text:
    A98A0387.
    DAVIDSON v. THE STATE.
    (501 SE2d 510)
   Beasley, Judge.

Davidson appeals his conviction of child molestation. OCGA § 16-6-4.

State’s evidence showed that a 15-year-old student rode to high school with Davidson’s son. On the day in question, the youth appeared at Davidson’s house before school. He was greeted by Davidson, who invited him into the kitchen for a cup of coffee. As the youth was standing in the kitchen telling Davidson that he was upset because his girl friend was having an operation, Davidson rubbed his hand against the youth’s penis and said if “[y]ou need anyone to suck that, come to see him.” The victim became upset and moved away. When Davidson approached a second time and again touched the penis, the victim grabbed a razor blade and threatened Davidson with it. Davidson threw his hands in the air and said, “if you don’t want anything, it’s over.”

When the youth got to school, he became very upset and told his teacher what had happened. His parents, the Department of Family & Children Services, and law enforcement authorities were notified.

1. Davidson contends the trial court erred by allowing evidence of similar transactions because notice of the State’s intent to introduce such evidence was not timely given pursuant to Uniform Superior Court Rule 31.1.

“ ‘Although Rule 31.1 requires the notice to be filed at least 10 days before the trial, it authorizes the exercise of a trial court’s discretion by providing that the trial court may shorten or lengthen the time for compliance with the rule. (Cit.)’ [Cits.]” The purpose of requiring notice is to enable the defendant to resolve questions regarding admissibility of such evidence before trial. “The rule clearly presupposes that the State’s failure to comply with the rule will result in harm to the defendant by failing to give him adequate notice of the similar transactions sought to be used by the State. Consequently, non-compliance with the rule puts the burden on the State to prove that its violation of the rule’s requirements did not harm the defendant.”

Davidson’s trial began on Tuesday, December 10. After business hours on the preceding Tuesday, defense counsel received a facsimile transmittal notifying him of the State’s intent to present evidence of similar transactions. He objected at trial because of untimely notice. The State sought to show defendant had not been prejudiced for two reasons: defense counsel had investigated the similar transaction after being made aware of it when the district attorney first consulted with Davidson on April 30; at arraignment on November 25, counsel was informed the State was investigating similar transactions for the purpose of determining any guilty plea sentence recommendation. These circumstances justified rejection, in the trial court’s discretion, of Davidson’s claims of prejudice, considering also that “[h]ad service of the notice been accomplished by mail, it would have been complete upon mailing notwithstanding the date of receipt, even though actual notice would have been . . . closer to trial. [Cit.]”

2. The next question is whether the court erred in limiting cross-examination of witnesses on the state of mind, use of drugs, and psychiatric treatment of the victim. Davidson cites as supportive the cases of Greene v. Wainwright, United States v. Lindstrom, and Hines v. State. Hines is not on point.

Outside the jury’s presence, defense counsel elicited testimony from the victim that, at some time prior to the charged incident, he had engaged in behavior such as locking himself in his room and cutting himself with a razor blade. As a result, he was treated by a psychiatrist who diagnosed a depression-causing chemical disorder and prescribed the drug Zoloft, which corrected the chemical imbalance. The youth testified that when molested by Davidson, he was still being treated by the psychiatrist and taking the medication, but his treatment was not related to the molestation and, when it occurred, his condition was under control. For the latter reasons, the court ruled that these matters did not appear relevant and refused to allow cross-examination on these subjects unless defendant could present an expert witness to testify that the victim’s “situation had some impact on what he said.” When defendant sought to cross-examine the youth’s special education teacher concerning any prior behavior of the youth to get attention, the State’s objection was sustained.

In Greene, the trial court prohibited defendant from engaging in any inquiry concerning the key prosecution witness’ mental condition and certain bizarre criminal actions in which he was involved at or about the time Greene allegedly committed the crime charged. The Fifth Circuit held that this restriction on defendant’s right of cross-examination deprived him of his constitutional right of confrontation, in that defendant should have been allowed to inform the jury the witness may have been testifying to avoid prosecution for other illegal activities and of his mental incapacity at a time about which he was testifying.

The defendants in Lindstrom sought to inform the jury of the psychiatric history and criminal behavior of the key prosecution witness, in order to show a pattern of conduct involving vendettas by her against people who had crossed her, and that her current pursuit of the charges being tried constituted another vendetta arising from her mental illness. The court refused to allow the defense to engage in virtually any cross-examination of the witness on these subjects. The Eleventh Circuit reversed the conviction on the authority of Greene, noting that “[cjertain forms of mental disorder have high probative value on the issue of credibility.”

Greene and Lindstrom are distinguishable from Davidson’s case. In those cases, defendants established the relevance of the witness’ criminal behavior and mental condition. Here, neither the abnormal prior actions of the youth nor his psychiatric treatment or use of prescription drugs had any relevance to the charges against Davidson. Moreover, in this case, unlike Greene and Lindstrom, the court did not impose an absolute prohibition. Instead it required a showing of relevance and probative value by way of expert testimony that the youth’s condition affected the credibility of his allegations against Davidson. Although Davidson then subpoenaed a psychologist who was responsible for assigning the youth to special education, he chose not to have him testify.

Decided April 1, 1998

Reconsideration denied April 15, 1998

Michael E. Garner, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

The court’s ruling did not contravene OCGA § 24-9-64, the Georgia Constitution (Art. I, Sec. I, Par. XIV), or the Sixth Amendment. “[W]here a trial court determines that proposed cross-examination would induce irrelevant testimony, the court does not abuse its discretion in denying such questioning. [Cit.]”

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

        McFarren v. State, 210 Ga. App. 889, 891 (2) (437 SE2d 869) (1993).

        Sweatman v. State, 181 Ga. App. 474 (1) (352 SE2d 796) (1987).

        Todd v. State, 189 Ga. App. 538, 539 (1) (376 SE2d 917) (1988).

        Willis v. State, 202 Ga. App. 447, 449 (2) (414 SE2d 681) (1992) (physical precedent only).

       634 F2d 272 (5th Cir. 1981).

       698 F2d 1154 (11th Cir. 1983).

       249 Ga. 257, 259 (2) (290 SE2d 911) (1982).

       See Bobo v. State, 256 Ga. 357, 359 (3) (349 SE2d 690) (1986).

       698 F2d at 1160.

        Miller v. State, 260 Ga. 191, 194 (6) (391 SE2d 642) (1990).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A0664.
    UNITED BAPTIST CHURCH, INC. et al. v. HOLMES.
    (500 SE2d 653)
   Eldridge, Judge.

The underlying ecclesiastical or theological dispute between Rev. Kenneth R. Holmes, plaintiff-appellee, and United Baptist Church, Inc. and Rev. William H. Sperry, defendants-appellants, involved the termination of plaintiff’s ministry, excommunication from membership, the membership of United Baptist Church, church authority, and the internal governing procedures. Plaintiff has repeatedly sought to entangle the courts in his personal crusade.

The courts of Georgia under the First Amendment of the Constitution of the United States and Art. I, Sec. I, Par. IV of the 1983 Constitution of Georgia are prohibited from determining issues of expulsion of members, pastors, and the internal procedures of a religious entity, Anderson v. Dowd, 268 Ga. 146, 147 (485 SE2d 764) (1997), because “[i]nextricably entangled is whether the priest’s performance of his duties as a priest met the requirements of his church as measured by ecclesiastical concerns.” McDonnell v. Episcopal Diocese of Ga., 191 Ga. App. 174, 177 (381 SE2d 126) (1989); see also Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696 (96 SC 2372, 49 LE2d 151) (1976); Crowder v. Southern Baptist Convention, 828 F2d 718 (11th Cir. 1987); Monahan v. Sims, 163 Ga. App. 354, 359 (2) (294 SE2d 548) (1982). Likewise, “the validity of the expulsion of the [plaintiff] as [a member] of the church . . . grow[s] out of a controversy relating to the faith, teaching, doctrine, and discipline of the church”; therefore, courts are prohibited from inquiring into expulsion of members of a religious entity. Stewart v. Jarriel, 206 Ga. 855, 856 (6) (59 SE2d 368) (1950); see also Knowles v. White, 199 Ga. 772 (35 SE2d 451) (1945); McCluskey v. Rakestraw, 164 Ga. 30 (137 SE 394) (1927); Tucker v. Paulk, 148 Ga. 228 (96 SE 339) (1918). Thus, the propriety of the termination of plaintiffs pastorate, his expulsion from membership in United Baptist Church, and internal procedures, such as quorums and determination of membership in this church, are religious matters that the court shall not question, and any church action to bar him from the premises of the church are beyond judicial review. Such matters of faith, even when brought low to a secular plane, are not subject to judicial inquiry, since plaintiff’s property rights were not involved, and such prior action was a fait accompli as of May 2, 1993, when Rev. Holmes was terminated as pastor of United Baptist Church. Anderson v. Dowd, supra at 148.

United Baptist Church sold the subject property, including the church and offices, to Achor Center, Inc., for a homeless ministry and retained a right to a priority use of the sanctuary and offices for worship at certain times each week. Thus, United Baptist Church had a right of use for specific worship purposes, which were subject to the superior ownership rights of Achor Center and subject to its regulation. Achor Center had a property right which allowed it to define or to limit who was permitted to use the premises for worship as United Baptist Church. Achor Center, as early as January 15, 1993, in the presence of a police officer, warned the plaintiff not to come into the women’s dormitory, but the plaintiff told the officer that it was a contract dispute and that he had a right to go there on church-related matters. This was the underlying reason Achor Center wanted the plaintiff off its property.

After the plaintiff had been terminated as pastor and expelled from membership on May 2, 1993, from United Baptist Church, and despite notice not to return from both United Baptist Church and Achor Center, plaintiff wilfully defied such warning notice and returned on June 13,1993, to attempt to hold worship services in the church portion of the property.

The plaintiff did not consider his termination and expulsion valid. He publicly stated that he would fight any attempt to exclude him and sought to conduct worship services as usual, because he considered himself still the pastor of the noon service. His continuous litigation was a self-fulfilling prophecy.

Joyce Dorsey, Achor Center’s chair, was present at the request of United Baptist Church on June 13, 1993, and she suggested that United Baptist Church have the plaintiff expelled by the off-duty police officer hired by United Baptist Church to keep the plaintiff away, because she had told plaintiff on May 2, 1993, that he would be dealt with as a trespasser if he returned to the property. Dorsey told the officer that the plaintiff had been previously warned by her to stay away from the property. Achor Center had instructed United Baptist Church to remove the sign in front of the church with the plaintiff’s name on it, and an Achor Center employee was removing the sign on June 11, 1993, when the plaintiff stopped him and called the police.

Plaintiff in his affidavit made this admission in judicio as to the May 2, 1993 conference: “the Chairperson of the Board of Director’s of the Achor Center, Inc., Mrs. Joyce Dorsey, announced that Achor, as [the owner] of the property, ‘intend[ed] to exercise their legal authority to extricate Rev. Holmes from the grounds, including the premises being utilized by United Baptist Church.’ ” Plaintiff further admitted in judicio in his affidavit that “[a]fter receiving the letter dated May 14,1993 from Mr. William S. Rhodes, I immediately called him. I asked him who gave him the authority to write the letter. . . . (letter attached as Exhibit ‘B’).” The letter read in part: “Any rights you may have had relating to United Baptist Church, Inc., were terminated on May 2, 1993. This letter is written on behalf of United Baptist Church, Inc., demanding that you no later than 12:00 noon on Thursday [May] 20, 1993, remove all possessions you have in the premises of United Baptist Church, Inc., and that you do not enter the premises of United Baptist Church, Inc., after that time as you will be trespassing.” The plaintiff also stated that on June 11, 1993, the defendants sought to have him arrested for criminal trespass on the premises but that the police from Zone 3 refused to do so. On Friday, June 11, 1993, Dorsey told Officer Smith in the plaintiff’s presence that: “we are in the process of having Reverend Holmes evicted.” The plaintiff in his deposition testified under oath that: “[The off-duty officer] turned and asked Joyce Dorsey and Reverend Sperry, and they both informed him that I had been given a criminal trespass warning.”

On June 13, 1993, the deacons and Rev. Sperry indicated that the plaintiff had to leave, and the plaintiff refused to do so. Dorsey answered the questions asked by the officers about the ownership, rights of use, and notice to the plaintiff. United Baptist Church summoned the Zone 3 police at the request of the plaintiff. The agents of United Baptist Church complained of the plaintiff’s trespass with notice and asked for the plaintiff’s arrest for trespassing. Before plaintiff was arrested, Rev. Sperry told the investigating officer in the presence of the plaintiff that the plaintiff had received notice not to trespass. In plaintiff’s own testimony, he stated: “[Dorsey and Sperry] both informed [the arresting officer] that I had been given a criminal trespass warning.” Plaintiff did not testify that Rev. Sperry said that he had given the warning to the plaintiff; Rev. Sperry stated only that the plaintiff had received a warning notice. However, at the probable cause hearing, Rev. Sperry was asked by plaintiff’s counsel what the plaintiff was told, either by him or the church, about returning; he replied, “Nothing, we didn’t tell him about returning.” He was not asked about Dorsey’s warning; he only stated that the church provided no warning about returning.

The plaintiff was arrested. Subsequently, plaintiff brought separate actions for the tort of malicious prosecution against both the defendants and Achor Center. The defendants moved for summary judgment, which was denied by the trial court, resulting in this discretionary appeal. Held:

1. The defendants’ first enumeration of error is that the trial court erred in finding that they did not have probable cause to have the plaintiff arrested for criminal trespass and denying their motion for summary judgment. We agree.

Whether or not the May 2, 1993 meeting had a properly constituted quorum, whether the plaintiff was properly expelled and excluded from membership, and whether Rhodes had proper authority to write the plaintiff the May 14, 1993 letter are ecclesiastical matters into which the courts cannot inquire, as a well-settled constitutional matter. Thus, the validity and authority of the notice of Dorsey to the plaintiff and of the notice of Rhodes by the May 14 letter are not subject to inquiry. These notices warned the plaintiff not to come on the premises of Achor Center or United Baptist Church. Such notices satisfied OCGA § 16-7-21 (b) (2) and (3).

Plaintiff was both forbidden to enter under OCGA § 16-7-21 (b) (2) at the May 2 conference by Dorsey’s warning and by the May 14 letter from Rhodes. Plaintiff was told to depart the premises on June 11 and again on June 13 pursuant to OCGA § 16-7-21 (b) (3). Although contesting their validity, plaintiff admits in judicio that he received all these notices. Therefore, the defendants had probable cause to have him arrested for criminal trespass on June 13, 1993, whether or not they personally gave plaintiff the warning notices, because the arrest was made after plaintiff had more than sufficient warning notice given by agents for Achor Center and United Baptist Church, prior to June 13, 1993, as well as other indications confirming such warnings, such as the attempted removal of the sign on June 11; Dorsey’s statements of that date to the police; and the failed effort to have the plaintiff arrested on that date for trespass.

Further, it is a gross mischaracterization for plaintiff to state that the defendant denied at the probable cause hearing that plaintiff had been given notice; he was never asked that question by plaintiff’s counsel. Defendant Sperry did not deny at the probable cause hearing that plaintiff had notice not to return or that he knew that plaintiff had such notice not to return. Rev. Sperry answered the very limited question put to him by the plaintiff’s lawyer, i.e., that neither he nor United Baptist Church on May 2, 1993, gave a warning to the plaintiff not to return. This was true, because they had not; however, others had given such warning. Dorsey gave the warning notice on May 2, and Rhodes gave written notice on May 14, which even plaintiff does not dispute. Both the trial court in this case and the judge at the probable cause hearing in the criminal trespass case erred in finding no probable cause for the arrest on June 13. The evidence was clear, palpable, and undisputed.

The issues in the plaintiff’s action for malicious prosecution against the defendants for his criminal trespass arrest on June 13, 1993, were previously adjudicated adversely to the plaintiff in his malicious prosecution against Achor Center, which had previously demanded that United Baptist Church exclude plaintiff from the property, i.e., both the church and women’s dormitory. The Center suggested plaintiff’s arrest on June 13, when Holmes sought to hold services there against the express oral notice of both Achor Center, given on May 2, and United Baptist Church, given in writing on May 14. See Achor Center v. Holmes, 219 Ga. App. 399 (465 SE2d 451) (1995). This Court found that the trial court erred in failing to grant summary judgment to Achor Center: “Upon review of the undisputed evidence, we conclude that Achor could reasonably believe Holmes was guilty of the crime for which he was arrested. . . . Holmes admits that after his expulsion, he was not welcome at the Achor facility and Achor officials clearly communicated that to him. Holmes’ deposition testimony reflects that, a few days prior to his arrest, Achor removed from its property the church sign that contained Holmes’ name. Holmes confronted the individual removing the sign and their exchange grew so heated that the police were summoned. By his own admission, Holmes perceived the sign’s removal as an indication that he was without authority to enter Achor’s property. Achor also changed the facility’s locks to prevent Holmes’ entry to the property, another act that Holmes considered part of a ‘continuing effort’ to bar him from the property. Finally, as he stated in an affidavit given prior to his arrest, Holmes heard an Achor chairperson, Joyce Dorsey, openly and unequivocally state that Holmes was not to return to Achor’s property. In light of the above, when Holmes subsequently appeared on Achor property, Achor could reasonably believe that Holmes knowingly entered its property without consent and was thus guilty of criminal trespass.” (Footnote omitted.) Id. at 400-401. The relevant evidence as to probable cause is the same in this case as in Achor Center v. Holmes, supra.

Decided April 1, 1998

Reconsideration denied April 15, 1998

Drew, Eckl & Farnham, W. Wray Eckl, Anne M. Landrum, Christopher R. Stovall, for appellants.

Johnson & Freeman, Ronald J. Freeman, Maureen M. McLeod, for appellee.

The plaintiff, Rev. Sperry, Chair of Deacons James Dowd, and others were present at the May 2, 1993 church conference when Dorsey, acting on behalf of Achor Center, gave public notice to the plaintiff that he was not to return to its property in the future, including the portions used by United Baptist Church, and that it would exercise its legal rights to remove him from the property. Prior to the arrest, the defendants had successfully defended an application for a restraining order regarding plaintiff’s termination as pastor and expulsion as a member. The superior court proceeding, too, put plaintiff on notice that he was excluded from the property. Rev. Sperry was also present on June 13 when Dorsey suggested to Rev. Sperry that the police be called to remove the plaintiff and when Dorsey, in his presence and in the presence of the plaintiff, told the officer that plaintiff’s right to enter the property had been terminated.

“Where undisputed facts disclose that a complaint was filed in good faith and with probable cause, summary judgment is appropriate. Booker v. Eddins, 183 Ga. App. 449, 450 (359 SE2d 211) (1987), [overruled] on other grounds[,] Cincinnati Ins. Co. v. Perimeter Tractor &c. Repair, 192 Ga. App. 243 (384 SE2d 449) (1989). In light of the foregoing, we find that the trial court erred in denying [defendants’] motion for summary judgment on the malicious prosecution claim. This holding is consistent with the policy to disfavor malicious prosecution actions and to encourage citizens to report an individual they suspect may have committed crimes. See K-Mart Corp. v. Coker, 261 Ga. 745, 747-748 (410 SE2d 425) (1991).” Achor Center v. Holmes, supra at 402.

2. Under the holding in Division 1, the issue raised in the remaining enumeration of error need not be addressed.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

       As to related litigation and issues in this case decided adversely to plaintiff, see Anderson v. Dowd, 268 Ga. 146 (485 SE2d 764) (1997); Achor Center v. Holmes, 219 Ga. App. 399 (465 SE2d 451) (1995).


author: Blackburn, Judge.

text:
    A98A0702, A98A0703.
    URBAN v. LEMLEY; and vice versa.
    (501 SE2d 529)
   Blackburn, Judge.

Jessie G. Beck died in December 1993, leaving a will naming Isamae Bullard Urban and Julian M. Head as co-executors of her estate. At the time of her death, Beck and Head were listed as joint holders of a checking account at Wachovia Bank and a money market account at Trust Company Bank. They also jointly owned a tax-free municipal bond issued by the Macon-Bibb County Hospital Authority. Head died in February 1994, naming Ann E. Lemley as executrix of his estate.

Urban, as executrix of Beck’s estate, sued Lemley, as executrix of Head’s estate, contending that the bond and the funds in the two accounts were the property of Beck’s estate. Lemley claimed that the funds and the bond were solely the property of Head’s estate. The trial court denied both parties’ motions for partial summary judgment with respect to the joint accounts and granted Lemley’s motion for partial summary judgment with respect to the municipal bond. In these cross-appeals, the parties appeal these rulings.

“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 [or denial] 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.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

1. The joint bank accounts. At the time of Beck’s death, she and Head were listed as joint holders of a checking account at Wachovia Bank and a money market account at Trust Company Bank. Urban and Lemley each moved for partial summary judgment, contending that the funds in such accounts belonged solely to their respective estates. The trial court denied both motions, and the parties appeal.

Both parties rely on OCGA § 7-1-813 (a), which provides that “[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.” Lemley contends that there is no evidence of such contrary intention and that the funds belong to Head’s estate as a matter of law. Urban, on the other hand, contends that there was evidence that Beck did not intend the funds in the accounts to go to Head at her death, and that she was entitled to summary judgment on this issue.

Urban relies on several pieces of evidence to support her contention that Beck did not intend for the funds to go to Head at her death. Urban testified that, in 1989, when Beck was in ill health, Beck told her she had a joint account that Head could use to buy groceries for her and pay her bills when she could not take care of herself. However, this testimony regarding Beck’s alleged statement constitutes hearsay. As such testimony is in the interest of Beck’s estate, it does not come within the hearsay exception for statements against interest, and the fact that Beck is now deceased does not change this result. See Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224-225 (173 SE2d 691) (1970); OCGA § 24-3-8. As hearsay lacks probative value in a summary judgment proceeding, this testimony does not support Urban’s position. Jenkins v. Hall, 226 Ga. App. 437, 438 (1) (487 SE2d 66) (1997).

Moreover, even if admissible, Beck’s alleged statement would not constitute evidence of her intent at the time the accounts were opened. The statement was made in 1989, years before the accounts at issue in this case were established. The Wachovia account was not opened until April 1992, and the Trust Company account was made a joint account in February 1993. Urban had no discussions with Beck or Head about these accounts. Beck’s alleged statement to Urban years earlier, relating to a separate account, does not create a jury question as to her intent in opening the accounts at issue in this case. Furthermore, with respect to the Trust Company account, the record contains a copy of a signature card signed by Beck acknowledging the survivorship features of the joint account. Thus, the only direct evidence relating to Beck’s intent at the time she opened the accounts shows that she intended the survivorship provisions to apply to the Trust Company account.

Urban also relies on an affidavit submitted by Robert Schivera, an attorney who represented Beck’s estate. Schivera stated that, about a week after Beck’s death, he had a meeting with Urban and Head, who were named joint executors of Beck’s estate, to discuss the probate of Beck’s will. Schivera said that, at this meeting, the parties discussed Head’s possible claim to the funds in the accounts. According to Schivera, Head “stated that he did not consider the funds in those accounts to be his, but rather that they belonged to the estate of Jessie Beck.”

Even if Schivera’s account of this discussion is believed, it relates only to Head’s understanding, after Beck’s death, of his claim to the funds in the accounts. However, Head’s understanding is not the critical issue. Under OCGA § 7-1-813 (a), the relevant issue is Beck’s intent at the time the accounts were created. Although Head’s alleged statement may show that he did not consider the money his, it does not establish that Beck did not intend for the survivorship provisions to apply when she opened the accounts. Nothing in Schivera’s affidavit shows the reason for Head’s belief that the funds were not his, or that Head was even aware of Beck’s intent at the time the accounts were created. Accordingly, Schivera’s affidavit does not create a jury question as to Beck’s intent at the time she opened the accounts.

Urban also testified that, in 1988 or 1989, Head began collecting certain rents on Beck’s behalf, and that Beck on one occasion indicated that Head was not sufficiently vigilant in collecting payment. However, this testimony does not in any way relate to Beck’s intent in setting up the joint accounts at issue in this case.

As Urban has not presented any admissible evidence raising a factual issue regarding Beck’s intent, she has not overcome the statutory presumption that the funds in the accounts belonged to Head at Beck’s death. Accordingly, the trial court erred in denying Lemley’s motion for summary judgment with respect to the funds in the accounts at the time of Beck’s death. The trial court correctly denied Urban’s motion for summary judgment on the same issue.

2. The house funds. After Beck’s death, Head deposited $22,760.78 into the Wachovia account, representing proceeds from the sale, pursuant to his power of attorney, of certain real property owned by Beck (the house money). Urban contends that the house money is property of Beck’s estate and that the trial court erred in failing to grant summary judgment to her with respect to such funds.

In her motion for summary judgment, Urban did not advance a separate rationale for her entitlement to the house money, merely contending that she was entitled to all of the funds in the two accounts (including the house money) due to the application of OCGA § 7-1-813 (a). However, as recognized by the trial court in its order, OCGA § 7-1-813 (a) is not applicable to the house money because such funds were not on deposit in the joint account at the time of Beck’s death. The trial court expressly stated in its order that “it [does not] address whether the Head estate is otherwise accountable to the Beck estate for these funds.” As this issue has not been presented to or ruled upon by the trial court, we cannot consider whether there is any other basis for Urban’s claim to the house money. See Barmore v. Himebaugh, 205 Ga. App. 381, 383 (3) (422 SE2d 255) (1992).

3. The municipal bond. Beck and Head also jointly owned a municipal bond issued by the Macon-Bibb County Hospital Authority. The bond was titled jointly in Beck’s and Head’s name with rights of survivorship. At the time of Beck’s death, the bond had not yet matured, and the bond certificate was held by SunTrust Securities, Inc. The bond was ultimately redeemed after the death of both Head and Beck, and the proceeds placed into the Trust Company Bank account. The trial court granted partial summary judgment to Lemley, holding that the bond belonged to Head’s estate, and Urban appeals this ruling.

Decided April 3, 1998

Reconsideration denied April 15, 1998

Brennan & Wasden, Joseph P. Brennan, James V. Painter, for appellant.

Weiner, Shearouse, Weitz, Greenberg & Shawe, Aron G. Weiner, Edwin R. Byck, for appellee.

In an attempt to defeat the survivorship provision of the bond, Urban relies on OCGA § 7-1-813 (a), contending that there was evidence that Beck did not intend for Head to have survivorship rights with respect to the bond. However, OCGA § 7-1-813 (a) applies only to “[s]ums remaining on deposit at the death of a party to a joint account.” OCGA § 7-1-810 (4) defines “joint account” as “an account payable on request to one or more of two or more parties, whether or not mention is made of any right of survivorship.” OCGA § 7-1-810 (1) provides that “‘[ajccountf means a contract of deposit of funds between a depositor and a financial institution and includes a checking account, savings account, certificate of deposit, share account, and other like arrangements.”

Thus, in order to constitute a “joint account” for purposes of OCGA § 7-1-813, an arrangement must constitute “a contract of deposit of funds between a depositor and a financial institution.” A municipal bond, however, is not a contract of deposit with a financial institution, but an evidence of indebtedness issued by a city or other corporate public body. See Black’s Law Dictionary (rev. 4th ed.), p. 1168. Therefore, OCGA § 7-1-813 is not applicable to the municipal bond at issue in this case.

Apart from OCGA § 7-1-813, Urban does not advance any other arguments for defeating the survivorship provisions of the bond. Accordingly, the trial court did not err in granting partial summary judgment to Lemley with respect to ownership of the bond.

Judgments affirmed in part and reversed in part.

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


text:
    A98A0728.
    CATES v. THE STATE.
    (501 SE2d 262)
   Blackburn, Judge.

Tommy Edward Cates appeals the trial court’s denial of his motion to suppress certain drug evidence seized from his apartment, contending that such evidence was illegally obtained without a warrant and in the absence of consent or exigent circumstances. For the reasons set forth below, we affirm the trial court’s denial of Cates’ motion.

In reviewing a trial court’s denial of a motion to suppress, we are required to accept such court’s ruling on disputed facts unless it is clearly erroneous. Additionally, we must defer to the trial court’s judgment on the credibility of witnesses. State v. Davis, 261 Ga. 225, 226-227 (404 SE2d 100) (1991). Furthermore, “the evidence is to be construed most favorably to the upholding of the findings and judgment made.” (Punctuation omitted.) Dennis v. State, 166 Ga. App. 715, 716 (305 SE2d 443) (1983).

Construed most favorably to the ruling of the trial court, the facts show that, on March 21, 1997, Investigator John Alley, a member of the Narcotics Division of the Douglas County Sheriff’s Department, arrested Melvin Hunter. Hunter told Alley that he was en route to purchase marijuana from Cates and that Cates also sold methamphetamine. Hunter then agreed to act as a confidential informant, and, in Alley’s presence, Hunter phoned Cates and set up a buy for half an ounce of methamphetamine. Hunter also informed Alley that Cates possessed weapons, that he was planning to go to Florida, and that Cates’ supplier had recently dropped off a new shipment of drugs.

Hunter was then escorted to Cates’ apartment by Alley and three other narcotics officers, Phillips, Oliver, and Dingee. Hunter entered Cates’ apartment with marked money to purchase the drugs and a microphone concealed beneath his clothing, which allowed Phillips to hear what was going on inside. The narcotics officers, who were dressed in plain clothes, waited outside the apartment while the buy took place.

As he listened to his radio receiver, Phillips heard the following: (1) Hunter moving through the apartment into Cates’ bedroom; (2) Hunter asking Cates when he would be returning from Florida, although the answer to the question was obscured by static; (3) Cates asking Hunter how much money he was carrying; (4) Cates measuring and preparing the methamphetamine being sold; (5) Hunter counting the money for the purchase; (6) Cates telling Hunter to hurry; (7) other voices in the room, including the voice of a child; (8) Cates chastising his child; and (9) Cates asking Hunter to look out the window to see who was there. Based on the content and cadence of Cates’ speech, Phillips believed that Cates was becoming nervous as the drug buy progressed.

At that point, the blinds were moved, and Phillips and Alley saw someone looking out the window at them. Neither officer could identify who looked at them, and they believed that they had been seen by the perpetrators, thereby alerting Cates that he had been set up. The officers then entered Cates’ apartment without a warrant, believing that Hunter was in danger, that children within the apartment might be placed in danger, that Cates and others might attempt to destroy or conceal evidence, and that Cates might attempt to flee to Florida.

The Supreme Court of the United States has held that, even where probable cause exists, intrusion of a person’s home without a warrant is prohibited by the Fourth Amendment unless such intrusion is preceded by consent or exigent circumstances. Steagald v. United States, 451 U. S. 204, 211 (III) (101 SC 1642, 68 LE2d 38) (1981). Whether exigent circumstances were present in a given situation is a question of fact, and, “[ajlthough we review police actions from the standpoint of a hypothetical reasonable officer, we must measure those actions from the foresight of an officer acting in a quickly developing situation and not from the hindsight of which judges have benefit.” (Punctuation omitted.) State v. Brannan, 222 Ga. App. 372, 373 (1) (474 SE2d 267) (1996). See also State v. David, 225 Ga. App. 541, 543 (484 SE2d 278) (1997).

Deferring to the trial court’s determinations with regard to facts and credibility, as we must, we cannot say that the denial of Cates’ motion to suppress was clearly erroneous. Davis, supra. There was evidence that the officers believed that the “buy and bust” set up by them had gone sour, specifically that they had been seen by the perpetrators and that Cates had grown nervous about the situation. Combined with the information that Cates possessed weapons, the officers reasonably believed that the informant was in danger inside the apartment. Furthermore, the officers reasonably believed that Cates might attempt to destroy evidence. See Merriman v. State, 201 Ga. App. 817 (412 SE2d 598) (1991).

Contrary to Cates’ argument, Carranza v. State, 266 Ga. 263 (467 SE2d 315) (1996), does not require a different outcome in this case. In Carranza, our Supreme Court held “that where an individual commits an offense in his or her home and that offense is committed in the presence or within the immediate knowledge of a law enforcement officer, the officer is authorized to arrest the individual in the home without a warrant only where the officer’s entry into the home is by consent or where there are exigent circumstances.” (Punctuation omitted.) Id. at 268 (1). As exigent circumstances were present in the matter at hand, the outcome herein complies with the holding in Carranza.

Decided April 2, 1998

Reconsideration denied April 15, 1998

Winn, Price & Winn, Frank C. Winn, for appellant.

David McDade, District Attorney, Stephen L. Corso, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       At that point, Hunter knew Cates only as “T.”

       Hunter’s telephone conversations with Cates were taped, and Alley listened to them after the call was completed.

       Search warrants were obtained subsequent to the warrantless entry.


author: Andrews, Chief Judge.

text:
    A98A0444.
    CALLOWAY v. THE STATE.
    (501 SE2d 602)
   Andrews, Chief Judge.

Larry Dean Calloway appeals from denial of his motion for new trial after conviction of aggravated assault, possession of a firearm by a convicted felon, carrying a pistol without a license, and discharging a firearm on Sunday. He contends the evidence was insufficient and that he was entitled to a new trial because of a claimed relationship between juror Harris and District Attorney Ferguson who prosecuted the case.

1. Calloway contends denial of his motion for new trial on the general grounds was error, thereby raising sufficiency of the evidence. Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

“‘On appeal, the evidence must be viewed in the light most favorable to the verdict and the appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. (Cit.)’ [Cit.]” Williams v. State, 217 Ga. App. 636, 638 (3) (458 SE2d 671) (1995).

So viewing the evidence, it was that on Mother’s Day 1992, victim Williams encountered Calloway, whom he had known for years, at a store and refused to take Calloway across town in his car as Calloway requested. Calloway, who appeared intoxicated, pulled out a boxcutter and threatened Williams, who left the store and went to Adams’ house. A few minutes later, Calloway came up and continued to harass Williams, following him into Adams’ house where a shoving match occurred during which Calloway again threatened Williams with the boxcutter. Williams left the house and went toward his car with Calloway following him. Calloway said “[y]ou don’t believe I’ll shoot you . . . ?” He then shot Williams in the chest and ran from the scene.

Calloway was apprehended several blocks away and a boxcutter was found on him. The gun was left by Calloway at his sister’s house and police retrieved it from there.

Decided April 15, 1998.

Ralph L. Phillips, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

While Calloway contended that Williams had a gun and he shot in self defense, the jury resolved this issue adversely to him and the evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Calloway contends that a new trial should be granted because of the discovery of a relationship between juror Harris and the district attorney.

Pretermitting the fact that voir dire is not included in the record before us and, therefore, Calloway has not carried his burden to show error by the record, Peacock v. Campbell, 223 Ga. App. 620 (478 SE2d 409) (1996), we conclude that even accepting Calloway’s recitation of what happened with juror Harris, there was no error.

“ ‘In order to obtain a new trial, [Calloway] must show that the juror failed to answer honestly a material question and that the correct response would have provided a valid basis for a challenge for cause.’ Gardiner v. State, 264 Ga. 329, 333 (3) (444 SE2d 300) (1994). ‘The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial. (Cit.)’ Isaacs v. State, 259 Ga. 717, 741 (4) (e) (386 SE2d 316) (1989).” Maxwell v. State, 218 Ga. App. 780, 781 (1) (463 SE2d 517) (1995).

After the trial was over, juror Harris approached the district attorney, shook his hand and mentioned to him that Harris’ nephew had played football with Ferguson at Alabama. Before that, Harris had never met Ferguson personally or even seen his nephew and Ferguson play, except on television. Harris acknowledged that he probably did respond negatively to defense counsel’s inquiry as to whether he “knew” Ferguson, because, “[o]n a personal basis[,] that’s my answer.”

There has been no showing that juror Harris was untruthful during voir dire. Poole v. State, 262 Ga. 668, 669 (2) (424 SE2d 275) (1993).

Judgment affirmed.

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


text:
    A98A0604.
    PULLINS v. THE STATE.
    (501 SE2d 612)
   Eldridge, Judge.

James Pullins was indicted for the burglary of the Church of Good Will and Faith, after a police officer responded to a burglary call there, located a broken window pane, and discovered Pullins inside the church carrying a bag containing various church items. A Fulton County jury found Pullins guilty as charged. Without challenging the sufficiency of the evidence against him, Pullins appeals, raising two issues of law. Based thereon, we affirm his conviction.

1. Pullins claims error in the trial court’s charge to the jury on the form of the verdict. Specifically, Pullins contends that the trial court correctly charged the jury on the lesser included offense of criminal trespass; however, in charging on the form of the verdict, the trial court charged only with regard to (1) acquittal or (2) a finding of guilt on the indicted offense. Pullins contends that the trial court caused “confusion” by failing to also charge the jury on the form of the verdict with regard to a finding of guilt on criminal trespass. Then, Pullins contends, the trial court “compounded the error” by sending the written jury charges out with the jury, including that portion regarding the form of the verdict about which Pullins complains. We disagree with these contentions.

(a) A review of the jury charges as a whole, which includes the special verdict form given to the jury, demonstrates no error. The trial court instructed the jury correctly and completely on the law regarding lesser included offenses and the definition thereof. The trial court then instructed the jury that criminal trespass is a lesser included offense of burglary and defined criminal trespass. The trial court’s written charges went out with the jury, so they had the criminal trespass option before them. In addition, the special verdict form, wherein the jury simply checked off their verdict, provided the choices “guilty,” “not guilty,” and “guilty of criminal trespass.”

“Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence. There is no error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence.” (Citations and punctuation omitted.) McCutchen v. State, 177 Ga. App. 719, 721 (341 SE2d 260) (1986); Asbury v. State, 175 Ga. App. 335, 337 (333 SE2d 194) (1985); Herrin v. State, 229 Ga. App. 260, 262 (493 SE2d 634) (1997).

Here, the verdict is “amply supported by the evidence,” and we find as a matter of law that the jury charge, as a whole, could not mislead a jury of average intelligence to believe that the option to find Pullins guilty of criminal trespass was not before them. Accordingly, the trial court did not commit error as enumerated. Herrin v. State, supra at 262; Anderson v. State, 262 Ga. 26 (2) (413 SE2d 732) (1992).

(b) The trial court’s charge to the jury as a whole was not erroneous. Thus, the decision to send the written jury charges out with the jury was not error. Anderson v. State, supra at 28.

2. Pullins next challenges the trial court’s denial of his motion to obtain a second psychiatric examination in order to determine Pullins’ competency to stand trial. We find no error.

Pursuant to a defense motion and resulting court order, a psychiatric examination was performed on Pullins on December 10, 1994, in order to determine Pullins’ competency at the time of the offense and competency to stand trial. The report, issued on February 13, 1995, concluded that, while Pullins had mental problems and needed medication, he was competent at the time of the offense and competent “to assist his attorney in his defense.”

On the day of trial 11 months later, Pullins’ counsel requested that another psychiatric examination be performed, because Pullins’ medication schedule had been disrupted at the jail, and thus defense counsel had “some grave concerns as to [Pullins’] competency.” The trial court then placed Pullins under oath and made inquiry as to his mental condition and his understanding of the trial process. Based on the answers received, the trial court denied counsel’s motion for a second psychiatric examination and permitted the case to go to trial. The trial court agreed to sua sponte suspend the proceedings for a second mental examination, if Pullins’ competency became an issue during the course of the trial. Such issue did not arise.

“The grant or denial of a motion for independent psychiatric examination lies within the discretion of the trial court and will not be overturned unless an abuse of discretion is shown.” (Citations and punctuation omitted.) Sinkfield v. State, 201 Ga. App. 284, 286 (411 SE2d 68) (1991). We find no abuse of the trial court’s discretion here. The trial court did not deny the initial motion for psychiatric examination but rather granted the motion and ordered that Pullins be evaluated as to his competency both then and at the time of commission of the offense. The report concluded that Pullins was competent to stand trial and competent at the time of the offense. The record contains no contradictory proof demonstrating that Pullins was unable to intelligently participate during trial so as to call into question the existing psychiatric determination. See Jones v. State, 189 Ga. App. 232, 234 (2) (375 SE2d 648) (1988).

Decided April 15, 1998.

Elizabeth L. Markowitz, for appellant.

Paul L. Howard, Jr., District Attorney, Cari K. Johanson, Jamie L. Mack, Assistant District Attorneys, for appellee.

Further, a review of the record, which includes Pullins’ appropriate responses to the trial court’s inquiry, his coherent testimony on direct and cross-examination, and his numerous pro se filings in the instant case, does not reveal a lack of competency. See Pless v. State, 260 Ga. 96, 98 (3) (390 SE2d 40) (1990). Under these circumstances, we find no abuse of discretion in the denial of Pullins’ motion. Sinkfield v. State, supra at 286.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

        Westinghouse Elec. Corp. v. Rider, 168 Ga. App. 136, 139 (308 SE2d 378) (1983).

       Reversed on other grounds in Sinkfield v. State, 262 Ga. 239 (416 SE2d 288) (1992).


text:
    A98A0619.
    RANDOM ACCESS, INC. v. ATLANTA DATACOM, INC.
    (501 SE2d 610)
   Blackburn, Judge.

On October 11, 1996, Random Access, Inc. was added as a defendant to a lawsuit brought by Atlanta Datacom, Inc. (AdCom) to collect payments for certain telecommunications equipment. In its order adding Random Access, the trial court did not require Random Access to file an answer. AdCom’s second amended complaint, naming Random Access as á party, was filed ten days later, on October 21, 1996. Although Random Access acknowledged service of the complaint on November 12, 1996, it did not file an answer. However, it did participate in a consolidated pretrial order which included all of the defendants’ outline of the case and contentions, was signed by the judge on January 21,1997, and was entered in the docket on January 22, 1997. On January 21, 1997, prior to the beginning of trial, AdCom moved for a default judgment against Random Access based on the fact that it never filed an answer to the amended complaint. The trial court granted AdCom’s motion, finding that a default judgment should be entered against Random Access with regard to the issue of liability, but the issue of damages was left for trial. Following a bench trial on January 21,1997, the trial court granted a directed verdict in favor of the remaining defendants, and it also granted a directed verdict against Random Access, finding that it was liable to AdCom for damages in the amount of $242,535.57. On February 5, 1997, Random Access filed a motion to set aside the default judgment entered against it, and the trial court denied this motion. It is this decision which Random Access now appeals.

Random Access argues that, because it was not required by the trial court in the order adding it as a defendant to answer AdCom’s amended complaint, it was not in default. We agree. "Construing the pertinent provisions of OCGA §§ 9-11-7; 9-11-8; 9-11-12; 9-11-15; and 9-11-21 in pari materia, it is clear that the Civil Practice Act authorizes the addition of parties, by order of the court, and that an ‘amended complaint’ effecting such an addition does not require a responsive pleading, unless the trial court orders a reply thereto. Considering this court’s holding in Adams [v. First Nat. Bank &c., 170 Ga. App. 490 (317 SE2d 301) (1984)], Diaz [v. First Nat. Bank &c., 144 Ga. App. 582 (3) (241 SE2d 467) (1978)], Gordy [v. Sumner, 151 Ga. App. 430 (260 SE2d 384) (1979)], and Wolski [v. Hayes, 144 Ga. App. 180 (240 SE2d 720) (1977)], the above cited statutes, including the general provision of OCGA § 9-11-7 (a) that no other pleadings shall be' allowed (other than those therein listed) except upon order of the trial court, and the holding in Grand Lodge &c. v. City of Thomasville, 226 Ga. 4, 6 (4) (172 SE2d 612) that no responsive pleadings are required to an amendment, we conclude appellant was not required to file an answer to the second amended complaint at the time [appellant] was found to be in default, as the trial court itself, had not affirmatively ordered such answer.” Chan v. W-East Trading Corp., 199 Ga. App. 76, 79 (5) (403 SE2d 840) (1991).

AdCom argues, however, that Random Access was required to file an answer after being added to this case as a party defendant. Specifically, AdCom, relying on Chan, contends that ‘‘[a]n added party defendant, once having been properly added by order of court and properly served with summons and complaint, whether added as a defendant in counterclaim under OCGA § 9-11-13 (h) or as an additional party defendant under OCGA § 9-11-21, has until the time of trial, or the hearing on a motion, or the filing of some discovery device to formulate a response unless the trial court orders the added party defendant to file an answer.” (Punctuation omitted; emphasis supplied.) Id. at 78-79. Chan does not mandate that an answer be filed unless one is specifically required by the order of the court adding a party. Chan points out those instances in which a defendant must respond to discovery or trial calendars, even where no answer is ordered to the amended complaint, or suffer adverse consequences. For example, a defendant properly served with requests for admission must appropriately respond thereto, or such requests will be deemed admitted in the absence of a response. Likewise, a defendant must show up to defend itself at trial or at a motion hearing or suffer the consequences. No default judgment is authorized merely by the failure to file an answer to an amended complaint where no answer has been ordered by the trial court. There is no other basis for the entry of a default judgment in this matter.

Decided April 15, 1998.

Brett W. Ladd, for appellant.

Greer, Klosik & Daugherty, Jeffrey F. Leasendale, Kilpatrick Stockton, Mara McRae, Frank W. Hamilton, for appellee.

Accordingly, “[w]e [need] not reach the issue of whether the [consolidated pretrial order] constituted an appropriate responsive pleading, nor do we reach any of the other conclusions of the trial court, because no answer was necessary. The order allowing [AdCom] to add [Random Access] as a party defendant did not require an answer, and OCGA § 9-11-7 (a) does not require an answer to an amended complaint; answers need be filed only to complaints or third-party complaints. Consequently, [Random Access] was never in default, and it was . . . error for the trial court to [grant Adcom’s] motion for entry of default judgment.” Hamelberg v. Nat. Assn. of Govt. Employees, 221 Ga. App. 337, 338 (471 SE2d 283) (1996).

Judgment reversed.

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

       The other parties to the lawsuit were Random Communications, Inc. and Gary Random, individually and in his capacity as President of Random Communications, Inc. Random Communications and Random Access are closely related, one being the holding company for the other, but legally separate corporate entities.


text:
    A98A0911.
    BATEMAN v. FUTCH.
    (501 SE2d 615)
   Eldridge, Judge.

Appellant James Robert Bateman appeals a Pierce County Superior Court judgment terminating his parental rights and allowing the adoption of his 12-year-old biological son, J. R. B. We affirm.

The standard of review for a decision terminating parental rights is as follows: “whether after viewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Citations and punctuation omitted.) In the Interest of T. B. R., 224 Ga. App. 470, 472 (480 SE2d 901) (1997); In re S. D. S., 166 Ga. App. 344, 345 (304 SE2d 85) (1983). This Court should defer to the findings of the trial court unless the clear and convincing standard is not met. In the Interest of T. B. R., supra at 472; In the Interest of S. L. W., 221 Ga. App. 509, 510 (471 SE2d 579) (1996).

Viewed in this light, the evidence shows that Bateman is the biological father of J. R. B.; that Bateman was married to Mrs. Futch, J. R. B.’s mother, at the time of the child’s conception and birth; and that Bateman was granted visitation rights with J. R. B. and ordered to pay child support under the terms of his 1986 divorce from Mrs. Futch. In 1990, when J. R. B. was four years old, Mrs. Futch married the appellee, Kenneth Futch. J. R. B. has lived with his mother and the appellee since their marriage and refers to Futch as “father.”

It is undisputed that Bateman stopped paying child support in September 1991, and has not visited the child since 1992 or 1993. Bateman admitted that he was employed and was capable of paying court-ordered child support in the amount of $25 per week. At the time of the hearing, Bateman owed approximately $8,000 in past due child support. Bateman testified that he did not pay the child support because Mrs. Futch had denied him the opportunity to visit J. R. B., but he admitted that he never petitioned the court to enforce his rights to visitation or modify the support provision of the divorce decree.

Futch filed a petition for adoption of J. R. B. on March 19, 1997. Bateman refused to surrender his parental rights and objected to the petition. Following a hearing on August 11, 1997, the trial court terminated Bateman’s parental rights under OCGA § 19-8-10 (b) and finalized the adoption by Futch.

1. In his first enumeration of error, Bateman asserts that the trial court erred in terminating his parental rights pursuant to the court’s finding that, without justifiable cause, he had “significantly failed to communicate or to make a bona fide attempt to communicate with the minor child, [J. R. B.,] in a meaningful, supportive, parental manner” and that he had “failed to provide for the care and support of [J. R. B.] as required by [Bateman’s] divorce decree” for a period of over one year prior to the filing of the petition of adoption. See OCGA § 19-8-10 (b) (1), (2).

“Justifiable cause” for the failure to pay child support may be found in situations where the parent has been unable to earn income due to incarceration, mental illness, mental incapacity, hospitalization, or other circumstances beyond their control. See Thorne v. Padgett, 259 Ga. 650 (386 SE2d 155) (1989); Griffith v. Brooks, 216 Ga. App. 401, 403-404 (454 SE2d 602) (1995); Jones v. Sauls, 213 Ga. App. 55, 58 (443 SE2d 693) (1994) (holding that “incarceration is merely one relevant factor to be considered by the trial court [and] does not per se give rise to justifiable cause”); see also Ehrman v. Moser, 148 Ga. App. 857, 858 (253 SE2d 216) (1979), aff’d, 244 Ga. 112 (259 SE2d 634) (1979). But cf., In the Interest of B. J. H., 194 Ga. App. 282, 283 (390 SE2d 427) (1990). However, each case must be decided on its own circumstances. Jones, supra at 58. Accordingly, the trial court is vested with significant discretion in making the determination as to whether the parent’s inaction is excusable. See id.

In this case, there is no dispute that Bateman failed to support or visit J. R. B. since 1993. However, Bateman asserts that this failure was beyond his control and, therefore, was justified, so that his parental rights could not be terminated based upon such inaction. Bateman specifically claims that his parental efforts were “frustrated” when Mrs. Futch asked him to stop contacting the child in 1991 because it was causing J. R. B. to have “emotional problems.”

In support of his position, Bateman cites to Spires v. Tarleton, 225 Ga. App. 117, 118-119 (2) (483 SE2d 337) (1997), and Crumb v. Gordon, 157 Ga. App. 839, 841 (278 SE2d 725) (1981). In Spires, supra, this Court reversed an adoption order on procedural grounds. However, in dicta, the Court opined that evidence that the child’s mother may have “deliberately frustrated” the father’s efforts to communicate with and support the child supported a finding that the father did not intentionally abandon the child under OCGA § 19-8-10 (a). Id. at 118-119. Further, the Court noted that it was “unlikely” that the evidence could support the termination of Spires’ parental rights under OCGA § 19-8-10 (b). In Crumb, supra, the settlement agreement between the child’s parents, which subsequently was incorporated into the couple’s divorce decree, waived all visitation rights of the father with their minor child, as well as his responsibility to support the child. In addition, the child’s mother forbade any contact between the father and child. Even so, the father sent birthday gifts and clothes to the child and provided other support. The father also moved to modify the decree to provide for support and visitation rights. This Court held that, even though the evidence showed that the father had not supported or visited the child for at least one year, “his good faith reliance upon [the decree] constitutes a reasonable excuse for failing to provide for the care and support of the child. [Cits.]” Id. at 842. As such, there was no error in the trial court’s refusal to terminate his parental rights. Id.; see also Ehrman, supra at 858.

However, this case is clearly distinguishable from Spires, supra, or Crumb, supra. During the termination hearing, Mrs. Futch admitted that she once told Bateman “that if he was not going to be a father in the sense of regular visits and communication, that... it would be in the best interest of my child not to see him anymore.” However, she repeatedly denied that she ever kept Bateman from visiting J. R. B. Further, she testified that the last time Bateman even attempted visitation was in 1992 or 1993, when he took J. R. B. to Dublin, Georgia, and that she did not attempt to prevent this visit or otherwise interfere. Following this visit, Bateman did not send gifts or make any other attempts to communicate with the child.

Decided April 15, 1998.

Daniel B. Kane, for appellant.

Jimmy J. Boatright, for appellee.

Further, Bateman intentionally ignored his obligation to pay court-ordered child support. Even if Mrs. Futch did attempt to frustrate his visitation, Bateman was not “justified” in engaging in self-help by refusing to pay the support and should have expected negative consequences for his wilful and intentional acts. See Kirkland v. Lee, 160 Ga. App. 446, 451 (287 SE2d 365) (1981).Under the circumstances of this case, there is clear and convincing evidence to support the trial court’s finding that Bateman failed to visit or support his child for at least one year without justifiable cause. The order terminating Bateman’s parental rights under OCGA § 19-8-10 (b) is affirmed.

2. In his second enumeration of error, Bateman asserts that the trial court’s finding that the adoption by the appellee was in J. R. B.’s best interest was not supported by the evidence. However, “[i]n matters of adoption the superior court has a very broad discretion which will not be controlled by the appellate courts except in cases of plain abuse.” (Citation and punctuation omitted.) Crumb, supra at 841. If there is any evidence to support the trial court’s finding that the adoption is in the child’s best interest, such finding will be affirmed. Id.; Beverly v. Kennedy, 153 Ga. App. 149, 150 (264 SE2d 690) (1980). The evidence as presented above is sufficient to support the trial court’s order.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Bateman also asserts that there was no evidence that he intentionally abandoned J. R. B. under OCGA § 19-8-10 (a). See Griffith v. Brooks, 193 Ga. App. 762, 766 (1) (389 SE2d 246) (1989); see also Spires v. Tarleton, 225 Ga. App. 117, 119 (483 SE2d 337) (1997). However, the trial court did not decide this case under subdivision (a), so this assertion will not be reviewed.


text:
    A98A0946.
    PAILETTE v. THE STATE.
    (501 SE2d 603)
   Eldridge, Judge.

James Edward Pailette appeals a Hall County jury verdict finding him guilty of possession of oxycodone (Percocet), and possession of marijuana — less than an ounce. His sole enumeration of error challenges the trial court’s denial of his motion to suppress. Because the affidavit in support of the search warrant was deficient, we reverse Pailette’s conviction.

In August 1995, an agent assigned to the Hall County Narcotics Unit received information from a “concerned citizen” that Pailette had methamphetamine in his residence. Acting on this, the agent prepared an affidavit in support of an application for a search warrant. The affidavit stated in pertinent part:

“On or between the dates of August 20, 1995 and August 24, 1995 affiant was contacted by a source whom affiant considers to be truthful and reliable and who will be referred to as Tt’ hereinafter. Tt,’ the source, stated to affiant that on or between the aforementioned dates ‘It’ was at the above described premises and did have the opportunity to personally observe a quantity of an off white powder substance represented by James Pailette to ‘It’ to be amphetamine powder being kept and stored at the said described premises. Additionally, said source stated to affiant that the reason ‘It’ had the opportunity to see the amphetamine powder is because the contraband was in plain view.

“What the source related to affiant is believed to be truthful and reliable because the source is a mature person who is gainfully employed and who has a reputation for being truthful in the source’s community, that being Hall County, Georgia. During the course of the source relating the information about James Pailette, affiant believes, that the source demonstrated a truthful demeanor and has not been able to find any reason for the source to falsify what ‘It’ related.”

This affidavit was the only information provided to the issuing magistrate. The magistrate issued the warrant, and Pailette’s residence was searched. Seized were scales, numerous plastic bags containing alleged methamphetamine residue, $1,422, eight capsules of suspected contraband, and a plastic baggie containing alleged marijuana.

Pailette was indicted for possession of methamphetamine with intent to distribute, possession of oxycodone, and possession of marijuana — less than an ounce. He pled not guilty and filed a motion to suppress the seized items, alleging that the affidavit was insufficient to support the issuance of the search warrant. A hearing was held on the motion during which the officer/affiant testified.

During the hearing, the State argued that the only evidence before the trial court with regard to the sufficiency of the affidavit was within the four corners of the affidavit, itself: “[Prosecutor:] Your honor, . . . this officer has stated there was no additional testimony that was given to the magistrate court for the issue of this search warrant excluding the information that was provided in here . . . what you have to decide is based on the face of this was there sufficient information to issue the search warrant. . . . [Court:] So you think I should be limited strictly to what the magistrate court was told within the affidavit, is that what you want me to be limited to? . . . [Prosecutor:] One moment, Your Honor. Yes, sir, I do[.]”

The trial court took the matter under advisement and thereafter issued an order denying the motion to suppress. The trial court specifically found that:

“The affidavit further states that through independent investigation the affiant verified all information provided by Tt’ except for the actual existence of contraband. Affiant states that during his independent investigation he learned that [defendant] is a current Parolee at the Gainesville Parole office and [defendant] is currently serving the parole portion of a sentence received in the State of Louisiana for the distribution of methamphetamine powder.” The trial court determined “that under the totality of the circumstances, specifically; [1] the affiant’s corroboration of the information supplied by Tt,’ [2] the information regarding Defendant James Pailette’s parole status, and [3] ‘It’s’ personal observation of the contraband at the Defendants’ residence, there was a substantial basis for finding probable cause that contraband would be found on the premises.” Held:

“An informant’s tip may provide probable cause only if, under the ‘totality of the circumstances,’ including consideration of the informant’s ‘veracity’ and ‘basis of knowledge,’ there is a ‘fair probability’ that contraband or evidence of a crime will be found in a particular place. At a minimum, an affidavit supporting a search warrant must contain sufficient facts to allow the magistrate to independently gauge the reliability of both the informant and the information.” (Citations and punctuation omitted.) Sawyer v. State, 227 Ga. App. 493, 494 (2) (489 SE2d 518) (1997). “[T]he duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for concluding’ that probable cause existed.” (Citations and punctuation omitted.) Gibson v. State, 223 Ga. App. 103, 104 (3) (476 SE2d 863) (1996).

Herein, the trial court found the existence of three factors that provided the requisite “substantial basis” for the magistrate to conclude that probable cause existed: (1) the affiant’s corroboration of the information supplied by “it”; (2) the information regarding Pailette’s parole status; and (3) “it’s” personal observation of the contraband at Pailette’s house. Yet, only one of these factors, number 3, existed within the affidavit, the only information before the magistrate. The trial court gleaned the remaining factors from testimony during the motion to suppress hearing, which testimony/information all parties agree was not before the magistrate in determining the existence of probable cause for the warrant to issue. Testimony from a motion to suppress may supplement the four corners of an affidavit in order for a trial court to determine what the magistrate knew at the time of the issuance of the warrant; however, such testimony cannot provide an independent, after-the-fact basis for the trial court, upon review, to determine that probable cause would have existed if the facts that were put before the trial court had been put before the magistrate. That is what happened in this case.

Decided April 15, 1998.

Nicki N. Vaughan, for appellant.

Lydia J. Sartain, District Attorney, J. Philip Milam, Assistant District Attorney, for appellee.

In fact, the information within the affidavit, the only information before the magistrate, does not provide an adequate factual basis to “allow the magistrate to independently gauge the reliability of both the informant and the information.” Sawyer, supra at 494. The affiant’s statements regarding the informant’s reliability and veracity are conclusory, a fact recognized by both the trial court in its order on the motion to suppress and the State in its brief before this Court. Both found relief from the conclusory nature of the affiant’s statements because of the “corroboration of the information.” However, such “corroboration of the information” does not appear within the affidavit, and thus was never before the magistrate.

An informant’s veracity or reliability and his “basis of knowledge” are relevant considerations in the totality of circumstances analysis used to determine whether probable cause exists for the issuance of a search warrant. Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). “[A]n application for a search warrant must provide the magistrate with a substantial basis for determining the existence of probable cause and a wholly conclusory statement is inadequate to provide such a basis.” Poole v. State, 175 Ga. App. 374 (333 SE2d 207) (1985); State v. Casey, 185 Ga. App. 726, 727 (365 SE2d 878) (1988). Accordingly, the affidavit in support of the search warrant in the case sub judice was deficient under the law, and the denial of the motion to suppress was error.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

       The trial court directed a verdict as to this offense.


author: Johnson, Judge.

text:
    A98A0626.
    KINARD v. WORLDCOM, INC.
    (500 SE2d 649)
   Johnson, Judge.

On November 6, 1991, Innova Information Systems (“Innova”) granted a stock subscription warrant to Worldcom, Inc., then called ATC, a stockholder in Innova. The warrant gave ATC the right to acquire a certain number of shares of the common stock of Innova for a given period of time on terms specified in the agreement. At that time, William Kinard was CEO of Innova, a company he co-founded. The warrant agreement granted Kinard and his co-founder each “a 25% undivided interest in any net gain derived by ATC from the sale or other disposition by ATC of the Warrant and/or the shares of common stock purchased upon exercise of the Warrant.”

In the fall of 1993, Kinard terminated his employment with Innova. On January 31, 1994, Kinard signed a document entitled “Severance and Consulting Agreement,” which was retroactive, taking effect September 1, 1993. The severance and consulting agreement contains a mutual release provision as follows: “the Company and Kinard . . . hereby absolutely and forever releases, relieves and discharges the other and, as applicable, each of the other’s past, present and future partners, owners, stockholders, predecessors, successors, assigns, heirs, agents, directors, officers, employees, representatives, attorneys, subsidiaries and all other persons, firms and corporations acting by, through or in concert with any of them . . . from any and all. . . contracts, agreements, promises, liabilities . . . of every kind or character whatsoever, whether known or unknown, suspected or unsuspected . . . disclosed or undisclosed” which Kinard may have or claim to have. The release further states that Kinard releases all claims arising out of or connected with any agreements, whether written or oral, between Kinard and each of Innova’s affiliates, defined to include stockholders. The severance and consulting agreement also contains a merger clause and a “no reliance on representations” clause. Although Worldcom is not identified by its proper name in the release, there is no dispute that Worldcom was a stockholder in Innova at the time the release was executed.

Subsequently, Kinard sued Worldcom, seeking his share of the net gain. Worldcom moved for summary judgment, contending Kinard’s claim is barred by the release Kinard signed when he left his employment with Innova. Kinard argues that the parties never intended to release his claim against Worldcom for 25 percent of the warrant proceeds. Kinard and a witness to the severance negotiations contend that the possibility of releasing this claim was specifically discussed and rejected during the negotiations.

The sole issue before us is whether parol evidence is admissible to show the parties’ intent.

It is well established that where the terms of a written release are clear and unambiguous, the court will look to the release alone to find the intention of the parties. Rice v. Huff, 221 Ga. App. 592, 593 (1) (472 SE2d 140) (1996). The fact that the scope of the release is broad does not make it ambiguous. Id. We find the terms of the release in question to be clear and unambiguous.

However, Kinard, relying on Posey v. Med. Center-West, 257 Ga. 55, 59 (354 SE2d 417) (1987), claims we should nonetheless admit parol evidence to determine the intention of the parties. In Posey, the Supreme Court held that when a third party relies upon a release, parol evidence is admissible to show whether the parties to the document intended that third party to be released. Id. at 59. The Supreme Court later expressly modified this ruling: “Only those parties named in the release will be discharged by that instrument. By ‘named,’ we mean being identified either by proper name or such other description as leaves no question of the identity of the party released. This should eliminate the need to inquire as to the intent of the parties to releases executed after the date of this opinion.” (Original footnote included in text.) Lackey v. McDowell, 262 Ga. 185, 186 (415 SE2d 902) (1992).

Subsequently, this Court barred the use of parol evidence where a party fit within a category of persons included in the release. See Rice, supra. In Rice, the plaintiff signed a release with her employer which released, among others, her employer and its employees. Id. at 592. We held that the release barred the plaintiff’s action for false imprisonment and sexual assault against Huff, who was employed by her employer. While Huff was not a party to the release and was not specifically named in the release, he produced evidence that he was an employee at the time the plaintiff signed the release. Thus, Huff fell under the definition of those persons covered by the release, and we held Huff was sufficiently described in the release. Id. at 593-594 (2) .

As with the employee in Rice, Worldcom may claim the benefit of the release because, as a stockholder, it falls under the definition of those entities or persons covered by the release. The word “stockholders” leaves no question as to the identity of those released, and there is no dispute that Worldcom was a stockholder on the date Kinard signed the release.

We need not reach the issues of whether Lackey overruled Posey or whether parol evidence may still be admissible to show the intention of the parties who execute a release against a third party claiming the benefit of the release. In this case, contrary to Kmard’s argument, Worldcom is not a third party attempting to avail itself of the benefits of the release, but is a described party within the release.

Since Kinard has pointed to no evidence countering Worldcom’s showing that it is a party covered by the release, and because we find no such evidence, summary judgment in favor of Worldcom was proper. See Rice, supra.

Decided March 31, 1998

Reconsideration denied April 16, 1998

Rogers & Hardin, John J. Almond, Dawn M. Diedrich, for appellant.

Long, Aldridge & Norman, J. Allen Maines, Eric C. Lang, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur. Birdsong, P. J., disqualified.


author: McMurray, Presiding Judge.

text:
    A98A0699.
    ROBINSON v. THE STATE.
    (501 SE2d 536)
   McMurray, Presiding Judge.

Defendant Robinson appeals his conviction of a sale of a controlled substance, cocaine, in violation of OCGA § 16-13-30 (b). Held:

1. Defendant’s trial counsel did not object to the voluntariness of defendant’s prior pleas when they were tendered by the State in aggravation of punishment and for recidivist treatment. As the issue was not preserved by timely objection before the trial court, it is not ripe for appellate review. Bailey v. State, 198 Ga. App. 632, 634 (4) (402 SE2d 363); Mincey v. State, 186 Ga. App. 839, 841 (4) (368 SE2d 796).

2. State’s Exhibits 5 and 6, containing the records of defendant’s pleas to two prior indictments, were tendered in aggravation of punishment. Defendant maintains that since the two indictments were pled out at the same time, before the same judge, and resulted in the same sentence to run concurrently, the offenses should be viewed as consolidated and treated as only one offense. However, the factors relied upon by defendant do not establish that the cases were “consolidated for trial” as contemplated by OCGA § 17-10-7. As there were separate indictments and separate sentencing orders were entered as to each indictment, the record indicates that there was no consolidation. Moore v. State, 169 Ga. App. 24, 27 (7) (311 SE2d 226); Clarke v. State, 167 Ga. App. 402, 403 (306 SE2d 702); Frazier v. State, 155 Ga. App. 683, 684 (272 SE2d 548).

3. Defendant’s third enumeration of error maintains that the trial court erred in allowing the State to tender the testimony of a drug analyst who had not issued a report in the case. Apparently two State’s exhibits were originally tested by Colleen M. Reilly, who issued a laboratory report provided to defendant pursuant to OCGA § 17-16-4. Reilly was, at that time, the analyst stationed in Chatham County, but was subsequently transferred to Atlanta. When the trial of this case approached, the State determined that it was more efficient to retest the exhibits rather than expend the resources required to return Reilly to Chatham County for the trial. The exhibits were retested by Sergeant Nancy Long, who testified at trial but did not issue any laboratory report. Compare Givens v. State, 214 Ga. App. 774 (449 SE2d 149). Defendant was provided with Reilly’s laboratory report and informed that Sergeant Long had repeated the tests.

Decided April 6, 1998

Reconsideration denied April 16, 1998

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Assistant District Attorney, for appellee.

Defendant now challenges the procedure adopted by the State by arguing that the admission of Sergeant Long’s testimony was in contravention of OCGA § 17-16-4. However, any such issues were not preserved by objection at trial. The transcript references provided by defendant lead us to only a chain of custody objection, and we find no timely objection to the issues now raised and argued on appeal. Defendant having made no objection at trial regarding the issues raised on appeal, these issues must be deemed waived. Salem v. State, 228 Ga. 186, 187 (3) (184 SE2d 650); Chesser v. State, 228 Ga. App. 164, 165 (1) (a) (491 SE2d 213); Godfrey v. State, 227 Ga. App. 576, 577 (2) (489 SE2d 364); Nelson v. State, 210 Ga. App. 249, 250 (2) (435 SE2d 750); Price v. State, 204 Ga. App. 288, 289 (2) (419 SE2d 126).

4. Defendant’s remaining enumeration of error questions the sufficiency of the evidence to authorize his conviction. A law enforcement officer identified defendant as the individual to whom he exchanged marked currency for four pieces of crack cocaine. This evidence was sufficient to authorize a rational trier of fact to conclude that defendant was guilty beyond a reasonable doubt of the crime of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Spear v. State, 228 Ga. App. 112 (1) (491 SE2d 164).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A97A0115.
    SHIVER v. NORFOLK-SOUTHERN RAILWAY COMPANY.

      (501 SE2d 832)
    Decided April 16, 1998.

      Burge & Wettermark, F. Tucker Burge, Tom W. Thomas, for appellant.

      J. Converse Bright, for appellee.
   Eldridge, Judge.

In Shiver v. Norfolk-Southern R. Co., 269 Ga. 168 (496 SE2d 903) (1998), the Supreme Court reversed the holding of this Court’s opinion in Shiver v. Norfolk-Southern R. Co., 225 Ga. App. 544 (484 SE2d 503) (1997). In our opinion, applying Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), we found that because Shiver’s sworn testimony conflicted with his prior unsworn statement to the claim agent, and because he offered no explanation for the conflict, the favorable portions of his sworn statement must be construed against him. The Supreme Court held that ruling to be error and found that the ruling in Prophecy Corp. applies only to self-contradictory testimony under oath. Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

When Prophecy Corp. is not applied in construing plaintiff’s testimony, plaintiff’s testimony under oath creates a jury question. Therefore, the trial court’s grant of summary judgment to defendant must be reversed.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.


author: Smith, Judge.

text:
    A98A0096.
    McCLAIN v. THE STATE.
    (502 SE2d 266)
   Smith, Judge.

Sherwin McClain was convicted by a jury of aggravated battery. OCGA § 16-5-24 (a). His motion for new trial was denied. He appeals, enumerating as error the general grounds and the trial court’s refusal to give a requested charge on reckless conduct. We affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence showed the following: On December 5, 1995, as the victim was getting into his car, McClain threw a cupful of gasoline on him. McClain then struck a match and tossed it toward the victim, setting the victim and his car ablaze. As a result of McClain’s actions, the victim was badly burned and suffered disfiguring keloid scarring.

McClain testified he did not intend to bum the victim; rather, he threw the gasoline on the victim’s car as retribution for what he perceived to be the victim’s homosexual advances. An eyewitness who was a friend of McClain’s supported this account of events at trial, testifying that McClain intentionally threw the gasoline on the victim’s car but that any gasoline that splashed onto the victim got there inadvertently. The jury, however, was authorized to disbelieve this account, as there was sufficient evidence from which McClain’s intent to burn the victim could be inferred.

McClain made a veiled threat to the victim just before he threw the gasoline, saying: “We are going to see who has the last laugh.” McClain hid behind a house, waiting for the victim to emerge, which suggests the car was not the intended object of his vengeance since one need not lie in wait for a parked car. The victim testified that he ran to his car when McClain approached him with what he thought was a cupful of water. He was sure McClain threw the gasoline on him as he attempted to get inside his car. The eyewitness initially told police that McClain threw the gasoline onto the victim and “struck a match to him.” Also, McClain was about five to ten feet away from the victim when he threw the gasoline. After throwing the gasoline, McClain waited about ten seconds before striking the match. The jury could infer that because McClain had the opportunity to see his victim was covered with gasoline, he knew the victim would also be set on fire when he tossed the lit match toward him. Further, the jury could also infer from the residual gasoline on the victim’s clothing and the burn patterns on his clothing, body, and car that McClain intentionally doused the victim instead of inadvertently splashing him with gasoline.

1. Sufficient evidence was presented from which a rational trier of fact could find, beyond a reasonable doubt, that McClain maliciously — that is, intentionally and without justification or serious provocation — caused the victim bodily harm by seriously disfiguring him; this authorized a conviction for aggravated battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Childers v. State, 228 Ga. App. 214, 215-216 (3) (491 SE2d 456) (1997).

2. The trial court did not err in refusing to give McClain’s request to charge on the offense of reckless conduct. “The crime of reckless conduct is, in essence, an instance of criminal negligence, rather than an intentional act, which causes bodily harm to or endangers the bodily safety of another.” Bowers v. State, 177 Ga. App. 36, 38 (1) (338 SE2d 457) (1985). Although McClain testified he did not intend to burn the victim, he admitted he did intend to bum the victim’s car. McClain, according to his own undisputed testimony, committed a culpable act with criminal intent when he threw the gasoline and struck the match. Consequently, a charge on reckless conduct was not authorized by the evidence. See, e.g., Perryman v. State, 208 Ga. App. 754, 756 (3) (431 SE2d 742) (1993); compare Riley v. State, 181 Ga. App. 667, 669-670 (3) (353 SE2d 598) (1987) with Bowers v. State, supra at 39.

Decided April 16, 1998.

David E. Perry, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A98A0216.
    HOLLAND v. THE STATE.
    (501 SE2d 829)
   Ruffin, Judge.

A jury found Felix Holland guilty of theft by taking. The trial court sentenced Holland to four years with two years to serve in prison. Holland filed a “Motion to Amend Sentence or for New Trial,” which the trial court denied. Holland appealed, asserting that there was insufficient evidence to find him guilty of the crime charged and that the trial court erred in denying his motion. We affirm.

1. “On appeal of a criminal conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury. This court determines the sufficiency of the evidence, and does not weigh the evidence or determine witness credibility.” (Citations and punctuation omitted.) Jenkins v. State, 230 Ga. App. 166 (495 SE2d 647) (1998).

Viewed in this light, the evidence shows that in August 1995, a Kroger store manager noticed discrepancies between the total sales at the store’s video department register and the cash taken from the register at store closing over a period of several days. Specifically, on August 7, 1995, the manager found that $110.50 was missing from the register; on August 8, $233.06 was missing from the register; on August 11, $189.03 was missing; and on August 12, $450.61 was missing. Holland worked at the store when the thefts occurred, and through computer printouts and employee records, the manager learned that Holland worked in the video department on each day there had been a theft. The manager concluded that Holland committed the crimes. According to the manager, he confronted Holland, who denied taking the money but offered to repay Kroger if the store agreed not to prosecute him.

The thefts were reported to police, who investigated the crime. After being read his Miranda rights, Holland gave a statement in which he first denied committing the thefts. According to the interrogating officer, he then began to cry and confessed to the crimes. In his confession, Holland explained how he committed the thefts. At the end of the statement, however, Holland again denied taking money from the register, blaming the cash discrepancies on computer error.

This evidence was sufficient for any rational trier of fact to find Holland guilty of theft by taking beyond a reasonable doubt. See Jenkins, supra; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Holland asserts that the trial court erred in denying his “Motion to Amend Sentence or for New Trial.” Holland’s sole assertion in the motion was that he felt “that probation may have been warranted under the circumstances of this case.” Holland presented no argument below supporting his request for a new trial.

This Court is a court for the correction of errors of law committed by the trial court below, and we need not nor do we consider issues presented for the first time on appeal. See Freeland v. State, 223 Ga. App. 326, 327 (2) (477 SE2d 633) (1996); Crawford v. State, 267 Ga. 543, 545 (6) (480 SE2d 573) (1997). Accordingly, because Holland did not raise any issues below supporting his motion for new trial, we will not consider any such issues on appeal.

Rather, we address only the issue regarding the propriety of the trial court’s sentence which was raised below. In this regard, it is well established that “ ‘[t]he trial court has the discretion to impose sentence within the parameters prescribed by the statute and if the sentence if within the statutory limits, the appellate courts will not review it. (Cits.)’ [Cit.]” Stephens v. State, 185 Ga. App. 546, 547 (3) (365 SE2d 136) (1988). In the instant case, Holland was found guilty of unlawfully taking over $500 of Kroger’s property, a felony. See OCGA §§ 16-8-2; 16-8-12 (a) (1). The sentencing parameters for such a conviction are a minimum of one year and a maximum of ten years imprisonment. Id. The trial court sentenced Holland to four years with two years to serve, well within the statutory guidelines. Accordingly, we decline to review Holland’s sentence. Stephens, supra.

Moreover, while Holland correctly points out that the trial court cited inapplicable authority in denying his “Motion to Amend Sentence or for New Trial,” it is well-established that “ ‘[a] trial court’s ruling will be affirmed if it is right for any reason.’ [Cit.]” Frederick v. State, 226 Ga. App. 540, 542 (1) (487 SE2d 107) (1997). Accordingly, given the overwhelming evidence of guilt and the appropriateness of the sentence, we conclude that the trial court did not err in denying Holland’s motion.

Decided April 16, 1998.

Doris C. Orleck, for appellant.

Felix M. Holland, pro se.

Peter J. Skandalakis, District Attorney, Christopher J. Adams, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A98A0465.
    DALTON v. THE STATE.
    (501 SE2d 621)
    Decided April 16, 1998.

      John W. Donnelly, for appellant.
   Ruffin, Judge.

A jury found Willie Dalton guilty of two counts of aggravated assault. Dalton appeals, challenging the sufficiency of the evidence. We affirm.

Viewed in a light most favorable to support the verdict, the evidence at trial showed as follows. Early one morning, the two victims, Steve Laguines and Markus Smith, were leaving a nightclub when they got into an argument with Dalton and another individual. A witness testified that Dalton pulled a gun from his jacket and shot Smith. Laguines testified that he was arguing with the other individual when he heard the gunshot. When Laguines turned toward the direction of the gunshot he saw Dalton pulling a gun back and Smith, who was shot, falling. Dalton then turned toward Laguines, stated “you too” and shot at Laguines twice.

“Intentionally firing a gun at another, absent justification, is sufficient in and of itself to support a conviction of aggravated assault.” (Citations and punctuation omitted.) Love v. State, 268 Ga. 484, 485 (1) (490 SE2d 88) (1997). The foregoing evidence showing that Dalton fired a gun at both victims without justification was sufficient to authorize a rational trier of fact to find Dalton guilty of two counts of aggravated assault beyond a reasonable doubt. Id.; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.