such opinion allegedly was based upon hearsay. This enumeration lacks merit.

Dr. Johnson testified that she had performed psychological evaluations on the parents. The comprehensive report from this evaluation was admitted into evidence without objection. During this “in-depth assessment,” Dr. Johnson collected an extensive personal and family history from the mother; evaluated her mental status; and conducted several tests, including tests regarding intelligence, achievement, personality, and parenting skills. Her intelligence tests showed that the mother functions within the mild to moderate mentally retarded range. Other tests indicated that her parenting skills are impaired due to a post-traumatic stress disorder which, according to the mother, resulted from parental abuse during her childhood.

While interviewing the parents, Dr. Johnson collected information regarding the mother’s past diagnosis and current treatment for schizophrenia. The mother reported to Dr. Johnson that she “had heard voices in the past. It has not been for quite some time. She felt if she was not taking her medication they might come back.” Dr. Johnson observed the mother and opined that “her history of medications, previous hallucinatory experiences, restricted affect, and generally disheveled appearance suggest the presence of a major thought disorder.”

The father also gave Dr. Johnson much information about how the couple coped with the mother’s mental illness. The father reported that he was responsible for ensuring that the mother took her medication regularly; neither the mother nor the father, however, could name the medications the mother was supposed to take daily.

This anecdotal information was supplemented by the mother’s medical records, from which Dr. Johnson determined that her mental health problems may have begun as early as age ten in 1979 and that her first psychiatric hospitalization was in 1985. The medical records also indicated that the mother had received injections of Haldol in the past which, in Dr. Johnson’s opinion, indicated that she had not been compliant with taking her oral medication regularly.

Dr. Johnson also expressed concern about the mother’s self-reported inability to control her temper and her suicidal ideations. In conclusion, she opined that, “based on all the factors that go into her personality and her diagnostic makeup,” the mother would not be able to care for her children.

(a) As to the admissibility of Dr. Johnson’s opinion testimony, we note that throughout Dr. Johnson’s testimony, the mother failed to issue a single objection. “In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which the party might have had.” (Citations and punctuation omitted.) Ramey v. Leisure, 205 Ga. App. 128, 132 (421 SE2d 555) (1992).

(b) Further, in civil cases:

[e]ven when an expert’s testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but, rather, presents a . . . question as to the weight which should be assigned the opinion. The evidence should go to the [finder of fact] for whatever it’s worth. King v. Browning, 246 Ga. 46, 47 (1) (268 SE2d 653) (1980).

(Citations and punctuation omitted.) Roberts v. Baker, 265 Ga. 902, 903 (1) (463 SE2d 694) (1995). As such, there was no error in the trial court’s admission of Dr. Johnson’s testimony, particularly in light of the mother’s failure to object thereto.

3. In her third enumeration, the mother asserts that there was insufficient clear and convincing evidence that her mental illness is likely to continue or will not be remedied. See OCGA § 15-11-81 (a), (b) (4) (A) (iii). However, the mother’s contention misses the mark.

The trial court found that, in addition to raising concerns about the mother’s present and future mental and/or emotional health, the State carried its burden of presenting clear and convincing evidence of parental misconduct or inability by showing the following: that the mother had failed to cooperate with DFACS or to participate in the reunification case plan until six months after DFACS filed the termination petition; that she had been homeless until several months after DFACS filed its termination petition; that she had failed to contact M. D. on a regular basis since the child’s birth; and that she had never financially supported M. D. This evidence of past and present parental misconduct or inability may be considered by the trial court in determining whether deprivation is likely to continue in the future. In the Interest of T. B. R., 224 Ga. App. 470, 474 (1) (c) (480 SE2d 901) (1997). Further, although the mother’s recent efforts to bring some stability to her life are admirable, “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citations and punctuation omitted.) In the Interest of R. N., 224 Ga. App. 202, 205 (2) (480 SE2d 243) (1997).

Therefore, pretermitting the question of whether the evidence was sufficient to show that her mental illness was likely to continue, this Court finds that the totality of the evidence presented, viewed in the light most favorable to the appellee, was sufficient to meet the clear and convincing standard required to terminate the mother’s parental rights to M. D. See In the Interest of T. B. R., supra at 472. There was no error.

4. This Court also finds that the evidence presented supported the trial court’s determination that K. K. D. was deprived. See OCGA §§ 15-11-2 (8) (A); 15-11-41 (b).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

Decided May 23, 2000.

Derek M. Wright, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney Gerneral, Shalen A. Sgrosso, Laura W. Hyman, Assistant Attorneys General, Rubin, Winter, Rapoport & Hall, Robert E. Hall, Sanders B. Deen, for appellee.

        In the Interest of T. B. R., 224 Ga. App. 470, 472 (480 SE2d 901) (1997).

       The father’s parental rights are not at issue in this appeal.

       The difference between a clinical psychologist and a psychiatrist is not in training to diagnose and to use psychotherapy, but in medical training and the prescription of drugs. Both professions use the Diagnostic & Statistical Manual IV (DSMIV) for purposes of diagnosis and treatment. Both have hospital privileges. See OCGA §§ 31-7-160; 31-7-162.

       Where a statement is received as part of a medical diagnosis or treatment, such statement is not deemed hearsay. OCGA § 24-3-4; Southern R. Co. v. Lawson, 256 Ga. 798 (353 SE2d 491) (1987); Keri v. State, 179 Ga. App. 664, 665-667 (1) (347 SE2d 236) (1986); cf. In the Interest of A. S. M., 214 Ga. App. 668 (448 SE2d 703) (1994); Brown v. State, 206 Ga. App. 800 (427 SE2d 9) (1992).

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

       See OCGA § 15-11-81 (b) (4) (C) (iii) (statute requiring parent to “comply with a court ordered plan designed to reunite the child with the parent”).

       See OCGA § 15-11-81 (b) (4) (C) (i) (statute requiring that the parent “develop and maintain a parental bond with the child in a meaningful, supportive manner”).

       The expert testimony was that schizophrenia is pervasive and practically intractable and that medication only controls the symptoms, but does not always work or work effectively.


text:
    A00A0209.
    BLISS v. THE STATE.
    (535 SE2d 251)
   Phipps, Judge.

While on probation as a first offender, Joshua Bliss was convicted of misdemeanor possession of marijuana and driving with his license suspended. On the State’s petition, based on these misdemeanor convictions and applying dicta in Mohammed v. State, the trial court determined that it had no discretion in the matter and that it was obliged to adjudicate him guilty and sentence him as a felon. He appeals the trial court’s failure to exercise its discretion. We find that the trial court has discretion about whether to revoke Bliss’s first offender status and remand the case for the court to exercise that discretion.

In 1996, at the age of 19, Bliss and his friends made bombs out of plastic soda bottles and placed them around his neighborhood. The bombs did not explode, and no one was injured. Pursuant to plea negotiations, Bliss pled guilty to five counts of criminal possession of an explosive device. The court granted Bliss’s request for first offender treatment and sentenced him to five years on probation.

On separate occasions in 1998, Bliss violated his probation by committing the offenses of misdemeanor possession of marijuana and driving with a suspended license. At the hearing on the State’s petition for an adjudication of guilt and imposition of sentence in the first offender case, several family members and friends appeared on Bliss’s behalf. Bliss apologized to the court, acknowledged that his actions were wrong, and stated that he was ready to take responsibility for his actions. Believing that because of the decision in Mohammed, she had no discretion to do otherwise, the trial judge revoked Bliss’s first offender status, adjudicated him guilty, and sentenced him as a felon to five years on probation.

Decided May 24, 2000.

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

If a defendant is sentenced to probation as a first offender and violates the terms of his probation or is convicted for another crime during the period of probation, “the court may enter an adjudication of guilt and proceed as otherwise provided by law.” When construing a statute, the word “may” ordinarily denotes permission, but becomes a command if the word as used concerns the public interest or affects the rights of third persons. We must therefore determine if the trial court had discretion about how to respond to Bliss’s probation violations.

In Mohammed, we held that the trial court has discretion to continue a first offender on probation despite technical violations of the conditions of probation “without first revoking first offender status, entering an adjudication of guilt, and resentencing for the underlying offense.” In dicta, we stated that a trial judge has no discretion when a first offender violates probation by committing another crime and is required to revoke first offender status. We find that this statement is too broad because it fails to distinguish between the wide range of criminal offenses from the petty to the heinous and to allow for consideration of the peculiar facts and circumstances of each case. Therefore, we disapprove of Mohammed to the extent that it says that where there has been a conviction for another crime a trial court has no discretion and must revoke first offender status.

Depending on the severity of the crime committed and all the facts and circumstances of the case, the trial court has discretion to determine if it is appropriate to revoke first offender status, enter an adjudication of guilt, and resentence on the underlying offense. That determination should include a consideration of whether the offense concerns the public interest or affects the rights of third persons. We remand the case to allow the trial court to exercise that discretion.

Case remanded.

Johnson, C. J., Pope, P. J., Andrews, P. J., Blackburn, P. J., Smith, P. J., Ruffin, Eldridge, Barnes, Miller, Ellington, JJ., and McMurray, Senior Appellate Judge, concur.

Daniel J. Porter, District Attorney, James V. Branch, Assistant District Attorney, for appellee.

       226 Ga. App. 387 (486 SE2d 652) (1997).

       OCGA § 42-8-60 (b).

       OCGA § 1-3-3 (10).

        Mohammed, supra at 387-388.

       Id. at 389.


author: Andrews, Presiding Judge.

text:
    A00A0357.
    HUNTER v. CABE GROUP, INC.
    (535 SE2d 248)
   Andrews, Presiding Judge.

Tony Hunter, injured when he was attacked by another patron at Jeffrey’s Sports Bar & Grill (Jeffrey’s), appeals from the summary judgment entered in favor of Cabe Group, Inc., the owner of the facility, on his premises liability claim.

The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). Further, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

Clark v. Cauthen, 239 Ga. App. 226, 227 (1) (520 SE2d 477) (1999).

So viewed, the evidence was that Hunter and his wife went to Jeffrey’s on Thursday, December 4,1997, around 8:00 p.m. for dinner. They were joined by Mr. and Mrs. Wallace, Todd Nash, and Rusty (last name unknown), a friend of Nash. Hunter described Jeffrey’s, where he had been before, as “like an Applebee’s or a Chili’s or what have you.”

Jeffrey’s has a sports motif, and immediately behind Hunter’s table was a boxing ring containing several tables. At one of these tables were Parrish and his friend Benton, who arrived around 9:00 p.m. and were consuming a pitcher of beer. During dinner, Parrish went to the restroom and there encountered a mutual friend who told Parrish that Nash was in the restaurant. Although Parrish did not know Nash, he knew “of him” because Nash had previously dated the woman Parrish was then seeing. Parrish did not care for the way Nash had treated the woman previously. Parrish asked a man he did not know to ask Nash to come talk to him. Nash went to Parrish’s table, briefly spoke to Parrish, and then returned to his table where the rest of his party, including Hunter, were still eating.

Hunter recalled that Nash left Parrish’s table with Parrish following him and saying, “I’m not done talking to you.” Nash replied that he was not talking to Parrish anymore. Hunter described Parrish as irate, mad, and loud. Nash was attempting to sit down when Hunter walked up to Parrish and asked him to leave. As Hunter said, “the next thing I remember is just being pummeled.” Asked how long the incident took, Hunter said that “[f|rom the time I got up from the table, not even 15 seconds that I could remember when it started.” Hunter suffered a broken nose in the fracas, and all of them were asked to leave the restaurant by two male Jeffrey’s employees.

Jeffrey Cabe, whose company operated Jeffrey’s, testified that the sports bar opened in August 1997 and had a two-week training program for employees, including training them to watch how much alcohol a patron is served. Jeffrey’s draws a mixed crowd, including families, lawyers, doctors, and blue collar workers. On weekends and when a major event occurs, Jeffrey’s retains off-duty police officers, although there was no officer there the Thursday this incident occurred. Cabe was in the back when he heard the noise and went out front. He saw his employees dealing with the group and the group going out the front door. The police were called, but, in the short time it took them to arrive, the participants had left.

Hunter’s complaint alleged that Parrish was intoxicated and “approached the table where [he] was seated and began a verbal altercation with Todd Nash. . . . Suddenly, and without warning, Defendant Parrish began battering [him] by striking him about the face and head with his fist.”

A proprietor’s duty to invitees is to exercise ordinary care in keeping the premises and approaches safe. The proprietor is not the insurer of the invitee’s safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. If the proprietor has reason to anticipate a criminal act, he or she then has a duty to exercise ordinary care to guard against injury from dangerous characters. (Citations and punctuation omitted.) Lau’s Corp. v. Haskins, [supra]. See also Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507) (1995). In order to prove that the owner had advance notice of the danger of such an assault, evidence is admissible to show a pattern of prior substantially similar criminal assaults on the premises creating a known dangerous condition for which the proprietor may be held liable. (Punctuation omitted.) Hunter v. Rouse-Atlanta, Inc., 211 Ga. App. 131 (1) (438 SE2d 188) (1993). Accord Savannah College of Art &c. v. Roe, 261 Ga. 764 (409 SE2d 848) (1991) (Proprietor’s superior knowledge can be demonstrated by evidence of the occurrence of prior substantially similar incidents).

Decided May 24, 2000.

McKenney & Froelich, David M. Kupsky, for appellant.

Carr, Tabb & Pope, Eric N. Van De Water, Richard M. Bayus II, for appellee.

(Punctuation omitted.) Sailors v. Esmail Intl., 217 Ga. App. 811, 812 (1) (459 SE2d 465) (1995).

Although Hunter argues that the affidavit of Suwanee police official Miller provides evidence of similar incidents which should have put the defendant on notice, relying on Confetti Atlanta, Ltd. v. Gray, 202 Ga. App. 241 (414 SE2d 265) (1991), this argument fails. The affidavit does not fulfill the requirements of OCGA § 9-11-56 (e). It consists of hearsay based on review by Miller of documents which are referred to but not attached to the affidavit and therefore lacks any probative value. Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 707 (1) (505 SE2d 232) (1998). Even considering the hearsay contained therein, however, the affidavit fails to show any similarity to what occurred here in any of the three events referenced.

There is no evidence here of an escalating course of conduct between the assailant and the victim which was sufficient in itself to give notice to Jeffrey’s of the danger, as was present in Confetti, supra. Also, in Confetti, there was admissible evidence of numerous prior fights which had broken out in the club and parking lot.

Instead, this case is factually similar to and controlled by W. D. Enterprises v. Barton, 218 Ga. App. 857 (463 SE2d 529) (1995) and Knudson v. Lenny’s, Inc., 202 Ga. App. 85 (413 SE2d 258) (1991) (authored by Judge Cooper, who also authored Confetti, supra). Both those cases involved sudden and unprovoked attacks by one customer on another. That the attacker might have been loud, rowdy, and inebriated was not enough to put the proprietor on notice of an impending attack on another customer. W. D. Enterprises, supra.

Here, there was no evidence to show that Cabe or his employees were or should have been aware that Parrish would react as he did. Therefore, summary judgment for defendant was proper. Knudson, supra.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.