text:
    A99A0133.
    BOYD BROTHERS TRANSPORTATION COMPANY, INC. v. FONVILLE.
    (516 SE2d 573)
   Judge Harold R. Banke.

This Court granted a discretionary appeal in this workers’ compensation case to determine whether the “continuous employment” doctrine was properly applied in awarding the claimant benefits.

In 1995 Corey Fonville was hired as a truck driver by Boyd Brothers Transportation Company, Inc. After completing an orientation session at the company’s headquarters in Alabama, Fonville returned home to North Carolina to await assignment with a company trainer. Although he was paid a trainee’s weekly salary of $300 while he waited, Fonville requested permission to go to the company’s terminal in Austell, Georgia, where there was a greater opportunity of being assigned a trainer.

On October 3, 1995, a driver for Boyd Brothers picked up Fonville and transported him to the Austell terminal, where temporary lodging facilities were provided for company drivers. Fonville thought he was supposed to stay at the terminal to be available for a training assignment, but while there he performed no work other than parking one trailer for the driver who brought him to the terminal. Fonville claims he was informed that his actual training was scheduled to begin on October 6, 1995.

On the evening of October 5, 1995, Fonville decided to walk to a nearby convenience store to get food because the vending machines at the terminal contained only candy and chips. On the way to the store, he faced the oncoming traffic, but on the return he walked with his back to the traffic, and he was severely injured when a car struck him from behind.

Boyd Brothers controverted Fonville’s workers’ compensation claim on the ground the injury occurred as Fonville attended to a personal mission and thus did not arise out of and in the course of his employment. In awarding benefits, however, the administrative law judge found Fonville was in the continuous employment of Boyd Brothers during his stay at the Austell terminal, and the employment was not broken merely because Fonville went to get food. The appellate division upheld that determination, and the superior court affirmed based on the any evidence rule. Held-.

The scope of employment of a traveling employee is broader than that of an ordinary employee. An employee who is taken away from home by his or her employment and who of necessity must eat and sleep away from home in order to further the employer’s business may be considered to be in the continuous employment of the employer, day and night. McDonald v. State Hwy. Dept., 127 Ga. App. 171, 173 (192 SE2d 919) (1972). In such a case, “ ‘[i]t can not be said that the employment is broken by mere intervals of leisure such as those taken for a meal.’ ” (Emphasis in original.) Id. at 175.

The proper test to be applied is whether an employee while working away from his home is required by his employment to lodge and work within an area geographically limited by the necessity of being available for work on the employer’s job site and is, in effect, in continuous employment.

U. S. Fidelity &c. Co. v. Navarre, 147 Ga. App. 302, 304-305 (248 SE2d 562) (1978).

In this case, Boyd Brothers contends it did not require Fonville to go to the Austell terminal as a condition of his employment; rather, it merely accommodated his desire to begin his training at the earliest opportunity, and for that reason Fonville’s presence at the terminal and his injury fell outside the scope of “continuous employment.” However, that accommodation was intended to be mutually beneficial, as both parties shared the common goal of getting Fonville on the road as an experienced driver sooner rather than later.

Decided April 22,1999

Wilson, Strickland & Benson, Norman S. Epstein, Vincent Hill, for appellant.

Jett & Liss, Joel I. Liss, for appellee.

In order to accomplish that mutual goal by being available for the earliest training, Fonville was required to go to the Austell terminal. He was already on Boyd Brothers’ payroll when he went there, and Boyd Brothers would have benefited from the arrangement if the injury had not occurred.

In these circumstances, the evidence authorized the State Board’s finding that Fonville was in continuous employment during his sojourn at the Austell terminal and that he did not break his employment when he left the premises to get a meal. Accordingly, the superior court properly affirmed the State Board’s award.

Judgment affirmed.

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


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A99A0160.
    ISAAC v. THE STATE.
    (516 SE2d 575)
   Ruffin, Judge.

Aundray Radell Isaac pled guilty to driving under the influence of alcohol, interfering with government property, making terroristic threats, and obstruction of an officer. The trial court orally pronounced sentence on April 22, 1998, and entered a written sentence on April 23,1998. Among other things, the sentence required Isaac to pay restitution in the amount of $2,310.02. Although he was represented by counsel, Isaac filed a pro se motion to withdraw his plea on April 27, 1998, stating that he was “ill advised” when he entered the plea and that he “entered the plea due to threats and coercion.” On May 20, 1998, Isaac’s appointed attorney filed a notice of direct appeal from the judgment of conviction and sentence. Subsequently, on June 17, 1998, the trial court denied Isaac’s motion to withdraw his plea. On appeal, Isaac contends that (1) the trial court erred in ordering him to pay restitution, (2) the trial court failed to properly determine whether his plea was freely and voluntarily entered or whether there was a factual basis for the plea, (3) the trial court erred in denying his motion to withdraw the guilty plea, and (4) he received ineffective assistance of counsel in connection with the plea.

A criminal defendant does not have an unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. A direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996). Thus, the merits of Isaac’s appeal can be addressed only if the issues he seeks to raise can be resolved by facts appearing in the record, including the transcript of the guilty plea hearing. Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996).

1. In his first enumeration of error, Isaac contends the trial court erred in requiring him to pay restitution without holding a hearing or making findings of fact as required by OCGA § 17-14-1 et seq. In Radford v. State, 223 Ga. App. 312, 313 (2) (477 SE2d 428) (1996), we held that “Code sections 17-14-8 through 17-14-10 contemplate a hearing and specific written findings by the court in determining whether it will order restitution and, if so, the amount thereof.” (Punctuation omitted; emphasis in original.) The State concedes that Isaac was entitled to a restitution hearing. It is apparent that this issue can be resolved by reference to the facts appearing in the record. Therefore,

we must reverse that portion of appellant’s sentence which imposes restitution and remand the case to the trial court with direction that a hearing on the issue of restitution be held at which OCGA § 17-14-9 and the factors in OCGA § 17-14-10 are to be considered and we further direct that the written finding required by OCGA § 17-14-8 be made.

(Punctuation omitted.) Id.

2. Isaac contends that, in accepting his guilty plea, the trial court failed to properly determine whether the plea was freely and voluntarily given or whether there was a factual basis for the plea. To the extent that this contention can be resolved by reference to the facts in the record, it is without merit.

The transcript of the guilty plea hearing reflects that Isaac was one of fourteen defendants who pled guilty to various crimes at the hearing. Isaac’s court-appointed attorney, Marcus Todd, was at his side during the hearing. In conducting the hearing, the trial court first addressed certain questions to the defendants as a group, and the defendants’ answers to these questions were individually recorded by the court reporter. In response to these questions, Isaac indicated, among other things, that he was not under the influence of any substance; that he could read, write, and understand the English language; that he had read and understood the indictment; and that he was completely satisfied with his attorney’s representation. The judge then advised the defendants as a group of their constitutional rights, including the right to a jury trial; the right to subpoena and confront witnesses; the right to testify on their own behalf and offer other evidence; and the right to have the assistance of a lawyer. Isaac indicated that he understood these rights. The court then informed the defendants that they waived these rights, including the presumption of innocence, by entering a guilty plea; that they could withdraw their plea at any time before sentence was imposed; and that they had the right to appeal their conviction and sentence. Isaac indicated that he understood these facts, and that he had no questions about his rights or any other issues.

The court then discussed the specific charges with each of the defendants individually. With respect to Isaac, the court informed him of the nature of his plea agreement, the charges he faced under the plea agreement, and the possible sentence on each charge. Isaac confirmed that the court’s discussion of these facts conformed with his own understanding.

In response to questions posed to the group as a whole, Isaac stated that he understood his rights and the charges against him; that his plea of guilty was freely and voluntarily made; that no threats, promises, or agreements were made to induce his plea; that the plea was his own voluntary act; that he was guilty of the charges against him; and that he understood the court was not bound by any agreement or recommendation as to sentencing, but could impose a sentence within the limits previously explained.

The district attorney then related the factual basis for the various pleas. He explained that, on January 1, 1998, Isaac was operating a vehicle while under the influence of alcohol to the extent that it was less safe for him to drive and was stopped at a police roadblock. Isaac broke the window of a police vehicle and threatened to kill an officer and his family and burn down their house. Isaac obstructed the officer by resisting arrest and fighting with the officer. In response to the court’s questions, Isaac indicated that the district attorney’s recitation of the facts was correct. The trial court found that there was a factual basis for the pleas and that each of the defendants, including Isaac, “entered the pleas of guilty freely, voluntarily, knowingly and intelligently after fully understanding all of his or her constitutional and statutory rights appertaining thereto.”

The above facts clearly supported the trial court’s finding that Isaac’s plea was freely and voluntarily made and that there was a factual basis for the plea. Isaac’s contention that the guilty plea hearing constituted an improper “mass arraignment” is without merit. In several cases, we have indicated that “[i]t is difficult to imagine a mass arraignment procedure which could satisfy the trial court’s burden of establishing that a proper waiver of counsel has occurred.” (Emphasis supplied.) Jones v. State, 212 Ga. App. 676, 679 (1) (442 SE2d 908) (1994); see also Washington v. City of Atlanta, 201 Ga. App. 876 (412 SE2d 624) (1991); Turner v. State, 162 Ga. App. 806 (1) (293 SE2d 67) (1982). However, these cases

do not hold that a “mass arraignment” is impermissible. Rather, they hold that a “mass arraignment” ... is insufficient by itself to fulfill the trial court’s responsibility to make a personal inquiry and determine that a proposed guilty plea by one who is unrepresented by counsel is in fact knowingly and voluntarily made, upon an appreciation of the nature of the charges and the consequences of the guilty plea.

(Emphasis omitted.) King v. State, 226 Ga. App. 576, 584 (4) (486 SE2d 904) (1997), rev’d on other grounds, 270 Ga. 367 (509 SE2d 32) (1998). Here, Isaac was represented by an attorney, who was at his side during the plea hearing. The court personally advised the defendants, including Isaac, of their constitutional rights and discussed with Isaac individually the charges against him and possible sentences. Under these circumstances, the trial court was authorized to conclude that Isaac’s guilty plea was freely and voluntarily made and supported by a factual basis.

3. Isaac contends that the trial court erred in denying his pro se motion to withdraw his guilty plea. As noted above, however, the trial court did not rule on the motion until after Isaac’s attorney filed the notice of appeal from the judgment of conviction and sentence. In criminal cases as well as civil cases, the filing of a notice of appeal “has the effect of depriving the trial court of jurisdiction to modify or alter its judgment.” Bryson v. State, 228 Ga. App. 84, 85 (1) (491 SE2d 184) (1997); Holt v. State, 205 Ga. App. 40 (1) (421 SE2d 131) (1992); D. P. v. State of Ga., 129 Ga. App. 680, 681 (1) (200 SE2d 499) (1973). Since the grant of a motion to withdraw a guilty plea after sentence has been imposed is, in effect, a modification of the judgment of conviction and sentence, the filing of the notice of appeal from the judgment of conviction and sentence deprived the trial court of jurisdiction to grant Isaac’s motion to withdraw his plea.

Moreover, even if we were to consider the merits of Isaac’s claim, it is clear that the trial court did not err in denying the motion. A defendant has an absolute right to withdraw a guilty plea and plead not guilty at any time before sentence is orally pronounced by the trial court. OCGA § 17-7-93 (b); Anderson v. State, 194 Ga. App. 395 (390 SE2d 637) (1990). In his brief, Isaac suggests that OCGA § 17-7-93 (b) should apply because the signature line of the motion to withdraw the plea indicates that it was signed on April 21, 1998, the day before sentence was pronounced. However, the motion was not in fact filed with the court until April 27, five days after sentence was pronounced. Moreover, Isaac did not inform the court during the sentencing hearing on April 22 that he desired to withdraw his plea. Even if Isaac drafted and signed the withdrawal motion before sentence was pronounced, he took no steps to communicate his desire to withdraw his plea until after the judge imposed a sentence he found unsatisfactory. Accordingly, he was not entitled to withdraw his plea as a matter of right pursuant to OCGA § 17-7-93 (b).

“[A]iter sentence is imposed a guilty plea may only be withdrawn to correct a manifest injustice.” State v. Evans, 265 Ga. 332, 336 (3) (454 SE2d 468) (1995); Uniform Superior Court Rule 33.12. The defendant in such case must file a timely motion to withdraw his plea, and the trial court’s ruling on such motion will not be disturbed on appeal absent a manifest abuse of such discretion. See Anderson, supra; Romano v. State, 220 Ga. App. 322, 323 (1) (469 SE2d 726) (1996); USCR 33.12 (A).

Isaac argues that the trial court erred in denying his motion without affording him the right to a hearing. However, pretermitting whether a defendant has a right to a hearing on a motion to withdraw a guilty plea, Isaac never requested that the trial court hold such a hearing. It is well settled that, even if a defendant has a due process right to a hearing, that right may be waived by failure to request a hearing. Wilkins v. State, 220 Ga. App. 516, 518 (3) (469 SE2d 695) (1996); Mullins v. State, 224 Ga. App. 218 (1) (480 SE2d 264) (1997). See also Peyton v. Peyton, 236 Ga. 119, 120-121 (223 SE2d 96) (1976). “[T]he trial court has no duty to initiate such hearing until requested by one of the parties. . . . [T]he party seeking a hearing must take affirmative steps to request one.” (Punctuation omitted.) Wilkins, supra. Having failed to request a hearing, Isaac cannot complain of the trial court’s failure to hold one. Id.

Decided April 22,1999.

Alexander & Vann, Marcus R. Todd, L. Warren Turner, Jr. & Associates, Jody D. Peterman, for appellant.

As discussed above, the transcript of the guilty plea hearing was sufficient to authorize the trial court to conclude that the plea was freely and voluntarily made. It is well established that a trial court may rely on the transcript of the plea hearing in ruling on a motion to withdraw a plea, notwithstanding a defendant’s later assertion that his plea was not voluntary. See Thornton v. State, 180 Ga. App. 274, 275 (349 SE2d 23) (1986); Crump v. State, 154 Ga. App. 359, 360 (268 SE2d 411) (1980). Accordingly, the trial court did not abuse its discretion in denying the motion to withdraw the plea. Id.* *

4. In his final enumeration of error, Isaac contends that he received, ineffective assistance of counsel in connection with his plea. To challenge a guilty plea based on ineffectiveness of counsel, a defendant must show that there is a reasonable probability that, but for counsel’s deficiency, he would not have pled guilty, but would have insisted upon going to trial. Edmond v. State, 214 Ga. App. 707, 708 (2) (448 SE2d 775) (1994). As discussed above, on a direct appeal from a guilty plea, the merits of the appeal can be addressed only if the issues raised may be resolved by facts appearing in the record. Caine, supra. Isaac’s assertions of ineffectiveness are based largely on facts not appearing in the record. Thus, “[t]he issues which he seeks to raise on appeal can be developed only in the context of a post-plea hearing,” and Isaac may not raise these issues in this direct appeal. Id. at 422.

Judgment affirmed in part, reversed in part, and remanded.

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

J. David Miller, District Attorney, Mark E. Mitchell, Assistant District Attorney, for appellee.

       In his brief, Isaac claims that he “in fact answer [ed] in the negative to some of the questions asked by the trial court, including whether the facts alleged by the Assistant District Attorney were true.” However, Isaac did not seek to correct any alleged inaccuracies in the transcript as provided in OCGÁ § 5-6-41 (f).
      Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). . . . When this is not done, there is nothing for the appellate court to review.

        High v. Zant, 250 Ga. 693, 698 (11) (300 SE2d 654) (1983).

       This situation is not analogous to cases such as Livingston v. State, 221 Ga. App. 563, 564 (472 SE2d 317) (1996), in which we have held that a prematurely filed notice of appeal becomes effective upon the entry of the judgment or order referenced in the notice of appeal. In those cases, the notice of appeal indicates that it is taken from a judgment which may have been orally announced by the trial court but has not yet been formally entered. Id. at 565. In the present case, however, the notice of appeal indicates that it is a direct appeal from the judgments of conviction and sentence entered on April 22,1998, and does not purport to address the pending pro se motion to withdraw the guilty plea (which was not denied until almost a month after the notice of appeal was filed). As we recognized in Livingston, in order for a prematurely filed notice of appeal to be effective, “the notice must clearly indicate the order from which it seeks relief.” Id. Accordingly, the notice of appeal does not come within the rule set forth in Livingston, but instead operated to divest the trial court of jurisdiction to modify its judgment.

        Romano, supra, stated that a hearing is not required on a motion to withdraw a guilty plea, while Weathers v. State, 149 Ga. App. 617, 619-620 (255 SE2d 90) (1979), overruled on other grounds by State v. Germany, 245 Ga. 326, 328 (265 SE2d 13) (1980), held that a hearing is necessary.

       Because of our ruling above, it is not necessary to consider the State’s contention that the pro se motion to withdraw was improper because Isaac was represented by counsel at the time it was filed.


author: Judge Harold R. Banke.

text:
    A99A0446.
    THE STATE v. KING.
    (516 SE2d 580)
   Judge Harold R. Banke.

Beverly Mae King was charged with shoplifting, theft by receiving, and giving a false name to a police officer. Enumerating two errors, the State appeals the grant of King’s motion to suppress.

At the suppression hearing, Officer Ray C. West testified that at about 6:37 p.m., he responded to a report of a shoplifting incident at a Bass Outlet store in Calhoun. West intercepted King outside the store in possession of a leather pocketbook, identified as belonging to the store. Bass Outlet officials decided to prosecute King who lived in Atlanta. As West placed King into his patrol vehicle, she volunteered that she was “going to be on the level” and that she had not provided her correct name and other information to him. West then advised King that she was under arrest for giving a false name to a police officer and apprised her of the Miranda warnings. At this point, West told her he was going to inventory her vehicle because it had to be impounded and then asked whether her vehicle contained any stolen merchandise. She responded in the affirmative and told him that an accomplice who was with her had taken the merchandise. Neither King nor her friend were from the local area. An inventory search of King’s vehicle revealed numerous items of new clothing concealed in two garbage bags. Held:

1. The State contends that because it had a right to impound King’s vehicle, the trial court erred in granting King’s motion to suppress the results of the inventory search conducted pursuant to that impoundment.

Where the evidence is uncontroverted and no question about the credibility of witnesses is presented, a trial court’s application of law to the undisputed facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994); State v. Haddock, 235 Ga. App. 726, 727 (1) (510 SE2d 561) (1998).

The decisive evidentiary issue in cases involving inventory searches is the existence of reasonable circumstances rather than exigent circumstances. Waggoner v. State, 228 Ga. App. 148, 149 (1) (491 SE2d 88) (1997); State v. Evans, 181 Ga. App. 422, 423-424 (2) (352 SE2d 599) (1986). Inventory searches have been upheld where they serve the legitimate purpose of: (1) protecting the property of a person taken into custody; (2) protecting police from potential dangers; and (3) protecting police against claims for stolen or lost property. Williams v. State, 204 Ga. App. 372, 373 (419 SE2d 351) (1992). But where the impoundment is unreasonable, then the resulting inventory search is invalid. State v. King, 191 Ga. App. 706, 707 (382 SE2d 613) (1989). Impoundment is not generally permissible when the driver is arrested but a reliable friend is present, authorized, and capable of safely removing the vehicle. Id.

Decided April 22,1999.

T. Joseph Campbell, District Attorney, Rebecca B. Paris, Assistant District Attorney, for appellant.

White & Choate, Harold J. Choate III, for appellee.

In this case, the owner of the vehicle was under arrest, she had implicated her companion in criminal activity, and no one else remained to take custody of the car and remove it from the shopping center premises. See Evans v. State, 216 Ga. App. 21, 24 (2) (453 SE2d 100) (1995). Although the officer did not inquire whether King could make other arrangements for the retrieval of her car, he was not required to do so. Williams, 204 Ga. App. at 373. West explained that it was standard procedure, in circumstances like these, to inventory the vehicle and call in a wrecker in order to shield the department and the officer from liability.

After the lawful arrest of King, the police became responsible for timely safeguarding King’s property, until it could be lawfully disposed of, in the ordinary course of police business. Jones v. State, 187 Ga. App. 421, 424 (370 SE2d 784) (1988); see Pierce v. State, 194 Ga. App. 481, 482 (391 SE2d 3) (1990). Impounding the vehicle served the dual purpose of protecting King’s property and protecting police from potential claims for lost possessions. Waggoner, 228 Ga. App. at 149. Otherwise, to have left the vehicle unattended in a public lot near the close of business, with numerous property items in plain view, could have potentially exposed the police department to liability for property lost, damaged, or stolen from the vehicle. See Jones, 187 Ga. App. at 424.

2. In light of this holding, we need not address the State’s remaining enumeration of error.

Judgment reversed.

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


author: McMURRAY, Presiding Judge.

text:
    A99A0533.
    OVERBY v. THE STATE.
    (516 SE2d 585)
   McMURRAY, Presiding Judge.

Defendant Marshall Overby pleaded guilty of a felony violation of the Georgia Controlled Substances Act, for growing marijuana, and received a ten-year sentence to be served under intensive probation. The State subsequently petitioned to revoke defendant’s probation on the ground he committed the new offenses of cruelty to children and battery on June 8, 1998.

At the hearing, the State’s only witness was Officer Steve Daniel Thomas of the Franklin County Sheriff’s Department, who responded to a complaint at defendant’s residence. Defendant was not at the residence when Officer Thomas arrived. Officer Thomas identified State’s Exhibits 1 through 4 as photographs he took of defendant’s sister, Kimberly Reese, and her son, Joshua. These pictures reveal a “hematoma and a laceration on the back of [Joshua’s] head,” plus “a bruise and an abrasion on the back of the arm of Kimberly Reese [,] and also the side of her face where there’s an abrasion. . . When Officer Thomas stated that “she [Kimberly Reese] reported that he [defendant] pushed her up against a tree,” defendant objected to hearsay. The State offered this testimony “to show the reason why the officer took that particular photograph and for no other purpose.” (Emphasis supplied.) The trial court “allow[ed] him [Officer Thomas] to testify, but not as to the truthfulness of what was told to him.” (Emphasis supplied.)

The victims were not under subpoena to appear at this revocation hearing, although “they knew that this hearing was going to come up.” Officer Thomas understood Kimberly Reese was in Utah at the time. He reported that Reese “came in a couple of days after this and wanted to make a — wanted to change her statement.”

The trial court revoked probation and ordered defendant to serve four years. Defendant’s application for discretionary appeal was granted by this Court, and a timely notice of appeal was filed. Held:

On appeal, defendant contends there is no competent evidence to support the allegations that he violated the terms of his probation by committing the new offenses of cruelty to children and battery. We agree and reverse.

1. “[No] court may revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violation alleged.” OCGA § 42-8-34.1 (a). But in the case sub judice, there simply is no evidence of record, hearsay or otherwise, identifying defendant as the cause of the hematoma and laceration on the back of Joshua’s head.

2. There is no competent evidence in this record that defendant committed the new offense, of battery against his sister, Kimberly Reese.

“Hearsay evidence has no probative value and is inadmissible in a probation revocation proceeding. [Cit.] ‘Thus, such evidence is incapable of supporting a trial court’s findings whether or not objection was lodged.’ [Cit.]” Goodson v. State, 213 Ga. App. 283, 284 (444 SE2d 603), applying the whole court decision in Barnett v. State, 194 Ga. App. 892 (392 SE2d 322).

(a) In the case sub judice, the trial court admitted the testimony of Officer Thomas relating a statement by the victim Kimberly Reese to the effect that defendant pushed her up against a tree with the express proviso that it was not allowable to show the truth of that statement. Although the State submits on appeal that the contents of the victims’ statements to the investigating officer are admissible as res gestae, this argument was eschewed below when the State’s attorney informed the trial court that the hearsay objected to by defendant was submitted only to show why the officer took photographs of the victims, “and for no other purpose.”

(b) Next, the State argues that the contents of the victims’ statements are admissible as a “necessity” exception to the rule prohibiting hearsay, under OCGA § 24-3-1 (b).

“The two underlying reasons for any exception to the hearsay rule are a necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence — that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered. . . .” [Cits.]

(Emphasis omitted.) Higgs v. State, 256 Ga. 606, 607 (3) (351 SE2d 448).

But in the case sub judice, the trial court was never asked to consider this theory of admissibility and never made any factual findings to support admission under the “necessity” exception to the hearsay rule. “Since the question was not presented to or ruled upon by the trial court, we decline ... to encroach upon the factfinding function of the trial court.” Farmer v. State, 266 Ga. 869, 870 (3) (472 SE2d 70). Unlike Farmer v. State, there is in this case no enumeration of error predicated upon the trial court’s evidentiary ruling admitting hearsay, whether for a limited purpose (but expressly not the truth) or as substantive evidence.' Rather, the sole question for determination is whether the evidence is sufficient to support revocation of defendant’s probation. We hold the evidence is not sufficient and reverse. Consequently, it is not appropriate to remand, as in Farmer, for further foundation factfinding by the trial court.

Decided April 22,1999.

Billy I. Daughtry, Jr., for appellant.

Robert W. Lavender, District Attorney, Kathleen R. Johnson, Assistant District Attorney, for appellee.

Judgment reversed.

Andrews and Ruffin, JJ, concur.

       Officer Thomas had a “cassette tape, a copy of the 911 call,” but this was never played for the trial court or otherwise introduced into evidence. Similarly, Officer Thomas took statements from the victims, but the substance of those statements was never put into evidence.

       We express no opinion on whether the trial court should have admitted the complete contents of each victim’s statements to Officer Thomas as substantive evidence of the truth, as no other statement was offered by the State. But see McKinney v. State, 218 Ga. App. 633, 634 (1) (463 SE2d 136).

       In dissent, Justice Carley argued the “right-for-any-reason” rule should be applied to authorize the use of hearsay under the “necessity” exception. 266 Ga. 873, supra.


author: Blackburn, Presiding Judge.

text:
    A99A0195, A99A0549, A99A0789, A99A0823.
    ROLLESTON et al. v. CHERRY et al. (four cases).
    (521 SE2d 1)
   Blackburn, Presiding Judge.

In Case Nos. A99A0195 and A99A0549 Moreton Rolleston, Jr., individually, Moreton Rolleston, Jr., Living Trust, and Moreton Rolleston, Jr., as trustee and/or beneficiary (referred to collectively as the Trust) appeals the trial court’s order denying its motion for summary judgment and granting the motion for summary judgment of the Estate of Rebecca Wight Cherry Sims and John Randolph Cherry (referred to collectively as the Estate). The Trust further contends that the trial court’s dismissal of its first notice of appeal whereby it attempted to appeal the denial of a previous motion for summary judgment was erroneous. The Trust piso appeals the trial court’s denial of its motion to set aside the judgment. In Case No. A99A0789, the Trust appeals the trial court’s order holding Rolleston in contempt of court and finding that a lease from the Trust violated the interlocutory injunction. In Case No. A99A0823, the Trust appeals the trial court’s order which required the posting of a $6 million supersedeas bond.

These combined cases are a continuation of litigation by Rolleston and the Trust against the Estate. In Rolleston v. Cherry, 226 Ga. App. 750 (487 SE2d 354) (1997), this Court affirmed $5.2 million in judgments against Rolleston for professional negligence, breach of fiduciary duty, fraud, and contribution relating to his representation of Rebecca Wight Cherry Sims. After the verdict, but before the judgment was entered, Rolleston recorded deeds in Fulton County and Glynn County transferring title to all of his property from his name into the name of the Moreton Rolleston, Jr. Living Trust. He also transferred all of his personal property, including cash assets, into the Trust with the exception of his interest in a $500,000 certificate of deposit in German Deutsch marks, which was put into the Trust on a later date. Thereafter, the Estate filed the present case seeking to set aside the transfers of Rolleston’s property into the Trust as fraudulent. The Estate also sought and received an interlocutory injunction prohibiting any transfer of real or personal property from the Trust without approval of the court during the pendency of the underlying suit.

Thereafter, the Trust attempted to directly appeal the trial court’s denial of its first motion for summary judgment; but as it was an appeal from an interlocutory order, the trial court dismissed Rolleston’s notice of appeal. Subsequently, the trial court entered an order granting the Estate’s motion for summary judgment and denying the Trust’s third renewed motion for summary judgment. By such order, the trial court reserved the Estate’s claims for permanent injunction, damages, and attorney fees for trial. These appeals arise out of the trial court’s order on the parties’ motions for summary judgment.

Case Nos. A99A0195 and A99A0S49

1. The Trust contends that the trial court erred in granting the Estate’s motion for summary judgment in that it misapplied OCGA § 18-2-22 and it failed to consider certain evidence.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conelusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

OCGA § 18-2-22 provides:

The following acts by debtors shall be fraudulent in law against creditors and others and as to them shall be null and void: (1) Every assignment or transfer by a debtor, insolvent at the time, of real or personal property ... to any person . . . where any trust or benefit is reserved to the assignor or any person for him; (2) Every conveyance of real or personal estate ... of any description had or made with intention to delay or defraud creditors, where such intention is known to the taking party; . . . and (3) Every voluntary deed or conveyance, not for a valuable consideration, made by a debtor who is insolvent at the time of the conveyance.

The Estate need not establish a claim under each division of OCGA § 18-2-22, as proof of the elements in any division requires that the conveyances to the Trust be declared null and void. See Dearing v. A. R. III, Inc., 266 Ga. 301, 303 (2) (466 SE2d 565) (1996).

(a) Rolleston argues that OCGA § 18-2-22 does not apply to the transfers he made to the Trust because, at the time of the transfers, he was not indebted to the Estate. However, this argument overlooks the precise statutory language and a long line of case authority. By its specific terms, the statute applies to “creditors and others.”

These “others” include plaintiffs with claims against debtors “liable as tortfeasors, or otherwise ... for an unascertained damage to person or property, so far as fraudulent conveyances are concerned.” Westmoreland v. Powell, 59 Ga. 256, 258 [(1877)]. In 1895, the legislature put back in the statute the words declaring certain acts to be fraudulent in law against creditors “and others” . . . using as its source Westmoreland.

Kesler v. Veal, 182 Ga. App. 444,449 (356 SE2d 254), aff’d in part and rev’d in part, 257 Ga. 677 (362 SE2d 214) (1987). Therefore, OCGA § 18-2-22 is applicable to Rolleston and the transfers he made to the Trust. See also Mercantile Nat. Bank v. Aldridge, 233 Ga. 318, 319-320 (210 SE2d 791) (1974).

(b) Rolleston argues that OCGA § 18-2-22 (3) does not apply to the transfers he made to the Trust because he was not insolvent at the time of the transfers. However, insolvency of the debtor is determined by ascertaining whether he retained sufficient assets to satisfy his obligations after the transfers. See Chambers v. C & S Nat. Bank, 242 Ga. 498, 501-502 (249 SE2d 214) (1978). Rolleston was aware of the pendency of the Estate’s claims against him by which it sought millions of dollars in damages, and he did not retain sufficient assets to satisfy any award against him. The evidence to which the Trust refers merely establishes the amount of assets transferred into the Trust. The amount of assets transferred into the Trust is not relevant in determining whether the debtor was solvent at the time of the transfer. Id. Furthermore, proof of Rolleston’s solvency is unnecessary to establish the Estate’s claim pursuant to OCGA § 18-2-22 (2). Mercantile Nat. Bank, supra.

Because the trial court did not err in granting the Estate’s motion for summary judgment, it also did not err in denying the Trust’s motions for summary judgment.

2. The Trust contends that the trial court erred in failing to grant its first motion for summary judgment, arguing that the Estate failed to comply with OCGA § 9-11-56 (e). By this enumeration, the Trust asserts that the Estate failed to respond to its initial motion for summary judgment with any evidence in opposition to such motion. The Trust further asserts that its motion for summary judgment established a prima facie case, and that, therefore, summary judgment in its favor was demanded pursuant to OCGA § 9-11-56 (e).

The Trust’s argument rests on its assertion that it had presented a prima facie case entitling it to summary judgment. However, as is shown in our discussion in Division 1, the Trust was not entitled to summary judgment as a matter of law, and therefore, the trial court did not err in denying its motions.

3. The Trust contends that the trial court erred in dismissing its initial notice of appeal of the trial court’s order denying its first motion for summary judgment. However, as a direct appeal is not available from the denial of a motion for summary judgment, see OCGA § 5-6-34, the trial court did not err in dismissing the Trust’s attempt to pursue such a direct appeal. See Attwell v. Lane Co., 182 Ga. App. 813, 814 (1) (357 SE2d 142) (1987) (trial court empowered to dismiss appeal where judgment not final).

4. The Trust enumerates as error the trial court’s order denying its motion to set aside the judgment and motion to dismiss the amended complaint. By this enumeration, the Trust has asserted more than one error.

It is well settled that when an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned.

(Citation and punctuation omitted.) Stubbs v. Harmon, 226 Ga. App. 631, 633 (2) (487 SE2d 91) (1997). We will review the first error asserted.

The record makes it clear that the Trust filed a motion to set aside the judgment after the trial court denied its first motion for summary judgment. However, as the Trust’s motion was not a proper motion, because there was no judgment to set aside, the trial court’s denial of such motion was also not erroneous. Therefore, the Trust’s enumeration is without merit.

Case No. A99A0789

5. Rolleston contends that the trial court erred in finding him and the Trust in contempt of the temporary injunction against alienation of assets by leasing real estate out of the Trust to a limited partnership.

“Whether a contempt of court has been committed in the violation of an injunctive order, and how it shall be treated, are questions for the discretion and judgment of the court that issued the order, and its discretion will not be interfered with by this court unless there is an abuse of discretion. If there be any substantial evidence from which the judge could have concluded that his order had been violated, his finding to that effect cannot be disturbed by this court, insofar as the sufficiency of the evidence is concerned.”

Gen. Teamsters Local Union No. 528 v. Allied Foods, 228 Ga. 479, 483-484 (186 SE2d 527) (1971).

The temporary injunction provides that Rolleston and the Trust are “enjoined from transferring or conveying any real or personal property without notice to and approval by this Court. This injunction shall remain in full force and effect until further order of this Court.” The interlocutory injunction was entered on July 7, 1995. Before the interlocutory injunction was entered, Rolleston created a limited partnership, the MRJR Limited Partnership (the Partnership), of which he is the sole general partner and the Trust is the sole limited partner. The record contains a lease for 100 years from the Trust to the Partnership of substantial real and personal property described in exhibits attached to the lease. The lease was filed with the Fulton County Superior Court on August 13, 1998.

The Trust argues that because the lease did not transfer or convey title, it was not a transfer of the property as proscribed by the interlocutory injunction. However, “a lease of lands for five years or more creates an estate for years and passes as realty in this State. Such an estate may be bought and sold as any other estate, subject to the terms and conditions of the lease. OCGA §§ 44-6-100; 44-6-102; 44-7-1.” (Punctuation omitted.) Paces Partnership v. Grant, 212 Ga. App. 621, 624 (442 SE2d 826) (1994). This type of transfer clearly violated the interlocutory injunction. “[I]f [one] is in doubt as to what acts he may or may not do under the order, he should request a modification or construction of its terms. If he proceeds under his own construction, he does so at his own peril.” Gen. Teamsters, supra at 481. Additionally, we note that “[i]t is the spirit more than the letter of the injunction to which obedience is required.” (Punctuation omitted.) Rapaport v. Buckhead Coach, 234 Ga. App. 363, 365 (2) (506 SE2d 690) (1998).

The trial court determined that no economic purpose appeared on the face of the lease because, pursuant to its terms, the Partnership was required to pay the Trust 50 percent of the net income received in the preceding year. Yet, prior to the lease, the Trust received 100 percent of the net income. The trial court further determined that the lease was not an arms-length transaction because Rolleston was the Trustee of the Trust and also the general partner of the Partnership. Additionally, Rolleston canceled the lease a few days prior to the hearing on the Estate’s motion for contempt. Therefore, the trial court did not abuse its discretion in determining that the temporary injunction was violated by the lease in question.

6. Rolleston contends that the trial court erred in holding him in contempt of court, in sentencing him to jail, and ordering him to pay a fine of $500. Rolleston’s enumeration is not supported with argument or citation to authority as required by this Court’s Rule 27 (c) (2), and is, therefore, deemed abandoned.

In any event, the trial court found that “Rolleston acted with fall knowledge that he was violating [its] order and [was] in willful contempt.” The trial court sentenced Rolleston “to serve ten (10) days in the common jail of Fulton County,” but allowed him to purge the contempt by payment of a fine of $500. The trial court’s decision in fining Rolleston was within its discretion, and we find no abuse. Therefore, Rolleston’s enumeration is without merit.

,7. The Trust contends that attorney fees and costs are not recoverable in an action for contempt and that the trial court erred in awarding them to the Estate. The Supreme Court of Georgia has held that if a prohibition against attorney fees in contempt proceedings exists, it exists because of “constitutional and statutory limits put on the power of the courts to punish for criminal contempt” and is therefore limited to criminal contempt actions. Minor v. Minor, 257 Ga. 706, 709 (2) (362 SE2d 208) (1987). See also 1983 Ga. Const., Art. I, Sec. II, Par. IV; OCGA § 15-6-8.

“The distinction between criminal and civil contempt is that criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.” (Punctuation omitted.) Rapaport, supra at 364 (1). The present contempt motion is one for criminal contempt as the trial court’s order punishes Rolleston for a previous violation of the temporary injunction. In Rapaport, we held that “[a]ttomey fees are not included in the permissible sanctions, and the Supreme Court of Georgia has held that they are not awardable in conjunction with a citation for criminal contempt.” Id. at 365 (3).

The Estate argues that, because the trial court specifically awarded attorney fees pursuant to OCGA § 13-6-11 and not as punishment for the contempt, it did not err in making the award. The Estate distinguishes the cases cited by Rolleston by pointing out that therein, the attorney fees were awarded as either the sole punishment or as further punishment for the contempt rather than upon a separate basis. See Gen. Teamsters, supra (where defendant fined for violation of restraining order and required to pay attorney fees, Court found no authority for award of attorney fees); Ragsdale v. Bryan, 235 Ga. 58 (218 SE2d 809) (1975) (“punishment assessed in the form of attorney fees . . . was improper”); Rapaport, supra (award of attorney fees reversed where only punishment assessed for finding of criminal contempt).

The Estate’s argument fails to address our specific holding in Rapaport, wherein we found that attorney fees are not awardable in conjunction with a citation for criminal contempt. Id. at 365. Therein, the Court further distinguished civil contempt by noting that in that context, attorney fees were awardable where some other express authority exists. Id. at 365, n. 2. Therefore, upon the authority of Rapaport we must reverse the trial court’s award of attorney fees on the Estate’s motion for contempt.

Case No. A99A0823

8. The Trust contends that the trial court erred in requiring a $6 million supersedeas bond. The Trust argues that OCGA § 5-3-24 precludes the imposition of a supersedeas bond in the present case. We do not agree.

Decided April 12,1999

Reconsideration denied April 23,1999

Moreton Rolleston, Jr., pro se.

Shelby A. Outlaw, for appellees.

OCGA § 5-3-24 provides that

[e]xecutors, administrators, and other trustees, when defending an action as such or defending solely the title of the estate, may enter an' appeal without paying costs and giving bond and security as required by Code Section 5-3-22; but, if a judgment should be obtained against such executor, administrator, or other trustee and not the assets of the estate, he must pay costs and give security as in other cases.

However, such Code section governs appeals to superior courts from probate courts, not appeals from superior court to the Court of Appeals. OCGA § 5-6-46 governs the grant of supersedeas bonds on appeals from superior court to the Court of Appeals. This Code section provides, in pertinent part, that “upon motion by the appellee . . . the trial court shall require that supersedeas bond be given with such surety and in such amount as the court may require.” Therefore, pursuant to OCGA § 5-6-46, the trial court did not err in granting the Estate’s motion for supersedeas bond.

In summary, in Case Nos. A99A0195 and A99A0549 the trial court’s grant of summary judgment to the Estate and its denial of summary judgment to the Trust is affirmed. In Case No. A99A0789, the trial court’s finding of contempt and punishment therefor is affirmed; however, its assessment of attorney fees is reversed. In Case No. A99A0823, the trial court’s requirement of a $6 million supersedeas bond is affirmed.

Judgment affirmed in Case Nos. A99A0195, A99A0549, and A99A0823. Judgment affirmed in part and reversed in part in Case No. A99A0789.

Barnes, J, and Senior Appellate Judge Harold R. Banke concur.

       Upon Rolleston’s appeal from the interlocutory injunction, the Supreme Court of Georgia affirmed without opinion. See Rolleston v. Cherry, 266 Ga. XXV (466 SE2d 866) (1996).

       The Trust then attempted to directly appeal the trial court’s order dismissing its appeal. See Rolleston v. Cherry, 233 Ga. App. 295 (504 SE2d 504) (1998) where this Court dismissed the Trust’s appeal.

       This issue was previously raised by the Trust in a motion before this Court. On September 17, 1998, this Court entered an order denying the Trust’s motion to reverse the trial court’s imposition of a supersedeas bond. Such order is hereby vacated and this opinion substituted in its place.


author: McMurray, Presiding Judge.

text:
    A99A0251.
    STARKS v. THE STATE.
    (516 SE2d 590)
   McMurray, Presiding Judge.

Defendant Starks appeals his conviction of the offense of theft by shoplifting and the sole enumeration of error challenges the sufficiency of the evidence to authorize the conviction. Held:

Viewed in the light most favorable to sustaining the verdict of the jury, the evidence shows that defendant and a companion were observed via security camera in a Belk’s retail store by Douglas Martin, a store employee working as a loss prevention agent. Defendant was seen trying on a Nautica brand jacket. His companion was seen concealing merchandise on his person and became the focus of attention. Martin unsuccessfully sought to apprehend defendant’s companion, who exited the store and was lost sight of in the adjoining shopping mall. While he had been pursuing defendant’s companion in Belk’s, Martin directly observed defendant and saw that he was still wearing a Nautica jacket. Later, after losing sight of defendant’s companion, Martin saw defendant exit the store still wearing a Nautica jacket. Martin, along with Brian Koppenhaver, another Belk’s security officer, proceeded to follow defendant out to a vehicle in the parking lot where his companion from the store was waiting. The two security officers approached defendant and his companion. Defendant removed the Nautica jacket he was wearing and placed it in his vehicle before he and his companion accompanied the security officers to their office. Along with Douglas Davis, a third security officer, Koppenhaver looked inside the vehicle and could identify the Nautica jacket as merchandise of the Belk’s store due to the presence of the store’s tags. Davis removed the jacket from the vehicle and it was possible via the coded numbers on the tags to identify the jacket as the merchandise of that specific Belk’s store.

Defendant testified that he saw the jacket bearing the Belk’s tag for the first time when he returned to the car and that he picked it up, tried it on, and then put it back in the car. According to defendant’s explanation, the Nautica jacket he had been seen wearing was one that he had borrowed. Defendant argues that the borrowed jacket he was wearing was confused with one actually stolen by his companion and that there is no proof that he placed the stolen jacket in the car. However, the prosecution’s evidence established that there was no second Nautica jacket in the car and that the sole Nautica jacket worn by defendant was the property of the Belk’s store.

Any credibility issues created by the conflicts in the evidence presented at trial were within the exclusive province of the jury. Brannon v. State, 266 Ga. 667, 668 (469 SE2d 676). The evidence at trial was sufficient to authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offense of theft by shoplifting. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Scott v. State, 234 Ga. App. 378, 380 (3) (506 SE2d 880).

Decided April 23,1999.

Colin A. Fieman, for appellant.

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


author: Andrews, Judge.

text:
    A99A0372.
    KENDALL v. BURKE.
    (516 SE2d 791)
   Andrews, Judge.

Alvin Kendall appeals from the trial court’s order dismissing his appeal in this Court. The trial court found that Kendall had unreasonably and inexcusably failed to pay the copying and filing costs of his appeal and granted Burke’s motion to dismiss. Kendall argues on appeal that there was insufficient evidence to support a finding that the failure to pay costs was unreasonable and inexcusable. We disagree and affirm.

This case arose after a bench trial verdict awarding Burke $119,326.19 in damages on his breach of contract claim against Kendall. On March 3, 1997, Kendall filed a timely notice of appeal to this Court. The clerk of court notified Kendall on July 17, 1997, that the transcript was ready and copying and filing costs for the appeal totaled $1,880.50. Kendall did not pay the costs nor did he request an extension of time from the trial court.

On September 4, 1997, Burke filed a motion to dismiss the appeal. On September 9, 1997, Kendall sent the clerk a check for the $1,880.50. The check was returned for insufficient funds.

The trial court held a hearing on Burke’s motion to dismiss the appeal on December 16, 1997. As of that date, five months after the transcript was ready and over nine months after the notice of appeal was filed, Kendall still had not paid the costs of appeal.

OCGA § 5-6-48 (c) provides that a transcript must be filed within 30 days after the filing of a notice of appeal unless an extension of time is requested as provided by OCGA § 5-6-39. The trial court may, after notice and hearing, order an appeal dismissed for a party’s failure to file a transcript on time only if the delay was (1) unreasonable, (2) inexcusable, and (3) caused by such party. OCGA § 5-6-48; Sellers v. Nodvin, 262 Ga. 205 (415 SE2d 908) (1992). “In reviewing a finding of unreasonable and inexcusable delay in filing a transcript, this court will not disturb the lower court’s finding absent an abuse of discretion.” (Citations and punctuation omitted.) Hall v. Bussey, 200 Ga. App. 311 (408 SE2d 430) (1991).

Decided April 23,1999.

Lawson & Thornton, George O. Lawson, Jr., Alton Hornsby III, for appellant.

John A. Roberts, for appellee.

A delay is unreasonable if it directly affects the appeal by delaying the placement of the case on the earliest possible calendar in this Court or delaying the docketing of the appeal and the hearing of the case in this Court. Sellers, supra at 207. This Court has determined that a delay of more than 30 days in paying costs is prima facie unreasonable and inexcusable. But, this inference is not conclusive and may be rebutted if the delaying party comes forward with proof showing that the delay was neither unreasonable nor inexcusable. Smith v. Simpson, 231 Ga. App. 109 (497 SE2d 663) (1998); Poythress v. Savannah Airport Comm., 229 Ga. App. 303, 304 (494 SE2d 76) (1997); Jackson v. Beech Aircraft Corp., 213 Ga. App. 172, 173 (444 SE2d 359) (1994); Leonard v. Ognio, 201 Ga. App. 260, 261 (410 SE2d 814) (1991).

Here, the transcript of the hearing on the motion to dismiss shows that Kendall never disputed that the delay was unreasonable and never argued that Burke was not prejudiced due to the delay in transmitting the appeal; nor did Kendall put forward any evidence to overcome the presumption that a delay of five months had delayed the docketing and hearing of the case in this Court. The transcript of the hearing shows that Kendall’s only argument to the trial court was that he did not have the money to pay the costs; however, he also admitted that he did not qualify as an indigent. Further, and most importantly, in this case, unlike the cases cited by Kendall in support of his argument, there has been not only a delay, but a total failure to pay the cost of the transcript as of the date of the trial court’s order. Under those circumstances, the trial court correctly found the delay was both inexcusable and unreasonable. Plumides v. American Engines &c., 227 Ga. App. 885, 886 (490 SE2d 552) (1997). The trial court did not abuse its discretion in granting the motion to dismiss the appeal.

Judgment affirmed.

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


text:
    A99A0406.
    ALLEN v. THE STATE.
    (516 SE2d 788)
   Judge Harold R. Banke.

Johnathan Allen was convicted of committing an aggravated assault on City of Marietta Police Officer Harvey by kicking him about the head and of obstruction of Officer Doyle in the lawful discharge of his official duties. Allen raises issues concerning the sufficiency of the evidence and the legality of his detention by Officer Harvey.

Marietta Police Lieutenant Spradley and Officers Harvey and Doyle responded to a report of drugs being sold from a red pickup truck in the parking lot of Hunter’s Package Store, an area notorious for illegal drug activity. Spradley first arrived on the scene, observed the described vehicle, and ascertained that Beasley was the owner and Allen the passenger. The other officers arrived moments later, and at Spradley’s request, Harvey began to question Allen and Doyle questioned Beasley. Spradley explained the purpose of the investigation to both Beasley and Allen and assured them that they would be free to leave “if everything checked out.” Pursuant to standard procedure, Harvey then placed Allen in the back of his patrol vehicle to question him. Spradley testified that Harvey left Allen’s door open.

As Doyle was questioning Beasley, he heard the sound of an altercation and then saw Allen kicking Harvey in the head while Harvey was lying on the ground with his face down. Doyle testified that this occurred within two minutes after he arrived on the scene. According to Doyle, as Harvey had his arms wrapped around one of Allen’s legs, Allen kicked him at least seven times. Doyle came to Harvey’s assistance and sprayed Allen with pepper spray.

Allen fled the scene. When Doyle apprehended him, Allen initiated a fistfight with the officer and attempted to grab his gun belt. Another officer then came to Doyle’s assistance, and Allen was handcuffed. Police released Beasley after a consent search of his truck failed to reveal any contraband or weapons.

Harvey suffered a blunt head injury causing him to be hospitalized for two weeks, to miss work for an additional five weeks, and to lose any recollection of the events surrounding the assault. As a result of a groin injury, he was temporarily required to wear a catheter. At the time of trial, he continued to suffer post-concussion syndrome and remained under a neurologist’s care. Spradley testified that, immediately after the assault, Harvey kept drifting in and out of consciousness and saying, “ ‘[h]e stomped me in the head; he stomped me in the head.’ ”

Allen testified that after Harvey placed him in the back of his patrol car, Harvey abruptly informed him that he was under arrest and instructed him to exit the vehicle. Allen claimed that when he inquired into why he was being arrested, Harvey assaulted him. Allen denied kicking Harvey in the head or hitting Doyle or resisting arrest by him. Allen maintained that after he was placed in the patrol vehicle, the door was closed. Held:

1. Allen complains of the trial court’s denial of his motion for new trial on the general grounds. On appeal, the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the proper test for challenges to the sufficiency of the evidence arising from the overruling of a motion for new trial. Clay v. State, 214 Ga. App. 160 (1) (447 SE2d 156) (1994). Viewed in a light most favorable to the prosecution, the evidence was sufficient to have authorized any rational trier of fact to find the essential elements of the crimes of which Allen was convicted beyond a reasonable doubt. Gray v. State, 213 Ga. App. 507, 509 (1) (445 SE2d 328) (1994).

2. Allen also complains of the trial court’s denial of his motion for directed verdict on the ground that his detention by Officer Harvey constituted an illegal arrest unsupported by probable cause.

“A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. [Cits.]” White v. State, 233 Ga. App. 24, 25 (503 SE2d 26) (1998). Here, there is conflicting evidence on the question of whether Allen was subjected to a full-blown arrest requiring probable cause or an investigatory detention requiring only reasonable suspicion. See Pless v. State, 218 Ga. App. 603, 605 (2) (462 SE2d 472) (1995). Moreover, in resisting an unlawful arrest, one is justified in using only such force as is reasonably necessary to prevent the arrest. Evans v. State, 198 Ga. App. 551, 553 (2) (402 SE2d 323) (1991). Even if Allen was arrested unlawfully, there is abundant evidence to support a finding that his use of force was excessive. He was not entitled to a directed verdict.

3. Allen charges the trial court with error in failing or refusing to give the jury instructions on the circumstances under which a law enforcement officer may effect a lawful arrest as delineated in OCGA § 17-4-20 (a), the right of a person to resist an illegal arrest as recognized in Evans v. State, supra, and mistake of fact under OCGA § 16-3-5.

But when Allen testified, he denied either kicking Harvey or obstructing Doyle. He in no way claimed that he was resisting any unlawful arrests. Therefore, the charges at issue were not authorized by the evidence. See Willingham v. State, 235 Ga. App. 475, 476 (2) (509 SE2d 744) (1998); Love v. State, 194 Ga. App. 601, 602 (2) (391 SE2d 447) (1990). Moreover, a mistake as to the legality of an arrest would constitute a mistake of law, and “[flailure to give a charge on mistake of fact is not error where the evidence shows that a party has made a mistake of law. [Cit.]” Turner v. State, 210 Ga. App. 303, 304 (1) (436 SE2d 229) (1993). The trial court properly instructed the jury on the essential elements of the crimes charged. We find no error.

Decided April 23,1999

Robert A. Maxwell, for appellant.

Patrick H. Head, District Attorney, Frank R. Cox, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A99A0435.
    JACKSON v. THE STATE.
    (516 SE2d 792)
   Andrews, Judge.

Diarra Jackson appeals from the trial court’s order denying his motion for new trial after a jury found him guilty of aggravated assault and possession of a firearm during the commission of a felony. Jackson claims the trial court committed reversible error when it failed, even absent a request, to charge the jury on the lack of duty to retreat. We agree and reverse.

Case law is clear that where self-defense is the sole defense, and the issue of retreat is raised by the evidence or placed in issue, the defense is entitled to a charge on the principles of retreat as set forth in Glover v. State, 105 Ga. 597 (31 SE 584) (1898). Johnson v. State, 253 Ga. 37, 39 (315 SE2d 871) (1984). Glover holds that one who is free from fault “may, without retreating, take human life and be justifiable, if the circumstances are sufficient to excite the fears of a reasonable man that a felonious assault is about to be made upon him, and the slayer, who is free from blame, acts under the influence of such fears, with the bona fide purpose of preventing the felony from being committed upon him.” Glover, supra at 598-599.

Here, there was evidence that the victim, Bostick, was angry over clothes he claimed Jackson had stolen from him. When Bostick went to the apartment of a mutual friend and saw Jackson there, wearing his clothes, Bostick became angry and started yelling at Jackson.

Another guest in the apartment testified that when Bostick came in and saw Jackson wearing his clothes, he looked like he was “trying to pick a fight.” Even after Jackson pulled out his gun and told Bostick to stay back, Bostick was still “in his face.” The witness said that Bostick did not appear to be afraid of the gun and refused to back off.

Witnesses also testified that Jackson appeared nervous and was shaking and did not look like he wanted to fight. Another witness testified that after Jackson pulled out his gun, Bostick told Jackson “you ain’t going to shoot me. You ain’t got no heart.”

The man who lived in the apartment told the two men they would have to go outside because there were children in the house. Witnesses testified that they heard two shots fired shortly after the two men left the apartment.

In light of this, we conclude there was evidence that Jackson had the confrontation forced on him, was free from fault in continuing the confrontation, and could reasonably have believed that Bostick was going to assault him.

Next, the evidence clearly shows that the issue of retreat was raised by the prosecutor. The prosecutor asked Jackson on cross-examination:

Did it ever occur to you that you could have gotten over here on this side of the box with him over here, and you could have gone ring around the rosie all night long, and this unarmed man never could have caught you; and when he was over here, and you were over here, you could have shot right down those stairs and gotten away? . . . Did it ever occur to you that all you had to do was run away from an unarmed man?

Jackson answered, “Sir, at the time, I didn’t know if he had a weapon or not, sir.” Further, the prosecutor again implied Jackson had a duty to retreat, stating in closing argument that Jackson could have kept running around the stairwell rather than shooting Bostick.

Finally, we conclude that Jackson was entitled to a charge on the issue of lack of duty to retreat even though he did not request it. In those circumstances where the omission is clearly harmful as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence, this Court will consider and review the charge even though there was no timely objection in the trial court. OCGA § 5-5-24; Spear v. State, 230 Ga. 74, 75 (195 SE2d 397) (1973).

Here, as in Johnson, the evidence was not overwhelming and Jackson’s only defense was self-defense. The State countered this by claiming Jackson should have run away. Failure to charge the jury on lack of duty to retreat was clearly harmful and erroneous as a matter of law. Johnson, supra at 38-39.

Judgment reversed.

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

Decided April 23,1999.

Steven E. Phillips, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.


author: Barnes, Judge.

text:
    A99A0482.
    MILLWOOD v. THE STATE.
    (516 SE2d 799)
   Barnes, Judge.

Randall Millwood appeals his jury convictions of felony theft by shoplifting and entering an auto with the intent to commit theft, contending that insufficient evidence supports the convictions. He also asserts that the trial court erred in denying his motion for new trial based on ineffective assistance of counsel and newly discovered evidence. We affirm.

1.

[0]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.

(Citations and punctuation omitted.) Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997). Construed to support the verdict, the evidence shows that Randall Millwood and his nephew borrowed a car on Sunday, June 15, 1997, from Lisa Coleman, promising to return it in a couple of hours. Millwood did not return the car that evening, and Coleman reported it stolen.

At 7:00 a.m. Monday, June 16, 1997, several K-Mart employees followed a man, later identified as Millwood, who left the store with a stereo worth $169.99, for which he had not paid. Assistant store director Frank Rocap testified that Millwood threw the stereo onto the trunk lid of a waiting car and jumped into the passenger seat, and the car took off. Rocap grabbed the stereo from the trunk as the car sped away. The loss control manager noted the license number of the getaway car and contacted the police, who identified the car as belonging to Coleman. Coleman and her next-door neighbor reviewed a K-Mart video of the incident and identified the man who took the stereo as Millwood.

As to the charge of entering an auto with the intent to commit theft, Wada Stafford testified that on Tuesday, June 17, 1997, she pulled into the driveway of her grandson’s day care center and saw someone with a tattoo on his arm crouched by a tree. She took her grandson inside, and when she returned to her car a day care employee told her a man who had been kneeling in the grassy area of the parking lot had grabbed her purse out of her car. The employee got the tag number of his getaway car, noted the big tattoo on his arm, and identified Millwood from a photo lineup. A police officer testified that the tag number and automobile description in this incident were the same as that reported the day before in the K-Mart incident. When Millwood testified at trial, the prosecutor pointed out the tattoos on both of his arms.

We find the evidence sufficient for a rational trier of fact to find Millwood guilty beyond a reasonable doubt of felony shoplifting and entering an auto with the intent to commit theft. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Millwood further contends that the trial court erred in denying his motion for a new trial based on ineffective assistance of counsel and newly discovered evidence.

(a) At trial, Coleman’s neighbor testified about her identification of Millwood in the K-Mart video and stated that K-Mart “had videotaped Randall going into a shopping center and stealing some merchandise.” Millwood argues that his trial attorney’s failure to object to this statement constituted ineffective assistance.

Millwood’s claim was presented to and ruled upon by the trial court, whose finding of effectiveness must be upheld unless clearly erroneous. Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996). In order to prevail on a claim of ineffective assistance of counsel, Millwood must show both deficient performance and actual prejudice. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). “To show deficient performance, he must demonstrate that his counsel’s performance was not reasonable under the circumstances confronting his counsel at the time, without resorting to hindsight.” Turpin v. Mobley, 269 Ga. 635, 638 (3) (502 SE2d 458) (1998). Millwood’s burden is high because his counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. To show actual prejudice, he must demonstrate a reasonable probability that he would have been acquitted but for counsel’s unprofessional errors. Id.

Here, Millwood asserts that his counsel should have objected to the witness’s response that he had been videotaped “stealing” on the grounds that it was hearsay and went to the ultimate issue for the jury. However, Coleman had already testified that she reviewed the same videotape from K-Mart “of somebody taking something out of the door of the store” and identified Millwood as the person in the video and in the courtroom. The neighbor testified that she recognized Millwood from the videotape and in the courtroom. Finally, the jury saw the videotape for themselves, and it was introduced into evidence. Because similar testimony and the videotape itself had already been introduced and because the witnesses positively identified Millwood, we do not find the trial court’s finding of effectiveness to be erroneous.

(b) Millwood further argues that the trial court should have granted him a new trial due to newly discovered evidence. He testified at trial that he had stayed with a woman named “Margaret,” whose last name he could not recall, during the time these robberies were committed. Alibi was his sole defense. He testified at his motion hearing that he did not know Margaret’s whereabouts during the trial. Margaret Majorie testified at the hearing that she contacted Millwood after his conviction, and that he had been with her from Sunday, June 15, 1997, through Tuesday, June 17, 1997.

On the other hand, in response to his lawyer asking him when he learned Majorie’s last name, Millwood began to respond, “Well, I talked to my nephew . . .,” when his lawyer cut him off. Majorie testified that her apartment had been leased in her name, and that Millwood knew she was going to visit her parents in New Orleans. Millwood testified at trial that he thought Majorie was in Louisiana somewhere.

The trial court found that Millwood failed to satisfy the six criteria required to grant a new trial based on newly discovered evidence, which are:

(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.

(Citations and punctuation omitted.) Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980). We review the denial of a motion for new trial on the ground of newly discovered evidence to determine if the trial court abused its discretion. Blankenship v. State, 162 Ga. App. 538, 539 (292 SE2d 123) (1982).

Here, evidence presented during the motion hearing supports the conclusion that Millwood could have learned his alibi witness’s last name and whereabouts if he had been diligent. She was the apartment leaseholder, and the record contains some indication that Millwood discovered her last name by talking to his nephew. The trial court specifically found the testimony that Millwood did not know Majorie’s last name was not credible. Based on this evidence, we find that the trial court did not abuse its discretion in denying the motion for new trial.

Decided April 23,1999.

Leo E. Benton, Jr., for appellant.

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

Judgment affirmed.

Blackburn, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A99A0493.
    CHECK v. THE STATE.
    (516 SE2d 798)
   Judge Harold R. Banke.

Sophy Check appeals his conviction for aggravated assault with a deadly weapon.

The evidence showed that both the victim and the defendant were residing at the home of the victim’s mother-in-law. The victim’s sister-in-law and brother-in-law also lived there. These relatives of the victim were present at the time of the assault, and each testified as a State’s witness.

Check challenges the sufficiency of the evidence to support the verdict because of difficulties which arose during an interpreter’s translation of the victim’s and mother-in-law’s testimony. At certain points in their testimony, these witnesses did not understand the questions as translated by the interpreter. On those occasions, the interpreter and witness would begin to engage in a dialogue with each other. The court would then instruct the translator to interpret the initial response of the witness before engaging the witness in any conversation even if the witness’ response was a question posed to the translator. The questioning of the witness would then continue.

There is no merit in Check’s evidentiary challenge. Notwithstanding the problems which arose in translating parts of these two witnesses’ testimony, additional parts of their testimony and that given by other State’s witnesses showed that after the victim attempted to intercede in an argument between her sister-in-law and the intoxicated defendant, he brandished a handgun, discharged the weapon so as to narrowly miss her, and then pointed it at her head and threatened to kill her. The evidence was sufficient to have authorized any rational trier of fact to find the essential elements of the crime of aggravated assault beyond a reasonable doubt. Gray v. State, 213 Ga. App. 507, 509 (1) (445 SE2d 328) (1994).

Decided April 23,1999.

Richard Genirberg, for appellant.

Robert E. Keller, District Attorney, Verda Andrews-Stroud, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A99A0548.
    DENSON v. THE STATE.
    (516 SE2d 797)
   Judge Harold R. Banke.

Denson was convicted of possession of cocaine with intent to distribute and given a 30-year sentence. His motion for new trial was denied. In this appeal, he charges the trial court with error in denying his request for counsel and in failing to conduct a proper inquiry either as to why he did not have counsel or as to his indigence.

Following Denson’s arrest, he was released from custody after posting a $10,000 bond. He appeared at trial without an attorney and requested a continuance in order to obtain one. The court denied the request after finding that at arraignment and certain pretrial proceedings (all unreported), Denson stated he wished to proceed pro se and would hire an attorney if he should choose to be represented by one. Held:

The dispositive issue is whether the State satisfied its burden of showing a valid waiver by Denson of his right to counsel. See Hamilton v. State, 233 Ga. App. 463, 467 (1) (b) (504 SE2d 236) (1998).

When waiver of the right to counsel rests upon the defendant’s election of his alternative right of self-representation, “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” [Cit.]

(Emphasis omitted.) Burnett v. State, 182 Ga. App. 539, 540 (1) (356 SE2d 231) (1987); see McCall v. State, 232 Ga. App. 684, 686 (1) (503 SE2d 578) (1998).

Decided April 23,1999.

Ben T. Smith, Jr., for appellant.

William T. McBroom III, District Attorney, Mark M. Irvin, Assistant District Attorney, for appellee.

The record in this case does not show that the trial court informed Denson of either his right to counsel or the dangers of proceeding pro se. Waiver is never presumed from a silent record. Keith v. State, 218 Ga. App. 729, 730 (1) (463 SE2d 51) (1995). Therefore, Denson’s conviction must be reversed.

Judgment reversed.

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


text:
    A99A0784.
    GRIFFIN v. THE STATE.
    (516 SE2d 588)
   Judge Harold R. Banke.

Darnel Griffin was convicted of kidnapping the victim, committing aggravated assaults upon her with intent to rape and with a handgun, theft by taking her automobile, and possession of a firearm during the commission of a crime.

The victim testified that at approximately 1:30 a.m. on November 18, 1996, she was awakened by the sound of someone attempting to break into her apartment. She was relieved to discover it was Griffin, because he was an acquaintance of hers. She allowed him to come into the apartment and talked to him for about 30 minutes before telling him she was ready to go to bed and asking if he needed a ride home. After he responded affirmatively, she drove him to his house.

Instead of exiting the car when they arrived, Griffin brandished a handgun, stuck it in her side, and instructed her to drive the car back to her house. Upon their return, he told her to go into her house so he could make love to her, but she remained in the car. He then began fondling her, attempted to put her seat in a horizontal position and pin her down, and started choking her. As all of this was occurring, Griffin became distracted when another car appeared and the victim escaped.

When she returned to the crime scene, the car was gone. Griffin was later seen driving the car but then abruptly left town. He was subsequently arrested in California and extradited back to Georgia to stand trial. Held:

1. Griffin challenges the sufficiency of the evidence, but he has abandoned the challenge by failing to support the enumeration with argument or citation of authority. Court of Appeals Rule 27 (c) (2); Whatley v. State, 197 Ga. App. 489 (2) (398 SE2d 807) (1990).

2. Griffin charges the court with error in refusing to allow defense counsel to cross-examine the victim as to whether she and Griffin had smoked marijuana together prior to the events in issue.

Without objection, defense counsel asked the victim whether she had smoked marijuana or drunk with Griffin on the night in question, and she responded no. Outside the presence of the jury, counsel then sought to question her as to whether she and Griffin had ever smoked marijuana together. The court properly denied this request.

In Dunton v. State, 216 Ga. App. 191 (453 SE2d 800) (1995), the defendant was convicted of rape and kidnapping. He testified the victim smoked cocaine with him and agreed to have intercourse with him in exchange for cocaine. The victim denied both assertions. On appeal, the defendant contended that the trial court erred in prohibiting him from cross-examining the victim concerning whether she had used cocaine in the past. We held the victim’s prior drug use irrelevant. That holding is controlling here.

3. Griffin next challenges the court’s ruling that testimony by the investigating officer concerning pretrial statements made to him by the victim were admissible under Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985) (clarified in Woodard v. State, 269 Ga. 317, 319-320 (2) (496 SE2d 896) (1998)). This issue has not been preserved for appellate review as Griffin withdrew his objection to the officer’s testimony. Atkinson v. State, 170 Ga. App. 260, 262 (2) (316 SE2d 592) (1984).

4. Finally, Griffin contends that custodial statements made by him when being interviewed by the investigating officer should not have been admitted in evidence, as he did not knowingly, voluntarily, and intelligently waive his right to counsel.

[Wlaivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

(Citations and punctuation omitted.) White v. State, 168 Ga. App. 794, 795 (310 SE2d 540) (1983), overruled on other grounds, Walton v. State, 267 Ga. 713, 717, n. 3 (482 SE2d 330) (1997).

Griffin was incarcerated in the county detention center after being extradited from California. He testified that it took about 12 days for him to be transported here, and he did not get much sleep either in transit or when he first arrived at the detention facility and was placed in a holding cell. He was, however, provided with a bed and given an opportunity to get at least one night’s sleep before being interviewed by the officer for approximately 30 minutes between 9:00 and 10:30 on the morning of February 26, 1997. At the time of the interview, Griffin was in his early 30s. He pleaded guilty to certain criminal charges in 1984 and was informed of his rights at that time.

Decided April 23,1999.

Orín L. Alexis, for appellant.

Spencer Lawton, Jr., District Attorney, Margaret E. Heap, Assistant District Attorney, for appellee.

Prior to questioning, the officer advised Griffin of the charges against him and, by reading a waiver-of-rights form, informed him of his entitlement to an attorney and other rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602,16 LE2d 694) (1966). Griffin initially expressed a lack of understanding, whereupon the officer engaged in additional explanation. Griffin then correctly filled out the form and proceeded with the interview. At no time did he request an attorney.

The officer acknowledged that Griffin said he had just awakened and could not remember details of the events in question because he was sleepy, and that he kept yawning during the interview. But the officer testified that Griffin was coherent and responsive to questioning. Griffin claims he was disoriented at the time of the interview, his mind was “discombobulated,” and he did not understand that he had a right to an attorney until he appeared at arraignment. When the officer attempted to engage in further discussions with Griffin after arraignment, Griffin invoked his right to counsel and refused to speak.

After hearing the testimony of the witnesses and listening to a videotape of the interview, the court found that Griffin made a valid waiver of his rights before giving the statement to the officer. Factual determinations of this sort made by a trial judge must be accepted by appellate courts unless such determinations are clearly erroneous. Nizer v. State, 221 Ga. App. 301, 303 (471 SE2d 254) (1996). Here, they are not.

Judgment affirmed.

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


text:
    A97A1936.
    QUEEN et al. v. CITY OF DOUGLASVILLE.
    (516 SE2d 379)
    Decided April 27,1999.

      Parker & Lundy, William L. Lundy, Jr., Johnny R. Panned, for appellants.

      Hawkins & Parnell, Charles R. Beans, Michael J. Goldman, for appellee.
   Judge Harold R. Banke.

In Divisions 1 and 2 of Queen v. City of Douglasville, 232 Ga. App. 68 (500 SE2d 918) (1998), we held that the trial court erred in granting summary judgment to the City of Douglasville on the appellants’ claims of nuisance and negligence. On certiorari, the Supreme Court reversed these holdings. City of Douglasville v. Queen, 270 Ga. 770 (514 SE2d 195) (1999). The Supreme Court affirmed our holding in Division 3 of the opinion. Accordingly, odr decision is vacated with respect to Divisions 1 and 2, the judgment of the Supreme Court is made the judgment of this Court with respect to Divisions 1 and 2, and the trial court’s judgment is affirmed.

Judgment affirmed.

McMurray, P. J, Pope, P. J., Andrews, Smith, Ruffin and Eldridge, JJ, concur.

       The original case cited at 232 Ga. App. 68 was authored by Judge Dorothy T. Beasley. Judge Beasley has since resigned from this Court effective April 1, 1999.


text:
    A98A2297.
    BENNETT v. BUILDERS II, INC.
    (516 SE2d 808)
   Judge Harold R. Banke.

On November 1, 1996, a panel of arbitrators entered an award arising out of a dispute between Gus Bennett and Builders II, Inc. (“Builders”) in connection with a contract for construction of a new home in Fulton County. The arbitrators awarded Bennett $30,580 on his claim and awarded Builders $24,670 on its counterclaim for a net award of $5,910 in favor of Bennett.

Bennett filed an application in superior court to vacate the award. The court converted Builders’ motion to dismiss into a motion for summary judgment, granted the motion, denied Bennett’s cross-motion and confirmed the arbitrators’ award. Held:

1. Bennett has incorrectly referenced the record index rather than pages of the record as required by Court of Appeals Rule 27 (a) (1). Accord Carson v. Carson, 226 Ga. App. 659, 660 (1) (487 SE2d 447) (1997). Bennett submitted an “amended” brief in which he again failed to cite directly to the pages of the record as ordered and as required by the rules. “References to index items do not meet [this Court’s] requirements and diminish this Court’s ability to find rapidly critical documents and testimony in records and transcripts; such practice should be discontinued forthwith.” Id.

2. Bennett contends the trial court erred because it used an improper legal standard when deciding the motion for summary judgment. The court stated plaintiff “presented insufficient evidence of any ‘corruption, fraud or misconduct’ in the underlying arbitration, or impartiality of an arbitrator, under OCGA § 9-9-13 (b).” The words chosen by the court do not require reversal. See, e.g., Olympia Svcs. v. Sherwin Williams Co., 224 Ga. App. 437, 439 (1) (480 SE2d 883) (1997); Moore v. Barge, 210 Ga. App. 552, 555 (1) (436 SE2d 746) (1993) (“There was insufficient evidence to create a question of fact on this claim.”).

3. Bennett contends there are issues of material fact showing partiality of one of the arbitrators, and that the issue should be judged by the same standard as impartiality of jurors.

Unless one of the four statutory grounds set forth in OCGA § 9-9-13 (b) is found to exist, a reviewing court is bound to confirm the award. Greene v. Hundley, 266 Ga. 592, 594 (1) (468 SE2d 350) (1996). “By its enactment, the Arbitration Code repealed common law arbitration in its entirety, and it must, therefore, be strictly construed.” (Footnotes omitted.) Id. at 594 (1). Thus, as provided in the statute, a showing of prejudice is required in addition to showing the prejudice results from one of the listed reasons. Also, the burden of proof is on the one seeking to set aside an award. Id.

Bennett failed to provide the trial court with a transcript and record of the arbitration hearing. Bennett testified in an affidavit of his recollection of certain parts of the arbitration which he contends reveal prejudice by the arbitrator. Without a transcript and record of the arbitration hearing, neither this Court nor the court below is capable of determining whether partiality resulted in prejudice to Bennett. Accordingly, the court was authorized to grant summary judgment as to Bennett’s claim of partiality. See McMann v. Mockler, 233 Ga. App. 279, 280-281 (1) (503 SE2d 894) (1998) (claimant unable to show causation in professional negligence action due to failure to provide transcript or record of underlying workers’ compensation case).

4. Bennett also asserts the trial court erred in ordering him to pay for a portion of the record on appeal. In his notice of appeal, Bennett requested that certain portions of the record below be omitted. Thereafter, Builders designated that those same items be included in the record. Bennett was invoiced by the clerk of court for the cost of the additional portions. Bennett moved the trial court to cause Builders to pay the additional cost, but according to Bennett’s brief, he paid those costs before any order was entered by the trial court. Because there is no decision of the court below to review on appeal, this enumeration is without merit. We note that the cost of additional portions of a record designated by the appellee that are necessary to complete the record on appeal must be paid by the appellant; “only if considered unnecessary on appeal, should the costs be taxed against the appellee.” Jones v. Spindel, 239 Ga. 68, 70-71 (2) (235 SE2d 486) (1977). See also Morris v. Budd, 226 Ga. App. 455, 458 (4) (486 SE2d 682) (1997).

Decided April 27,1999.

Brett W. Ladd, for appellant.

Misner, Scott & Gate, Steven J. Misner, Schnader, Harrison, Segal & Lewis, Warren N. Sams III, for appellee.

Builders’ motion for penalty for frivolous appeal is denied.

Judgment affirmed.

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