author: Mikell, Judge.

text:
    A02A0020.
    DOTSON v. THE STATE.
    (560 SE2d 349)
   Mikell, Judge.

Eric Wayne Dotson was convicted of armed robbery and sentenced as a recidivist to serve 20 years. He appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motion to dismiss the indictment. We disagree and affirm.

The record reveals that after robbing a jewelry store in Cobb County on February 26, 1998, Dotson fled to Oklahoma, where he committed a similar offense. Dotson was finally arrested in Tennessee on June 4, 1998, based on a warrant for an armed robbery committed in Kentucky. He was transported to Kentucky, where he was ultimately convicted and sentenced to life imprisonment for the armed robbery. While incarcerated in Kentucky, Dotson was notified that a warrant had been issued for his arrest in Georgia. In response, on September 21, 1998, Dotson mailed a handwritten document captioned “Motion Fast and Speedy Trial” to the Magistrate Court of Cobb County. As Dotson had not yet been indicted, the court wrote him a letter informing him that his motion was premature. Dotson was indicted in superior court on December 17, 1998. Thereafter, the “Motion Fast and Speedy Trial” was transmitted to the superior court clerk’s office, where it was stamped filed on January 21, 1999. At that time, Dotson was incarcerated in Kentucky.

Pursuant to Cobb County’s request, a detainer was lodged against Dotson on February 10, 1999, which activated his rights under the Interstate Agreement on Detainers (“LAD”), OCGA § 42-6-20 et seq. On February 26, 1999, Dotson filed a request for disposition of the indictment pursuant to the LAD. The state then sought Dotson’s transfer to Georgia, and Kentucky finally released him on April 24, 2000. On May 11, 2000, Dotson filed a motion to dismiss the indictment, contending that the state failed to try him within 180 days, as mandated by OCGA § 42-6-20, Art. Ill (a), or within two terms of court, as required by OCGA § 17-7-170. The trial court denied the motion. First, the. court held that the 180-day period was tolled during the time Dotson was in custody in other jurisdictions, so that only 72 days of that period had elapsed by the time he was transferred to Georgia on April 24, 2000. Second, the court held that Dotson’s speedy trial demand was a nullity because it was filed in magistrate court before the indictment and because the undisputed evidence showed that it was never served upon the state. Dotson appeals the second ruling only.

1. At the outset, we note that a demand for a speedy trial in a case involving a capital offense is controlled by OCGA § 17-7-171. Armed robbery is a capital offense within the meaning of this section. White v. State, 202 Ga. App. 370 (414 SE2d 296) (1991). OCGA § 17-7-171 requires that after a defendant makes a proper demand for trial, he must be tried within the term of the demand or by the end of the next two terms, provided that at all three terms there are juries impaneled and qualified to try him. In order to invoke the sanction of discharge and acquittal, the defendant, either personally or through his attorney, must be present in court announcing ready for trial and requesting a trial on the indictment during the first two regular terms of court following the filing of his demand. Levester v. State, 270 Ga. 485, 487 (512 SE2d 258) (1999); Burns v. State, 265 Ga. 763 (462 SE2d 622) (1995). Dotson has not argued, nor demonstrated, that he fulfilled this requirement. Therefore, the trial court did not err in denying his motion to dismiss the indictment.

Decided February 15, 2002.

Justin J. Wyatt, for appellant.

Patrick H. Head, District Attorney, Dana J. Norman, Assistant District Attorney, for appellee.

2. Our ruling in Division 1 renders Dotson’s second enumeration of error moot.

Judgment affirmed.

Andrews, P. J, and Phipps, J., concur.

       The method of transmission is unclear from the record.

       Dotson’s trial commenced on June 12, 2000.

       We need not address whether Dotson filed a proper demand for trial with the superior court.


source: Caselaw Access Project

license: Public Domain

text:
    A02A0128.
    SMITH v. THE STATE.
    (560 SE2d 348)
   Mikell, Judge.

A jury convicted Douglas Shane Smith of burglary, OCGA § 16-7-1, for entering Bainbridge High School without authority and removing computer CDs, photographs, and picture frames. The court sentenced Smith to five years to serve and ten years on probation. Smith appeals, arguing that the evidence was insufficient to support his conviction. We affirm.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

Viewed in the light most favorable to the verdict, the evidence shows that on the night of January 6, 2001, Bainbridge High School was entered and vandalized. Officer Ryan Wimberly of the Bainbridge Department of Public Safety was the first officer to report to the high school, where the security alarm had been triggered. Officer Wimberly discovered an open door, and upon entering the building, he observed that a fire extinguisher had been sprayed in the hallway. The officer also noticed that cleaning supplies had been spilled on the floors and sprayed on the walls, pamphlets had been knocked off shelves and scattered over the school lobby, and the personal property of a teacher had been knocked off her desk and shelves.

Chief Paul Gordon of the Decatur County School Police Department also responded to the alarm. Chief Gordon testified that a classroom had been vandalized, describing it as “pretty much a wreck.” He observed the damage from the fire extinguisher and the cleaning supplies. At trial, Chief Gordon identified computer CDs, picture frames, and photographs of a teacher’s daughter that were removed from the school on the night in question. He also identified a wooden heart with a prayer printed on it that had been taken from the vandalized classroom.

The record further shows that Alton Brock, an officer with the Bainbridge Department of Public Safety, responded to the alarm. After helping to secure the building, Officer Brock began patrolling the area. He encountered four young white males in the vicinity approximately an hour and a half after the school was vandalized. Officer Brock identified the young men as the defendant Smith, Jordan Dodd, Mark Stewart, and Brandon Bell. Dodd, Stewart, and Bell were juveniles at the time of the incident, and Smith was an adult. Officer Brock testified that the young men told him they were on their way to their friend Jason Moody’s home. The officer spoke with the young men for about ten minutes and released them after recording their names and addresses. Investigator Brian Donaldson subsequently interviewed Stewart and Bell, who gave full confessions.

Bell testified at trial that he, Smith, Dodd, Stewart, and Moody entered the high school on January 6, 2001. He further testified that the young men vandalized the school by spraying bleach on the floors, going through lockers, and spraying the fire extinguisher. Bell also recalled hearing something break. Bell identified Smith and testified that Smith was not wearing a backpack when they entered the school but that he was wearing one when they left. According to Bell, he took a backpack from a locker and gave it to Smith, who used it to carry “CD’s and stuff” out of the school. Bell confirmed that there were picture frames in the backpack when Smith carried it out. Stewart also testified that Smith was with the other young men when they entered and vandalized the school and that Smith had “a book bag full of stuff” that he took from the school.

Decided February 15, 2002.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Richard L. Parker, Assistant District Attorney, for appellee.

On appeal, Smith argues that the evidence was insufficient to support his conviction. He contends that Bell was not a credible witness. Additionally, Smith emphasizes his own testimony that, contrary to Bell’s account, Smith did not accompany the other young men to the school.

It is well settled that “resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.” (Citation and punctuation omitted.) Givens v. State, 273 Ga. 818, 819 (1) (546 SE2d 509) (2001). OCGA § 16-7-1 (a) provides: “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within . . . any building.” Contrary to Smith’s argument, we conclude that the evidence presented at trial was sufficient to enable a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. See Williams, supra. Accordingly, we affirm the conviction.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       Investigator Donaldson also interviewed Dodd and Moody; however, the young men were not present at the trial. Dodd had been reported as a runaway. The whereabouts of Moody were not clear from the record. The court did not permit Investigator Donaldson to testify about the interviews with Dodd or Moody.


author: Ellington, Judge.

text:
    A02A0289.
    THE STATE v. FOSSETT.
    (560 SE2d 351)
   Ellington, Judge.

The State appeals from an order of the trial court granting Daniel Lee Fossett’s motion to suppress marijuana evidence seized from his home pursuant to a search warrant. Because the warrant was supported by probable cause, we reverse.

On appeal from an order granting or denying a motion to suppress, the evidence must be construed most favorably to support the trial court’s ruling. State v. Causey, 246 Ga. App. 829-830 (1) (540 SE2d 696) (2000). “Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citation and punctuation omitted.) Id. at 830 (1).

The record reveals that police officers responded to a “trouble unknown” call at the Fossett residence on January 11, 2001. When the officers arrived, emergency medical personnel were present and attending to Fossett’s wife, who was “passed out on the floor for unknown reasons.” The officers noticed the “strong odor of burnt marijuana,” and one of the officers mentioned the smell to Fossett. Fossett responded that he and his wife had not been smoking marijuana, but had been “drinking Crown Royal.” The officer asked for permission to search the residence, but Fossett refused. The officer left to obtain a search warrant while two other officers remained behind to secure the scene. When the officer returned with the warrant, he and his fellow officers searched the premises and discovered several partially burned, hand-rolled cigarettes and a bag of what appeared to be marijuana.

On cross-examination, the officer testified that his affidavit for a search warrant was based in part on the fact that he smelled the strong odor of marijuana smoke in the residence. He also stated that he had smelled that same odor in the Fossett residence four months earlier when he recovered 101 grams of marijuana pursuant to a consent search. During that previous search, the officer also recovered paraphernalia used in the drug trade.

1. Fossett challenged the search warrant on the basis that the supporting affidavit failed to set forth facts sufficient to establish probable cause to search for marijuana. He contended that the affidavit evidence of a four-month old prior search is “stale” and that the odor of marijuana alone is insufficient to authorize a search of his home. We disagree.

A search warrant will only issue upon facts “sufficient to show probable cause that a crime is being committed or has been committed.” OCGA § 17-5-21 (a). The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Our duty in reviewing the magistrate’s decision in this case is to determine if the magistrate had a “substantial basis” for concluding that probable cause existed to issue the search warrants. A magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

(Citations and punctuation omitted.) DeYoung v. State, 268 Ga. 780, 786-787 (7) (493 SE2d 157) (1997). Further, “probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances.” (Punctuation omitted.) Howie v. State, 218 Ga. App. 45, 46 (1) (459 SE2d 179) (1995). The State’s burden of proof is satisfied by the “production of the warrant and its supporting affidavit, and by showing either by those documents or by other evidence that the warrant is not subject to the statutory challenge alleged.” State v. Slaughter, 252 Ga. 435, 439 (315 SE2d 865) (1984); Davis v. State, 266 Ga. 212 (465 SE2d 438) (1996). Since the warrant and supporting affidavit were produced at the hearing, albeit by the defendant, the State’s initial burden of production was satisfied. Bowman v. State, 205 Ga. App. 347, 348 (422 SE2d 239) (1992). Finally, the resolution of doubtful or marginal cases “should be largely determined by the preference . . . accorded to warrants.” (Citation and punctuation omitted.) Davis v. State, 266 Ga. at 213.

In this case, the officer swore in his affidavit that when he entered the Fossett residence where Mrs. Fossett lay unconscious, he detected the strong odor of burning marijuana. “The odor of marijuana is one factor that may be considered in determining whether, under the totality of the circumstances, an officer had probable cause to institute a search.” (Footnote omitted.) Patman v. State, 244 Ga. App. 833, 835 (537 SE2d 118) (2000). Further, the officer informed the magistrate that he was familiar with the Fossetts and knew from his own personal experience that they had possessed marijuana and the implements of the drug trade. Although that search occurred four months in the past, it did not render the incident “stale” for purposes of this particular warrant. This is because the incident is relevant to show the officer’s personal knowledge of Fossett’s history of drug possession. This knowledge is a factor which may be taken into account in the magistrate’s determination of probable cause. Caffo v. State, 247 Ga. 751, 755 (2) (c) (279 SE2d 678) (1981). We conclude that this evidence, given the totality of the circumstances, supports the magistrate’s finding of probable cause for the search warrant to issue. Cf. Bigby v. State, 250 Ga. App. 529-530 (1) (552 SE2d 129) (2001) (officer had probable cause to arrest based upon odor of burning marijuana and suspect’s flight).

2. Fossett also argued that the search warrant was “overly broad” because it included as items to be seized, in addition to marijuana, literature and tools related to growing marijuana and any papers or proceeds pertaining to its sale. The officer testified that he had searched the Fossett residence before and recovered paraphernalia related to the possession or sale of marijuana, including scales and several bags of marijuana. Given this evidence and the fact that the items listed reasonably may be characterized as instrumentalities, proceeds, or tangible evidence of the crime alleged, we find that the warrant was not defective for listing them. See Mozier v. State, 207 Ga. App. 264, 266-267 (1) (b) (427 SE2d 551) (1993).

Decided February 15, 2002.

Gerald N. Blaney, Jr., Solicitor-General, Carole C. Korn, Assistant Solicitor-General, for appellant.

Steven M. Reilly, for appellee.

Judgment reversed.

Smith, P. J., and Eldridge, J., concur.


author: JOHNSON, Presiding Judge.

text:
    A02A0112.
    NUDELMAN v. THE STATE.
    (560 SE2d 707)
   JOHNSON, Presiding Judge.

Mitchell Nudelman was convicted of failure to maintain lane and fined $101 for this misdemeanor offense. He appeals on the grounds that (1) the evidence was insufficient to support his conviction, (2) the trial court erred in failing to make the officer who wrote the citation available for questioning, (3) the trial court erred in admitting the officer’s uniform motor vehicle accident report, (4) the trial court erred in precluding impeachment of a hostile witness, and (5) the trial court erred by failing to allow a reconstruction of the transcript pursuant to OCGA § 5-6-41 (g).

Nudelman failed to have the misdemeanor trial transcribed and failed to construct a record of the trial, which was his obligation if he desired to show he preserved his objections at trial. Without a trial transcript or acceptable substitute, we cannot determine whether Nudelman preserved his issues for appeal or what evidence Nudelman sought to exclude or present. Under the circumstances, we must presume that the trial court’s conduct of the trial was proper. While Nudelman contends in his appellate brief that he attempted to reconstruct the transcript, there is no evidence in the record supporting this contention. Accordingly, we find no merit to this enumeration of error.

Decided February 18, 2002.

Mitchell Nudelman, pro se.

Joseph J. Drolet, Solicitor-General, Michael Y. Doko, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Hancock v. State, 244 Ga. App. 118 (534 SE2d 870) (2000); Holder v. State, 239 Ga. App. 821 (522 SE2d 59) (1999).

        Parks v. State, 248 Ga. App. 405, 406 (2) (544 SE2d 536) (2001).

       See Goodwin v. State, 251 Ga. App. 549, 550-551 (1) (554 SE2d 317) (2001).


author: Ruffin, Judge.

text:
    A01A1735.
    CARTER v. THE STATE.
    (560 SE2d 697)
   Ruffin, Judge.

Janet Faye Carter appeals from her convictions for driving under the influence of alcohol and driving after being declared a habitual violator. She argues that the trial court erred in admitting the testimony of Barbara Terrell, a prosecution witness. Finding no error, we affirm.

The record shows that Carter’s original attorney demanded in writing a list of the State’s witnesses, as well as information concerning those witnesses, under OCGA §§ 17-16-3 and 17-16-8. On August 18, 1997, the State served on defense counsel a list of witness names and addresses, including information about Terrell. Carter subsequently decided to change counsel. Accordingly, her original attorney moved to withdraw, and her current counsel, William Head, entered an appearance. Head also filed a demand for statutory discovery, requesting “[a] complete list of witnesses upon whose testimony or evidence the State’s case against Defendant is based.” Although the State did not re-serve its original witness list on Head, it provided him with a second witness list clearly marked “supplemental.” This supplemental list did not reference Terrell.

At the beginning of trial, Head moved to exclude Terrell’s testimony, claiming that neither he nor his client received the August 18, 1997 witness list identifying her. Concluding that the State properly served that list on Carter’s original counsel, the trial court refused to exclude the testimony, but permitted Head to interview Terrell before she testified. After interviewing Terrell, Head again asserted that the defense had not received proper notice of the witness, indicated that Carter did not want a continuance, and renewed the motion to exclude. The trial court denied the motion and allowed Terrell’s testimony.

1. A felony defendant who elects to participate in the discovery procedures under OCGA § 17-16-1 et seq. must “be furnished with ... a list of witnesses that may be supplemented.” No later than ten days before trial, the prosecution must also furnish defense counsel with specific information about the State’s witnesses. We have construed the term “furnish” to require service, which, by statute, “shall be made upon the party’s attorney unless service upon the party himself is ordered by the court.” The record shows, and Carter does not dispute, that the State served the August 18, 1997 witness list disclosing Terrell on the attorney who represented Carter at that time. Nothing in the record indicates that the trial court ordered service directly on Carter; service on her attorney, therefore, was appropriate.

Given these facts, we are dismayed by Carter’s assertion that she did not receive “proper notice” of this witness. The State identified Terrell as a witness on its original witness list. Carter’s decision to change attorneys did not undermine that notice, and the criminal discovery rules do not require the State to re-serve discovery materials on each new attorney a defendant retains. The State cannot be held responsible for a communication lapse between Carter’s former and current counsel. Indeed, current counsel should have realized from documents produced by the State that he did not have all of the discovery obtained by Carter’s original attorney. On April 10, 1998, the State served Head with a second witness list clearly marked “supplemental,” indicating that a prior witness list existed.

Carter complains that the State neglected to file the August 18, 1997 witness list when it served defense counsel, preventing Head from finding it when he reviewed the court file. The record shows that the State did not file the list until March 11, 1999, during Carter’s trial. Citing the State’s failure to “properly file” its witness list, Carter asserts that service on her prior counsel was procedurally defective and invalid.

We disagree. Under OCGA § 17-1-1 (c), “[a]ll original papers, copies of which are required to be served upon parties, shall be filed with the court either before service or immediately thereafter.” Generally, therefore, such papers should be filed when served. But we have found no authority indicating that untimely filing negates service and notice of the State’s witness list in a felony case, especially where, as here, service is not disputed. Furthermore, the State specifically served the August 18, 1997 list pursuant to OCGA § 17-16-8. That Code section requires the State to provide witness information to defense counsel “in confidence.” A public filing is hardly made “in confidence,” arguably supporting service alone.

Finally, even if the State violated its discovery obligations by filing the August 18, 1997 witness list late, the trial court did not err in admitting Terrell’s testimony. Upon learning of such a violation, the court, in its discretion, “may order the state to permit. . . [an] interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from . . . presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.” We will not reverse the trial court’s decision to allow Terrell’s testimony unless the court abused its discretion.

No abuse occurred here. “ ‘The witness list rule is designed to prevent a defendant from being surprised at trial by a witness that the defendant has not had an opportunity to interview.’ ” We cannot find that Carter was “surprised” by Terrell in this case. Even if the State technically violated the discovery rules, it timely served the August 18, 1997 witness list on Carter through defense counsel, undermining any “surprise” argument.

Moreover, absent a showing of prejudice and bad faith, “an interview of the witness is the remedy for failure to comply with the-requirement that a witness must be identified prior to trial.” The trial court allowed Carter to interview Terrell before she testified, and Carter indicated through counsel that she did not want a continuance. Carter has neither argued nor cited evidence that the State acted in bad faith. And any bad faith claim is belied by undisputed evidence that the prosecution timely informed Carter’s former counsel about this witness. Under these circumstances, the trial court did not abuse its discretion in admitting Terrell’s testimony.

Decided January 10, 2002

Reconsideration denied February 19, 2002.

Head, Thomas, Webb & Willis, William C. Head, for appellant.

W. Kendall Wynne, Jr., District Attorney, for appellee.

2. Carter also argues that the State violated her due process rights by withholding Terrell’s name from the defense. As discussed above, however, the State disclosed Terrell as a witness to Carter’s original attorney. Furthermore, we have not found — and Carter has not cited — any evidence that Carter raised this constitutional argument below. Although she certainly claimed that the State breached its discovery obligations, she never asserted a constitutional violation. “As this [due process] issue was not raised in the trial court, it cannot be considered for the first time on appeal.”

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       OCGA § 17-16-3. Throughout her brief, Carter cites the statutory witness list requirements for misdemeanor cases. See OCGA §§ 17-16-21; 17-16-20. Carter, however, was charged with and convicted of a felony habitual violator offense, resulting in a five-year jail sentence. See OCGA § 40-5-58 (c) (1); Hyde v. State, 205 Ga. App. 754, 755 (1) (424 SE2d 39) (1992) (describing difference between felony and misdemeanor habitual violator offenses). Accordingly, the discovery rules relating to felony cases applied here. See OCGA § 17-16-2 (a).

       OCGA § 17-16-8 (a).

       See Lawson v. State, 224 Ga. App. 645, 647 (3) (a) (481 SE2d 856) (1997).

       OCGA § 17-1-1 (b) (1).

       See id.

       Even Carter acknowledged below that “[t]he burden is not on the state to make certain that a new attorney has everything the old attorney had.”

       Contrary to Carter’s assertion on appeal, our decision in Brown v. State, 246 Ga. App. 517, 520 (4) (541 SE2d 112) (2000), which construed a misdemeanor discovery provision, does not establish such a rule.

       OCGA § 17-16-8 (a).

       OCGA § 17-16-6; see also Malaguti v. State, 273 Ga. 398, 401 (2) (543 SE2d 1) (2001).

       See id. at 402-403; Wilbanks v. State, 251 Ga. App. 248, 255 (5) (a) (554 SE2d 248) (2001).

       Id.

        Massey v. State, 272 Ga. 50, 51-52 (4) (525 SE2d 694) (2000).

       See id.; see also Brown v. State, 236 Ga. App. 478, 481-482 (3) (512 SE2d 369) (1999) (affirming admission of photographs produced to defense on eve of trial, the Court noted that “[i]n order to trigger the harsh sanction under OCGA § 17-16-6, of excluding evidence improperly withheld from the defense, there must be a showing of prejudice to the defense and bad faith by the State”) (punctuation omitted).

        McCoy v. State, 246 Ga. App. 623, 625 (3) (541 SE2d 444) (2000); see also Zachery v. State, 238 Ga. App. 191, 192 (2) (517 SE2d 71) (1999) (“A trial objection on a specific ground waives appellate review of other grounds”).


author: Johnson, Presiding Judge.

text:
    A01A1629.
    In the Interest of J. V. et al., children.
    (560 SE2d 725)
   Johnson, Presiding Judge.

The mother of J. V. and J. S. appeals from the juvenile court’s order terminating her parental rights. She contends the evidence does not support the juvenile court’s finding that the deprivation is likely to continue or that termination is in the best interests of the children. We disagree and affirm the decision of the juvenile court.

• The record shows that the Baldwin County Department of Family & Children Services (the Department) became involved with the family in July 1997 after receiving a report that the mother’s boyfriend was physically abusing the boys, who were then seven and two years old, and also abusing her. A case manager visited the home and found trash and hazardous debris scattered about. A safety plan was put into place, and the mother, then 24 years old, agreed to keep the home clean and free from safety hazards, ensure that her boyfriend had no contact with the children, and schedule a counseling appointment at the Rape Crisis Center.

While the safety plan was in effect, and while the children were still in the mother’s custody, the Department assisted the mother financially by paying her rent in August 1997, and by paying her rent and utilities and buying her groceries in June, July, and August 1998.

In December 1998, the Department received a report that the children were afraid of the mother’s boyfriend, that they were being left unsupervised in the neighborhood, and that they were going from house to house looking for food. The mother signed another safety plan in January 1999, promising not to allow the children to have any contact with her boyfriend and not to allow the boyfriend into her home and agreeing to supervise the children or secure appropriate day care arrangements for them.

In March 1999, the Department received reports that the mother was allowing the boyfriend to stay in the home and that he hit J. V. in the back with a coat hanger. The case manager visited the home and found that the mother was at work and that the children were not supervised. J. V. had marks on his back, the home was unsanitary, and windows were broken. The caseworker sought a shelter care order.

Once the shelter care order was obtained, the children were placed with J. S.’s paternal grandmother. The Department left written notice at the mother’s job that the children were in the Department’s custody and warned her not to remove the children from the grandmother’s home. However, the mother went directly from work to the grandmother’s home and took the children. The police returned the children to the grandmother’s custody.

The juvenile court granted temporary legal custody to the Department in April 1999. On April 2, 1999, the Department developed a plan for reunification, which had as a goal for the mother to obtain and maintain a residence which was free of hazards and had enough room for her and her children. The mother was also required to maintain an income that met the needs of her family and improve parenting, coping, and money management skills. She was to complete a family assessment and was to contact the caseworker twice a month to arrange visitation.

On April 14, 1999, the mother went to the grandmother’s home again and took the children. The Department sought and received a protective order prohibiting the mother from interfering with the children’s placement.

At the time the reunification plan was signed, the mother worked in a nursing home and lived in a trailer park. She later quit her job at the nursing home and moved out of the trailer and in with a girlfriend. She took another job at an air conditioning company, but was fired two days later. The mother worked at a health care facility, but when her car was repossessed and she had no means of getting to work, she quit. She worked at Krystal’s Restaurant for several months and then quit that job after she suffered a back injury in a car accident.

In October 1999, the mother signed another case plan. The new plan contained most of the same goals, but, based on a July 1999 psychological evaluation, the mother was also required to undergo psychological counseling. She did not undergo any counseling, though, because she “didn’t really pay attention to the mental part” of the case plan.

In February 2000, the Department amended the case plan to lead to reunification or, alternatively, termination and adoption. As of July 2000, the mother was unemployed, had no income, and had not visited the children regularly. Between March 1999 and December 2000, the mother missed more than half of her scheduled visits, even though the visits were scheduled in advance and the mother was given notice of the visits. While the mother usually cited transportation as the reason for the missed visits, she never asked her caseworker to transport her to the office and instead told her caseworker that she would borrow a friend’s car. The mother slept during some of the visits. The mother never called the caseworker to inquire about the children’s progress in school, never requested more visits, and never tried to discuss her progress on the case plan. The mother did not submit to psychological counseling as required by the case plan. The Department filed a petition to terminate the mother’s rights in December 2000.

At the termination hearing, caseworkers testified that the children had expressed fear of the boyfriend because of his abuse of them and their mother. The mother was told about the children’s fear, though she allowed the boyfriend to stay in the home and watch the children.

The paternal grandmother, who had custody of the children at the time of the hearing and for the preceding one and a half years, testified that, except for the clothes the mother bought the children two days before the termination hearing, the mother had not given her any money or gifts for the children. The psychologist who treated the children for the last one and a half years believed that the children loved their mother, but that they wanted to stay with their grandmother. J. V. told the psychologist that he wanted to stay with his grandmother because he was upset by the violence he witnessed and experienced in his mother’s home. J. V. informed the psychologist that the worst time in his life was when the boyfriend hit him, and the best time in his life is “when he’s with his grandmother.” The psychologist recommended that the children stay with the grandmother because “they’re doing so well. They’re thriving. They’re doing well in school.”

The mother contends that the Department failed to show sufficient evidence of parental misconduct or inability. She urges that although the children were deprived in April 1999, because she failed to protect the children from an abusive friend and left them unsupervised, there was little or no evidence that the deprivation was likely to continue or that termination would be in the best interests of the children. She points to evidence that in March 2000, a caseworker noted that the mother had made significant progress in meeting the goals of the plan. The caseworker testified that the mother’s employment (at Krystal’s) was stable, as was her housing, and that her home was neat and clean. And an October 2000 evaluation of the home her father provided for her was favorable. The mother points to evidence that she completed a parenting class, that the children are attached to her, and that the guardian ad litem was in a “quandary” as to his recommendation. Although the mother acknowledged that she was unemployed from April 2000 through December 2000, when the hearing was held, she said she is not disabled and has been looking for work. Her father, she said, would continue to pay her bills if she does not find work. She testified that she had not seen the boyfriend since April 1999, but admitted that the children had witnessed him abusing her and were harmed by witnessing the violence against her.

Under OCGA § 15-11-94 (a), the considerations for terminating parental rights involve a two-step process. The trial court must first determine whether there is present clear and convincing evidence of parental misconduct or inability. Such misconduct or inability may be proved by showing: (1) the child is deprived; (2) such deprivation is caused by the lack of proper parental care or control by the parent in question; (3) the deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. Further, in determining whether there is a lack of proper parental care and control, the court may consider several factors, including the physical, mental, or emotional neglect of the children. If the children are not in the custody of the parent in question, the lack of proper parental care and control can be demonstrated by showing that the parent, without justifiable cause, failed for a period of one year prior to the filing of the termination petition to develop and maintain a parental bond with the children in a meaningful, supportive manner or to support the children financially. Once the trial court establishes a lack of parental care and control, the second part of the test for determining whether parental rights should be terminated is whether such termination is in the best interests of the children, after considering the physical, mental, emotional, and moral condition and needs of the children, including the need for a secure and stable home. On appeal, we view the evidence in a light most favorable to the juvenile court’s ruling and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated.

In this case, the mother has had little contact with the children since 1999, when they were first placed in foster care. She missed about half of her visitation appointments, including visits scheduled during holidays and birthdays, and slept during others. She has provided no financial support for the children. She has no job or means of supporting the children, only an expectation that her father will pay the family’s bills. The mother did not receive any counseling, though a psychologist recommended it and the case plan expressly required it. A court-appointed special advocate who observed the hearing recommended termination.

The mother promises that she will eventually find a job and undergo counseling. However, she had nearly two years to accomplish the goals set out in the plan, but failed to achieve most of them. In fact, inasmuch as the Department actually became involved with the family in 1997, the mother had three and a half years to become a better parent to the children. The past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact. Judging the credibility of the mother’s good intentions was a task for the juvenile court. The juvenile court was authorized to find from the evidence that, despite Department and family support, the mother lacked the requisite maturity, commitment, inclination, or ability to provide the proper parental care and control necessary for the children’s physical, mental, and emotional health. The evidence authorized the court to conclude that these conditions were likely to continue for the foreseeable future. The court was also authorized to consider the adverse effects of prolonged foster care in determining that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children. The juvenile court did not err in determining that the deprivation would likely continue if the children were returned to the mother’s custody.

Decided February 19, 2002.

Cassandra M. Ford, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Thomas J. O’Donnell, for appellee.

The same factors that show parental misconduct or inability can support a finding that termination of parental rights is in the children’s best interests. The mother’s history belies her promises of future improvement. Moreover, the children’s therapist testified that the children should remain with their grandmother because they were doing well in school and thriving. The court-appointed special advocate agreed. And, although the guardian ad litem initially testified that he was in a quandary as to his recommendation, he later testified that the grandmother should retain custody, though the court could “leave a door open for the mother.”

Having reviewed the entire record, we conclude that sufficient clear and convincing evidence supports the juvenile court’s termination of the mother’s parental rights.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       See OCGA § 15-11-94 (b) (4) (A) (iii)-(iv).

       OCGA § 15-11-94 (a).

       OCGA § 15-11-94 (b) (4) (A).

       OCGA § 15-11-94 (b) (4) (B) (v).

       OCGA § 15-11-94 (b) (4) (C) (i)-(ii).

       OCGA § 15-11-94 (a); see In the Interest of K. C., 249 Ga. App. 680, 681 (1) (549 SE2d 737) (2001).

        In the Interest of T B., 249 Ga. App. 283, 286 (1) (548 SE2d 45) (2001).

        In the Interest of F. C., 248 Ga. App. 675, 678 (1) (549 SE2d 125) (2001).

       Id.

        In the Interest of D. P., 244 Ga. App. 553, 558 (2) (536 SE2d 225) (2000).

        In the Interest of B. R. W., 242 Ga. App. 232, 237 (2) (530 SE2d 5) (2000).

       Id.

       See id. at 237-238 (2).

        In the Interest of A. L. E., 248 Ga. App. 213, 219 (2) (546 SE2d 319) (2001).

       See In the Interest of F. C., supra at 678 (1).


author: Phipps, Judge.

text:
    A01A1696.
    DAVIS v. THE STATE.
    (560 SE2d 711)
   Phipps, Judge.

Edward Davis, a convicted felon, was indicted for eight separate offenses based largely on allegations that he drove away without paying for gasoline, shot the gas station owner who pursued him and attempted to elude the police. The trial court directed a verdict on one count, and the jury convicted Davis of the remaining seven counts. He was sentenced to a total of thirty-five consecutive years, twenty-five to serve and ten on probation. On appeal, Davis challenges his conviction and sentence and claims 20 errors. We find only one error — the failure to merge Count 2 into Count 8 — and reverse the conviction and sentence on Count 2 and remand for resentencing. We find no merit in Davis’s remaining claims and affirm his convictions on all other counts.

1. Davis challenges the sufficiency of the evidence to support his convictions. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. We do not weigh the evidence or determine witness credibility, but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia. Under Jackson v. Virginia, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

At trial, Jeff Parrish testified that he saw Davis drive a gray four-door car to one of the pumps at Parrish’s gas station, pump $14 worth of gas and drive off. Parrish got into his truck and followed Davis. He drove up next to Davis and told him that he needed to pay for the gas. Davis responded that he did not have any money and drove off. Parrish called 911 from his truck and continued following Davis. When they reached a parking lot, Davis pulled out a sawed-off shotgun and shot Parrish in the arm.

As Officer Stover of the Savannah Police Department was responding to the 911 call, he saw a car matching the description he had received over the radio. Stover followed the car as it ran a stop sign, drove the wrong way on a divided street and forced several other cars off the road before it ran into a drainage ditch. Stover identified Davis at trial as the person he saw driving the car. Stover then saw Davis grab a black bag, which the police later discovered contained a sawed-off shotgun and shotgun shells, and run from the car into a wooded area. Davis was caught by another officer approximately 150 feet from where he entered the wooded area. A search of the car by forensics officer McCormick revealed an automatic pistol under the driver’s seat.

Davis claims that because only Parrish identified him as the perpetrator and he denies his guilt, the weight of the evidence is in his favor. But the jury was entitled to believe Parrish’s testimony and to disbelieve Davis’s plea of not guilty (he chose not to testify at trial). In fact, the testimony of a single witness is generally sufficient to establish a fact. This includes the uncorroborated identification of an assailant by the victim. Here, although Parrish’s testimony alone was sufficient to establish Davis’s identity, his identification testimony was corroborated by Stover. Parrish’s testimony, combined with the testimony of Officers Stover and McCormick, provided sufficient evidence for a rational trier of fact to find beyond a reasonable doubt each of the elements of the offenses for which Davis was convicted.

2. Davis claims that the trial court should have bifurcated the trial and tried the charges of possession of a firearm by a convicted felon separately. It did.

3. Davis contends that the trial court erred by denying his motion for mistrial after he objected to having his counsel represent him.

When Davis became disruptive and informed the court, in the presence of the jury panel, that he did not want his attorney to represent him, his attorney moved for mistrial. The court responded that it did not know whether Davis should get the benefit of creating a mistrial. Davis’s attorney expressed understanding of the court’s position and requested a limiting instruction. The court responded by informing the panel that every defendant has a right to be present when criminal charges against him are being tried, but that the court has discretion to remove a defendant who becomes disruptive to the proceedings. The court then inquired whether Davis’s outburst would prevent the prospective jurors from being fair to either party. Davis’s attorney did not object to the court’s response or renew his motion for mistrial. Thus, the issue has been waived.

4. In response to the court’s inquiry whether the panel members could be fair in light of Davis’s disruption, Juror No. 6 responded, “It would be difficult.” The court then asked,

Does anyone have any particular opinion fixed with respect to the guilt or innocence of the accused that could not be changed by whatever the evidence is that is presented during the course of trial and follow the instructions of the. Court with respect to that particular evidence and remove from your mind anything that has been witnessed or heard thus far with respect to the outburst of the accused?

Although none of the panel members responded affirmatively to this question, Davis argues that the court erred by not striking Juror No. 6 for cause. We disagree. Absent proof of a manifest abuse of discretion, a trial court’s refusal to strike a juror for cause will not be disturbed. Moreover, “[t]he fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand, as a matter of law [,] that the juror be excused for cause.”

5. Davis contends that the trial court erred by allowing Parrish to make an in-court identification, but fails to offer any reason for excluding the testimony. Allowing an eyewitness to make an in-court identification has been approved even where the witness was not absolutely sure of his identification. “Under those circumstances, the question of the accuracy of the identification was one for the jury.”

6. Davis claims the trial court erred by admitting Exhibits 1 and 2, photographs of Parrish’s injured arm, and Exhibit 6, a photograph of Davis in front of a police car, because the State’s witness began to describe the photographs without first identifying them. A photograph is authenticated by showing it is a fair and accurate representation of the object, scene or person depicted. Parrish testified that Exhibits 1 and 2 constituted fair and accurate representations of his injured arm and that Exhibit 6 constituted a fair and accurate representation of the person who shot him.

Davis further challenges Exhibit 6 because the witness identifying the exhibit was not present when the photograph was taken.. But any witness familiar with the subject depicted can authenticate a photograph; the witness need not be the photographer nor have been present when the photograph was taken. Parrish testified that he got a good look at the person who shot him.

7. Davis challenges the admission of Exhibit 5, a photograph of his car, because certain items on the hood were not identified as connected to this case. In fact, the items on the hood (a sawed-off shotgun, an automatic pistol and a cellular telephone) were admitted without objection. The pistol and telephone were identified as being found in Davis’s car, and the shotgun was identified as being in Davis’s possession while he was being pursued by police officers.

8. The trial court overruled numerous objections to the admission of Exhibit 15, a piece of copper tubing found in Davis’s car, which Stover testified would be used to smoke illegal substances. On appeal, Davis merely reiterates the objections raised by his trial counsel. We find that the objections were properly overruled. The State elicited testimony from Stover to lay a foundation, based on the officer’s training and experience, to show that that type of tubing was frequently used for smoking illegal substances and to show that Exhibit 15 was relevant to prove Count 4, possession of tools for commission of a crime. Although Count 4 was subsequently dismissed, Exhibit 15 was properly admitted during the State’s presentation of its case.

9. Davis claims that the trial court erred by allowing the State to impeach its own witness.

On cross-examination, Stover testified that the copper tubing could be used to smoke legal substances, such as cigarettes or rabbit tobacco. On redirect, the State asked: “[Counsel] asked you with, I guess State’s Exhibit #15, that you could smoke anything out of it. Based on your training and experience, what do you usually see —.” At that point, Davis’s attorney objected and argued that the State was trying to impeach its own witness. The trial court instructed the State to “leave that to the province of the jury.” The State did not ask any further questions.

We find that any attempt by the State to impeach its own witness was precluded by Davis’s objection and the trial court’s ruling.

10. Davis challenges the admission of Exhibit 13, a spent shotgun shell, because his trial counsel was precluded from cross-examining the witness (McCormick) before the exhibit was admitted. Although Davis was entitled to a thorough and sifting cross-examination of all witnesses called against him, the scope of such cross-examination is within the sound discretion of the trial judge. And that discretion will not be disturbed unless manifestly abused.

Davis’s counsel cross-examined McCormick thoroughly about any testing done to determine if the shell had actually been fired from the shotgun linked to Davis. Because his cross-examination on this issue was not limited, we find no abuse of discretion.

11. Davis argues that the court erred by admitting fingerprint evidence that was not provided to his counsel prior to trial and by refusing to grant a mistrial when the evidence was disclosed on cross-examination of a State’s witness.

On cross-examination, McCormick revealed that fingerprint evidence had been taken from the scene. The State was not aware of the evidence prior to trial and thus had not provided it to Davis’s counsel. The court ordered that any information relating to the fingerprints be provided to Davis’s counsel and precluded the State from introducing or making any reference to the fingerprints. Because the evidence was excluded as provided for in OCGA § 17-16-6, Davis can show no harm caused by the discovery rule violation. The motion for mistrial was properly denied.

12. Davis claims that the trial court should have granted a directed verdict on Count 4, possession of tools for commission of a crime. It did.

13. During the State’s closing argument, Davis’s counsel objected and moved for mistrial based on the following comments:

We’ve got violence in this community. You hear it all the time, you see it on the news. We’ve got to stop it. And this is where it begins. This defendant committed a very horrendous crime and it’s not because of his actions that we’re not sitting here on something more serious. But we can stop it so that it’s never committed again.

We find no abuse of the trial court’s discretion in denying Davis’s motion for mistrial. It is not improper for the prosecutor to appeal to the jury to convict for the safety of the community or to convict to stem a problem of violence in the community. Nor is it improper for the prosecutor to impress upon the jury its responsibility to enforce the law.

14. The trial court erred by refusing to merge Count 2, a violation of OCGA § 16-11-106 (possession of a firearm during commission of a felony), with Count 8, a violation of OCGA § 16-11-133 (minimum period of confinement for person convicted who had prior convictions) because the violation of OCGA § 16-11-106 was established by proof of less than all the facts necessary to establish the violation of OCGA § 16-11-133. Thus, Count 2 merged into Count 8 as a matter of fact, and we must reverse Davis’s conviction on Count 2 and remand to the trial court for resentencing.

15. Davis filed a motion for new trial, asserting that his trial counsel was ineffective in numerous respects. The trial court conducted a hearing on this claim and denied the motion. In its order, the trial court acknowledged that Davis and his counsel did not have a harmonious relationship, but found no merit in Davis’s claims that his counsel was ineffective. On appeal, Davis has limited his ineffectiveness claims to the following: not preparing the case properly for trial; not communicating with him properly; making derogatory statements about him in front of the court; failing to subpoena witnesses he requested and aiding the State in identifying him in court.

To establish ineffectiveness of trial counsel, Davis must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The standard for attorney performance is reasonably effective assistance considering all the circumstances, with a strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. The test for reasonable attorney performance is “ ‘whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. . . .’ ” We review a trial court’s finding that a defendant has been afforded effective assistance of counsel under the clearly erroneous standard.

(a) Davis claims that his attorney did not spend enough time with him to prepare his case, that he did not review or discuss the evidence with him and that he treated his opinions as irrelevant. He claims that his attorney met with him only three times prior to trial and that the first two meetings combined lasted no more than twenty minutes. At the motion for new trial hearing, Davis’s trial counsel testified that he met with Davis personally six times and that he hired an investigator who also met with Davis. Trial counsel testified that he tried to review the State’s discovery with Davis on two different occasions, but Davis refused to look at it. The trial court was authorized to resolve these conflicts in the testimony in counsel's favor.

(b) Davis claims that he was prejudiced when his counsel told the trial judge, outside the presence of the jury, that he was not going to sit there “any longer and let this man run one lie after another.” He claims that he was further prejudiced when his counsel made certain that the court reporter had transcribed a derogatory comment Davis made about the judge. In his ruling at the conclusion of the motion for new trial hearing, the judge noted that Davis’s counsel had expressed his dissatisfaction with Davis’s continued allegations regarding his professional conduct but that counsel’s comments were not prejudicial because they were not made in the jury’s presence and because the judge had already inquired into the attorney-client relationship and was comfortable that the situation, although not harmonious, would not jeopardize Davis’s right to a fair trial. With respect to Davis’s derogatory comment to the judge, the judge stated that he had heard the comment and disregarded it. The judge further stated that the derogatory comment did not affect his demeanor during trial, any ruling he made during trial or the sentence he imposed after trial.

As observed by the United States Supreme Court in Morris v. Slappy and by this court in Jefferson v. State, “a meaningful relationship” between a defendant and his counsel is not a Sixth Amendment guarantee. Because the jury was not present during the complained-of comments and the judge was not adversely influenced by them, we find Davis was not prejudiced.

(c) Davis claims that he asked his trial counsel to subpoena an employee of the gas station, but he failed to do so. Trial counsel testified that he did not call the gas station employee because she had identified Davis as the man who drove off without paying for gas. Counsel’s decision was a matter of trial tactics and did not constitute ineffectiveness.

(d) Davis argues that his trial counsel was ineffective because he broached the issue of his identification instead of waiting for the State to do it. The issue arose because Davis asked not to be present during trial and there was some question about how the State would identify him during the presentation of its case.

At the beginning of trial, the court brought Davis into the courtroom, reminded him that he had a constitutional right to be present and told him that he could remain so long as he did not become disorderly. Davis remained present in the courtroom during Parrish’s testimony when Parrish identified him as the perpetrator. Thus, Davis was identified in the same manner as if he had not expressed a desire to be absent from the trial. It therefore made no difference that Davis’s counsel mentioned the possibility that identification may be an issue before the State thought to do so.

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

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

Decided February 19, 2002.

Orin L. Alexis, for appellant.

Spencer Lawton, Jr., District Attorney, Benjamin B. Reed, Assistant District Attorney, for appellee.

        Newman v. State, 233 Ga. App. 794 (1) (504 SE2d 476) (1998).

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

       Supra.

       See Smith v. State, 246 Ga. App. 191, 192 (1) (539 SE2d 881) (2000).

       OCGA § 24-4-8.

        Samuels v. State, 223 Ga. App. 275 (1) (477 SE2d 414) (1996).

       Id. at 276.

       See Smith, supra.

        Wells v. State, 243 Ga. App. 629, 631 (3) (534 SE2d 106) (2000).

        Scott v. State, 193 Ga. App. 577, 578 (2) (388 SE2d 416) (1989).

       (Citation and punctuation omitted.) Wilson v. State, 220 Ga. App. 487, 488 (1) (469 SE2d 516) (1996).

        Johnson v. State, 159 Ga. App. 333 (1) (283 SE2d 375) (1981).

       (Citation omitted.) Id.

       See Bierria v. State, 232 Ga. App. 622, 626 (8) (502 SE2d 542) (1998).

       Id.

       OCGA § 24-9-64; Scott a State, 178 Ga. App. 222, 224 (3) (343 SE2d 117) (1986).

        Sanders v. State, 181 Ga. App. 117, 121 (3) (351 SE2d 666) (1986).

        Bertholf v. State, 224 Ga. App. 831, 832 (1) (482 SE2d 469) (1997).

        Philmore v. State, 263 Ga. 67, 69 (3) (428 SE2d 329) (1993).

       See id. (drug problem in. the community).

        McClain v. State, 267 Ga. 378, 385 (4) (a) (477 SE2d 814) (1996).

       See OCGA §§ 16-1-7; 16-1-6; Wyatt v. State, 222 Ga. App. 604, 605 (2) (475 SE2d 651) (1996).

        Wyatt, supra at 606 (2).

        Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

       Id. at 687-689.

       (Citations omitted.) Stansell v. State, 270 Ga. 147, 150 (2) (510 SE2d 292) (1998).

        Whitner v. State, 202 Ga. App. 608, 609 (415 SE2d 52) (1992).

       The record indicates that Davis was not very cooperative in the preparation of his defense

        Richardson v. State, 194 Ga. App. 358, 359 (1) (390 SE2d 442) (1990).

       461 U. S. 1, 14 (103 SC 1610, 75 LE2d 610) (1983).

       209 Ga. App. 859, 862 (1) (434 SE2d 814) (1993).

        Hammonds v. State, 218 Ga. App. 423, 424 (1) (461 SE2d 589) (1995).

        Hope v. State, 239 Ga. App. 331, 332 (3) (a) (521 SE2d 372) (1999).


text:
    A01A1699.
    KEN’S STEREO-VIDEO JUNCTION, INC. v. PLOTNER.
    (560 SE2d 708)
   Ruffin, Judge.

Brian Plotner filed a petition for declaratory judgment against his former employer, Ken’s Stereo-Video Junction, Inc. (“Ken’s Stereo”). In the petition, Plotner alleged that his employment contract with Ken’s Stereo contained an unenforceable noncompete clause and asked the court to declare it so. After the parties briefed the matter, the trial court declared the clause overbroad and unenforceable. Ken’s Stereo appeals, asserting the trial court erred in declaring the clause unenforceable and in failing to hold an evidentiary hearing or jury trial on the matter. For reasons that follow, we affirm.

In support of its position, Ken’s Stereo submitted to the trial court the affidavit of its majority shareholder and chief executive officer. The affidavit shows that Plotner began working for Ken’s Stereo as a car stereo installer in mid-1998. According to the affidavit, Plotner worked in that capacity for approximately two years, during which time Ken’s Stereo trained him in the customized installation of car stereos and security systems. By September 2000, Plotner had advanced to the position of installation manager, and during that month he entered into a written employment agreement with Ken’s Stereo that contained the following noncompete clause:

Employee agrees for a period of eighteen (18) months following termination of employment hereunder for any reason that he will not either directly or indirectly on his own behalf or as partner, officer, employee, shareholder, or director of any person or entity, engage in or otherwise be interested in any business which consists of the sale and/or installation of consumer electronics (defined as audio, video, and car stereo) within twenty-five (25) miles of the store location of Employer at which Employee is employed at the time of termination.

In December 2000, Plotner terminated his employment with Ken’s Stereo. Plotner subsequently filed the instant declaratory judgment action to determine the validity of the noncompete clause. Based on the trial briefs, oral argument presented by the parties, and the affidavit discussed above, the trial court found the clause over-broad and declared it unenforceable.

1. Ken’s Stereo asserts that the trial court erred in declaring the clause unenforceable. We disagree.

As a general rule,

a restrictive covenant contained in an employment contract is considered to be in partial restraint of trade and will be upheld if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public. Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court, which considers the nature and extent of the trade or business, the situation of the parties, and all the other circumstances. A three-element test of duration, territorial coverage, and scope of activity has evolved as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.

The focus of this case is on the unrestricted scope of activity proscribed by the contract. The noncompete clause can fairly be characterized as restricting Plotner from having any direct or indirect association with or interest in any consumer electronics company within the territorial limits. It is hard to imagine a broader restriction on the scope of prohibited activity, and it is clear that the contract imposes a greater limitation on Plotner than is reasonably necessary to protect the company’s legitimate business interests in maintaining established customer relationships. For instance, although Plotner worked only as a car stereo and security system installer and manager for Ken’s Stereo, the noncompete clause would prevent him from working for another company in any capacity, even in positions totally unrelated to car stereo installation. Indeed, Ken’s Stereo apparently acknowledged at a hearing that, under the clause, Plotner “could not even be employed as a janitor at a competing store.” Moreover, the clause is not just limited to restrictions on Plotner’s potential employment by a competitor, but unduly prohibits him from being an officer, director, or shareholder with another consumer electronics company within the territorial limitation. We cannot discern any reason why such restrictions are necessary to protect the employer’s business interests.

Ken’s Stereo also contends that the training and money it invested in Plotner legitimized its interest in restricting his future employment. Although a substantial investment in training may, in some cases, outweigh minimal harm imposed by a restriction, in light of the considerable harm imposed by the restriction here and the relatively minimal training provided Plotner, we disagree with Ken’s Stereo that the clause was justified on this ground.

Under these circumstances, even if we assume that the territorial and time restrictions contained in the clause are reasonable, the unbridled proscription on the scope of activity renders the entire covenant unenforceable. Thus, the trial court did not err in finding the clause unenforceable as a matter of law.

2. We also find no error in the trial court’s failure to hold an evidentiary hearing or jury trial. Georgia’s Declaratory Judgment Act only requires a jury trial if there is an issue of fact that must be submitted to the factfinder. As stated above, the reasonableness of a restraint is a question of law for the trial court. Although an evidentiary hearing might be necessary in some cases, one was not required here. Any doubt concerning the reasonableness of the restriction was resolved by the affidavit submitted to the court by Ken’s Stereo. “[T]he indefinite restriction imposed in this case could not be saved by additional facts and is in fact void on its face.”

Decided February 19, 2002.

Almand & Wiggins, O. Hale Almand, Jr., for appellant.

G. E. Adams, for appellee.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       We note that, in violation of Court of Appeals Rule 27 (c) (1), Ken’s Stereo’s brief contains two enumerated errors, but only one argument. The argument is primarily directed at the trial court’s failure to hold an evidentiary hearing or jury trial, but has passing references that seem to also challenge the court’s ultimate ruling. By failing to comply with the rule, Ken’s Stereo risked having its enumerated error concerning the trial court’s ruling deemed unsupported, and, therefore, abandoned under Rule 27 (c) (2). In addition to violating Rule 27 (c) (1), Ken’s Stereo also violated Rule 23 (c), by failing, in most instances, to cite to the official reporter for its case citations. Compliance with this rule assists the Court, which uses the official reporter, in locating cases cited by the parties.

       (Citations and punctuation omitted.) W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992).

       See id. at 466 (addressing an employer’s interest in protecting existing customer relationships); Puritan/Churchill Chem. Co. v. Eubank, 245 Ga. 334, 335 (265 SE2d 16) (1980) (ruling that unbridled restraint on scope of activity was unreasonable); Ceramic & Metal Coatings Corp. v. Hizer, 242 Ga. App. 391, 394 (2) (529 SE2d 160) (2000) (same).

       See id.; Eubank, supra; McNease v. Nat. Motor Club &c., 238 Ga. 53, 56 (2) (231 SE2d 58) (1976).

       Although the record does not contain a transcript of the hearing, the trial court noted the concession in its final order and Ken’s Stereo does not dispute the acknowledgment.

        Brunswick Floors v. Guest, 234 Ga. App. 298, 301 (506 SE2d 670) (1998); Harville v. Gunter, 230 Ga. App. 198, 200 (2) (495 SE2d 862) (1998).

       See Guest, supra at 300.

       See Eubank, supra; Kuehn v. Selton & Assoc., 242 Ga. App. 662, 664 (1) (530 SE2d 787) (2000).

       See OCGA §§ 9-4-5; 9-4-6.

       See Mouyal, supra at 465; see also Roger Properties v. Adams-Cates Co., 247 Ga. 68, 69 (2) (274 SE2d 329) (1981).

       See id. (ruling that “[o]ccasionally facts might be necessary to show that a questionable restriction, though not void on its face, is, in fact, reasonable”) (emphasis supplied); AGA, LLC v. Rubin, 243 Ga. App. 772, 774-775 (533 SE2d 804) (2000) (same); but see Nat. Teen-Ager Co. v. Scarborough, 254 Ga. 467, 469 (330 SE2d 711) (1985) (reasonableness of restraint on scope of activity “generally is not determinable solely from the face of the contract”) (emphasis supplied); Lighting Galleries v. Drummond, 247 Ga. App. 124, 127 (1) (b) (543 SE2d 419) (2000) (same).

        Koger Properties, supra at 69 (2); see also Eubank, supra.


text:
    A01A1848.
    NOBLES v. THE STATE.
    (560 SE2d 724)
   Ruffin, Judge.

Wayne Nobles pled guilty to multiple counts of theft by taking and one count of attempted theft by taking. As part of Nobles’ punishment, the trial court ordered him to pay $286,435 in restitution. On appeal, Nobles contends that the trial court erred in failing to include in its order specific findings of fact under OCGA § 17-14-10, which sets forth the factors a court must consider in determining the nature and amount of restitution. We agree.

Before a trial court can order restitution, it must conduct a hearing to determine whether restitution is appropriate and, if so, the amount. Pursuant to OCGA § 17-14-10, the court must consider several factors in determining the amount of restitution, including: the present financial condition of the offender and his dependents; their probable future earning capacity; the amount of damages; the goal of restitution; any prior restitution; and the period of time the restitution order will be in effect. Following the hearing, the court must make “[w]ritten findings of fact relating to each of the factors set forth in [OCGA] § 17-14-10.” Failure to do so renders the order deficient.

After Nobles pled guilty, the trial court conducted a restitution hearing, during which evidence was adduced regarding the factors set forth in OCGA § 17-14-10. Despite hearing such evidence, the trial court did not include any specific factual findings in its order. Rather, the order simply stated that the court “heard evidence . . . [and] considered the six (6) factors listed in OCGA § 17-14-10.” As the trial court failed to include written findings of fact pertaining to the various factors set forth in OCGA § 17-14-10, its restitution order is deficient, and we must “vacate the judgment and remand the case to the trial court for entry of a new order based upon the required written findings.”

The case cited by the State, Cheeks v. State, does not require a different result. In Cheeks, the offender did not produce any evidence during the restitution hearing. Cheeks subsequently challenged the sufficiency of the evidence supporting restitution and demanded a new hearing. We held that, by failing to present evidence at the outset, Cheeks waived her right to do so. Here, waiver is not an issue. And, as a long line of cases makes clear, a trial court is required to set forth its findings of fact in its order following a restitution hearing.

On appeal, Nobles also contends that he is entitled to a new hearing. Contrary to Nobles’ contention, he is not automatically entitled to a new hearing. The trial court’s failure to include written findings of fact in its order, “alone [,] would not necessitate a new restitution hearing, since it could be rectified upon remand if the required factors were actually considered although not reflected in the order of restitution.” If, however, the required factors were not considered, a new hearing may be required. Thus, upon remand, the trial court must ascertain whether a new hearing is required.

Order of restitution vacated and case remanded.

Johnson, P. J, and Ellington, J., concur.

Decided February 19, 2002.

Kim T Stephens, for appellant.

Kenneth W. Mauldin, District Attorney, Thurbert E. Baker, Attorney General, Michael E. Hobbs, Deputy Attorney General, David S. McLaughlin, Assistant Attorney General, for appellee.

       See Cannon v. State, 246 Ga. 754, 755-756 (3) (272 SE2d 709) (1980) (addressing predecessor statutes to OCGA §§ 17-14-8 through 17-14-10).

        Helmeci v. State, 230 Ga. App. 866, 870 (4) (498 SE2d 326) (1998).

       See Beall v. State, 252 Ga. App. 138, 139-140 (4) (555 SE2d 788) (2001); Cardwell v. State, 225 Ga. App. 337-338 (484 SE2d 38) (1997); Revis v. State, 223 Ga. App. 470 (1) (477 SE2d 880) (1996).

       In its brief, the State sets forth the testimony adduced at the hearing. However, the transcript from the hearing was not included with the record on appeal.

        Beall, supra at 140 (4); Cardwell, supra; Revis, supra.

       218 Ga. App. 212 (460 SE2d 860) (1995).

       See id.

       See id. at 214.

       See Beall, supra.

        Cardwell, supra at 338.

       See id.


text:
    A01A1852.
    SWISSHELM v. DEPARTMENT OF HUMAN RESOURCES et al.
    (560 SE2d 722)
   Ruffin, Judge.

The divorce decree of Michael Alan Swisshelm and his former wife incorporated an agreement requiring Swisshelm to provide continued child support if either of their two “children continue [d] their education after high school.” The Georgia Department of Human Resources (“DHR”) filed the instant petition to force Swisshelm to comply with the provision while his son was enrolled in the United States Air Force Academy. Rejecting Swisshelm’s contention that the provision was unenforceable because his son was emancipated, the trial court ordered the father to provide the support. We granted Swisshelm’s application for discretionary appeal, and for reasons that follow, we affirm the trial court’s ruling.

The agreement at issue contains two separate paragraphs governing Swisshelm’s child support obligations. The first paragraph, titled “CHILD SUPPORT,” provides in part:

The Husband agrees to pay to the Wife as child support, the sum of $300.00 per month per child for a total obligation of $600.00 per month. . . . The Husband[’s] obligation to pay child support shall continue until such time as each child attains the age of eighteen (18), dies, marries, joins a branch of the Armed Forces or is otherwise self supporting.

The second paragraph, titled “POST HIGH SCHOOL EDUCATION,” provides:

The Husband agrees that if the children continue their education after high school, he will continue to provide child support for each child who does so at $300.00 per month per child. Such support shall continue until that child either receives an undergraduate degree or reaches age 22, whichever occurs first.

In this case, Swisshelm’s son turned 18, graduated from high school, and enrolled in the Air Force Academy. As a consequence of his enrollment, the son joined the United States Air Force and receives a monthly salary. While the son does not pay tuition to attend the academy, his salary was initially offset by a $5,000 charge for uniforms. In addition, the son was required to pay a $2,500 admission fee, and he must pay for books.

Swisshelm asserts that these facts establish that his son became emancipated when he enlisted in the Air Force, and the agreement, therefore, relieved him of the obligation to pay support while the son attends the academy. We disagree.

It is important to note that we are not dealing with Swisshelm’s statutory duty to educate his son during minority, but rather his private support agreement which is construed according to “the usual rules for construction of contracts. The cardinal rule of construction is to ascertain the intention of the parties, which is determined from consideration of the entire contract.” In considering the agreement, a court must generally apply the usual and common meaning to its terms and construe it in such manner that will uphold it entirely, without rendering any of the language meaningless. Finally, “under general rules of contract construction, a limited or specific provision will prevail over one that is more broadly inclusive.”

Although the contract here generally terminates Swisshelm’s support obligations when his children turn 18, die, marry, or become emancipated, Swisshelm specifically agreed to “continue to provide child support” if either of his “children continue their education after high school.” Under the agreement, Swisshelm’s continued educational support obligation is terminated only if the “child either receives an undergraduate degree or reaches age 22, whichever occurs first.” The agreement simply does not sustain Swisshelm’s attempt to stack the five events that terminated his general support obligation on top of the only two events that would terminate his obligation to provide continued educational support. More specifically, there is no indication that the parties intended to terminate the father’s continued educational support obligation if the child becomes emancipated. The specific terms of the agreement prevail over its general terms.

Decided February 19, 2002.

Surrett & Coleman, Carl J. Surrett, Edward J. Coleman III, for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Katherine S. Davis, Assistant Attorney General, James M. Spence, for appellees.

Furthermore, the parties must have intended that the general provision terminating Swisshelm’s support obligations would be controlled by his agreement to provide continued educational support; otherwise, the latter provision would be rendered meaningless. Indeed, if the general support provision controlled the more specific educational support provision, as urged by Swisshelm, he would have no obligation to provide post-high school support once his children turned 18. Barring exceptional circumstances, we cannot envision how a child might obtain an undergraduate degree before his or her eighteenth birthday. Moreover, it would be impossible for a child to continue his or her education and reach age 22, before turning 18. Thus, it does not matter that Swisshelm’s son turned 18, joined the military, and became self-supporting. Swisshelm agreed that he would provide support if his son continued his education after high school, which is exactly what he did. This agreement is enforceable.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       See OCGA § 19-7-2.

       (Citation omitted.) Fields v. Armistead, 262 Ga. 439 (420 SE2d 753) (1992).

       OCGA § 13-2-2 (2), (4); Miller v. Jeff Davis Apts., 196 Ga. App. 600, 602 (1) (396 SE2d 494) (1990).

        Schwartz v. Harris Waste Mgmt. Group, 237 Ga. App. 656, 661 (2) (516 SE2d 371) (1999).

       We note that this provision merely restates Swisshelm’s statutory duty to support his son until he “reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs.” OCGA § 19-7-2.

       See Schwartz, supra.

       See Miller, supra.

       See McClain v. McClain, 235 Ga. 659, 660-661 (1) (221 SE2d 561) (1975) (enforcing divorced father’s agreement to provide his daughter with a college education, notwithstanding the fact that he was no longer otherwise obligated to support her); see also Robinson v. Robinson, 242 Ga. 698 (251 SE2d 287) (1978) (enforcing father’s agreement to “assume[ ] the additional obligation of paying the expenses of educating his children after high school”); cf. Fields, supra (holding that father’s “obligation to make payments to the education fund . . . ended when his son reached 18 because he did not agree expressly that the education payments would continue beyond the child’s majority’).