text:
    A01A1553.
    ST. ROMAINE v. THE STATE.
    (554 SE2d 505)
   Johnson, Presiding Judge.

In this case, Brian St. Romaine was indicted jointly with Tony Baugh for possession and sale of cocaine (Count 1) and individually for the same offense on a later date (Count 2). A jury found him guilty of Count 1 and not guilty of Count 2. On appeal, he contends that his motion for mistrial — based on the interjection of evidence of bad character — should have been granted, that his pre-trial motion to sever charges should have been granted and that the evidence was insufficient to support his conviction.

Viewed in the light most favorable to the verdict, the record shows the following facts. On April 9, 1998, in the course of a drug investigation, a Georgia Bureau of Investigation (GBI) agent and a confidential informant approached Baugh to purchase cocaine from him. After going into Baugh’s home, Baugh produced cocaine, but the agent stated that he wanted to purchase $200 worth and that the approximately seven pieces Baugh was showing him did not have an aggregate value of that amount. At that point all the parties went into a different room where they met St. Romaine and Baugh explained to him that the agent disagreed as to the value of the cocaine. Ultimately, the agent gave St. Romaine $160 in exchange for the cocaine, whereupon the agent and the confidential informant left the area. The GBI laboratory confirmed that the substance the agent had purchased was cocaine. The agent and the confidential informant both identified St. Romaine at trial as the person from whom the agent purchased the cocaine, and St. Romaine’s co-defendant (who pled guilty before the trial) identified him as the person for whom he was arranging drug sales and to whom he took the confidential informant to buy drugs.

On May 5, 1998, the confidential informant bought cocaine from St. Romaine, but, as noted, St. Romaine was found not guilty of possession and sale on this occasion where the only witness to the sale was the confidential informant.

1. St. Romaine’s first enumeration is that the trial court should have granted his motion for mistrial because, as his counsel stated at trial, in the course of cross-examining St. Romaine, “[the prosecutor] has introduced something . . . about [a plea of guilty by St. Romaine to misdemeanor possession of] marijuana.”

(a) St. Romaine’s motion was untimely, as he permitted seven questions to be asked on the subject of marijuana after it came up and then four more questions on cocaine before making his motion. An untimely motion for a mistrial waives the point.

(b) Even had the motion been timely, however, the trial court did not abuse its discretion in denying it. The cross-examination of St. Romaine that led up to St. Romaine’s admission, in response to the prosecutor’s questions, that he had, earlier in the month in which this case was being tried, pled guilty to misdemeanor possession of marijuana was as follows:

Q: And I take it you’ve never sold crack cocaine?
A: I never deal with any kind of drugs. . . .
Q: And what is your definition of drugs?
A: As in crack cocaine.
Q: Okay. . . . [Y]ou don’t deal with crack cocaine.
A: I don’t deal with crack cocaine. I don’t deal with marijuana. I don’t deal with no other sorts of drug in my life.

OCGA § 24-9-82 provides that “[a] witness may be impeached by disproving the facts testified to by him,” and that is all the prosecutor did in questioning St. Romaine about his marijuana plea after he had testified that he did not deal with marijuana or any other kind of drugs. It matters not that this questioning — and his resultant admission — reflected badly upon his character. Here, as in King, “[t]he prosecutor’s questioning of appellant regarding his prior conviction went no [further] than necessary to rebut appellant’s unsolicited denial of [dealing with any kind of drugs other than crack cocaine]

2. St. Romaine’s second enumeration is that his pre-trial motion to sever charges should have been granted. In Whitfield v. State we wrote:

[Wlhere multiple offenses have been joined [for trial] solely on the ground that they are of the same or similar character, the defendant has an absolute right to a severance of offenses. Where, however, joinder is based on [the same conduct or on] a series of acts connected together [and evince ongoing criminality], severance lies within the sound discretion of the trial court. Offenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind.

In this case, the facts show a continuing course of criminal conduct, namely St. Romaine’s activities in supplying cocaine for each transaction. Accordingly, the trial court did not abuse its discretion in denying the motion to sever.

3. St. Romaine’s final enumeration is that there was insufficient evidence to support his conviction. In reviewing such a claim, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. We address only the sufficiency of the evidence, and we do not weigh the evidence or determine the credibility of the witnesses. As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, the jury’s verdict will be upheld.

The necessary elements of the offense of possession and sale of cocaine are simply that a person possess and sell cocaine. Here, there was testimony by two eyewitnesses — the GBI agent and the confidential informant — as to both possession and sale by St. Romaine. Additionally, a GBI chemist testified that the substance bought by the GBI agent was cocaine. Accordingly, the evidence was sufficient to convict St. Romaine of the charge in Count 1 of the indictment.

Decided August 15, 2001.

Franklin & Hubbard, Brooks S. Franklin, Mary E. Lysak, Cynthia G. Morris, for appellant.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

        McCounly v. State, 191 Ga. App. 266, 269 (5) (381 SE2d 552) (1989).

        McKenye v. State, 247 Ga. App. 536, 538 (2) (544 SE2d 490) (2001) (the decision whether to grant a mistrial is within the sound discretion of the trial court, and the ruling will not be disturbed absent abuse).

       See King v. State, 203 Ga. App. 287, 289 (2) (416 SE2d 842) (1992); Height v. State, 214 Ga. App. 570-571 (1) (448 SE2d 726) (1994); Thrasher v. State, 204 Ga. App. 413-414 (1) (419 SE2d 516) (1992).

       217 Ga. App. 402 (457 SE2d 682) (1995).

       (Citations and punctuation omitted; emphasis in original.) Id. at 403 (1).

       Id.

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

        Kellibrew v. State, 239 Ga. App. 783 (1) (521 SE2d 921) (1999).

       Id.

       OCGA § 16-13-30 (a) (possession) and (b) (sale). Actually, possession is one offense, and sale is another; but Count 1 of the indictment charged St. Romaine with violating OCGA § 16-13-30 by having in his possession and selling cocaine.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A01A1581.
    STOVER v. THE STATE.
    (554 SE2d 221)
   Johnson, Presiding Judge.

After a jury trial, Thomas Stover was convicted of criminal trespass and acquitted of simple battery. He appeals from the conviction, contending that the state failed to prove venue beyond a reasonable doubt. We agree and reverse.

Venue is an essential element of a crime, and the state has the burden of proving venue beyond a reasonable doubt whenever a criminal defendant pleads not guilty.* In this case, Stover pled not guilty to both charges, thereby challenging all of the allegations contained in the accusations, including those pertaining to venue. Yet, as the state concedes, when the case was tried, venue was not proven. Therefore, the conviction must be reversed.

The state urges, however, that reversal is not warranted because Stover apparently changed his plea from not guilty to guilty when he admitted at trial that he was “guilty of kicking out the headlight” of the victim’s car (the act underlying the criminal trespass charge in the accusation). Stover’s admission during the trial, which came, incidentally, after the state rested, does not require that we affirm the judgment of conviction.

“[W]hen a criminal defendant pleads not guilty, he or she has challenged venue,” and the state is put on notice that it will be required to establish venue beyond a reasonable doubt at trial. And “because venue is challenged whenever a criminal defendant pleads not guilty,” a stipulation of fact or an admission during trial does not vitiate the state’s duty to prove venue beyond a reasonable doubt. In light of Stover’s not guilty plea, the state had a duty to prove venue, regardless of any admission Stover made during the trial.

Decided August 15, 2001.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

L. Jack Kirby, Solicitor-General, Julian A. Mack, Assistant Solicitor-General, for appellee.

The state also argues that its failure to prove venue is harmless error since Stover will likely be convicted upon retrial, given the fact that his in-court admission can be used against him in a new trial. First, we will not affirm Stover’s conviction based on the possibility that he may be found guilty after a second trial. Indeed, our appellate courts have reversed convictions and ordered new trials based on the state’s failure to prove venue, regardless of whether the evidence was otherwise sufficient to support the convictions.

Secondly, the state’s omission cannot be considered harmless. Venue is a jurisdictional matter and is an essential element in proving that a person is guilty of the crime charged. The state must come forth in all criminal prosecutions with evidence to show beyond a reasonable doubt that venue is properly laid; its failure to do so renders the verdict contrary to law and warrants reversal.

Judgment reversed.

Ruffin and Ellington, JJ., concur.

        Jones v. State, 272 Ga. 900, 902 (2) (537 SE2d 80) (2000); Bradley v. State, 272 Ga. 740, 741 (2) (533 SE2d 727) (2000).

       See Jones, supra; Bradley, supra.

        Jones, supra at 902-903 (2); Tunarka v. State, 247 Ga. App. 578, 579 (545 SE2d 15) (2001).

       (Citation omitted; emphasis in original.) Chandler v. State, 248 Ga. App. 154, 155 (546 SE2d 296) (2001).

       See Jones, supra at 904 (4) (holding that a failure to properly establish venue does not bar retrial, since evidence of venue does not go to the guilt or innocence of the accused and so does not invoke double jeopardy concerns).

       See id. at 901-902 (1), (2) (evidence was sufficient to support conviction, but judgment reversed based on absence of proof of venue); Bradley, supra at 741 (1), (2) (evidence was sufficient to support verdict, but lack of proof of venue demands reversal); Chandler, supra at 156 (issue of evidence sufficiency is moot where venue was not proven).

        Jones, supra at 901 (2).

       Id. at 903 (2).

       Id. at 901-902 (2).


author: Eldridge, Judge.

text:
    A01A1008.
    WALKER v. THE STATE.
    (553 SE2d 319)
   Eldridge, Judge.

A Clarke County jury found Derrick Walker guilty of armed robbery, four counts of aggravated assault, and kidnapping, which charges arose from acts Walker perpetrated at the TJ Maxx store on Huntington Road in Athens. He appeals, claiming four alleged errors of law require reversal of his convictions. Upon review, we affirm as to all counts, except the separate judgment of conviction and sentence under Count 6 of the indictment are vacated.

1. Walker first contends that “[t]he superior court erred when it permitted counsel for the State to communicate directly with a juror during jury deliberations by asking her a question.” This contention is meritless.

During jury deliberations, one juror expressed doubt about her ability to continue deliberating, “[b]ecause I feel that I cannot fulfill the duties of a juror right now.” The trial court questioned the juror and permitted both the defense and the State to ask questions. The defense declined the offer, and the State asked the juror if anyone had attempted to contact her about the case. The juror answered in the negative and otherwise failed to provide a legal reason for dismissal. The juror was returned to the jury room, and the defense objected to the prosecutor’s question, providing no basis for such objection other than “I think that you have no choice. She disagrees with the other jurors or some of the jurors, that’s not — that’s exactly what the 11th Circuit ruled.” The defense objection to further service by the juror was overruled. No additional comments, objections, or motions were made with regard thereto, including at the motion for new trial.

OCGA § 15-12-172 authorizes the trial court to exercise its discretion with regard to excusing a juror from the panel. Such discretion is not abused by giving both parties an opportunity to voir dire a juror as to his or her reasons for wanting to be excused. Before this Court, Walker claims that the prosecutor’s question “insinuated that Walker was the sort of person who would tamper with a jury.” However, this claim was not raised in the court below, and the question on its face makes no such insinuation. Moreover, Walker did not ask for mistrial or request any other form of relief. We generally will not grant more appellate relief than that actually prayed for at trial. We decline to do so here.

2. In his next enumeration of error, Walker challenges the trial court’s refusal to charge the jury on four lesser included offenses: robbery by intimidation, theft by taking, simple assault, and pointing a pistol at another. This challenge is meritless.

The State’s evidence showed that Walker approached two employees of TJ Maxx, Ameer Sattar and Natalie Price, as they were preparing to open the store on the morning of October 14, 1998. He asked them if they had change so that he could buy a newspaper. They replied in the negative and moved toward the store to unlock the outer door. Thereafter, Walker came up behind them and pointed a gun at the two. He ordered them to unlock the inner door to the store. He then ordered them to “run” to turn off the alarm system, which was located in the “cash room.” Walker then ordered Sattar to open the safe. Walker tied both employees up with shoestring and put the money from the safe into a trash can. As he attempted to leave the store with the money, another employee, Jon Weaver, who was “running ten minutes late,” arrived. Walker placed the gun against Weaver’s head, forced him to another area of the store, and tied him up. During this time, the employees in the cash room had gotten free of their bonds and had called 911. The police arrived while Walker was still in the store, and he was arrested. A pistol was found on a shelf in the store a foot from the arrest location; the weapon was fully loaded with a round in the chamber. The money was recovered from a trash can that had been placed in a shopping cart located between the clothing aisles.

The defense consisted solely of Walker’s testimony. Therein, he admitted that he robbed the TJ Maxx. He testified that the robbery was the result of his heroin addiction: “I don’t know why I robbed the store. I was just high, man.” He testified that he had been carrying the pistol since the night before when he had been “hanging out” at the Latin Quarter, a nightclub in Athens: “I had the pistol with me on that particular day, that morning, that particular night.” Walker also testified that he got angry because the TJ Maxx employees had refused to give him change in order to buy a newspaper: “I had a five dollar bill. I asked them for some change. They said they didn’t have it. I patted on my pockets again for some change and again I looked back I seen them inside the store and I just — it was more or less, I guess, a personal thing. They didn’t give me no change and I just got mad, just ran over into the store.” Walker testified that he pointed the pistol at the employees: “[Prosecutor:] You had a gun, you pointed it at them; correct? [Walker:] Yes, I did.”

Walker’s sole defense was that he was high on heroin and could not form the requisite intent to commit the crimes as charged:

I was so high, man, I didn’t know if I was flying or coming or what, man. I was high. I was out of it. Heroin is a downer. . . . Man, I was — man, I was high as the sky somewhere, man. . . . Everything that happened in that store I didn’t even know what happened until I heard the witnesses’ testimony yesterday, sir. I did not know what happened until I heard they testimony yesterday. . . . That’s why I went and took it to a jury, to let the people decide. I’m not going to sit here, sir, and tell you that I went in that store to rob no store and do something like that. I was high. I don’t know what I was doing.

In the presentation of this defense, Walker admitted that “I think it might have pretty much happened the way the [State’s] witnesses yesterday described, that’s probably about the best recollection of the situation.”

(a) We find no error in the trial court’s refusal to give jury charges on robbery by intimidation, theft by taking, simple assault, or pointing a pistol at another. Walker was not entitled to such charges because the evidence established without dispute the commission of the greater offenses as charged. Walker admitted that he pointed the pistol at the employees; that thereafter he robbed the TJ Maxx; that he used the pistol in the furtherance thereof; and that the State’s witnesses were correct in their version of events. Such evidence established the commission of the offenses as charged or no offense at all, because Walker was allegedly unable to form the requisite intent due to heroin ingestion.

(b) Notably, Walker’s alleged inability to form the necessary sci-enter because he was too “high” would apply to the lesser included offenses, as well — each of which requires the intent to commit a theft or to do the prohibited act, itself. Walker, however, claimed he had no idea what he was doing at any point in time; he was “cuckoo over his head in dope, high out of his mind, don’t know what he’s doing.” For this reason, as well as the reasons stated above, we also find as meritless Walker’s separately enumerated error that he was entitled to a jury charge on the lesser included offense of false imprisonment for the act of placing a pistol against Weaver’s head, forcing him to walk to another part of the store, and thereafter tying him up.

3. Walker was convicted and sentenced, inter alia, for armed robbery; aggravated assault/deadly weapon on Sattar; aggravated assault/deadly weapon on Price; and aggravated assault/intent to rob on Price. He contends the aggravated assault convictions should have merged with the armed robbery conviction. Under the facts of this case, we agree only in part.

Aggravated assault does not merge with armed robbery as a matter of law, although it may do so as a matter of fact. Simplistically, the inquiry is whether the facts of one offense are “used up” while proving the elements of the other offense.

(a) Here, Walker was convicted and sentenced on two counts of aggravated assault/deadly weapon for placing both Sattar and Price “in reasonable apprehension of immediately receiving a violent injury” by pointing a deadly weapon at them.* He did so when he approached them outside the TJ Maxx store. Walker testified that he pointed the pistol at the two employees, not because he needed money or intended to rob the store, but because he was angry that they would not give him change for a $5 bill so he could buy a newspaper: “it was a personal thing.” The aggravated assault was completed at that time. It was thereafter that Walker entered the store and used the gun to order Sattar and Price to turn the alarm off. And it was only thereafter that the intent to rob manifested when Walker pointed the gun at Sattar and ordered him to open the store safe: “I’m not going to sit here, sir, and tell you that I went in that store to rob no store and do something like that. I was high. I don’t know what I was doing.” Accordingly, there are sufficient facts of record to support the aggravated assault/deadly weapon convictions independent of the armed robbery conviction. Since the aggravated assault/deadly weapon offenses were complete prior to the use of the gun to rob the store, one offense is not “used up” in proving the other.

Decided August 1, 2001

Reconsideration denied August 16, 2001

Cook, Noell, Tolley, Bates & Michael, Edward D. Tolley, Ronald E. Houser, for appellant.

Kenneth W. Mauldin, District Attorney, Phillip C. Griffeth, Daniel E Piar, Assistant District Attorneys, for appellee.

(b) The same cannot be said of Walker’s separate conviction for aggravated assault/intent to rob on Price. The same acts proved both the armed robbery and the aggravated assault/intent to rob as a matter of fact. Walker’s conviction thereon should have merged with the armed robbery conviction, just as the trial court merged into the armed robbery conviction Walker’s separate conviction for aggravated assault/intent to rob on Sattar. Accordingly, we vacate Walker’s separate judgment of conviction and sentence under Count 6 of the indictment for aggravated assault/intent to rob on Price.

4. Our holding in Division 2 (b) is dispositive of Walker’s enumeration of error no. 4.

Judgment affirmed as to all counts except Count 6, which judgment of conviction and sentence are vacated.

Andrews, P. J., and Miller, J., concur.

       On appeal, no Eleventh Circuit case has been cited to this Court with regard to any issue.

        Baptiste v. State, 190 Ga. App. 451, 453 (2) (379 SE2d 165) (1989).

       See, e.g., Pennie v. State, 271 Ga. 419, 421 (520 SE2d 448) (1999) (trial court offered defense and prosecutor opportunity to participate in OCGA § 15-12-172 inquiry).

        Morrill v. State, 216 Ga. App. 468, 474 (454 SE2d 796) (1995).

       Before this Court, Walker argues that the trial court “abruptly stopped Walker’s trial counsel before he had the opportunity to move for mistrial or any other remedy.” We find this assertion more than a little disingenuous given what the record reveals as the unusually contentious behavior of Walker’s trial counsel, who hesitated not at all in moving for everything from the judge’s recusal for an alleged ex parte communication, which turned out to have no basis in fact (“[Defense counsel:] I’m going to put you on the witness stand, I’ll call you as a witness, Your Honor”), to a continuance based on unsubstantiated allegations about the State’s case (“[Defense counsel:] They’re doing things that I think are highly unethical and illegal actually by running jail house snitches in there and then getting letters that he writes and using them in this.”). The record amply demonstrates trial counsel’s ability to fashion opportunities to make known his positions on the issues.

       See Tew v. State, 246 Ga. App. 270, 274 (5) (539 SE2d 579) (2000); Espinoza v. State, 243 Ga. App. 665, 667 (534 SE2d 127) (2000); Thomas v. State, 226 Ga. App. 441, 444 (8) (487 SE2d 75) (1997); Comley v. State, 218 Ga. App. 520, 521 (2) (462 SE2d 432) (1995).

       OCGA §§ 16-5-20; 16-8-2; 16-8-41 (a); 16-11-102.

        Rooks v. State, 238 Ga. App. 177, 179 (2) (518 SE2d 179) (1999).

       See, e.g., Brown v. State, 246 Ga. App. 60, 63-64 (539 SE2d 545) (2000); OCGA § 16-1-7 (a) (1).

       OCGA § 16-5-20 (a) (2).

       OCGA § 16-5-21 (a) (2).

        McCulley v. State, 273 Ga. 40, 43 (3) (b) (537 SE2d 340) (2000).

        Kelly v. State, 188 Ga. App. 362, 363 (3) (373 SE2d 63) (1988).


text:
    A01A1398.
    VAUGHAN v. THE STATE.
    (553 SE2d 335)
   Eldridge, Judge.

A Cobb County jury found Danny James Vaughan guilty of sale of cocaine, which charge arose when Vaughan and two companions sold such drug to undercover narcotics agents outside a boarding house located at 96 Rigby Drive, Marietta. He appeals, challenging (1) the admissibility of testimony from undercover officers regarding the manner in which street-level sellers of narcotics operate, and (2) the admission of Vaughan’s prior conviction for possession of cocaine as a similar transaction. After consideration of the errors as enumerated, we affirm.

1. Vaughan first claims error in the trial court’s admission of testimony from undercover officers that: (a) marked money used to facilitate undercover sales is recovered only twenty percent of the time, and (b) sellers of narcotics on the street usually operate in three-person units. We find no error in the admission of this testimony.

(a) Vaughan failed to object to the testimony regarding the percentage of time in which marked funds are recovered after the arrest of street sellers. “Reversal of the trial court is not authorized on the basis of an evidentiary ruling that the trial court was never called upon to make. Likewise, in the absence of a specific objection below, it was waived.”

(b) Vaughan objected on the basis of “speculation” to undercover officer T. Rose’s testimony about the operation of street dealers in three-person units. Defense counsel contended that Rose only bought drugs undercover and that she was not “seasoned as a seller. . . . [S]he has zero experience from that end of the transaction.” In response, the prosecutor qualified Rose as an expert in street-level drug transactions.

Thereafter, Rose again attempted to testify that street sellers work in three-person groups, but defense counsel objected again, this time based on relevancy: “I mean, we’re dealing with this transaction on this night. . . . It’s not relevant.” The trial court overruled the relevancy objection. Rose then testified that, from her experience, three people usually work as a unit in street-level drug sales; she identified these people as the runner, who approaches the buyers; the supplier, who holds the drugs; and the money person, who holds the money and who “leaves the scene as soon as the transaction is made, so that if there are any marked funds involved, then they’re not found out at all.”

Such evidence was relevant because it was descriptive of the pattern of events that transpired in the instant case. Here, the undercover officers approached three men who were together at a known drug sale location. Vaughan was the person who approached the undercover officers’ car. After Vaughan took the request for “twenty of hard,” the second nearby male, Read, yelled out that “I only have forties.” Vaughan then went to Read, who handed him the drugs, which Vaughan in turn handed to the officers. In exchange for the drugs, the officers gave two marked $20 bills to Vaughan. While driving off, the officers called immediately for a take-down team to execute the arrests. Within a minute, Vaughan and Read were arrested at the scene of the sale, while the third man with them was not found; neither were the marked bills, which were not recovered on either Vaughan or Read. Thus, Rose’s expert testimony regarding the operations of street-level narcotic sellers as applied to the facts of the instant case led to the reasonable inference that Vaughan was the runner; Read was the supplier; and the man who was not arrested was holding the marked money. Such expert testimony about narcotic sales was “beyond the ken” of the average juror and was applicable to the facts of the instant case. “Therefore, the testimony was properly admissible under OCGA § 24-9-67.”

2. Evidence of Vaughan’s prior 1997 conviction for possession of cocaine was admitted as a similar transaction in this sale case. He challenges this admission.

The 1997 charge arose when, approximately a mile from the location in the instant case, a crack-pipe with cocaine residue was found in Vaughan’s pocket as a result of a consensual pat-down search. The State argued at the Uniform Superior Court Rule 31.3 (B) hearing that such evidence showed Vaughan’s motive for being the runner at 96 Rigby Drive, i.e., that he was a “user” (apparently typified by the crack pipe) who was acting as the middle man in the instant drug sale in order to obtain money to “facilitate a drug use” of his own. Later, the State claimed that the 1997 incident was admissible to demonstrate “identity”’ with regard to the instant offense.

While possession of drugs can be admissible as a similar transaction in a subsequent prosecution for sale of drugs, the prior possession must be under factually similar circumstances so as to demonstrate a proper purpose for admission, such as identity or motive: “It is the factual similarity of the defendant’s possession of drags on different occasions which renders it admissible . . . and the differing intent with which he may have possessed the drugs on those separate occasions is not a bar to its admissibility for that limited purpose.” Here, however, there is absolutely no evidence in the record of Vaughan’s “motive” for engaging in the instant sale of cocaine to the undercover officers. On its face, Vaughan’s prior possession of a crack pipe three years earlier has no factual connection with the instant sale case so as to demonstrate a motive therefor; the State’s argument with regard thereto is pure speculation without a basis in fact. Also, nothing about the facts of the three-year-old similar transaction establish a link or connection between Vaughan’s previous possession of a crack pipe and the sale of cocaine in the instant case so as to demonstrate his “identity” as the perpetrator of the sale. Accordingly, we can discern no proper purpose for the admission in this sale case of Vaughan’s prior possession of a crack pipe with cocaine residue.

Nonetheless, we will not reverse on this basis. “[T]he erroneous admission of similar transaction evidence may be harmless if there is such overwhelming evidence of the defendant’s guilt that it is highly probable that the error did not contribute to the guilty verdict.”

Decided August 1, 2001

Reconsideration denied August 16, 2001.

David Markus, for appellant.

In the case before us, the evidence of Vaughan’s guilt was indeed overwhelming. After observing him in lit conditions from close range, two undercover officers positively identified Vaughan as the man who approached their car at 96 Rigby Drive and sold them cocaine in exchange for marked funds. Vaughan and one of his companions, Read, were arrested thirty seconds after the sale in precisely the same location, and Read pled guilty to his part in the offense. The physical description the undercover officers gave to the take-down team matched Vaughan, including the fact that he was wearing a red shirt and a black knit cap, which cap was recovered from Vaughan’s pocket.

Also, Vaughan did not testify and offered no evidence in defense of the instant charge; instead, he called into question the officers’ in-court identification of him, because one officer put in his police report that Vaughan was wearing a red “jacket” on the evening in question, when he was in fact wearing a red shirt.

Finally, the trial court instructed the jury to consider the similar transaction evidence only to the extent that such evidence demonstrated identity or bent of mind with regard to the case on trial, which it clearly, clearly did not since the two incidents were so factually unrelated. “Qualified jurors under oath are presumed to follow the instructions of the trial court.”

In light of the overwhelming evidence of Vaughan’s guilt, including eyewitness testimony regarding his sale of cocaine to undercover police officers, as well as the lack of a viable defense, we find it highly probable the admission of evidence that Vaughan was in possession of a crack pipe three years prior to the instant prosecution did not contribute to the jury’s verdict finding him guilty of selling cocaine to undercover officers.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Patrick H. Head, District Attorney, Amelia G. Pray, Samuel W. Lengen, Assistant District Attorneys, for appellee.

       (Citations and punctuation omitted.) Terry v. State, 224 Ga. App. 157, 160 (2) (480 SE2d 193) (1996).

        Davis v. State, 200 Ga. App. 44, 46 (2) (406 SE2d 555) (1991).

        Faison v. State, 199 Ga. App. 447, 449 (1) (405 SE2d 277) (1991).

        Moore v. State, 242 Ga. App. 249, 250 (1) (a) (529 SE2d 381) (2000).

       See Tanner v. State, 243 Ga. App. 640, 643 (533 SE2d 794) (2000).

       See Garcia v. State, 267 Ga. 257, 259 (7) (477 SE2d 112) (1996).

        Gentry v. State, 212 Ga. App. 79, 83 (4) (441 SE2d 249) (1994).

        Johnson v. State, 233 Ga. App. 301, 305 (504 SE2d 8) (1998).


text:
    A01A1695.
    MILLER v. KITCHENS et al.
    (553 SE2d 300)
   Eldridge, Judge.

On December 6, 1999, John Nathan Miller, plaintiff, sued Dr. Stephen F. Kitchens and his partnership, Coastal Surgeons, Ltd., for malpractice prior to and during an operation on October 2, 1997, to repair a hiatal hernia with gastroesophageal reflux. In his complaint, Miller alleged that Kitchens proceeded with surgery before attempting medical therapy; failed to assess pulmonary function in relation to the risk of surgery; failed to make any attempt to reduce the risk of surgery; failed to switch to an open procedure during surgery after technical difficulties caused some delay in finishing the operation; failed to close ports cut in the diaphragm by sutures, placing a stitch inadvertently into his stomach; failed to determine the situs of unknown bleeding prior to concluding surgery; left a blunt needle in his stomach; failed to determine the plaintiff’s respiratory status; and caused injury to the liver which required reparative surgery on October 7, 1997. All of such alleged acts or omissions of malpractice set forth in the complaint, in plaintiff’s expert affidavit attached to the complaint, and in plaintiff’s expert’s deposition occurred on or prior to the October 2, 1997 operation; by the very nature of such alleged acts or omissions, all injuries and negligent acts or omissions occurred prior to the October 7, 1997 remedial operation, because most were alleged to have occurred prior to or during the October 2, 1997 operation.

Kitchens answered and raised the affirmative defense of the statute of limitation having run on or prior to October 7,1999. Kitchens moved for summary judgment, which was denied, and he renewed the motion. On March 2, 2001, the trial court granted summary judgment on the running of the statute of limitation.

The plaintiff contends that the trial court erred in granting summary judgment for a number of different reasons. We do not find merit on any grounds, and we affirm.

(a) Plaintiff contends that the trial court applied the incorrect standard to determine on summary judgment whether the statute of limitation barred the claim.

The statute of limitation commences to run in a medical malpractice case upon injury caused by an act or omission in deviation from the standard of care and attaches after two years from such date and not from discovery of the injury. OCGA § 9-3-71 (a); Shessel v. Stroup, 253 Ga. 56, 57-58 (316 SE2d 155) (1984). However, when there has been a misdiagnosis of a medical condition, the tortious injury commences when the harm was discovered or reasonably should have been discovered. Walker v. Melton, 227 Ga. App. 149, 150-151 (1) (489 SE2d 63) (1997). When a foreign body, i.e., a blunt needle, is left in the plaintiffs body, the statute of limitation runs one year after discovery. OCGA § 9-3-72; Dalbey v. Banks, 245 Ga. 162, 163-164 (264 SE2d 4) (1980); Abend v. Klaudt, 243 Ga. App. 271, 272-273 (1) (531 SE2d 722) (2000).

The October 2,1997 surgery was shown by Kitchens’ evidence in support of his motion for summary judgment to have been when the plaintiffs injuries occurred and that the suit was not commenced until December 6, 1999, which was more than two years after the injury. Thus, Kitchens made out a prima facie affirmative defense for the running of the statute of limitation. Walker v. Melton, supra at 151.

Therefore, the duty to come forward with some evidence to create a material issue of fact for the jury regarding the running of the statute of limitation shifted the burden of persuasion to the plaintiff. See OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Plaintiff contends that the statute of limitation was tolled by fraud, because Kitchens failed to disclose to him his injuries under his fiduciary duty as treating physician and that the statute of limitation should run from the discovery of the injury by the plaintiff. Actual fraud, through nondisclosure of a known injury by the defendant and through acts to conceal the injury, which deters or debars the bringing of the action, tolls the statute of limitation and tolls the running of the statute until discovery of the fraud. OCGA § 9-3-96; Wade v. Thomasville Orthopedic Clinic, 167 Ga. App. 278, 280-281 (2) (306 SE2d 366) (1983); Hamilton v. Mitchell, 165 Ga. App. 717, 718-719 (302 SE2d 589) (1983). Such fraud that will toll the statute of limitation requires: (1) actual fraud involving moral turpitude on the part of the defendant; (2) the fraud must conceal the cause of action from the plaintiff, thereby debarring or deterring the knowing of the cause of action; and (3) the plaintiff must have exercised reasonable diligence to discover the cause of action, notwithstanding the failure to discover within the statute of limitation. Jim Walter Corp. v. Ward, 245 Ga. 355 (265 SE2d 7) (1980); see also Charter Peachford Behavioral Health System v. Kohout, 233 Ga. App. 452, 457-459 (c) (504 SE2d 514) (1998) (physical precedent only). While plaintiff and Kitchens may have been under a fiduciary relationship, requiring Kitchens to inform the plaintiff that defendant negligently injured him, before such duty arises, the defendant must know that the plaintiff was injured in the ways plaintiff contended; that the defendant knew that his violations of the standard of care caused such injuries; and that he intentionally concealed such fact. See Wade v. Thomasville Orthopedic Clinic, supra at 280-281 (2). Plaintiff produced no such evidence which would toll the statute of limitation for actual fraud.

Plaintiff contends that, on motion for summary judgment based upon the affirmative defense of the running of the statute of limitation, the movant has the burden not only to prove the running of the statute but also that the statute has not been tolled. However, the movant has only the burden of proof as to an affirmative defense of the running of the statute of limitation and not to establish the absence of facts showing a tolling. Lau’s Corp. v. Haskins, supra. Now, the burden of persuasion that the statute of limitation has not attached falls to the plaintiff to present some evidence showing that an issue exists that the statute has not run but has been tolled. See Anglin v. Harris, 244 Ga. App. 140, 141 (1) (534 SE2d 874) (2000); Kem Mfg. Corp. v. Sant, 182 Ga. App. 135, 141 (5) (355 SE2d 437) (1987). Therefore, plaintiff must come forward with some evidence to raise an issue of material fact that fraud tolled the running of the statute, which he failed to do in this case. Douglas Kohoutek, Ltd. v. Hartley, Rowe & Fowler, P.C., 247 Ga. App. 422, 423-424 (1) (543 SE2d 406) (2000); Houston v. Doe, 136 Ga. App. 583, 585-586 (3) (222 SE2d 131) (1975).

(b) Plaintiff contends that the trial court erred in considering the deposition of plaintiff’s expert witness that was taken and filed with the trial court on motion for summary judgment, because the medical records upon which the expert witness based his opinion were never introduced into evidence. This same plaintiff’s expert rendered the OCGA § 9-11-9.1 affidavit without having these same records attached to the affidavit and filed with the trial court. However, plaintiff failed to perfect the record on appeal by making a timely objection on these grounds in the trial court and failed to cite to the record to show where he made a timely objection to the trial court’s consideration of this deposition on such grounds, or any other grounds, in order to preserve such issue by a trial court ruling on such objection. This Court will not consider issues raised for the first time on appeal. Court of Appeals Rule 27 (c).

(c) Plaintiff contends that the trial court failed to determine when the plaintiff was injured and when the plaintiff discovered that he had been injured. All of plaintiff’s allegations of negligence by necessity occurred prior to the second operation, as did the resulting injuries. The plaintiff’s complaint asserts as an admission in judicio that the injuries occurred prior to or during the October 2,1997 operation. OCGA § 24-3-30; Keeley v. Cardiovascular Surgical Assoc., 236 Ga. App. 26, 27 (1) (510 SE2d 880) (1999). More importantly, plaintiffs expert witness, both by affidavit and by deposition, swore that in his opinion such injuries occurred either prior to or during the October 2,1997 operation as a consequence of the defendant’s acts or omissions. The statute of limitation in medical malpractice cases commences to run from the date of injury from such negligent acts or omissions. See OCGA § 9-3-71 (a); Shessel v. Stroup, supra.

The law as to medical malpractice arising from misdiagnosis, which was not involved in this case, holds that the statute of limitation commences to run from the discovery of the injury, i.e., misdiagnosis. Whitaker v. Zirkle, 188 Ga. App. 706, 707 (1) (374 SE2d 106) (1988); see also Walker v. Melton, supra at 150-151. Where the physician who misdiagnosed a plaintiff continues to treat a plaintiff until the plaintiff discovers the misdiagnosis, under the continuous treatment doctrine, the statute of limitation commences to run from the date of the discovery of the misdiagnosis or treatment by the defendant terminates. Williams v. Young, 247 Ga. App. 337, 339-343 (543 SE2d 737) (2000). However, contrary to plaintiff’s contentions, such misdiagnosis/continuous treatment doctrine has no application to acts and omissions which allegedly caused injury. Therefore, the misdiagnosis/continuous treatment doctrine has no application to the facts of this case where there were no allegations of incorrect diagnosis.

Injury, and not the discovery of injury, commences the running of the statute of limitation in cases of medical malpractice. OCGA § 9-3-71 (a); Shessel v. Stroup, supra at 58; Clark v. Singer, 250 Ga. 470, 471-472 (298 SE2d 484) (1983). Discovery of the injury in cases of fraud, foreign body, or misdiagnosis will toll the running of the statute of limitation. Williams v. Young, supra at 338-341. Thus, the statute of limitation commences to run when the plaintiff knows of the injury or reasonably should have been aware of such injuries from his symptoms. See Robinson v. Williamson, 245 Ga. App. 17, 18-19 (1) (537 SE2d 159) (2000); Henry v. Med. Center, 216 Ga. App. 893, 894 (2) (456 SE2d 216) (1995); Bryant v. Crider, 209 Ga. App. 623, 625-627 (3) (434 SE2d 161) (1993); Jones v. Lamon, 206 Ga. App. 842, 844-846 (1) (426 SE2d 657) (1992) (physical precedent only).

Plaintiff erroneously has concluded that Georgia courts have adopted the discovery rule in all medical malpractice cases. Plaintiff misplaces his reliance upon language in Whitaker v. Zirkle, supra at 708 (1), a misdiagnosis case, which applies to the injury, which is the misdiagnosis: “[w]hen an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered.” As authority for such statement, Shessel v. Stroup, supra, is relied upon, where after a tubal ligation, the plaintiff became pregnant; “[t]he pregnancy was the injury.” Id. at 57. The tortious injury was the pregnancy and not the failed tubal ligation. Plaintiff farther relies upon the special concurrence in Vitner v. Miller, 208 Ga. App. 306, 308 (430 SE2d 671) (1993) (Pope, C. J., concurring specially), where it states: “[i]n Whitaker v. Zirkle, [supra], this court adopted the ‘discovery rule’ in medical malpractice cases.” Finally, by a nine to two margin, one judge not participating, this Court adopted the “continuous treatment doctrine” in misdiagnosis cases:

Decided July 31, 2001

Reconsideration denied August 16, 2001.

Vincent D. Sowerby, Steven L. Morgan, for appellant.

[significantly, the doctrine comports with OCGA § 9-3-71 (a) not because it delays the occurrence of the injury but because it deems that the negligent act, i.e., the failure to make the proper diagnosis, continues as long as the patient remains under the physician’s care. The doctrine is applicable to misdiagnosis cases because each time the physician renders treatment to the patient based on an erroneous diagnosis, he is implicitly repeating the misdiagnosis.

Williams v. Young, supra at 341. Thus, the discovery rule has no application in this case, because such rule does not have the general application that plaintiff urges for all medical malpractice cases. See Henry v. Med. Center, supra at 894.

(d) Plaintiff contends that he was incapable of knowledge or even discovery of his injuries between October 2, 1997, and December 19, 1997, because he was unconscious. He contends that such unconsciousness rendered him incapable of knowing of such injury, i.e., the injury does not commence the running of the statute of limitation until discovery. We do not agree. This issue is controlled by Subsection (c) adversely to the plaintiff.

Also, plaintiff never raised in the trial court below that the unconscious state of the plaintiff tolled the running of the statute of limitation under OCGA § 9-3-73 (b). Thus, it is waived. Further, plaintiff never cites to the portion of the record in support of this enumeration of error; therefore, it is deemed abandoned. Court of Appeals Rule 27 (c); Henry v. Med. Center, supra at 894; Dugger v. Danello, 175 Ga. App. 618, 620 (2) (334 SE2d 3) (1985).

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Hall, Booth, Smith & Slover, Michael G. Frick, Norman D. Lovein, for appellees.


author: Ellington, Judge.

text:
    A01A0932.
    McDONALD v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
    (554 SE2d 226)
   Ellington, Judge.

June H. McDonald appeals the trial court’s order dismissing for lack of subject matter jurisdiction her personal injury action against Metropolitan Atlanta Rapid Transit Authority (“MARTA”) and bus driver Howard Lee Wilson. Because the trial court failed to apply the Uniform Transfer Rules, we reverse.

Because the trial court’s decision was based upon the application of the law to stipulated facts, we apply a de novo standard of review. Dept. of Revenue v. Sledge, 241 Ga. App. 833 (528 SE2d 260) (2000). McDonald filed suit in the State Court of Fulton County to recover for injuries she sustained in a collision in Fulton County with a MARTA bus driven by Wilson, a resident of Spalding County. MARTA and Wilson moved the court to dismiss the action with prejudice on the basis that subject matter jurisdiction over any action against MARTA is vested in the Superior Court of Fulton County. McDonald moved to transfer the action to the Superior Court of Fulton County. The trial court dismissed the case against both MARTA and Wilson.

The trial court correctly determined that Georgia law vested exclusive subject matter jurisdiction and venue for all actions against MARTA in the Superior Court of Fulton County. M.A.R.T.A. v. McCain, 135 Ga. App. 460, 461 (218 SE2d 122) (1975) (interpreting § 10 (t) of the “MARTA Act,” Ga. L. 1965, pp. 2243, 2265). The Supreme Court later clarified that the General Assembly’s authority in adopting the MARTA Act was to “fix the residence of MARTA for venue purposes when it is sued alone,” but the Constitution provides for venue “when MARTA is sued as a joint tortfeasor.” (Footnote omitted.) Glover v. Donaldson, 243 Ga. 479, 483 (254 SE2d 857) (1979). In Glover v. Donaldson, the Supreme Court held that, because MARTA was sued as a joint tortfeasor with the driver of another vehicle involved in a pedestrian accident, it could be sued in the county of residence of the other driver. Id. When jurisdiction and venue are based on MARTA, however, and not on a joint tortfeasor, the MARTA Act controls and the action must be filed in the Superior Court, not the State Court, of Fulton County.

The trial court erred, however, in dismissing the action, rather than transferring the action to an appropriate court. The trial court relied on OCGA § 9-11-12 (h) (3) which provides, “[w]henever it appears, by suggestion of the parties or otherwise, that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” But the Georgia Constitution provides: “[a]ny court shall transfer to the appropriate court in the state any civil case in which it determines that jurisdiction or venue lies elsewhere.” Ga. Const, of 1983, Art. VI, Sec. I, Par. VIII. This constitutional mandate was implemented in the Uniform Transfer Rules, enacted in 1984. Hubbert v. Williams, 175 Ga. App. 393, 396 (3) (333 SE2d 425) (1985). Section T-4 of the Uniform Transfer Rides provides “when a party makes a motion to dismiss, or any other motion or defense, on the basis that the court in which the case is pending lacks jurisdiction or venue or both[, s]uch motion shall be treated as a motion to transfer pursuant to these rules.” See also J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123, 127-128 (3) (430 SE2d 13) (1993) (“the appropriate course of action for a court presented with a meritorious motion to dismiss for lack of jurisdiction or venue is to treat the motion as one for transfer and to transfer the case pursuant to the Uniform Transfer Rules”), rev’d in part on other grounds, 263 Ga. 645 (437 SE2d 327) (1993); Mitchell v. Southern Gen. Ins. Co., 185 Ga. App. 870, 871 (1) (366 SE2d 179) (1988); Uniform Superior Court Rule 19.1 (A), effective July 1, 1985, 253 Ga. 829-830 (1985); Uniform State Court Rules, effective July 1, 1985, 253 Ga. 887 (1985).

Where exclusive jurisdiction to hear and determine a particular type of action is vested by law in the superior courts, such an action mistakenly filed in a state court must be transferred to the appropriate court, not dismissed. Mitchell v. Southern Gen. Ins. Co., 185 Ga. App. at 871 (1) (when plaintiff files a declaratory judgment action, over which superior courts have exclusive subject matter jurisdiction, in state court, case should be transferred to superior court). Reading OCGA § 9-11-12 (h) (3) in harmony with the constitutional transfer directive, a court “shall dismiss” a civil action for lack of subject matter jurisdiction only when there is no other Georgia court in which jurisdiction lies and to which the action could be transferred. See City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819, 821-822 (479 SE2d 171) (1996) (whenever possible, statutes are to be construed in connection and in harmony with the Constitution, other statutes, the common law, and decisions of the courts). The trial court erred in dismissing McDonald’s action. Hubbert v. Williams, 175 Ga. App. at 396 (3); Lingo v. Worcester County Institution &c., 171 Ga. App. 892 (321 SE2d 744) (1984).

Decided August 16, 2001.

David L. Miller, Sharon M. Lewonski, for appellant.

Hall, Booth, Smith & Slover, Terrell W. Benton III, Gorby, Reeves, Peters & Burns, Michael J. Gorby, Damon E. Elmore, for appellees.

Judgment reversed.

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

       See Ga. Const. of 1983, Art. VI, Sec. II, Par. VI: “All other civil cases . . . shall be tried in the county where the defendant resides.”

       See Ga. Const. of 1983, Art. VI, Sec. II, Par. IV: “Suits against. . . joint tort-feasors . . . residing in different counties may be tried in either county.” At least for purposes of this venue provision, even where an employer is sued for the acts of its employee only on the basis of respondeat superior, the employer is considered a joint tortfeasor with the employee. RC Cola Bottling Co. v. Vann, 220 Ga. App. 479, 481 (2) (469 SE2d 523) (1996).

       251 Ga. 893 (312 SE2d XXVII) (1984).


author: Blackburn, Chief Judge.

text:
    A01A0981.
    In the Interest of D. A. E., a child.
    (554 SE2d 228)
   Blackburn, Chief Judge.

Appellant, the biological mother of D. A. E., appeals the juvenile court’s termination of her parental rights, contending that the evidence was insufficient to support the termination. For the reasons set forth below, we affirm.

On appeal, we must determine

whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.

(Citations and punctuation omitted.) In the Interest of R. N.

The record shows that, on May 12, 1997, D. A. E. was placed in the temporary legal custody of the Department of Family & Children Services (DFACS) because his mother had been arrested for possession of cocaine. Following D. A. E.’s removal, appellant was presented with a case plan which required her to become drug free, find a stable home, and attend parenting classes.

At the time of the termination hearing, D. A. E. had been in DFACS’ custody for three years, and appellant had been subject to eight different case plans. During this time, appellant never became drug free and never obtained suitable housing for her son.

Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is “present clear and convincing evidence of parental misconduct or inability.” OCGA § [15-11-94 (a)]. Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § [15-11-94 (b) (4) (A)]. ... In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.

In the Interest of V. S.

No issue remains as to whether the child in this case is deprived. In the termination proceedings, the juvenile court took judicial notice of a prior deprivation order. See In the Interest of J. L. Y. Moreover, appellant never appealed the original deprivation order, and the record provides clear and convincing evidence that the child was given insufficient care and maintenance.

Pam Glover, a DFACS caseworker, testified that, at the time that D. A. E. was initially taken by DFACS, he was found at the putative father’s home, where he was improperly clothed, red-faced, feverish, and in need of medical care. D. A. E. remained in DFACS’ custody for the next three years while appellant was in and out of jail. During this extended period of time, appellant completed only one goal of her case plan which required her to attend parenting classes.

Appellant did not satisfy any other goals of her case plan. Appellant never became drag free or obtained stable housing. After she was released from prison on probation in June 1998, appellant found housing and employment with the assistance of DFACS. Just over a month later, however, appellant quit her job, began using cocaine again, and needed DFACS’ assistance to pay her rent and utilities. And, although appellant enrolled in a drug treatment program, she never finished it, and, on several occasions, she failed to attend classes while she continued to abuse drugs.

During the period that followed, appellant was incarcerated twice for possession of cocaine, and she was in jail at the time of the termination hearing. During the time that she was not in jail, appellant admitted that she used cocaine, that she was occasionally homeless, and that she traded sexual favors for a place to stay.

This evidence supports the juvenile court’s determination that the deprivation is likely to continue.

Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue. The court was entitled to infer from the evidence that, despite the best efforts of DFACS and many other social workers and charities, the same pattern of deprivation would continue [if] the [child was] reunited with [his] mother.

(Citations and punctuation omitted.) In the Interest of R. N., supra at 204 (1) (c).

The record also supports a finding that D. A. E. is likely to be harmed by the continued deprivation. As discussed above, D. A. E. has been forced to grow up without his mother, who has been incarcerated for drug abuse the majority of his life. Furthermore, even after D. A. E. was taken away from her, appellant failed to satisfy the goals of her case plan and continued to use cocaine.

In addition, the record supports a finding that termination of appellant’s parental rights is in the best interest of D. A. E. The same factors which show a parent’s inability to properly care for her child may also prove that termination of her parental rights is in the best interest of that child. In the Interest of G. K. J. Moreover, evidence at the termination hearing showed that D. A. E. considered his foster mother, who wished to adopt him, as his true mother. On the other hand, D. A. E.’s bond with appellant was, at best, tenuous. And, although appellant now pledges that she will overcome her addiction and find stable housing, “ ‘the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ ” In the Interest of D. I. W.

Judgment affirmed.

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

Decided August 16, 2001.

John W. Bass, Jr., for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Clark & Bellamy, Andrew W. Clark, Brian D. Bellamy, for appellee.

       D. A. E.’s putative biological father does not appeal the termination of his parental rights.

        In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

        In the Interest of V.S., 230 Ga. App. 26, 27 (495 SE2d 142) (1997).

        In the Interest of J. L. Y., 184 Ga. App. 254 (1) (361 SE2d 246) (1987).

        In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988).

        In the Interest of D. I. W., 215 Ga. App. 644, 646 (1) (451 SE2d 804) (1994).


author: Barnes, Judge.

text:
    A01A1167.
    PHILLIPS v. BLANKENSHIP.
    (554 SE2d 231)
   Barnes, Judge.

Michael Phillips sued his ex-fiancee, Tracy Blankenship, in magistrate court for $2,458.34 he alleged she improperly withdrew from the parties’ joint checking account. Blankenship transferred the action to state court, answered the complaint, and counterclaimed for breach of promise to marry, breach of an oral employment contract, conversion of a bed and computer, intentional infliction of emotional distress, and unjust enrichment. She also demanded a jury trial.

After trial, the jury returned a verdict against Phillips on his claim for money from their joint checking account, against Blankenship on her employment contract and conversion claims, and for Blankenship on both her breach of promise to marry claim ($2,525.14) and her unjust enrichment claim ($21,627.97). Phillips appeals, arguing in his first enumeration that the trial court erred in denying his motions for judgment notwithstanding the verdict (j.n.o.v.) or for new trial regarding the breach of promise to marry claim, because the jury should have set off the amount awarded to Blankenship against the money she withdrew from the joint checking account and the money Phillips previously paid her for wedding debts she incurred. He further enumerates as error the trial court’s denial of his motions for directed verdict, for j.n.o.v., or for new trial on Blankenship’s unjust enrichment count. He argues that her claim was barred because she lived with Phillips, and because no evidence supported her unjust enrichment claim. Finding no merit to these arguments, we affirm the judgment on the verdict.

1. Phillips argues that allowing Blankenship to recover $2,525.14 on her claim for breach of promise to marry, without setting off the money she withdrew from the parties’ joint checking account or the money he had already paid her, amounted to an impermissible double recovery.

In considering a motion for a j.n.o.v. or a motion for a new trial, we review the evidence in the light most favorable to the party who won and who opposed the motion. Crosby v. Kendall, 247 Ga. App. 843, 846-847 (2) (545 SE2d 385) (2001). If any evidence supports the verdict, we will affirm the trial court’s denial of the motions. Id.

“Breach of promise to marry is a common law contract action,” Thorpe v. Collins, 245 Ga. 77, 78 (1) (263 SE2d 115) (1980), and Blankenship sought damages of $14,360.14 in her counterclaim for breach of promise to marry, much more than the amount the jury awarded her plus the amount Phillips sought to recover. She testified that she carried a total of $14,152.61 in debt, including $2,525.14 in wedding debts, when Phillips broke off the engagement and ordered her out of the house within two weeks. She had bills totaling $1,482.89 due two weeks after Phillips warned her that if she “touched any more of the money in the account” she would have to leave the house sooner.

The jury found against Phillips in his claim against Blankenship for money she withdrew from the parties’ joint account and awarded Blankenship the amount she owed for wedding debts. We cannot say that the trial judge improperly denied Phillips’ motions for a j.n.o.v. or a new trial in this regard under the any evidence standard.

2. Phillips next argues that Blankenship’s unjust enrichment claim was barred because she illegally cohabitated with Phillips during the two years she claims he became unjustly enriched. Because a contract to do an immoral or illegal thing is void under OCGA § 13-8-1, and having sex without being married is illegal under OCGA § 16-6-18, Phillips contends that Blankenship can recover nothing on her unjust enrichment claim, citing Samples v. Monroe, 183 Ga. App. 187 (358 SE2d 273) (1987). However, the plaintiff in Samples sought the value of the services she provided to the defendant while living with him, as well as half of his savings, because she had paid all the household expenses for both parties and had sex with the defendant in exchange for his promise to set aside his earnings for their retirement nest egg. Id. The court noted that the parties’ arrangement “envisioned a meretricious relationship rather than a simple agreement to share living expenses.” Id. at 188.

“Unjust enrichment is an equitable concept and applies when as a matter of fact there is no legal contract, but when the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefitted party equitably ought to return or compensate for.” (Citations and punctuation omitted.) St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (1) (508 SE2d 646) (1998). If the consideration for Blankenship’s claim for unjust enrichment were based on sexual intercourse between her and Phillips, her claim would fail. Broughton v. Johnson, 247 Ga. App. 819-820 (1) (a) (545 SE2d 370) (2001).

However, Blankenship presented three alternative grounds for recovery on this claim, none of which involve illegal acts. Blankenship contended Phillips was unjustly enriched by: (1) the value of the computer services Blankenship performed which Phillips turned into his employer under his own name and for which he was paid; (2) the increased value to his real property consisting of a finished basement rental apartment; and (3) the payoff of all of his debts but not all of hers.

Decided August 16, 2001.

“The rule of OCGA § 13-8-1 has been held inapplicable where the object of the contract is not illegal or against public policy, but where the illegality or immorality is only collateral or remotely connected to the contract.” (Citations and punctuation omitted; emphasis in original.) Liles v. Still, 176 Ga. App. 65, 66 (2) (335 SE2d 168) (1985). In Liles, we held the trial court did not err in charging the jury under OCGA § 13-8-1, but also held that the fact of the parties’ cohabitation did not preclude the plaintiff from asserting her claim for one-half of the parties’ living expenses. Whether the parties’ agreement arose directly from their meretricious relationship or was founded on consideration other than their illegal cohabitation was a jury question. Id. at 66-67.

Blankenship presented sufficient evidence to create a jury question on this issue, and the trial court did not err in denying Phillips’ motions for directed verdict, for j.n.o.v., or for new trial on this ground.

3. Finally, Phillips asserts that the trial court erred in denying his motion for directed verdict, motion for j.n.o.v., or motion for new trial on the unjust enrichment claim because Blankenship “failed to prove any amount she was entitled to receive under any possible theory” other than by her self-contradictory testimony.

Under OCGA § 9-11-50 (a) and (b), Phillips’ appeal is limited to the specific grounds stated in his motion for a directed verdict. The argument he raises here was not raised in his directed verdict motion during the trial. “A motion for a directed verdict shall state the specific grounds therefor. A ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal.” (Citations and punctuation omitted.) Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299-300 (2) (352 SE2d 185) (1986). Therefore we will not consider it on appeal. Wehunt v. ITT Business Communications Corp., 183 Ga. App. 560-561 (1) (359 SE2d 383) (1987).

Judgment affirmed.

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

Darel C. Mitchell, for appellant.

Anthony M. Zezima, for appellee.


text:
    A01A1263.
    LITTLE TALLAPOOSA DEVELOPMENT, INC. et al. v. BALDWIN PAVING COMPANY, INC.
    (553 SE2d 860)
   Ellington, Judge.

Little Tallapoosa Development, Inc. and Freedom Land Company, LLC appeal the trial court’s order granting summary judgment in favor of Baldwin Paving Company, Inc. on its complaint to foreclose upon a materialman’s lien. Finding no error, we affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence.” (Punctuation omitted; emphasis supplied.) Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 392-393 (2) (469 SE2d 469) (1996). “In rebutting this prima facie case, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in OCGA § 9-ll-56[,] must set forth specific facts showing that there is a genuine issue for trial.” (Punctuation omitted.) Entertainment Sales Co. v. SNK, Inc., 232 Ga. App. 669-670 (502 SE2d 263) (1998). Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. White v. BDO Seidman, LLP, 249 Ga. App. 668, 669 (549 SE2d 490) (2001).

Viewed in the light most favorable to the appellants, the evidence showed the following facts: One of the appellants owns a parcel of real property being developed as Riverwood Subdivision, Phase II in Carrollton. M. C. Contracting Company, the paving subcontractor, hired Baldwin Paving. On February 15, 2000, Baldwin Paving filed a claim of lien in the amount of $49,581.29 against the property. Still unpaid, Baldwin Paving filed a complaint seeking a judgment against M. C. Contracting and the property. M. C. Contracting defaulted, and the trial court entered judgment against it.

The appellants contend the trial court erred in granting summary judgment in favor of Baldwin Paving on the materialman’s lien in that Baldwin Paving failed to rebut their defense of full payment by the owner. The appellants rely on the defense set out in OCGA § 44-14-361.1 (a) (4), as follows: “the owner of the real estate improved, who has paid the agreed price or any part of same, may set up the payment in any action brought and prove by competent and relevant evidence that the payments were applied as provided by law, and no judgment shall be rendered against the property improved.” In Browning v. Gaster Lumber Co., 267 Ga. 72, 73, 76-77 (475 SE2d 576) (1996), the Supreme Court of Georgia interpreted this provision and held that under OCGA § 44-14-361.1 (a) (4), an owner may defeat a lien by proving that it paid the contractor the contract price and that the payments were ultimately disbursed to all materialmen before the filing of any materialman’s liens. The Court suggested that owners protect themselves by contractually conditioning payment to contractors on receipt of “lien waivers or documentary proof of payment from the materialmen and laborers used in the project.” Id. at 76-77. As the appellants contend, on summary judgment the initial burden is on the materialman to come forward with evidence to negate the owner’s defense of payment. Corp. of the Presiding Bishop &c. v. Allied Ready Mix, 201 Ga. App. 873, 874 (412 SE2d 622) (1991).

In this case, the default judgment against M. C. Contracting is prima facie evidence that Baldwin Paving complied with its contract with M. C. Contracting and furnished labor and materials to the improvement of the property. Kelly v. Pierce Roofing Co., 220 Ga. App. at 393 (2). The default judgment is also prima facie evidence that M. C. Contracting refused to pay Baldwin Paving. Id. Therefore, the appellants could not rest on the pleadings, but bore the burden of coming forward with specific evidence showing that the payments which it made on the construction contract price were “properly disbursed by the contractor to those having valid claims for labor and materials.” (Citations omitted.) Browning v. Gaster Lumber Co., 267 Ga. at 76. The appellants failed to produce any lien waiver or other documentary proof that M. C. Contracting paid Baldwin Paving for the labor and materials it furnished and, therefore, failed to rebut Baldwin Paving’s prima facie case. Id. at 76-77. Accordingly, Baldwin Paving was entitled to summary judgment on its claim. Kelly v. Pierce Roofing Co., 220 Ga. App. at 393 (2).

Judgment affirmed.

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

Decided August 16, 2001.

Gregory E. Stuhler, for appellants.

Downey & Cleveland, Sean L. Hynes, for appellee.

       In their answer to Baldwin Paving’s complaint, appellants denied owning the property. In an affidavit, Sheryl Moreland stated that she was the “sole director and officer” of both appellants and of “the [unnamed] corporation that owns” the subject property.


text:
    A01A1370.
    LANGSTON v. HOME DEPOT U.S.A., INC. et al.
    (554 SE2d 223)
   Eldridge, Judge.

Elizabeth B. Langston, plaintiff, sued Home Depot U.S.A., Inc., defendant, for injuries that she sustained as a customer in its store when she stepped on the lower shelf of a display support which gave way when she reached for red impatiens five feet up and out of her reach on the top shelf of the display. After filing an answer, defendant moved for summary judgment, showing that it lacked knowledge of a hidden defect on the premises, which motion was granted. We affirm.

The incident occurred on May 19, 1998, when the plaintiff went to a Home Depot store to purchase flowers. The display shelf in issue was constructed from two one-half-inch-thick, six-foot panels of prefabricated wood fencing, resting on concrete blocks. When she placed her right foot on the display shelf to balance herself as she reached up, the board broke, and her foot went to the concrete floor, injuring her.

1. Plaintiff contends that the trial court erred in finding that she had failed to demonstrate a hazard and that the defendant had actual or constructive knowledge of the hazard. We do not agree. Tort liability requires four elements to be established:

(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

(Citation and punctuation omitted.) Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). ‘Where [the] owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1; Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980).

The duty to keep premises safe for an invitee extends only to such portions of the premises that the owner includes within the invitation to the invitee, because the owner is under no duty to foresee that the invitee will use areas to which the invitation is not extended and which are closed to the invitee. Cooper v. Anderson, 96 Ga. App. 800, 809 (101 SE2d 770) (1957), aff’d, 214 Ga. 164 (104 SE2d 90) (1958); Augusta Amusements v. Powell, 93 Ga. App. 752, 758 (92 SE2d 720) (1956); Coffer v. Bradshaw, 46 Ga. App. 143, 149 (167 SE 119) (1932). Thus, there was no duty to keep the display safe for use as a step or to support human weight, because the invitation was not extended to such use, and such use was not reasonably foreseeable.

The owner has a duty of inspecting the premises open to the invitee to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from such dangers; however, such danger or hazard must be known or reasonably foreseeable from the arrangement and use of the premises by the invitee. Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992). There is no duty to foresee and warn against dangers which are not reasonably expected and which would not occur except under exceptional circumstances or from unexpected acts of the person injured. Sutton v. Sutton, 145 Ga. App. 22, 25 (243 SE2d 310) (1978). Thus, when a portion of the premises is put to a use not intended by the owner, the owner is not liable for the resulting injuries unless he knew or should have known that it would be diverted to such use and knew or should have known of the hazard from such use. Savannah East Side Corp. v. Robinson, 102 Ga. App. 426, 429-430 (116 SE2d 613) (1960). The question of ordinary care is whether a reasonably prudent store owner at the time and under the circumstances would have foreseen danger and what he reasonably would have done to prevent the injury; negligence is defective foresight judged by this standard rather than by hindsight of what actually happened. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 156 (1) (256 SE2d 916) (1979); Smith v. Poteet, 127 Ga. App. 735, 736 (1) (195 SE2d 213) (1972). Ordinary diligence does not require an inspection where there is no reason to think that an inspection is necessary to ascertain the possible or probable existence of any defects. Roberts v. Wicker, 213 Ga. 352, 355 (99 SE2d 84) (1957); Hood v. McCall Clinic, 145 Ga. App. 314 (243 SE2d 571) (1978); Smith v. Poteet, supra at 737. Thus, the defendant had no duty to foresee the unforeseeable. “The true ground of liability in such a relationship is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” (Citation omitted.) Barksdale v. Nuwar, supra at 185; see also Sutton v. Sutton, supra at 25.

There is no evidence that the display was negligently designed or constructed for display purposes only, or that the defendant knew or should have foreseen that a customer would step on or put her weight on the lowest display shelf and that there existed a patent defect known or which should have been discovered by the defendant for such unintended use of the display. Thus, no hazard was shown to have existed within the duty of ordinary care owed to the plaintiff under the facts and circumstances of this case. See Tillman v. WinnDixie Stores, 241 Ga. App. 245, 246 (526 SE2d 146) (1999).

The defendant produced evidence that it had no knowledge of the hidden defect in the display panels that caused the fence panels to break or that it could reasonably foresee that any customer would use such display shelf as a step or to support weight. Then upon the shift in the duty to come forward with some evidence to create a material issue of fact after the defendant pierced the pleadings, plaintiff failed to come forward with any evidence to show that there was a defect, that the defect was patent, that the defendant should have foreseen plaintiff’s actions, or that the defendant had actual or constructive knowledge of the hazard. See Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). Thus, the grant of summary judgment was proper.

Even if the person plaintiff saw and asked if she could step on the display is assumed to be an employee for purposes of the motion for summary judgment, plaintiff has not demonstrated actual or constructive superior knowledge but, at best, constructive equal knowledge that observing the boards in the display would reveal to the employee a hidden defect. See Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997).

Thus it is said that only when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. . . . Thus in order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant [she was hurt], the plaintiff must show (1) that the defendant had actual or constructive knowledge of the [hidden hazard] and (2) that the plaintiff was without knowledge of the [hidden hazard] or for some reason attributable to the defendant was prevented from discovering the [hidden hazard].

(Citations and punctuation omitted.) Alterman Foods v. Ligon, supra at 622-623. See also Robinson v. Kroger Co., supra at 736. In this case, however, plaintiff’s knowledge of the hidden hazard was equal to or greater than the knowledge of the defendant, because no actual knowledge of the defendant has been shown and only constructive knowledge equal to the plaintiffs knowledge may be inferred. Id. at 737.

Decided August 16, 2001.

McGarity & Lloyd, J. Michael McGarity, for appellant.

Mozley, Finlayson & Loggins, Laura M. Medlin, Carroll G. Jester, Jr., for appellees.

The evidence fails to raise a material issue of fact that the defendant could reasonably foresee the hidden hazard from putting pressure on the display support with plaintiffs right foot, because such use of the display was not foreseeable by the defendant. Lau’s Corp. v. Haskins, supra.

2. Plaintiff contends that the trial court erred in finding that she failed to exercise ordinary care for her own safety because she intentionally and unreasonably exposed herself to a hazard known to her. In light of Division 1, we do not need to address this issue.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.


text:
    A01A1431.
    HOWARD v. THE STATE.
    (553 SE2d 862)
   Ellington, Judge.

After a joint trial with co-defendant Tycion London, a Fulton County jury convicted James Carey Howard of burglary, OCGA § 16-7-1 (a); two counts of false imprisonment, OCGA § 16-5-41 (a); and two counts of simple battery, OCGA § 16-5-23 (a). A third co-defendant, Laveal Lamar Jones, pled guilty before trial and testified against London and Howard. Howard contends he was denied the effective assistance of counsel; the trial court erred in denying his motion for severance; the evidence was insufficient to support his conviction; and his constitutional rights were violated. Finding no error, we affirm.

1. In addressing Howard’s contentions that the evidence was insufficient and that he was entitled to a directed verdict of acquittal, this Court uses the same standard of review, that is, whether the evidence presented was sufficient for a rational factfinder to find the defendant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lane v. State, 248 Ga. App. 470, 471 (1) (545 SE2d 665) (2001). In making this determination, we do not weigh the evidence or determine witness credibility, and we view the evidence in the light most favorable to the verdict. Lane v. State, 248 Ga. App. at 471 (1). Moreover, Howard no longer enjoys the presumption of innocence. Id.

The evidence presented against both London and Howard is summarized in this Court’s decision in London v. State, 247 Ga. App. 618-619 (544 SE2d 525) (2001). As in London, we have reviewed the record on appeal and find that the evidence was sufficient to support Howard’s convictions. Id. at 622-623 (5).

2. Howard argues that he did not waive his constitutional rights before giving a statement to police. Although the trial court, after conducting a Jackson-Denno hearing, determined that Howard’s custodial statement was given freely and voluntarily, it excluded the statement from trial under Bruton. Accordingly, this claim lacks merit.

3. Howard contends that his constitutional rights were violated when he was denied legal representation during the presentation of evidence to the grand jury and during the preliminary hearing. Since Howard failed to raise this issue in his motion for new trial or at the hearing thereon, this enumeration is waived. See Proffitt v. State, 181 Ga. App. 564, 566 (2) (353 SE2d 61) (1987).

4. For the reasons given in this Court’s decision in London v. State, 247 Ga. App. at 619-620 (1), the trial court did not err in denying Howard’s motion to sever.

5. Howard’s contention that the indictment was defective also is without merit for the reasons given in London v. State, 247 Ga. App. at 620-621 (2).

6. Howard argues that he was denied the right to represent himself at trial. In the alternative, he contends the trial court should have delayed the trial long enough for him to hire different counsel.

The record shows that Howard fired his retained counsel on the Friday before his trial was to begin on Monday. Howard admits that he did so “with full intention of hireing [sic] [other] retained counsel.” Howard did not attempt to retain other counsel over the weekend. In court on Monday morning, Howard told the trial court that he fired counsel because he disagreed with counsel’s recommendations about how to proceed at trial. Even so, Howard did not ask the trial court to appoint new counsel, delay the trial to give him the opportunity to hire new counsel, or allow him to go forward pro se; he simply refused to proceed to trial with his retained counsel. The trial court found that Howard failed to raise this issue in a timely manner, particularly since the case already had been on eight trial calendars. It determined that Howard’s attempt to fire counsel immediately prior to trial was simply a delay tactic and ruled that the trial would go forward as scheduled.

Both the federal and state constitutions guarantee a criminal defendant the right to self-representation. See Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975); 1983 Ga. Const., Art. I, Sec. I, Par. XII. An unequivocal assertion of the right to represent oneself, made prior to trial, should be followed by a hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation. In the case at bar, appellant did not make an unequivocal assertion of his right to represent himself prior to the commencement of his trial. While his remarks may be construed as an expression of dissatisfaction with his attorney, they cannot be construed as an assertion, much less an unequivocal assertion, of his right to represent himself.

(Citations and footnote omitted.) Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990). Accordingly, the trial court did not err in failing to conduct a Faretta hearing. Further, “[a] criminal defendant will not be permitted to use the discharge of counsel and employment of another as a dilatory tactic in postponing or avoiding trial of the issue.” (Citations and punctuation omitted.) Mallory v. State, 225 Ga. App. 418, 422 (4) (483 SE2d 907) (1997). The trial court did not abuse its discretion in requiring Howard to proceed to trial with his original retained counsel.

7. Howard contends he was denied the effective assistance of counsel.

Under the standard established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), one asserting his trial counsel’s performance was so deficient as to deny him effective assistance of counsel under the Sixth Amendment must make two affirmative showings: that counsel’s representation fell below an objective standard of reasonableness (i.e., that counsel performed deficiently); and that such deficiency prejudiced the defense. Concerning the prejudice component, the Court (in Strickland) held that the defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Furthermore, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

Decided August 16, 2001.

James C. Howard, pro se.

(Citations omitted.) Jordan v. State, 247 Ga. App. 551, 554 (2) (544 SE2d 731) (2001).

(a) Howard contends that counsel should have objected to portions of the State’s closing argument. Counsel testified at the hearing on Howard’s motion for new trial that he did not believe the State’s argument was objectionable. See Simmons v. State, 266 Ga. 223, 228 (6) (b) (466 SE2d 205) (1996) (attorneys are permitted a broad range of argument during final summation). It is permissible for the State to comment on a defendant’s failure to present evidence to rebut the State’s prima facie case. See Miller v. State, 240 Ga. App. 18, 19 (2) (522 SE2d 519) (1999). Further, counsel stated that he did not object because an objection would have amplified some of the more damaging statements and may have reflected poorly on the defense. These strategic decisions are not subject to second-guessing by this Court. Quintanilla v. State, 273 Ga. 20, 21-22 (3) (537 SE2d 352) (2000); Thomas v. State, 246 Ga. App. 448, 450-451 (2) (540 SE2d 662) (2000).

(b) Howard’s remaining assertions of ineffective assistance are resolved by Divisions 2, 3, 4, and 5, supra.

8. Finally, Howard contends the State withheld information about a deal with a co-defendant to exchange his testimony for a lighter sentence. This issue has been decided adversely to Howard, however, in London v. State, 247 Ga. App. at 622 (4).

9. Howard’s motion for an appeal bond is denied as moot.

Judgment affirmed.

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

Paul L. Howard, Jr., District Attorney, Alvera A. Wheeler, Assistant District Attorney, for appellee.

       London was convicted on the burglary and false imprisonment counts, as well as two counts of aggravated assault. London v. State, 247 Ga. App. 618 (544 SE2d 525) (2001).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).


author: Phipps, Judge.

text:
    A01A2029.
    INGRAM et al. v. EDWARDS.
    (554 SE2d 237)
   Phipps, Judge.

Ralph Edwards brought suit alleging that Henry Ingram had shot him wrongfully and without justification. The jury found Ingram grossly negligent and returned a $50,000 verdict in favor of Edwards. Ingram appeals, contending that the trial court erred in admitting evidence of prior acts by him toward third parties. Finding no abuse of discretion, we affirm.

Amid the revelry of “Freaknik” weekend in April 1997, Edwards was on the premises of a nightclub in the Buckhead area of Atlanta. He and numerous others were standing in line waiting to enter the club. Ingram, an off-duty Fulton County deputy sheriff, appeared for work as a security guard at the club. He drove his car to an area near Edwards. A distracted motorist driving in the opposite direction almost hit Ingram’s car. Ingram became enraged and yelled threatening obscenities at the motorist. Edwards presented evidence that Ingram drew his weapon and fired it. Ingram denied drawing or discharging his weapon at the time in question. Indisputably, however, a weapon was discharged in the vicinity, and Edwards was struck by the bullet.

The trial court allowed Edwards to present evidence that in 1992, and again in 1993, Ingram displayed his handgun in a threatening manner after becoming angry at other individuals while he was off duty. Ingram argues that these former transactions were not sufficiently similar to the incident here, because he indisputably did not fire his weapon on either of the prior occasions. Nonetheless, the prior acts by Ingram were highly relevant to impeach his testimony that he had not even drawn his weapon on this occasion. They were not too remote in time to be admissible. The record does not support Ingram’s claim that he was unfairly surprised by the trial court’s decision to admit this evidence. We find no abuse of discretion in the court’s admission of the evidence.

Judgment affirmed.

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

Decided August 16, 2001

Stephen F. Mackie, for appellants.

Parks, Chesin, Walbert & Miller, Andrew Y. Coffman, Miles, McGoff & Moore, Larry A. Pankey, for appellee.

       See generally Troncalli v. Jones, 237 Ga. App. 10, 15 (4) (514 SE2d 478) (1999).