text:
    A98A0968.
    REEVES v. THE STATE.
    (505 SE2d 540)
   Smith, Judge.

This case arises out of an escalating pattern of harassment and attacks on a former girlfriend by appellant Johnnie Reeves. The evidence at trial authorized the jury to find that, despite attempts at intervention by judicial and law enforcement authorities, Reeves culminated his harassment of the victim by entering her house, threatening her with a knife, having sex with her against her will, stabbing her 14 times with various sharp objects, and fleeing in her car with her purse and keys.

Reeves was indicted by a Baldwin County grand jury on two counts of aggravated assault and one count each of armed robbery, aggravated stalking, obstruction of an officer, burglary, and criminal trespass. A jury acquitted him of burglary and one count of aggravated assault arising out of an earlier incident but found him guilty of the remaining charges. His motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Reeves raises the general grounds. Construed in favor of the jury’s verdict, the evidence shows that after their relationship ended in February 1996, Reeves repeatedly threatened the victim, forcing his way into her house on at least two occasions, threatening her with a knife and attempting to stab her with a two-pronged fork, cutting her slightly. As a result, she sought and obtained a protective order against him that forbade him to enter her premises. Reeves continued to harass and threaten her, parking his car across the street and prowling around her house and “beating on the side of the house” in the early morning hours. He also stole several items from her house and told her that he would return her property when she agreed to “take him back.” The victim then took out a criminal trespass warrant against Reeves.

On April 17, 1996, the victim returned from work to find Reeves hiding behind a shed in her back yard. She told him to leave, he agreed and walked away, and she entered the house. A short time later, Reeves entered the house, threatened her with a knife, and forced her into her bedroom. He had sexual intercourse with her, then grabbed her around her neck and cut her with a knife. As she struggled, he stabbed her repeatedly with the knife, scissors, and a two-pronged fork until she passed out. When she regained consciousness, she went towards her front door and met Reeves going through her dining room. At the same time, a friend who had stopped by to check on her approached the front door and knocked. He heard a commotion inside, and the victim came to the front door and “fell into” him, bleeding profusely. The friend saw Reeves leaving through the kitchen, heard the back door slam, and saw Reeves back the victim’s car out of the driveway and speed away. The victim sustained at least 14 stab wounds to her neck, back, chest, arms, and abdomen, requiring surgery and the replacement of her total blood volume at least three times. The treating physician recounted the victim’s potentially fatal wounds, including a chest wound that caused massive internal bleeding, a lacerated jugular vein, and five puncture wounds in her small bowel. The victim remained in the hospital for 46 days.

Within an hour of the attack, a fellow employee of Reeves was backing her car out of her parking space at work when Reeves grabbed the door handle, got in, lowered the seat back and “scooted down” in the seat. He told her that the police were looking for him because he had “f — ed up,” and added, “I cut her. Yeah, I didn’t mean to kill her, but I did cut her.” He was carrying a white plastic grocery bag containing a woman’s handbag, keys, and a billfold; the witness saw him going through the bag, taking money from inside the purse and putting it into his pocket. When Reeves left the car, he left the keys and billfold behind. The witness looked in the billfold and saw that it belonged to the victim; she turned it over to the police.

Later that evening, police on the lookout for Reeves answered a suspicious person call and discovered Reeves hiding in a patch of kudzu by the side of the road. He fled from the officers; they pursued on foot and captured Reeves after he ran off a 20-foot embankment in the dark. He told the police that the victim attacked him and he acted in self-defense. But other than a swollen arm from the fall, Reeves was uninjured; he had no cuts, scratches, or other defensive wounds on his body.

Reeves first argues that the trial court erred in refusing to direct a verdict on the charge of armed robbery because his violent attack on the victim was “based solely on jealousy.” “Where, as here, the evidence is sufficient to authorize a finding that the theft was completed after force was employed against the victim, a conviction for armed robbery is authorized regardless of when the intent to take the victim’s property arose, regardless of whether the victim was incapacitated and even if the victim had been killed instantly.” (Citations, punctuation and emphasis omitted.) Francis v. State, 266 Ga. 69, 70 (463 SE2d 859) (1995). The evidence was clearly sufficient for a rational trier of fact to find Reeves guilty beyond a reasonable doubt of the offense of armed robbery under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

With respect to the remaining charges against Reeves, he argues only that the victim’s testimony was unreliable and inconsistent and that the weight of the evidence did not support his conviction. But “[credibility is an issue for the jury. Appellate courts consider only the sufficiency not the weight of the evidence. [Cits.] The evidence was sufficient to authorize defendant’s conviction under the standard required by Jackson v. Virginia, [supra]." Cross v. State, 213 Ga. App. 275 (444 SE2d 589) (1994).

2. While Reeves acknowledges that the offenses of aggravated assault and armed robbery do not merge as a matter of law, Brantley v. State, 230 Ga. App. 651, 652 (2) (497 SE2d 399) (1998), he contends that in this instance they merge as a matter of fact. We disagree.

“The key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge. [Cit.]” Taylor v. State, 219 Ga. App. 475, 478 (4) (465 SE2d 473) (1995). “The offense of aggravated assault has two essential elements: (1) that an assault, as defined in OCGA § 16-5-20 be committed on the victim; and (2) that it was aggravated by . . . use of a deadly weapon. A person commits an assault under OCGA § 16-5-20 (a) (2) when the person commits an act which places another in reasonable apprehension of immediately receiving a violent injury. Intent to injure is not an element of aggravated assault with a deadly weapon when the assault element is predicated on OCGA § 16-5-20 (a) (2). If the pointing of the [weapon] placed the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred.” (Citations and punctuation omitted.) Matthews v. State, 224 Ga. App. 407, 408 (1) (481 SE2d 235) (1997). Here, as in Taylor, the crimes do not merge because the assault was complete at the time Reeves threatened the victim with a knife and forced her into her bedroom. He then went on to stab the victim 14 times before taking her purse and keys. “Accordingly, the underlying facts used to prove each offense are different and the evidence showed that one crime was complete before the other occurred. [Cits.]” O’Neal v. State, 228 Ga. App. 162, 164 (491 SE2d 216) (1997). See also Clay v. State, 209 Ga. App. 266, 269 (3) (433 SE2d 377) (1993) (no merger when victim testified to sequential crimes accomplished by defendant with same knife).

3. The trial court also did not err in refusing to merge the aggravated assault with the aggravated stalking offense. The offense of aggravated stalking was complete when Reeves confronted the victim at her home in violation of the protective order forbidding him to enter her premises. OCGA § 16-5-91 (a). As in Division 2, the jury was authorized to find Reeves guilty of both aggravated stalking and aggravated assault.

4. Reeves complains of the admission of photographs of the crime scene and the victim’s injuries, contending they were repetitive, inflammatory, and without probative value. We disagree. “The law in Georgia is well-settled that photographs which are relevant and material to issues in a case are admissible and not excludable on the ground that they would inflame the minds of the jury. [Cit.]” Carter v. State, 244 Ga. 803, 804 (262 SE2d 109) (1979). It is not error to admit photographs that illustrate testimony, depict the extent, nature and location of the victim’s wounds, or show the scene of the crime. McKenzie v. State, 248 Ga. 294, 298 (14) (282 SE2d 95) (1981); Sanders v. State, 257 Ga. 239, 242 (4) (357 SE2d 66) (1987). The photographs of the crime scene illustrate and corroborate the victim’s account of the incident, which was called into question by Reeves. The trial court did not err in admitting the photographs.

Decided August 10, 1998.

Tom C. Moore, for appellant.

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       This attack formed the basis of the aggravated assault charge on which Reeves was acquitted.

       Contrary to the State’s contention, Reeves did preserve this issue for review.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A98A1034.
    CUMMINGS v. THE STATE.
    (505 SE2d 73)
   Johnson, Presiding Judge.

After a jury trial, Calvin Cummings was found guilty of one count each of sale of cocaine and sale of marijuana. He appeals from the convictions entered on the verdicts and the denial of his motion for new trial.

1. Cummings contends the trial court erred in denying his motion for directed verdict of acquittal and in denying his motion for new trial because the evidence was insufficient to authorize the convictions. We hold that the convictions were authorized by the evidence and the trial court, therefore, did not err in denying either motion.

The standard for reviewing the denial of a motion for directed verdict of acquittal when the sufficiency of the evidence is challenged is whether, under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offenses. Cantrell v. State, 230 Ga. App. 693, 694-695 (1) (498 SE2d 90) (1998); Cody v. State, 222 Ga. App. 468, 470 (1) (474 SE2d 669) (1996). In reviewing the denial of a motion for directed verdict of acquittal, a reviewing court may consider all the evidence in the case, and we must view the evidence in the light most favorable to the verdict. Covington v. State, 226 Ga. App. 484 (1) (486 SE2d 706) (1997).

So viewed, the evidence shows the following: An undercover narcotics agent testified that on July 14, 1994, he drove to a car wash and a man approached him. The agent asked the man for a $20 piece of crack cocaine. The man got into the agent’s car and instructed him to drive about 100 yards. The man then got out of the car, met with another person, and brought the agent the cocaine, for which the agent paid $20.

On July 22, 1994, the agent returned to the same area and was approached by the same man. They discussed their prior transaction and the agent asked the man for some marijuana. The man replied that he would get the marijuana, then met with another man, returned to the car and informed the agent that the other man was going to get the drugs. The man waited next to the window on the driver’s side of the agent’s car and chatted with the agent for five or six minutes. The man left again and returned with $40 worth of marijuana, which he sold to the officer. Parts of this transaction were recorded on videotape; the tape was admitted into evidence and shown to the jury. The videotape, which is included in the record on appeal, included several minutes of close-up footage of the seller’s face as he stood at the car window.

An investigator with the drug task force testified that on July 14 he was monitoring the activities of the undercover agent via electronic listening devices and driving around in the area. He saw a man standing next to the agent’s car at the car wash talking to the agent. The investigator heard the man tell the agent he could take him to get cocaine. The investigator saw them drive a short distance away. When the agent was leaving the area, he radioed a description of the seller to the investigator and later turned the cocaine over to the investigator.

The investigator testified that on July 22, 1994, he listened as the agent was approached by a man. The man discussed their previous sale. He heard the agent ask for marijuana, and the man reply that he had some. As the agent left the area, he gave the investigator a description of the seller by radio and later gave him the marijuana. The investigator testified that he had known Cummings for a few years and recognized him as the seller when he viewed the videotape on July 22. As the evidence was sufficient to authorize the jury to find Cummings guilty of selling cocaine and marijuana beyond a reasonable doubt, the trial court did not err in denying his motions for directed verdict of acquittal and for new trial. See Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

2. Cummings concedes in his brief that he did not object at trial when the investigator identified him as the person shown in the videotape of the marijuana sale. Therefore, his complaint on appeal regarding the admission of that testimony is waived. See Williams v. State, 225 Ga. App. 319, 322 (5) (483 SE2d 874) (1997); Robinson v. State, 208 Ga. App. 528, 530 (2) (430 SE2d 830) (1993).

3. Cummings claims the trial court erred in admitting an index card containing notes written by the investigator immediately after the transaction. According to Cummings, the notations on the card were hearsay and no proper foundation was laid for the card’s introduction. At trial, the investigator who made the notations on the card testified that when the agent bought the drugs, he relayed to the investigator by radio a physical description of the seller. The investigator noted on the card the agent’s description of the seller as well as the time and date of the purchase. When the undercover agent gave the investigator the drugs, he placed the index card in the bag with the drugs so as to be able to identify the evidence later. Assuming without deciding the card was improperly admitted, Cummings has neither alleged nor shown harm in its admission. Where there is no harm, there is no basis for reversal. See Gann v. State, 190 Ga. App. 82, 84-85 (1) (378 SE2d 369) (1989).

4. Cummings contends the undercover agent’s in-court identification of him as the seller was tainted when a show-up was conducted more than two years after the sales took place. Cummings does not elaborate upon or indicate where in the record we might find the circumstances surrounding the show-up procedure, except to say that the show-up was “for the purpose of taking a ‘buddy’ picture.”

“Determination of whether a challenged pretrial identification must be suppressed requires a two-step analysis: first, it must be determined whether the identification procedure was impermissibly suggestive. If the inquiry is answered in the affirmative, then it must be determined whether, under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification, with ensuing harm.” (Citations and punctuation omitted.) Ellis v. State, 215 Ga. App. 40, 42 (1) (449 SE2d 882) (1994).

The trial court did not err in allowing the in-court identification in this case. First, Cummings has not shown by reference to the record facts establishing exactly what procedure was employed. We will not cull the record on Cummings’ behalf in search of error and we will not presume error from a silent record. See Jacobson v. State, 201 Ga. App. 749, 751 (3) (412 SE2d 859) (1991); Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463) (1991). Second, even if we were to assume the procedure was impermissibly suggestive, we do not agree that the evidence indicates a substantial likelihood of misidentification. The undercover agent testified that the transactions took place in a well-lit area and that he saw and spoke with Cummings for five to six minutes during each of the transactions. When asked at trial how he distinguished Cummings from other people from whom he bought drugs, the agent replied he remembered Cummings’ mannerisms, carriage, physical characteristics, facial expressions and voice. The agent testified that he had been a law enforcement officer for 12 years and was trained to observe people and be able to distinguish them later. When asked at trial if there was any doubt in his mind at the pre-trial identification that Cummings was the person who sold him the drugs, the agent responded that there was none.

The trial court allowed Cummings’ attorney to cross-examine the agent regarding his identification of Cummings. It also thoroughly charged the jury regarding identification, what factors the jury should consider in assessing the reliability of an identification, and the jury’s responsibility to decide whether the defendant was shown to be the perpetrator beyond a reasonable doubt. Cummings has not asserted on appeal that the trial court erred in its charge to the jury.

Although certainly the better practice would have been to have an identification occur sooner after the crimes, under the totality of the circumstances presented here, the pre-trial confrontation did not give rise to a substantial likelihood of misidentification. See generally Staten v. State, 219 Ga. App. 536, 538 (2) (466 SE2d 20) (1995); Kinsey v. State, 219 Ga. App. 204, 205-206 (1) (464 SE2d 648) (1995). The trial court was warranted in accepting the agent’s in-court identification of Cummings as one based upon a source independent of the show-up; namely, the physical encounters the men had at the time of the crimes. See Mozier v. State, 207 Ga. App. 264, 268 (4) (427 SE2d 551) (1993); Gatling v. State, 203 Ga. App. 407, 408-409 (2) (416 SE2d 877) (1992).

5. Cummings argues the trial court erred in denying his motion for mistrial after the prosecutor asked the jury to join in on “the war on drugs.” This argument is without merit. This Court has held that “[a] prosecutor’s comment to jurors that they could take part in the war against drug trafficking by convicting the defendant is not an improper appeal.” (Citations and punctuation omitted.) Emanuel v. State, 195 Ga. App. 302, 305 (4) (393 SE2d 74) (1990), rev’d on other grounds, 260 Ga. 425 (396 SE2d 225) (1990). Nor does “[a] statement by the prosecutor that drugs are ‘killing our society’ and pointing out that defendant committed a serious offense” in any way prejudice the defendant’s right to a fair trial. (Citation and punctuation omitted.) McKibbons v. State, 216 Ga. App. 389, 393 (4) (455 SE2d 293) (1995). More generally, our Supreme Court has held that it is not improper for a prosecutor to appeal to the jury to convict for the safety of the community, or to stress the need for enforcement of the laws and to impress upon the jury its responsibility in that regard. See Davis v. State, 266 Ga. 801, 804 (8) (471 SE2d 191) (1996).

Decided August 10, 1998

Kevin R. Gough, for appellant.

Dupont K. Cheney, District Attorney, Timothy B. Lumpkin, Assistant District Attorney, for appellee.

Prosecutors are afforded considerable latitude in imagery and illustration in reminding the jury of its responsibility in enforcing the law. McClain v. State, 267 Ga. 378, 385 (4) (a) (477 SE2d 814) (1996). Despite Cummings’ urging, this Court is neither authorized nor inclined to overrule the well-established legal authority on this issue. The trial court did not abuse its discretion in denying Cummings’ motion for mistrial. See generally Burton v. State, 225 Ga. App. 217, 218 (2) (483 SE2d 658) (1997).

Judgment affirmed.

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


text:
    A98A1367.
    RAMSEY v. THE STATE.
    (505 SE2d 779)
   Johnson, Presiding Judge.

A jury found Bryant Ramsey guilty of three counts of aggravated battery and one count each of aggravated assault and shoplifting. During sentencing, the trial court held that the aggravated assault charge merged with the aggravated battery convictions. Ramsey appeals from the convictions and the denial of his motion for new trial.

1. Ramsey challenges the sufficiency of the evidence to support his convictions. Ramsey points to his own testimony that he acted in self-defense and claims the state failed to prove that he did not act in self-defense. We note that Ramsey makes no argument regarding the sufficiency of the evidence supporting the shoplifting conviction; any claim of error in that regard is therefore deemed abandoned. See Court of Appeals Rule 27 (c) (2).

On appeal from a criminal conviction, the evidence is examined in a light most favorable to the verdict; as an appellate court we do not weigh the evidence or determine the credibility of the witnesses but only determine whether the evidence was sufficient for the jury to find Ramsey guilty beyond a reasonable doubt under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Young v. State, 229 Ga. App. 497, 499 (494 SE2d 226) (1997).

Viewed in a light most favorable to the verdict, the evidence shows a loss prevention employee at Parisian department store notified a store detective to watch Ramsey because she thought he was behaving suspiciously. The store detective noticed Ramsey enter a dressing room with two articles of clothing and leave the dressing room with only one. Ramsey returned the one item to the rack and left the store. After seeing that the other article of clothing was not in the dressing room, the detective followed Ramsey out of the store. As the detective jogged to catch up with Ramsey, his handcuffs fell to the ground. When the handcuffs hit the ground, Ramsey turned around. The detective loudly yelled: “Parisian security. Get down on the ground. Parisian security. Get down on the ground.” Ramsey swung a boxcutter at him several times, severely cutting his face, ear, wrist and arm. The detective’s wounds required 65 stitches and reattachment of his ear; he still had scars at the time of trial seven months later.

The store’s loss prevention manager witnessed the confrontation. He heard the detective tell Ramsey twice he was with Parisian security. The witness also saw Ramsey turn around and start fighting. He testified further that the detective’s handcuffs fell to the ground while the detective pursued Ramsey and that he never saw the detective strike Ramsey with handcuffs. In fact, the manager said, he picked up the detective’s handcuffs after they had fallen on the ground. He also testified that the detective was unarmed.

Ramsey, on the other hand, testified that he did not know the man who struck him on the jaw with handcuffs was a store detective. Ramsey testified that he heard the detective say something, but he did not know what he said or to whom he was speaking. Ramsey testified that he turned around and cut the detective with a boxcutter in self-defense after the detective hit him with the handcuffs.

The jury assessed the weight of the evidence and the credibility of the witnesses and chose not to believe Ramsey’s testimony that he cut the detective in self-defense. The evidence was sufficient to authorize a rational trier of fact to find Ramsey guilty beyond a reasonable doubt of committing aggravated battery by maliciously and seriously disfiguring the detective’s face, ear and arm. See OCGA § 16-5-24 (a); Brown v. State, 226 Ga. App. 447 (1) (486 SE2d 678) (1997).

2. Ramsey contends the trial court erred in allowing the state to present evidence that in July 1997 he admitted he had been under the influence of drugs and alcohol when the offenses were committed in March 1997. Ramsey argues that this evidence improperly placed his character in issue and was not admissible as part of the res gestae because his admission came months after the crimes. We disagree.

Decided August 10, 1998.

Paul J. McCord, for appellant.

J. Tom Morgan, District Attorney, Carol M. Kayser, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

“ ‘Evidence as to whether appellant was under the influence of alcohol or drugs on the [day] in question was part of the res gestae of the crimes and was admissible as such.’ The logic of this general rule is particularly clear in a case . . . where the state of mind of the accused is pivotal.” (Citations omitted.) Giddens v. State, 206 Ga. App. 409 (425 SE2d 299) (1992); see Carlton v. State, 224 Ga. App. 315, 317 (2) (480 SE2d 336) (1997). In this case, Ramsey took the position that he acted in self-defense. Therefore, evidence that drugs or alcohol were in his system on the day in question was particularly relevant. See Giddens, supra.

The state is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged, and we find no error in admitting the evidence of drug and alcohol use as part of the res gestae even though it may have incidentally placed Ramsey’s character in evidence. See Garcia v. State, 267 Ga. 257, 258 (4) (477 SE2d 112) (1996) (defendant’s in-custody statement that he was addicted to drugs was admissible as res gestae evidence because it was relevant to what transpired shortly before, during and shortly after the crime); Giddens, supra (lab test indicating defendant had marijuana in his system just after stabbing the victim was admissible as res gestae, particularly where defendant’s state of mind at the time of the crime was critical); Fuller v. State, 230 Ga. App. 219, 220 (2) (496 SE2d 303) (1998) (state was properly allowed to cross-examine defendant about drug and alcohol use on the day of the crime because it related to his state of mind and was part of the res gestae). Inasmuch as the relevant inquiry is whether the evidence tends to show the accused’s state of mind shortly before, during, or shortly after the commission of the crimes, the fact that Ramsey’s admission regarding his drug and alcohol use at the time of the crimes came months later is inconsequential.

Moreover, it is highly probable that this evidence did not contribute to the verdict in light of the overwhelming evidence of Ramsey’s guilt. See Fuller, supra at 221.

Judgment affirmed.

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


author: Pope, Presiding Judge.

text:
    A98A1434.
    BROWN v. ADAMS.
    (506 SE2d 135)
   Pope, Presiding Judge.

We granted Brown’s application for discretionary review to review the state court’s dismissal of Brown’s appeal from magistrate court. For the reasons outlined below, we reverse.

Appellant Billie Brown, proceeding pro se, sued W. Samuel Adams in magistrate court for property damages to her automobile, which she claimed arose from an automobile accident caused by Adams. On October 6, 1997, the case came for trial. After Brown presented her case, Adams moved for a directed verdict based on Brown’s failure to prove damages. The magistrate court dismissed the case and entered an order to that effect. In doing so, the magistrate court marked through the preprinted words “Judgment for Defendant” and wrote in the heading “Involuntary Dismissal.” The court’s dismissal states that after hearing the plaintiff’s evidence, and pursuant to defendant’s motion to dismiss, judgment was granted and costs were assessed against the plaintiff.

Brown then filed a timely appeal to the state court. The state court dismissed Brown’s appeal, stating: “[ijnasmuch as an involuntary dismissal is not a judgment, it is not appealable pursuant to OCGA § 15-10-41 (b) (1).” Here, Brown argues that the state court erred in determining that the dismissal from magistrate court was not a final, appealable judgment. Adams does not dispute that the state court erred in dismissing the appeal.

The magistrate’s order of involuntary dismissal concluded the litigation and no issues remained pending. The magistrate court entered the order after it heard plaintiff’s evidence, and in response to defendant’s motion. Although it was not denominated a “final judgment,” the magistrate ruling was a final judgment subject to direct appeal to the state court, and the state court erred in dismissing the appeal. OCGA § 15-10-41 (b) (1).

Our conclusion is strengthened by analogy to the Civil Practice Act. Although OCGA § 15-10-42 makes the Civil Practice Act inapplicable to magistrate courts, OCGA § 9-11-41 (b) outlines the finality of an “involuntary dismissal.” The statute provides: “[ajfter the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine the facts and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.” (Emphasis supplied.) The statute then provides: “(1) A dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits; and (2) Any other dismissal under this subsection and any dismissal not provided for in this Code section, other than a dismissal for lack of jurisdiction or for improper venue or for lack of any indispensable party, does operate as an adjudication upon the merits unless the court in its order for dismissal specifies otherwise.” See generally Bonner v. Green, 263 Ga. 773 (438 SE2d 360) (1994) (discussion of dismissal with prejudice and dismissal without prejudice for failure to prosecute).

Decided August 10, 1998.

Robert E. McCormack III, for appellant.

Sharon W. Ware & Associates, Scott K. Spooner, for appellee.

In this case, the magistrate ruled on the merits of the matter and the order entitled an “involuntary dismissal” constituted a ruling on the merits. As such, the order was a final judgment which was directly appealable to the state court under OCGA § 15-10-41 (b).

Judgment reversed.

Beasley and Ruffin, JJ, concur.

       There is no transcript of the proceedings in magistrate court. While Brown states that at the conclusion of her evidence Adams moved to dismiss, Adams recalls that at the conclusion of her case, he moved for a directed verdict. Regardless of the nomenclature attached to the motion, it is undisputed that Adams moved the court to dispense of the case because Brown had presented insufficient evidence of damages.

       The Supreme Court has held that this statute permits, but does not require, magistrate courts to follow the Civil Practice Act. Howe v. Roberts, 259 Ga. 617 (385 SE2d 276) (1989).


text:
    A98A1443.
    MILLER v. THE STATE.
    (506 SE2d 136)
   Johnson, Presiding Judge.

Richard Miller appeals following his convictions of twelve counts of forgery, one count of theft by taking, one count of false statements, and two counts of possession of a firearm by a convicted felon. His co-defendant and wife, Shemoni Miller, filed a separate appeal from her convictions; her appeal was dismissed for her failure to file a brief and enumerations of error. We therefore consider only Richard Miller’s appeal.

1. Richard Miller contends the trial court erred in ruling that he did not have standing to request that two prospective jurors be excused for cause. We hold that this enumeration was waived.

Wal-Mart was one of many companies to which Shemoni Miller was accused of writing a bad check. During voir dire, the trial court asked the panel if anyone was an employee or stockholder of WalMart. One juror responded that his wife worked at Wal-Mart and another stated he held stock in the company. Initially, Richard Miller’s attorney requested that both panel members be struck for cause. The court noted that if both members were struck, there would not be enough jurors to try the case. The court then stated that the Wal-Mart employee’s husband would be disqualified. Richard Miller’s attorney replied that he would talk to his client, then asked the court if he could waive his objection to the employee’s spouse serving as a juror. The court replied that he could, and Richard Miller’s attorney requested and was given a chance to meet with his client. The court asked Shemoni Miller’s attorney if she waived any disqualification. He responded that she did. Richard Miller’s attorney added ‘We’ll proceed. We’ll waive it.” The trial court then pointed out that the Wal-Mart charge involved only Shemoni Miller and her attorney waived any disqualification as to either potential juror. Therefore, the trial court remarked, Richard Miller would have no standing to object. Richard Miller’s attorney replied “Yes, Your Honor,” and the jury was empaneled.

“The disqualification of a juror may be expressly or impliedly waived by a party having cause to complain, and if expressly or impliedly waived, it is conclusively presumed that no harm or benefit to either party resulted from the disqualification, and where it appears that the party having cause to complain . . . knew of the relationship . . . and remained silent, that party will be presumed to have waived the disqualification. After verdict, an accused cannot obtain a new trial by reason of the fact that a juror is disqualified by relationship unless he can show that before the verdict he and his counsel did not know of the relationship, and could not have discovered it by the exercise of ordinary diligence.” (Citations and punctuation omitted.) Reid v. State, 204 Ga. App. 358, 360-361 (2) (419 SE2d 321) (1992). Richard Miller accepted the jurors knowing of their relationships to Wal-Mart, and so expressly and presumptively waived his right to challenge any alleged disqualification of the jurors on appeal. See McFarren v. State, 210 Ga. App. 889, 892 (3) (437 SE2d 869) (1993); Harris v. State, 198 Ga. App. 503, 504 (2) (402 SE2d 62) (1991), reversed on other grounds, 261 Ga. 386 (405 SE2d 482) (1991). Furthermore, Richard Miller expressly acquiesced in the trial court’s determination that he had no standing to object. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.” (Citation and punctuation omitted.) Boatright v. State, 192 Ga. App. 112, 116 (5) (385 SE2d 298) (1988).

2. Richard Miller contends the trial court erred in not directing a verdict on Count 16 of the indictment when the only evidence of guilt was his mere presence outside the building where the crime was committed. We disagree.

Count 16 of the indictment charged Richard Miller and his wife with theft by taking in connection with a July 1996 incident in which his wife cashed their daughter’s social security check at Cartersville Beverage Company and then reported to the government that the check was missing. Because of this report, the check was not honored when presented by Cartersville Beverage. The evidence shows that Miller waited in the car while his wife cashed the check.

“The denial of a motion for directed verdict of acquittal should be affirmed if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Mere presence at the scene of a crime is insufficient to convict one of being a party to the crime, but presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. Criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” (Citations and punctuation omitted.) Griffin v. State, 228 Ga. App. 200, 203 (1) (491 SE2d 437) (1997).

Richard Miller’s participation in the criminal intent may be inferred from circumstances other than his mere presence at the Cartersville Beverage Company on the day his wife cashed the check. For example, a cashier at Cartersville Beverage testified that Richard Miller cashed a check there in February 1996 which was later returned unpaid with the notations “account closed” and “insufficient funds.” There was also evidence showing that without authorization he took eight checks from a school PTA of which he was president and made them payable to himself and his wife, then he and his wife cashed them. On one occasion he brought his wife into a check cashing business called “Mr. Payroll,” introduced her to the cashier, and inquired as to whether she would be able to cash checks there; she thereafter began coming in to cash checks. Both Richard Miller and his wife wrote several bad checks there. Richard Miller had even cashed social security checks at that location. The cashier testified that Richard Miller was present inside the establishment on one occasion when his wife cashed a subsequently dishonored check, and that on another occasion he drove his wife there and waited in the car when she cashed a bad check. A cashier from another Mr. Payroll office testified that Richard Miller had cashed a social security check there before, and that it was returned unpaid as altered. She testified that he tried to cash three or four other checks there later, but the check cashing service would not accept his checks. The evidence supports a finding that Richard Miller was not merely présent as an innocent bystander at the time his wife cashed the social security check at issue. See generally Hyman v. State, 222 Ga. App. 419, 420-421 (1) (474 SE2d 243) (1996).

Decided August 10, 1998.

Kelley A. Dial, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A98A1163.
    KELLOGG v. THE STATE.
    (505 SE2d 794)
   Johnson, Presiding Judge.

Michael Kellogg was charged with driving under the influence of a drug to the extent it was less safe for him to drive, driving under the influence of alcohol and a drug to the extent it was less safe for him to drive, and driving under the influence of alcohol to the extent it was less safe for him to drive. See OCGA § 40-6-391 (a) (1), (2), (4). After a bench trial, the trial court directed a verdict of acquittal as to the DUI charges involving drugs and found him guilty of the charge involving alcohol. Kellogg appeals from the conviction entered on the guilty verdict, contending that the trial court erred in refusing to allow him to introduce exculpatory information from a state crime laboratory report when he had succeeded earlier in having the report suppressed. We find no merit to this argument and affirm.

The laboratory report at issue indicated that Kellogg had cocaine but not alcohol in his blood. At the beginning of the bench trial, in an opening statement, Kellogg’s attorney mentioned that the lab report showed he had no alcohol in his system. The court interrupted and asked if the parties wanted to stipulate the report into evidence. The state responded that it wanted the entire report admitted, and defense counsel replied that he was not sure. The court made no ruling at that time and the trial proceeded.

During cross-examination of the arresting officer, Kellogg’s attorney asked the officer if he received a report from the state crime lab indicating that Kellogg had no alcohol in his blood. The state objected to the question. The trial court again asked defense counsel if he wanted to stipulate the report into evidence, stating: “if you don’t, then it’s just out. If it’s not coming in, it’s not coming in. . . .” Defense counsel remarked that he understood. The trial court then stated: “If you want [the lab report] to come in, it comes in and all of it comes in. If you don’t, don’t say anything else about it.” The trial court sustained the state’s objection and then struck the question referencing the report. Defense counsel replied: “All right.”

After the officer testified, Kellogg moved to suppress the test results based on the arresting officer’s failure to read his implied consent warning at the scene of the arrest. See Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983). The trial court granted the motion to suppress the test results.

Later, during redirect examination of Kellogg, defense counsel asked Kellogg if he saw the state crime lab report showing the amount of alcohol in his system. The state objected, noting that the crime report was not in evidence and was not to be mentioned given the court’s earlier ruling. Defense counsel replied: “I’ve offered to put the report in, and I am trying how to get his testimony.” The trial court sustained the objection then reminded defense counsel that he had the opportunity to stipulate to the admission of the report earlier and that the report would not be considered. The trial court added that defense counsel could put the report in the record if he wanted to, but that the court would not consider it. Defense counsel remarked “All right,” then placed the report in the record.

Even if we assume, arguendo, that the objection was preserved, the enumeration is without merit. The trial court refused to admit the report into evidence only after Kellogg vigorously argued that the report should be excluded. The trial court gave Kellogg several opportunities to have the report introduced as evidence. It even warned Kellogg, before any decision was made as to whether the report would be admitted, that if the report was admitted, it would be admitted in its entirety; likewise, if it was excluded, it would be excluded in its entirety. Kellogg did not take issue with the trial court’s warning. At the very least, therefore, Kellogg acquiesced in the trial court’s “all or nothing” ruling. A litigant cannot acquiesce in a ruling and then complain of the ruling on appeal. Smith v. State, 192 Ga. App. 768, 771 (2) (386 SE2d 530) (1989).

Furthermore, despite the trial court’s warning that it would allow either all or none of the report into evidence, Kellogg chose to argue for the report’s exclusion. It is well-settled that one cannot complain of a ruling which the party’s own trial tactics or conduct procured or aided in causing. Herndon v. State, 229 Ga. App. 457, 458 (4) (494 SE2d 262) (1997); Gill v. State, 229 Ga. App. 462, 464 (3) (494 SE2d 259) (1997).

Kellogg argues that he should have been permitted to introduce evidence from the lab report showing he tested negative for alcohol to impeach the officer’s testimony that he was impaired by alcohol. To support this argument, Kellogg relies upon cases in which this Court held the trial court did not abuse its discretion by allowing the state to introduce previously suppressed evidence to impeach the testimony of a defendant or defense witness. See Goodwin v. State, 222 Ga. App. 285, 287 (3) (474 SE2d 84) (1996); Shipman v. State, 221 Ga. App. 160, 161 (1) (471 SE2d 225) (1996); Charlton v. State, 217 Ga. App. 842, 844 (459 SE2d 455) (1995); Knisely v. State, 155 Ga. App. 673 (1) (a) (272 SE2d 539) (1980) (physical precedent only). Kellogg’s reliance on these cases is misplaced. In none of those cases did a defendant seek to suppress evidence then allege error in the trial court’s refusal to allow him to use the evidence he succeeded in having suppressed. Unlike in the instant case, the parties in those cases apparently maintained their original positions as to the admissibility of the evidence. It is well-established that a defendant cannot complain after he opened the door to a particular line of inquiry. See Shropshire v. State, 226 Ga. App. 669, 671 (487 SE2d 384) (1997). We hold that the converse is also true: A defendant cannot complain that evidence is excluded after he closed the door to a particular inquiry. As discussed above, Kellogg cannot be heard to question a ruling which he invoked. See Bennett v. State, 268 Ga. 849, 851 (494 SE2d 330) (1998). And, although the Georgia rule favors the admission of relevant evidence, admissibility of evidence is a matter which rests largely within the sound discretion of the trial court. Chesser v. State, 228 Ga. App. 164, 166 (1) (491 SE2d 213) (1997).

Decided August 11, 1998.

William C. Head, for appellant.

Carmen Smith, Solicitor, Roderick B. Wilkerson, Jody L. Beskin, Assistant Solicitors, for appellee.

Moreover, while on appeal he claims that the evidence was admissible for impeachment purposes, he made no such argument at trial. Kellogg is limited on appeal to the grounds raised at trial. See Vincent v. State, 210 Ga. App. 6, 7 (2) (435 SE2d 222) (1993). The trial court did not abuse its discretion in excluding the evidence.

Judgment affirmed.

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


author: JOHNSON, Presiding Judge.

text:
    A98A1301.
    KNIGHT v. THE STATE.
    (505 SE2d 796)
   JOHNSON, Presiding Judge.

Terry Knight appeals his conviction of cruelty to children. His wife, Angela Knight, was also convicted of cruelty to children; she has not appealed. Terry Knight specifically contends that the state failed to prove beyond a reasonable doubt that he intentionally failed to provide proper care for his child. We disagree.

Angela Knight gave birth to Kasey Knight in April 1995. Kasey was born prematurely and weighed three pounds, two ounces at birth. He weighed four pounds, six ounces a month later when released from the hospital. On August 17, 1995, two law enforcement officers went to the Knights’ residence to serve a warrant. They discovered Kasey in an extremely emaciated condition and called DFCS. The officers observed that Kasey’s skin was loose, wrinkled and had a gray color; one officer cried when he saw the child.

The DFCS worker observed that Kasey’s skin was hanging and had a grayish hue, giving the child a skeleton-like appearance. Kasey’s head appeared “enormous” in relation to the small size of his body. She could see the outlines of Kasey’s bones and was afraid the child was going to die. Kasey’s baby bottle contained sour milk. The DFCS worker prepared a bottle of infant formula and Kasey ate frantically, as if he had not eaten for some time. Kasey could not hold the bottle by himself. The DFCS worker was able to feed Kasey three ounces of formula before arriving at the children’s hospital that day. Knight subsequently spoke to the DFCS worker and stated that there was nothing wrong with Kasey and that he was premature like his brother. Knight and his wife did not keep Kasey’s immunizations current or take him for follow-up medical examinations. Investigation revealed that Angela Knight and her two children were receiving WIC food vouchers for food and infant formula.

When Kasey was admitted into the hospital he weighed four pounds, fourteen ounces. The doctor opined that Kasey was “severely malnourished” and looked like a child in a “Sally Struthers’ commercial” — a malnourished child. The doctor plotted Kasey’s development, factoring in his head size, weight, length, and premature birth. He plotted Kasey’s development statistics and determined the child was within a statistical range of less than one percentile. A normal four-month infant is expected to weigh between twelve and eighteen pounds; Kasey, being born prematurely, should have weighed between eight and twelve pounds at four months of age. Kasey was tested for bottle feeding and again ate ferociously as if he had not eaten in quite awhile. It was subsequently determined there existed no medical reasons for Kasey’s failure to gain weight. Five days later, Kasey weighed five pounds, thirteen and one-half ounces; this one pound weight gain was almost equal to a quarter of his previous body weight. The doctor testified that Kasey had not gained weight because he was not being fed. He further explained how depriving Kasey of food jeopardized his health and well-being. Specifically, when inadequate caloric intake occurs a baby’s brain tends not to grow as it should during the first six months; and in the first year a baby’s brain grows more than it will the rest of his life.

On August 21, 1995, the county sheriff’s department searched Knight’s apartment. Deputies described the apartment as “filthy” and “nasty.” For example, they observed dog feces on the floor in several spots beside the bed and a plastic bag of messy diapers on an end table. They also found two containers and one case of infant formula in the apartment. Photographs of the apartment were taken and admitted into evidence. Following an emergency hearing, the juvenile court placed Knight’s children in the temporary custody of DFCS. DFCS then placed both children with Angela’s adoptive parents. As of January 5, 1996, Kasey weighed fifteen pounds, four ounces.

Terry Knight’s uncle, Doug Cordell, testified that he picked Terry up for work every day, and when he saw Angela Knight she usually would be feeding the children or watching TV or something. In the evenings, he took Terry home and either he or Terry would feed Kasey. Cordell saw a lot of milk, powdered milk, and infant formula in the house; the cabinets were full of baby food.

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990); Brewton v. State, 216 Ga. App. 346, 349 (3) (454 SE2d 558) (1995), rev’d on other grounds, 266 Ga. 160 (465 SE2d 668) (1996).

2. OCGA § 16-5-70 (a) provides: “A parent, guardian, or other person supervising the welfare of or having immediate charge or custody of a child under the age of 18 commits the offense of cruelty to children in the first degree when such person willfully deprives the child of necessary sustenance to the extent that the child’s health or well-being is jeopardized.” The term “necessary sustenance,” as used in this Code section, has consistently been defined as that necessary food and drink which is sufficient to support life and maintain health. State v. Lawrence, 262 Ga. 714, 715 (425 SE2d 280) (1993). This Code section, unlike OCGA § 16-5-70 (b), does not contain an element of malice. What is required under OCGA § 16-5-70 (a) is that the defendant wilfully deprives the child of necessary sustenance and that as a result, the child’s health or well-being is jeopardized. See Beasley v. State, 161 Ga. App. 29, 30 (3) (288 SE2d 828) (1982). OCGA § 19-7-2 provides that, except as otherwise provided by court order, it is the joint and several duty of each parent to provide for the maintenance, protection and education of his or her minor child.

Direct medical testimony shows that the child was severely malnourished and that his health was thereby jeopardized. Whether Knight either perpetrated or otherwise was a party to this act, within the meaning of OCGA § 16-2-20, and whether the act was done wilfully, were issues for jury resolution. Although Kasey was severely malnourished, there was food in the house to feed him properly. Moreover, both Angela Knight and the children were receiving WIC food and formula vouchers. Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Terry Knight was guilty of the offense of cruelty to children. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Compare Caby v. State, 249 Ga. 32, 33 (2) (287 SE2d 200) (1982).

Decided August 11, 1998.

Rodney L. Mathis, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Mickey R. Thacker, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A98A1313.
    SETSER v. THE STATE.
    (505 SE2d 798)
   Johnson, Presiding Judge.

A jury found Billy Setser guilty of armed robbery, burglary, possession of a firearm during the commission of a crime, aggravated battery, possession of a firearm by a convicted felon and three counts of aggravated assault. He appeals from the convictions entered on the verdict and the denial of his motion for new trial.

1. Setser contends the evidence was insufficient to support the verdict. Specifically, he argues the jury should not have believed the testimony of his co-defendant and a victim identifying him as the armed man who forced his way into the victims’ home and committed the crimes charged.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Swift v. State, 229 Ga. App. 772, 773 (1) (495 SE2d 190) (1997). Viewed in such a light, the evidence shows that a white car pulled into the driveway of the victims’ home. When the father went to answer the door, a man wearing a mask and holding a gun kicked in the door and demanded money. The father ran toward the back of the house to get his shotgun and was chased and then shot in the back by the masked man. A second masked man, who was unarmed, entered the house and grabbed the mother. The couple’s adult daughter pushed the second man away from the mother and the gunman pushed the daughter as she tried to reach her injured father. The mother tried using the phone to call for help, but the gunman pulled the phone out of her hand, grabbed the mother and put the gun to her head and then to her ribs. The gunman threatened to shoot the mother if he was not given any money. The daughter stepped between the gunman and her mother, pulled the armed man’s mask off and stared at his face for about ten seconds before he pushed her away. The man covered his face and again demanded money. As the daughter went to get her purse, the men ran out.

The daughter gave a detailed description of the gunman to police and looked at a book of mugshots. She selected Setser’s picture and identified him as the gunman. An officer went to Setser’s home that night and noted that Setser matched the physical description the daughter gave police, drove a white car and was dressed in jeans similar to those described by the daughter. Setser told the officer he was at work at the time of the crimes and that people at his place of work could verify this. When asked, however, they told the officer that Setser did leave work that night. A week later, the officer took six photographs of suspects to the daughter. She again identified Setser, saying “I’ll never forget that face.”

In executing a search warrant of his home, police found a shirt and work boots that matched the description the daughter gave of the gunman’s clothing. A detective compiled another photographic lineup which included a new photograph of Setser and presented it to the daughter. She again selected Setser’s photograph from the array. She also positively identified the shirt and boots seized by police as those worn by the armed assailant and identified Setser in court.

The other man who entered the victims’ home that evening, Donald Gravley, testified on behalf of the state. Gravley testified that he and Setser left the auction where Setser worked and drove to the victims’ house nearby. Setser wore a mask over his face, broke in through the front door and demanded money. Gravley, who was unarmed, heard a gun discharge as Setser chased the father. He watched Setser hold a gun to the mother’s stomach then point the gun at everybody in the house. The men left and went back to the auction. Though Setser offered testimony which conflicted with that of the state’s witnesses,, the evidence was sufficient to enable a rational trier of fact to find Setser guilty of the crimes charged beyond a reasonable doubt within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See generally Jones v. State, 195 Ga. App. 894, 895 (395 SE2d 83) (1990).

2. Setser claims trial counsel was ineffective because he: (1) failed to object to testimony the state elicited from Gravley that he and Setser smoked marijuana together and that they met in jail; and (2) failed to subpoena witnesses to testify during the sentencing phase of the trial. Setser also contends his first appellate counsel was ineffective because he failed to raise ineffectiveness of trial counsel as an issue in his motion for new trial. Through new appellate counsel, Setser seeks a remand for a hearing on the matter.

To preserve the issue of ineffective assistance of previous counsel, new counsel must raise the issue at the first possible stage of post-conviction review or the issue is waived. McGlohon v. State, 228 Ga. App. 726, 728 (3) (492 SE2d 715) (1997); Hill v. State, 207 Ga. App. 65, 68 (6) (426 SE2d 915) (1993). Setser’s current appellate counsel was appointed after Setser’s motion for new trial was denied. Therefore, new appellate counsel did not have the opportunity to raise the ineffective assistance issue before the trial court. Generally, when the appeal presents the earliest practicable opportunity to raise an ineffectiveness claim, and the claim is indeed raised for the first time on appeal, we remand the case to the trial court for an evidentiary hearing on the issue. See Elliott v. State, 230 Ga. App. 855, 858 (4) (c) (497 SE2d 817) (1998); Parrish v. State, 194 Ga. App. 760, 762 (4) (391 SE2d 797) (1990); McGlohon, supra at 729.

We are not, however, always required to remand the case. Elliott, supra. “[R]emand is not necessary when it appears as a matter of law that the appellant cannot satisfy the two-prong test to establish ineffectiveness of counsel.” Johnson v. State, 214 Ga. App. 404 (1) (447 SE2d 711) (1994); In the Interest of J. B., 223 Ga. App. 429, 432 (2) (477 SE2d 874) (1996). Under the test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), the defendant is required to show both that counsel’s performance was deficient and that the deficiency prejudiced the defense. Jenkins v. State, 268 Ga. 468, 473 (10) (491 SE2d 54) (1997). We find that the test cannot be satisfied in this case and remand is therefore unnecessary.

When the prosecutor asked Gravley how he knew Setser, he replied that they met in jail. The prosecutor then asked Gravley what kind of social activities he and Setser engaged in together. Gravley responded that they went to an auction and “smoked a couple of joints” together. The prosecutor inquired as to how many times they smoked marijuana together. Gravley replied: “Probably a blue million.” Defense counsel made no objection during the inquiry.

This Court has held that testimony that a defendant smoked marijuana does not place one’s character in issue. Hearst v. State, 212 Ga. App. 492, 496 (4) (441 SE2d 914) (1994). Arguably, given the authority cited in Hearst, the court went further than necessary to reach that conclusion. However, we need not address the questions raised by the Hearst decision because even if admission of this evidence constituted error, in view of the overwhelming admissible evidence of Setser’s guilt such error was harmless. See generally Parker v. State, 226 Ga. App. 462, 464 (5) (486 SE2d 687) (1997).

Decided August 11, 1998.

Stephen A. Delaney, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

Authority appears to be split on the question of whether mentioning a defendant’s prior incarceration places his character into evidence. See the Supreme Court’s in-depth discussion of this issue in Sorrells v. State, 267 Ga. 236, 239-240 (5) (476 SE2d 571) (1996). Even assuming trial counsel should have objected to the inquiry or testimony, the witness’ isolated reference to Setser’s having been in jail was harmless given the overwhelming evidence of his guilt. See id.

Finally, Setser’s claim that trial counsel was deficient because he failed to subpoena witnesses to testify during the sentencing hearing presents no grounds for reversal inasmuch as he gives no indication what testimony was available or how such testimony would have affected his sentence. See Gilbert v. State, 209 Ga. App. 483, 486 (3) (433 SE2d 664) (1993); see generally Brantley v. State, 230 Ga. App. 651, 653 (3) (c) (497 SE2d 399) (1998).

It is clear that none of the alleged errors committed by trial counsel materially affected the outcome of the proceedings in this case. Accordingly, Setser has not shown he was denied effective assistance of trial counsel. See Elliott, supra at 858. Likewise, Setser cannot show any prejudice caused by initial appellate counsel’s failure to assert an ineffective assistance of trial counsel claim, since such a claim would have failed even if it had been raised. See generally Martin v. State, 228 Ga. App. 548, 551 (492 SE2d 307) (1997).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A98A1340.
    DAVIS v. THE STATE.
    (505 SE2d 801)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of robbery and theft by taking on December 11, 1996. On March 20, 1997, defendant, acting pro se, filed a document entitled, “MOTION FOR OUT OF TIME APPEAL AND/OR EXTRAORDINARY MOTION FOR NEW TRIAL.” Defendant pertinently alleges in this motion that his trial attorney was ineffective because he did not file a timely notice of appeal from defendant’s judgment of conviction and sentence.

Appellate counsel, representing himself as the Pulaski County public defender, entered an appearance for defendant on December 16, 1997, declaring that he was appointed to represent defendant “in his Motion for New Trial. . . .” On January 26, 1998, the trial court entered an order denying defendant’s motion for out-of-time appeal and/or extraordinary motion for new trial, finding that defendant was advised of his appeal rights and that “defendant elected to discharge [his trial attorney], rather than have him file a motion for new trial or an appeal.”

On February 11, 1998, defendant filed a notice of appeal designating that he “does hereby appeal. . . from the judgment and sentence entered on December 11, 1996. . . .” Defendant later filed an enumeration of error and brief in the Court of Appeals of Georgia, contending the evidence adduced at trial does not support his conviction. Defendant also enumerates ineffective assistance of counsel, arguing that his trial attorney did not call any witness to corroborate defendant’s trial testimony and that his trial attorney did not attempt to impeach or diminish the credibility of the State’s witnesses. Defendant did not enumerate error relating to the trial court’s denial of his motion for out-of-time appeal and/or extraordinary motion for new trial. Held'.

Under OCGA § 5-6-38 (a), a notice of appeal must be filed within 30 days after the entry of the appealable judgment, unless a motion for new trial, motion in arrest of judgment, or motion for judgment notwithstanding the verdict has been filed within that time period. This 30-day time requirement is jurisdictional and the failure to comply with it mandates dismissal of an appeal. Watson v. State, 202 Ga. App. 667 (415 SE2d 306). In the case sub judice, defendant did not file a motion for new trial, motion in arrest of judgment, or motion for judgment notwithstanding the verdict within 30 days after entry of his judgment of conviction and sentence. Defendant waited over three months after his conviction to file, pro se, a motion for out-of-time appeal and/or extraordinary motion for new trial. Although the order denying this motion appears to be directly appealable (Bohannon v. State, 262 Ga. 697 (425 SE2d 653)), defendant did not designate in his notice of appeal that he was appealing the denial of his motion for out-of-time appeal and/or extraordinary motion for new trial. Nor does he enumerate error relating to the trial court’s reasons for denying this motion. Defendant instead enumerates error which would only have been appropriate for this Court’s consideration in a timely appeal. This Court held in Balkcom v. State, 227 Ga. App. 327 (489 SE2d 129), that such “bootstrapping” cannot vest this Court with jurisdiction to consider potential errors which could or should have been part of a direct appeal or timely motion for new trial. Id. at 331-332, supra. Accordingly, defendant’s February 11, 1998, appeal from “the judgment and sentence entered on December 11, 1996[,]” must be dismissed as untimely.

Decided August 11, 1998.

Genelle, Jennings & Associates, Nicholas E. White, for appellant.

Timothy G. Vaughn, District Attorney, Russell R Spivey, Assistant District Attorney, for appellee.

Since an attorney other than defendant’s trial attorney was appointed to represent defendant before the hearing on defendant’s motion for out-of-time appeal and/or extraordinary motion for new trial, it appears unnecessary for this Court to follow the Supreme Court’s directives in Rowland v. State, 264 Ga. 872, 874 (2) (452 SE2d 756).

Appeal dismissed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A1350.
    DOLLAR et al. v. DALTON PUBLIC SCHOOLS et al.
    (505 SE2d 789)
   Johnson, Presiding Judge.

Anna Dollar’s mother (“Dollar”) sued the Dalton Public School District and two childcare workers after Anna fell from playground equipment and broke her arm while attending an after-school childcare program on Dalton Public School premises. The school district moved for summary judgment based on sovereign immunity and the childcare workers moved for summary judgment based on official immunity. Dollar also moved for partial summary judgment. The trial court granted the defendants’ motions for summary judgment and denied Dollar’s motion. Dollar appealed to the Supreme Court of Georgia, raising several constitutional issues. The Supreme Court held that the constitutional issues raised involved application of well-settled principles and transferred the appeal to this Court. We affirm the judgment of the trial court.

1. In several enumerations of error, Dollar argues that sovereign immunity does not apply here because: (a) the after-school program is not a governmental function and is not covered by traditional notions of sovereign immunity; (b) sovereign immunity has been waived to the extent of insurance; (c) a special relationship exists between the school district and Dollar; (d) the school district maintained a nuisance; and (e) sovereign immunity does not prevent collection of damages from insurance proceeds.

(a) We disagree with Dollar’s claim that the after-school program, for which she paid a fee, is not public education or a governmental activity and therefore the school district, like any private childcare provider, is not entitled to sovereign immunity.

Our legislature has specifically recognized that programs operated by boards of education which provide care and supervision of school-age children outside of normal school hours serve an educational purpose, are necessary or incidental to public education and can be an integral part of the total school program offered by public schools in this state. OCGA § 20-2-65 (a). The legislature has authorized boards of education to establish and operate such after-school programs. OCGA § 20-2-65 (b). An after-school program operated by a school district in accordance with OCGA § 20-2-65, is therefore clearly a governmental activity serving an educational purpose. This enumeration is without merit.

(b) The question of whether by having liability insurance the school district has waived sovereign immunity has been decided adversely to Dollar. See Crisp County School System v. Brown, 226 Ga. App. 800, 802 (1) (487 SE2d 512) (1997) (school systems do not waive sovereign immunity merely by purchasing liability insurance); Davis v. Dublin City Bd. of Ed., 219 Ga. App. 121, 123 (3) (464 SE2d 251) (1995) (board of education entitled to summary judgment based on sovereign immunity despite existence of liability insurance coverage since no legislative act specifically provides that the board of education has waived sovereign immunity by purchasing liability insurance).

(c) Dollar’s reliance on City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993), as authority for her argument that the school district had a special duty of care toward her, is misplaced. The Supreme Court of Georgia has held that the public duty doctrine adopted in City of Rome does not apply outside of the police protection context. Hamilton v. Cannon, 267 Ga. 655 (1) (482 SE2d 370) (1997). Compare Coffey v. Brooks County, 231 Ga. App. 886, 887 (1) (500 SE2d 341) (1998).

(d) Dollar argues that the playground equipment is a nuisance because it had insufficient padding beneath it, and that a municipality has no sovereign immunity where it maintains a nuisance. See Hibbs v. City of Riverdale, 267 Ga. 337 (478 SE2d 121) (1996). The school district, however, is not a municipality. The immunity which protects school districts and their officials applies equally to claims in negligence and in nuisance. Crisp County School Dist. v. Pheil, 231 Ga. App. 139, 140 (1) (498 SE2d 134) (1998).

(e) We are not persuaded by Dollar’s argument that the suit should proceed because she can always collect from the school district’s insurer rather than from the school district itself. As discussed above, the school district is immune from suit despite the existence of insurance.

2. Dollar claims official immunity does not apply to the childcare workers because their failure to supervise children as instructed was ministerial rather than discretionary; as after-school childcare providers they were engaged in non-governmental activity; and liability insurance was provided.

For the reasons discussed in Division 1 above, the latter two arguments are without merit. See Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 295-296 (454 SE2d 149) (1995) (school district does not waive sovereign immunity by purchasing liability insurance, and employees sued in their personal capacities for actions taken within the scope of their duties as employees of the school district are entitled to summary judgment based on official immunity).

Dollar’s argument that official immunity does not apply because the employees were engaged in ministerial acts is also without merit. The task imposed on teachers to monitor, supervise and control students is a discretionary action which is protected by the doctrine of sovereign immunity. Wright v. Ashe, 220 Ga. App. 91, 94 (469 SE2d 268) (1996); Kelly v. Lewis, 221 Ga. App. 506, 508-509 (471 SE2d 583) (1996); see also Crisp County School System v. Brown, supra at 803.

3. Dollar’s constitutional arguments are without merit.

(a) In several enumerations, Dollar contends strict application of sovereign immunity is unconstitutional because it results in unfairness and irresponsible government. “Application of the doctrine of sovereign immunity has always involved the balancing of the interests of persons injured by government’s wrongdoing and the interests of the taxpayers.” Thomas v. Hosp. Auth., 264 Ga. 40, 43-44 (2) (440 SE2d 195) (1994). Indeed, in enacting the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., the General Assembly specifically “recognize[d] the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity.” OCGA § 50-21-21 (a); Googe v. Fla. Intl. &c. Co., 262 Ga. 546, 550, n. 9 (422 SE2d 552) (1992). Accordingly, the Georgia Tort Claims Act does not provide blanket immunity from suit, but affords a plaintiff the benefit of a broad waiver of sovereign immunity. Riddle v. Ashe, 269 Ga. 65, 66 (2) (495 SE2d 287) (1998). Nonetheless, as noted in Googe, supra, the exposure of the state treasury to tort liability must be limited.

(b) Dollar claims sovereign immunity violates due process and equal protection clauses of the federal constitution because it constitutes deprivation with no remedy. “The bar of sovereign immunity neither results in a deprivation of property without just compensation nor constitutes a denial of equal protection or due process under the federal or state constitutions. The due process and equal protection clauses of the federal and state constitutions protect only rights, not mere privileges, and discrimination in the grant of privileges is not a denial of equal protection to those who are not favored. A waiver of sovereign immunity is a mere privilege, not a right, and the extension of that privilege is solely a matter of legislative grace.” (Citations omitted.) Riddle, supra at 67 (3). We point out that, in this state, sovereign immunity has constitutional status and cannot be abrogated by the judiciary. See State Bd. of Ed. v. Drury, 263 Ga. 429, 430 (1) (437 SE2d 290) (1993); Martin v. Dept. of Public Safety, 257 Ga. 300, 301 (1) (357 SE2d 569) (1987).

Decided August 11, 1998

Coppedge, Leman & Ward, Warren N. Coppedge, Jr., David L. McGuffey, for appellants.

Kinney, Kemp, Sponcler, Joiner & Tharte, E Gregory Melton, Wayne E. Brooks, Jr., for appellees.

(c) The Georgia Tort Claims Act does not violate Art. I, Sec. II, Par. I of the Georgia Constitution of 1983, which article provides that government is founded on the will of the people and that public officers are trustees of and amenable to the people. “[A] majority of Georgia voters approved [the 1991 amendment] which provided for limited waiver of sovereign immunity through a legislative act. The language of that ballot amendment has received judicial approval. [Cits.]” Riddle, supra at 65 (1). The Georgia Tort Claims Act was enacted under the authority of the amendment. Id. at 66 (1). Dollar’s contention that the Act unconstitutionally violates the will of the people is therefore incorrect.

(d) The 1991 amendment (Art. I, Sec. II, Par. IX) to the Georgia Constitution of 1983 does not violate due process and equal protection guarantees for the reasons discussed in part (b) of this division.

There being no genuine issues of material fact, the trial court did not err in granting summary judgment to the school district and its employees. See generally Perkins v. Morgan County School Dist., 222 Ga. App. 831, 837 (3) (476 SE2d 592) (1996).

Judgment affirmed.

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


text:
    A98A1469.
    CROZIER v. THE STATE.
    (506 SE2d 139)
   Johnson, Presiding Judge.

David Crozier pled guilty to one count of aggravated assault. During an evidentiary hearing on restitution, the trial court found that Crozier’s actions were the proximate cause of injuries suffered by the victim and ordered Crozier to pay $21,162 in restitution. Crozier appeals the amount of restitution ordered. For reasons which follow, we affirm.

The undisputed evidence shows that Crozier struck the victim once in the head with a piece of wood. The evidence further shows that immediately after the blow the victim lost his sight momentarily and suffered headaches. The headaches continued to be severe. The victim sought medical treatment and was referred to a neurologist. The neurologist diagnosed the victim as having a subdural hematoma and performed surgery to relieve the pressure on the brain. The victim testified that prior to the altercation with Crozier he had no headaches and that the cause of the pain in his head was Crozier’s blow.

The victim’s medical bills totaled $21,162. The bills were admitted into evidence without objection. The victim filed Chapter 13 Bankruptcy and made payments on the bills until it was converted to a Chapter 7 action and he was discharged from paying the bills.

1. In his first enumeration of error, Crozier contends the trial court erred in finding the state carried its burden of showing that the blow administered by him caused the victim’s injuries. We disagree.

The sufficiency of evidence to support an order of restitution is measured by the preponderance of the evidence. Evans v. State, 204 Ga. App. 458 (419 SE2d 532) (1992); Lawrenz v. State, 194 Ga. App. 724, 725 (1) (391 SE2d 703) (1990). The evidence presented at the restitution hearing showed that Crozier struck the victim over the head with a piece of wood and that the victim began experiencing pain, including headaches, immediately after being struck with the wood. While Crozier presented testimony that the victim had been involved in a fist fight approximately two weeks prior to Crozier’s assault, the victim testified that he did not experience headaches or pain until immediately following Crozier’s blow to his head. Moreover, while the neurologist testified that the victim’s injury could have been caused by blows from the earlier fist fight, he further indicated that the findings from the CT scan were consistent with a blow to the head with a piece of wood.

“Preponderance of evidence” is defined as “that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.” OCGA § 24-1-1 (5). The evidence presented at the restitution hearing was sufficient under the preponderance of the evidence standard for the trial court to conclude that Crozier’s blow caused the victim’s injury.

2. In two enumerations, Crozier maintains that the amount of restitution ordered by the trial court was improper since some of the amount had been discharged in bankruptcy. We disagree.

Crozier correctly notes that the maximum amount of restitution recoverable in a criminal action is that which would have been recoverable in a civil action. OCGA § 17-14-9; Lawrenz, supra. It is clear that the victim would be able to recover the amount of all medical treatment related to Crozier’s assault and/or that the medical service providers would be able to recover for the expenses incurred in treating the victim for the injury related to Crozier’s assault. It is further undisputed that the victim’s medical expenses resulting from the blow to his head totaled $21,162.

Crozier has cited no case and we can locate no case holding that a defendant is released from paying restitution if the victim declares bankruptcy. In fact, the Supreme Court of Georgia has referred to restitution as “a penalty to be determined by the court in a criminal case.” Cannon v. State, 246 Ga. 754, 755 (2) (272 SE2d 709) (1980). It has further characterized restitution as “punishment when ordered as part of a criminal sentence.” Harris v. State, 261 Ga. 859, 860 (1) (413 SE2d 439) (1992). According to the Court in Harris, “restitution is not synonymous with civil damages. . . . The amount of the victim’s damages is only one factor for a court to consider in determining the amount of restitution. The sentencing court must also consider the offender’s present financial condition and future earning capacity, as well as the goal of rehabilitation to the offender. See OCGA § 17-14-10.” Id. We therefore hold that an offender is not absolved from paying for damages caused by his actions merely because the victim filed bankruptcy. In many circumstances, the offender is responsible for the victim’s need to file bankruptcy.

Decided August 11, 1998.

Straughan & Straughan, Mark W. Straughan, Laurel B. Straughan, for appellant.

Stephen D. Kelley, District Attorney, Jan Kennedy, Assistant District Attorney, for appellee.

Moreover, in the present case, even assuming that Crozier could not be ordered to pay restitution to the victim after he filed bankruptcy, the trial court ordered Crozier to pay restitution “to the parties that suffered losses in this, not to Mr., to the victim in this matter, but to the people that provided these services to the victim.” Thus, the fact that the victim filed bankruptcy is irrelevant. The record shows that in determining the nature and amount of restitution due, the trial court considered the evidence before it and acted in compliance with OCGA §§ 17-14-2; 17-14-8 (b); 17-14-9; and 17-14-10. We find no error in the trial court’s determination of the amount of restitution due and in the trial court’s order that the amount be paid directly to the medical service providers.

Judgment affirmed.

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

       While the trial court’s order does not actually specify to whom the restitution payments shall be made, at the restitution hearing, the trial court ordered Crozier to make his restitution payments directly to the doctors who provided medical services to the victim. Crozier has not enumerated as error any complaint regarding this ruling by the trial court.

       OCGA § 17-14-2 (9) defines “victim” as “any natural person or his personal representative or any firm, partnership, association, public or private corporation, or governmental entity suffering damages caused by an offender’s unlawful act.” We note, however, that OCGA § 17-14-17 (a) (2), effective July 1, 1998 but not applicable to convictions entered before that date, has changed the definition of “victim” for purposes of “restitution equal to the unreimbursed or uncompensated portion of victim’s damages” to “any natural person against whom a crime specified in Chapter 7 or 8 of Title 16 has been committed.” Thus, medical service providers may no longer be considered victims and be able to collect for medical services provided to a victim of a crime.


author: Andrews, Chief Judge.

text:
    A98A1617.
    DASHER v. THE STATE.
    (505 SE2d 792)
   Andrews, Chief Judge.

Gus Dasher appeals from the judgment entered after a jury found him guilty of possession of cocaine with an intent to distribute. On appeal, Dasher claims the trial court erred in requiring him to elect between cross-examining his co-defendant and opening and concluding the closing argument. We agree and reverse.

The evidence at trial taken in the light most favorable to the jury’s verdict, was that on June 10, Kent Harvey, the arresting officer, was on patrol outside of Climax, Georgia, when he noticed Dasher and the co-defendant, Daria Gammon, traveling without seatbelts. The officer stopped the car and asked Gammon, who was driving, for his license and proof of insurance. Gammon told the officer he did not have his license or proof of insurance with him. Gammon gave the officer a false name, Otis Gammon, which did not come up on the Georgia Crime Information Center file.

The officer then asked Gammon to get out of the car and went to talk to Dasher. Officer Harvey asked Dasher what the driver’s name was and upon getting a different name, Daria Gammon, the officer became suspicious and called for backup. Once backup arrived, the officer asked Dasher to get out of the car and searched him for weapons. Officer Harvey found $1,059, mostly in denominations of tens and twenties, along with a beeper. The officer then asked for and received permission to search the car. He found a cellular phone and a plastic bag stuffed between the two front seats. The plastic bag contained a matchbox and a medicine pill bottle with Gammon’s name on it. The pill bottle and matchbox contained substances appearing to be crack cocaine. The state crime lab analysis showed the substance was crack cocaine and contained 9.2 grams of pure cocaine in 29 rocks. Frank Green, an investigator with the Decatur County Sheriff’s Office, testified that the amount of drugs recovered was more than that used by individuals.

Gammon testified in his own defense and stated that on the day in question he was driving Dasher around to find motorcycle parts and that was why Dasher was carrying such a large amount of cash. Gammon said he had several empty medicine bottles in the car. He admitted to giving the officer a false name and also admitted that he told the officer he could “charge” him for having drugs. He said he told the officer this because Dasher asked him to take the blame for the drugs.

Dasher also testified in his own defense and stated that he never told Gammon to take the blame for the drugs. He said he had no idea that Gammon had narcotics in the car. Dasher explained that he needed the beeper and cell phone for his lawn care business.

1. The trial court erred in forcing Dasher to choose between cross-examining his co-defendant and opening and concluding the closing argument. At trial, the court held that if Dasher’s counsel cross-examined Gammon, he would have waived the right to open and conclude closing argument. Dasher’s counsel then stated he would not cross-examine Gammon, but objected to the judge’s decision forcing him to choose.

OCGA § 17-8-71 provides: “After the evidence is closed on both sides, the prosecuting attorney shall open and conclude the argument to the jury. If the defendant introduces no evidence, his counsel shall open and conclude the argument to the jury after the evidence on the part of the state is closed.” The Supreme Court of Georgia has held that the cross-examination of a witness does not constitute the introduction of evidence under OCGA § 17-8-71. Kennebrew v. State, 267 Ga. 400, 404, n. 2 (480 SE2d 1) (1996). See also Whitehead v. State, 232 Ga. App. 140, 142 (499 SE2d 922) (1998); Wilson v. State, 227 Ga. App. 59, 62 (488 SE2d 121) (1997). Therefore, it was error for the trial court to deny Dasher the right both to cross-examine his co-defendant and to open and conclude closing argument.

Decided August 11, 1998.

Gilbert J. Murrah, for appellant.

J. Brown Moseley, District Attorney, Victoria Spear-Darrisaw, Assistant District Attorney, for appellee.

Moreover, the error was harmful. This is not a case where the evidence against Dasher was overwhelming or his defense incredible. The officer found the cocaine in a pill bottle with Gammon’s name on it, between the seats of Gammon’s car. Dasher’s defense was that he was unaware there was cocaine in the car. Thus, Dasher’s and Gammon’s defenses were antagonistic in that both claimed the other was responsible for the drugs in the car. When Gammon testified in his own defense, Dasher’s counsel was forced to forego cross-examining him on this defense because of the judge’s ruling.

Likewise, had Dasher’s counsel chosen to cross-examine Gammon and to forego closing argument, there would also have been harmful error. “[T]he right to make final argument to the jury is an important one, and harm is presumed when that right is erroneously denied.” Givens v. State, 264 Ga. 522, 523 (448 SE2d 687) (1994). Although this presumption is not absolute where the evidence against the defendant is overwhelming or his defense is unbelievable, that does not apply to this case. Id. See also Whitehead, supra at 142. Therefore, because we cannot say the error did not contribute to the verdict, we reverse the conviction.

2. In light of our holding in Division 1, we need not address the remaining enumeration of error.

Judgment reversed.

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


author: Blackburn, Judge.

text:
    A98A1152.
    TAYLOR v. GELFAND et al.
    (505 SE2d 222)
   Blackburn, Judge.

Pamela Taylor appeals the trial court’s grant of summary judgment to Ross Gelfand, Gelfand’s law firm, and General Motors Acceptance Corporation (GMAC) in a suit asserting claims for conversion and emotional distress arising from a garnishment action. We affirm.

“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 conclusions 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).

Viewed in this light, the evidence shows that GMAC retained Gelfand to collect its accounts. A written agreement between GMAC and Gelfand provided that Gelfand would “employ! ] such lawful means, methods, and procedures as in [his] judgment and experience [he] believes will best effect the collection of Accounts.” In January 1994, Gelfand undertook to collect money Taylor owed GMAC under a retail installment sales contract. Gelfand obtained a default judgment in the amount of $1,268.73. On June 7, 1994, after Taylor failed to make voluntary payments on the judgment, Gelfand filed a garnishment action in Spalding County against Taylor’s employer, the Social Security Administration (SSA).

The SSA did not file an answer to the garnishment nor did it pay any money into the court registry. Rather, it issued Gelfand six checks drawn on a United States treasury account and made payable to the law offices of Ross Gelfand. Although Taylor’s name was also noted on the checks, Gelfand testified that he believed the checks were employee withholding tax refunds he had been expecting and deposited them into his law firm’s account. In December 1994, the SSA informed Gelfand that Taylor had been transferred out of state. Gelfand released the garnishment against the SSA and refiled in Pike County against a bank account Taylor had with the United Bank of Pike County. Although Gelfand believed the entire judgment remained unpaid when he filed this second garnishment, Taylor actually owed only $76.73.

In June 1995, GMAC terminated its relationship with Gelfand and referred its collection work to another law firm. In the meantime, Taylor filed a traverse to the second garnishment, contesting the amount owed. When the new firm learned of the traverse and Taylor’s contention that the judgment had been satisfied, it released the second garnishment. Gelfand discovered his accounting error in August 1995 and remitted the SSA payments to GMAC.

1. In her brief, Taylor contends the trial court erred in granting summary judgment “on all theories of recovery” asserted in her complaint. However, Taylor conceded during the motion hearing that summary judgment was proper with respect to Counts 1 (false statements), 3 (fraud) and 5 (ethical violations) of the complaint. Taylor may not appeal that portion of the judgment to which she consented. Dept. of Human Resources v. Phillips, 268 Ga. 316, 320 (2) (486 SE2d 851) (1997). Moreover, because Taylor has presented no legal argument pertaining to the grant of summary judgment as to Counts 1, 3, and 5, any error assignable to those counts is deemed abandoned. Court of Appeals Rule 27 (c) (2).

2. In Count 2 of her complaint, Taylor claimed that Gelfand violated OCGA § 51-10-1 when he filed the second garnishment action because the resulting freezing of her bank account amounted to conversion. We disagree. “Conversion is the unauthorized assumption and exercise of the right of ownership over personal property belonging to another which is contrary to the owner’s rights.” (Punctuation omitted.) Reeves v. Edge, 225 Ga. App. 615, 619 (3) (484 SE2d 498) (1997). In this case, Taylor’s bank account was temporarily seized by virtue of legal process. Consequently, the garnishment was not “unauthorized.”

It has long been the law in Georgia “that possession acquired fairly under legal process, is not a wrongful conversion.” Smith v. Kershaw, 1 Ga. 259, 261 (1846). Rather, when the “property of a person [was] seized under a valid process issued against him . . . malice, want of probable cause, and termination of the proceeding in favor of the defendant in the process [had to] be alleged and proved to support an action for damages against the persons causing the process to be issued and levied.” Fulton Grocery Co. v. Maddox, 111 Ga. 260, 265 (36 SE 647) (1900). Thus, the overriding issue under these circumstances is whether Gelfand fairly took control of Taylor’s bank account under legal process or engaged in abusive litigation in violation of OCGA § 51-7-81. Taylor’s “simple allegations of conversion do not address this question, and the court is of the opinion that conversion will consequently not lie.” Analytical Systems v. ITT Commercial Finance, 696 FSupp. 1469, 1475 (2) (N.D. Ga. 1986).

3. In Count 4 of her complaint, Taylor alleged intentional infliction of emotional distress. “The conduct complained of in support of a claim for intentional infliction of emotional distress must be extreme and outrageous. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and leave him to exclaim ‘Outrageous!’ . . . Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” (Citation, punctuation, and emphasis omitted.) Williams v. Stepler, 227 Ga. App. 591, 594 (2) (490 SE2d 167) (1997). Reviewing the record in the light most favorable to Taylor, we find no evidence sufficient to give rise to such a claim. See Ingram v. JIK Realty Co., 199 Ga. App. 335, 336-337 (1) (404 SE2d 802) (1991).

4. Taylor’s claims against GMAC were premised upon a respondeat superior theory of liability. Because we find that Taylor has no claim against Gelfand, there is no liability to impute to GMAC. Moreover, because Taylor failed to show that GMAC, as Gelfand’s client, either “expressly or impliedly authorized, knew of, or ratified” Gelfand’s allegedly tortious performance of his duties as an attorney, she failed to show that liability could be imputed to GMAC on this basis. Plant v. Trust Co. of Columbus, 168 Ga. App. 909, 910 (310 SE2d 745) (1983).

Decided July 30, 1998

Reconsideration denied August 12, 1998.

Finch, McCranie, Brown & Thrash, Charles E. McCranie, William R. L. Latson, for appellant.

Troutman Sanders, Robert L. Pennington, for Gelfand.

McCullough & Payne, John G. McCullough, Ashley E. Sexton, for GMAC.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.