text:
    A97A0929.
    STUBBS v. HARMON et al.
    (487 SE2d 91)
   Birdsong, Presiding Judge.

Appellant William Stubbs appeals from the judgment entered on July 29, 1996 in favor of appellees Kenneth and Mary Jane Harmon.

This is a suit for damages arising from injuries sustained by appellee Kenneth Harmon in a motor vehicle collision, and for loss of consortium as claimed by appellee Mary Jane Harmon. Appellant filed a counterclaim against Kenneth Harmon for injuries appellant sustained in the collision. A bifurcated trial by jury was held. After returning a verdict in favor of appellees/plaintiffs Harmon and against appellant William Stubbs and his wife, Veronica, as to liability, the jury returned a verdict for damages of $237,000 in favor of Kenneth Harmon and $50,000 in favor of Mary Jane Harmon. The trial court entered judgments consistent with these verdicts, and further directed that the Stubbs’ counterclaim against appellees be dismissed on the merits. A motion for new trial was filed by appellant as to the judgment entered in favor of appellees on their claims but not as to appellant’s counterclaim. Appellant now seeks to appeal the jury finding and judgment in favor of appellees as to their claims against appellant and the trial court’s denial of appellant’s motion for new trial. Appellant is not appealing the jury finding and judgment entered in favor of appellees as to appellant’s counterclaim.

The collision occurred on Old Dixie Highway. A major issue at trial was whether the collision occurred in the center turn lane or in the first northbound travel lane of the highway. Old Dixie Highway has two southbound lanes, two northbound lanes and one center turning lane. Appellant Stubbs was driving a pickup truck southbound; just before the collision he pulled into the center turn lane to turn left into an apartment complex. Appellee Kenneth Harmon had just pulled out of a driveway on the opposite side of the highway from the apartment complex; he had crossed the two southbound (oncoming) travel lanes before pulling into one of the northbound travel lanes. There exists substantial conflict in testimony regarding the cause of the collision among various eyewitnesses, and also among certain eyewitness testimony, expert opinion testimony and physical evidence. The jury resolved this conflict against appellant Stubbs. Held:

1. Appellant enumerates as separate errors that the trial court erred in denying his motion for new trial because the verdict, as to both liability and damages, rendered by the jury and affirmed by the trial court, was not supported by the evidence.

“A trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.” (Citations, punctuation and emphasis omitted.) Estfan v. Poole, 193 Ga. App. 507, 509 (1) (c) (388 SE2d 373). When there exists any evidence to support the jury’s verdict, and no reversible error is otherwise committed, the verdict will stand. Bill Jones Motors v. Mitchell, 100 Ga. App. 185, 188 (110 SE2d 555). It is the function of the jury to resolve conflict in testimony (see Carmichael Tile Co. v. McClelland, 213 Ga. 656, 661 (7) (100 SE2d 902)); this Court will not substitute its judgment for that of the jury and will neither weigh evidence nor determine witness credibility. Homey v. Lawrence, 189 Ga. App. 376, 377 (3) (375 SE2d 629).

(a) We find there exists some evidence, albeit less than compelling, to support the verdict of the jury and judgment of the trial court as to liability. “ ‘The denial of a [motion for] new trial on the ground that the verdict is contrary to the evidence addresses itself only to the discretion of the trial judge.’ [Cits.] It is of no consequence on review of the denial of a motion for new trial based on the sufficiency of the evidence that the evidence adduced at trial would have authorized a verdict for either party. [Cit.] A reviewing court must view the evidence in a light most favorable to upholding the jury’s verdict and any evidence which supports the jury’s verdict is sufficient to sustain the trial court’s denial of a motion for new trial based on the sufficiency of the evidence.” Clark v. United Ins. Co., 199 Ga. App. 1, 3 (1) (404 SE2d 149). The trial court did not commit reversible error in denying appellant’s new trial motion as to the issue of liability.

(b) The jury verdict awarded damages of $237,000 as to Kenneth Harmon and $50,000 as to Mary Jane Harmon. In addition to medical expenses and lost wages, appellee Kenneth Harmon presented descriptive evidence to the jury as to the pain and suffering to which he was subjected as a result of the injuries he sustained in the collision. Evidence also was presented as to the marital circumstances of his wife, who suffers from multiple sclerosis, and as to how Harmon’s injuries had adversely affected their marital relationship and the manner in which he previously had engaged in numerous essential acts of conjugal husbandry for his wife’s aid and assistance.

The question of damages ordinarily is one for the jury. Grange Mut. Cas. Co. v. Williams, 220 Ga. App. 613, 614 (1) (a) (469 SE2d 845). The sole measure of damages for pain and suffering is the enlightened conscience of fair and impartial jurors. Id. Damages for loss of consortium are not capable of exact pecuniary measure and, like damages for pain and suffering, their measure must be left to the enlightened conscience of impartial jurors taking into consideration the nature of the services, society, companionship and all the circumstances of the case. Gurly v. Hinson, 194 Ga. App. 673, 675 (9) (391 SE2d 483). Review of the record reveals no basis for upsetting the jury’s determination of damages in this case. The trial court did not commit reversible error in denying appellant’s new trial motion as to the issue of damages.

2. Appellant asserts more than one separate error in his third enumeration of error in violation of OCGA § 5-6-40. It is well settled that “ ‘[w]hen an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 [cit.] or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned.’ ” White v. State, 221 Ga. App. 860, 861 (1) (473 SE2d 539); accord Wilson v. Southern R. Co., 208 Ga. App. 598, 606 (6) (431 SE2d 383), cert. den., 510 U. S. 1195 (114 SC 1303, 127 LE2d 655); West v. Nodvin, 196 Ga. App. 825, 830 (4) (c) (397 SE2d 567); see Hap Farms v. Heard, 209 Ga. App. 684, 686 (1) (c) (434 SE2d 118). Except as hereinafter stated, we elect to review none of the errors asserted in appellant’s third enumeration of error. Wilson, supra. In the interest of judicial economy, we find as to enumeration of error 3 (b) that assuming error had occurred during the damage phase of trial by sustaining the objection to the question posed to Dr. Lippitt (as to appellee’s alleged pretrial statement regarding the collision), any such error would have been harmless. OCGA § 9-11-61.

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.

Decided May 16, 1997

Reconsideration denied June 3, 1997.

Before Judge Kilpatrick.

McLain & Merritt, William S. Sutton, for appellant.

Champion & Holbird, Thomas R. Holbird, Jr., Beck, Owen & Murray, James R. Fortune, Jr., Bovis, Kyle & Burch, Charles M. McDaniel, Jr., Long, Weinberg, Ansley & Wheeler, Charles B. Marsh, Louis Levenson, for appellees.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A1032.
    STYLE CRAFT HOMES, INC. et al. v. CHAPMAN et al.
    (487 SE2d 32)
   Eldridge, Judge.

Appellant Style Craft Homes, Inc. (“Style Craft”), a general contractor, sued appellees George W. Chapman and Lessie M. Chapman as the homebuyers of a house built by Style Craft; appellees answered, counterclaimed, and filed a third-party action against appellant George Budwick, a principal in Style Craft. The jury trial on all issues resulted in a verdict in favor of appellees and against appellants not only on the complaint but also on the counterclaim and third-party action on December 14, 1994; judgment was entered on December 27, 1994.

On January 27, 1995, appellants filed a motion for a new trial; attached to the motion was a blank rule nisi order which had neither the judge’s signature nor a set hearing date. On February 17, 1995, appellants ordered the trial transcript. On May 19, 1995, the transcript was completed but not filed with the clerk. Appellants did not pay the court reporter for preparing the transcripts until July 24, 1995, when the court reporter filed the transcript with the clerk.

On June 30,1995, appellees moved to dismiss the motion for new trial for failure to comply with OCGA § 5-5-44, in that no rule nisi order was obtained, no hearing scheduled, and no transcript filed. On August 28, 1995, appellants, for the first time, obtained a rule nisi order setting a hearing on the motion for new trial on October 2, 1995. On November 30, 1995, the trial court entered an order dismissing the motion for new trial. On December 27, 1995, appellants filed their notice of appeal from such order, instructing the clerk to omit nothing from the record. The record contained sealed depositions, which apparently had not been used at trial or on any motion because the depositions remained sealed; the clerk made repeated requests of appellants to obtain an order of the court so that the depositions could be opened and copied; appellants did not act. To stop further delay, appellees obtained a court order authorizing the depositions to be unsealed and copied as part of the record in order to complete the appellate record.

After completing the record, the clerk prepared a statement of costs for the appeal record and mailed the preparation cost bill to appellants’ counsel; appellants’ counsel received the cost bill for preparation of the record on April 30, 1996.

Appellants failed to pay the cost bill, and appellees moved, on June 3, 1996, to dismiss the notice of appeal. On June 28, 1996, the appellants still had not paid the cost bill at the time the motion to dismiss the notice of appeal was heard by the trial court. On July 10, 1996, the trial court entered an order granting the motion to dismiss the notice of appeal for unreasonable and inexcusable delay. On July 18, 1996, appellants filed a notice of appeal from the order of July 10, 1996, dismissing the prior notice of appeal.

Appellees’ motion to dismiss the appeal is denied. Appellants have made a motion for the award of attorney fees and expenses of litigation under OCGA § 9-15-14 based on appellees’ motion to dismiss the appeal.

When the General Assembly passed Ga. L. 1986, p. 1591, § 1; 1987, p. 397, § 1; 1989, p. 437, § 1 (OCGA § 9-15-14), this statute was made applicable only to “court[s] of record of this state.” Such limitation is jurisdictional and excludes subject matter jurisdiction from any non-court of record to impose costs of litigation under OCGA § 9-15-14. This Court has held that this is not a court of record. Ovestco Corp. v. Bowen, 216 Ga. App. 121, 123 (453 SE2d 94) (1995). The appellate courts of Georgia have some of the characteristics of a court of record in that the courts have seals; the acts and judicial decisions and opinions aré enrolled for perpetual memorial, but the judicial proceedings are not recorded by transcript; the appellate courts have the power to impose fine or imprisonment for contempt only as an inherent power of a court; the appellate courts function independently from the judges; the appellate courts are creatures of the constitution and statute and are not common law in origin; thus, the appellate courts are courts to correct errors of law, lack original jurisdiction, and are not “courts of record” as a trial court is a common law court and has original jurisdiction. DeKalb County v. Deason, 221 Ga. 237, 238 (144 SE2d 446) (1965); Bowen v. Ball, 215 Ga. App. 640, 641-642 (451 SE2d 502) (1994); see also Planters’ & Mechanics’ Bank v. Chipley (Ga. Dec. pt. 1, 50) (1842). The clear intent of the General Assembly was that appellate courts not come within the ambit of OCGA § 9-15-14. The motion is denied.

Appellants in their statement of fact and in enumerations of error 1 and 2 seek to raise issues outside the notice of appeal. The only issue properly before the Court for consideration is whether or not the trial court committed error in dismissing the appellants’ notice of appeal on July 10, 1996. We cannot agree with appellants that the trial court abused its discretion in dismissing the notice of appeal for failure to timely pay costs under OCGA § 5-6-48 (c), thereby causing a delay in filing the record with the appellate court.

Decided May 6, 1997

Reconsideration denied June 3, 1997.

Before Judge Fleming.

Samuel W. Cruse, for appellants.

Dunstan, Dunstan & Cleary, James R. Dunstan, Gail D. Stebbins, for appellees.

The trial court found “on July 28, 1996, said costs remain unpaid” and further found “that there has been an unreasonable delay in the transmission of the record to the appellate court, and the delay is inexcusable and has been caused by the failure of the Plaintiff and Third-Party Defendant to pay costs in the trial court.”

The trial court held a hearing as to the delay in paying costs of the record under OCGA § 5-6-48 (c) and found that the delay was (1) unreasonable, (2) inexcusable, and (3) caused by appellants, which authorized the dismissal of the notice of appeal. Ledee v. Kissiah, 215 Ga. App. 850, 851 (452 SE2d 558) (1994); Leonard v. Ognio, 201 Ga. App. 260 (410 SE2d 814) (1991); Bouldin v. Parker, 173 Ga. App. 526, 527 (1) (327 SE2d 760) (1985); Williford v. Gen. Ins. Co. of America, 119 Ga. App. 1 (165 SE2d 924) (1969). Whether or not to dismiss a notice of appeal for delay in paying costs rests in the sound discretion of the trial court when the grounds to dismiss have been met. Brookshire v. J. P. Stevens Co., 133 Ga. App. 97, 100 (1) (210 SE2d 46) (1974). Where the clerk by affidavit states the date when the cost bill was sent, how it was sent, and that counsel for appellants received the cost bill, this creates a rebuttable presumption that the cost bill was delivered to counsel and creates a duty on appellants to show that the failure to pay was not a wilful refusal. Crenshaw v. Ga. Underwriting Assn., 202 Ga. App. 610 (414 SE2d 915) (1992). At the hearing, appellants failed to give any reason for the failure to pay. We find no abuse of the trial court’s discretion.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A97A0413.
    CLELAND v. GWINNETT COUNTY et al.
    (487 SE2d 434)
   Beasley, Judge.

Segars, a developer, began construction of a house on the lot next to Cleland’s home. Cleland determined that based on the house’s foundation, the homes would not have the ten-foot space between them required by a local zoning ordinance and the subdivision plat. Segars sought a variance which was denied.

The zoning ordinance requires that detached single-family homes in the pertinent category “have a minimum five-foot side yard on each side.” The subdivision plat requires a “combined total of 10 [feet] from roof line to roof line” between houses, and a drawing of a “typical lot layout” showing a distance of ten feet between two parallel houses.

After the denial of the variance, Segars revised the building plan, recessing a portion of the near wall to a profile so that the nearest point to Cleland’s house was slightly more than ten feet away from the corner of her house, but keeping the front of the house as originally designed. Because of the way the two houses were located on their respective lots, a straight line drawn directly back from the front corner of the new house was still within ten feet of Cleland’s side wall. The diagrams, plat, and other evidence of record show that the side yard of Segars’ house, measured from the front corner, could not have five feet between the house and the property line if Segars’ house was in compliance.

The county’s department of planning and development rejected the altered building plan. Segars appealed to the Zoning Board of Appeals, which approved the redesign, ruling that because the total distance between the two houses was greater than ten feet, the plat requirement was satisfied. Despite the Board’s adoption of the developer’s desired meaning of “roof line to roof line,” the developer appealed to the superior court, asking for a declaratory judgment on the matter. The court ruled that the term allowed the interpretation adopted. Although the court also referred to “the ordinance,” it does not identify any ordinance and does not appear to interpret any ordinance.

Cleland also appealed the Board’s decision and added counts for declaratory judgment on the meaning of the zoning ordinance, attorney fees for stubborn litigiousness, and damages to the value of her property. The superior court granted Segars’ motion for summary judgment on the ground that the earlier superior court decision, rendered on Segars’ appeal, collaterally estopped Cleland from asserting a different interpretation of the plat requirement or ordinance. Cleland sought an appeal under the discretionary review procedures of OCGA § 5-6-35 (a) (1), which was granted. Both Segars and the county are appellees.

“ ‘[Collateral estoppel] prevents relitigation in a subsequent suit (involving a different cause of action) a matter which was actually adjudicated in a former case. (Cits.)’ ” Miller v. Charles, 211 Ga. App. 386, 387 (439 SE2d 88) (1993). It is available only when “ ‘the subsequent suit is between the same parties or their privies. (Cits.)’ ” Id.

Appellees contend Cleland is the county’s privy for purposes of collateral estoppel, citing DeKalb County v. Post Properties, 245 Ga. 214, 219 (2) (263 SE2d 905) (1980), for the proposition that “where the interest of the [landowner] is identical to that of a governmental body . . . who is a named party, it will be assumed that the [landowner’s] interests are adequately represented [by the governmental body], absent a ‘concrete showing of circumstances in the particular case that make the representation inadequate.’ [Cit.]” (Footnote omitted.)

That case does not control the question here. First, Post Properties involved intervention as a matter of right under OCGA § 9-11-24 (a) (2), when the issue was whether an applicant’s interests were “adequately represented” within the meaning of that section. Second, by its very language the cited portion of Post Properties applies only when the interests of the governmental body and the landowner are identical. The county’s position in the prior action in superior court advocated the interpretation of the plat that the developer and it had agreed upon. The county did not advocate the interpretation Cleland sought and their interests were not “identical.” Also, footnote nine of Post Properties does not stand for the proposition that a landowner’s interests are always identical to the governmental body’s but merely rejects the argument that a landowner has a “specific interest” in proper zoning that is different from the government’s “generalized interest,” in the context of OCGA § 9-11-24 (a) (2). Id. at 219, n. 9. Even in the context of OCGA § 9-11-24 (a) (2), there is the opportunity to show that the representation is inadequate.

It is uncontroverted that in the prior proceeding the county advocated that the ordinance should be given the same interpretation the developer advocated. As Cleland championed a materially different interpretation, the county did not make an “adequate representation” of Cleland’s interests, even if Post Properties language is applied. Cleland is not a privy of the county for purposes of applying collateral estoppel in this litigation. See Miller, supra at 387-388 (1).

Further, “[i]n order to successfully plead collateral estoppel . . . [cit.], one must prove that the contested issues, even though arising out of a different claim, were actually litigated and decided and were necessary to the prior decision. [Cits.]” Boozer v. Higdon, 252 Ga. 276, 278 (1) (313 SE2d 100) (1984);' see also Miller, supra at 387 (issue must be “actually adjudicated” in prior proceeding). As the interpretation advanced and accepted was uncontested, it was not “actually litigated” regardless of whether any party was theoretically representing Cleland. It was error to conclude that Cleland’s action was barred by collateral estoppel.

The court also based its order on the ground that the action was moot because the county had issued the requested certificate of occupancy and the property was sold to a third party. Cleland points out that during the hearing the court specified only collateral estoppel as a basis for its decision, but the court’s written order specifies mootness as a ground for granting summary judgment (although dismissal would be the proper disposition of a moot appeal). After the written order was entered, Cleland moved for reconsideration and argued that basing the decision on mootness was beyond the intent the court declared at the hearing. The court has not acted upon Cleland’s motion, and we must conclude that the court based its decision on the ground of mootness as well as collateral estoppel.

Decided June 3, 1997.

Before Judge Rodatus, pro hac vice.

Stanley E. Kreimer, Jr., for appellant.

Caryl Sumner, Karen G. Thomas, Michael V. Stephens II, Webb, Tanner & Powell, Anthony O. L. Powell, Robert J. Wilson, for appellees.

This is not a case in which an injunction against issuance of the certificate of occupancy was the only relief sought. Compare Branch v. Housing Auth. &c. of Atlanta, 134 Ga. App. 906, 907 (1) (216 SE2d 633) (1975). In addition to asking for a restraining order against the issuance of the certificate, Cleland sought a declaratory judgment on the meaning of the zoning ordinance, attorney fees for stubborn litigiousness, and damages to the value of her property. These claims survive the issuance of the certificate so the action below is not moot.

Judgment reversed.

McMurray, P. J, and Smith, J., concur.


author: Andrews, Chief Judge. Beasley, Judge,

text:
    A97A0475.
    HICKS et al. v. STARGEL et al.
    (487 SE2d 428)
   Andrews, Chief Judge.

Kimberly and Stephen Hicks appeal from the trial court’s Order of Final Adoption granting the Stargels’ petition to adopt their child, Jonathan Hicks. The Hickses attempted to revoke their consent to the adoption, even though this revocation was outside the ten-day limit provided for in OCGA § 19-8-9. The trial court found the Hickses had shown no legal reason for revoking their surrender of parental rights and consent to adoption. We affirm the judgment of the trial court.

The Stargels instituted the adoption proceedings after the Hickses left their ten-month-old son, Jonathan, in the Stargels’ care. At the time, the Hickses were staying with relatives because they could no longer afford to live on their own. They said they left Jonathan with Mrs. Stargel, Stephen Hicks’ cousin, because Kimberly Hicks hurt her back and Stephen Hicks was spending all his time looking for work.

The Stargels wanted to adopt Jonathan and asked an attorney to draw up adoption papers. Both couples met with the lawyer, and the Hickses signed a surrender of rights and release for adoption. It is undisputed that the attorney explained the documents and had both parents read them before signing. The attorney also explained to the parents that they could withdraw their surrender within ten days. Twelve days later, the Hickses attempted to withdraw their consent.

The court held a hearing on the petition for adoption at which both the Stargels and Hickses were represented by counsel. Following the hearing, the court entered an order granting the Stargels’ petition. The court found that the Hickses were fully informed of the content and the import of the documents they were signing and also that both were sufficiently intelligent to read and understand the surrender and release.

1. OCGA § 19-8-9 (b) provides that a parent has the right to withdraw a surrender of parental rights within ten days; however, “[a]fter ten days, a surrender may not be withdrawn.” This Court has recently rejected the reasoning that a surrender may be withdrawn after the ten-day period for “ ‘good and sufficient cause.’ ” In the Interest of B. G. D., 224 Ga. App. 124, 128 (479 SE2d 439) (1996). Accordingly, the surrendering parent must show duress, fraud or incapacity when signing the surrender, and then, as with all contracts, the consent is invalidated and the surrender becomes voidable. Id. at 128-129.

Here, the Hickses argue the surrender was invalid because there was conflicting evidence regarding “discussions about temporary custody, whether there was an agreement for continued visitation, whether there was any hurry to conclude the adoption, whether the appointment with [the attorney] was for an adoption or for custody, [and] whether the Hickses’ fear of DFCS was known by the Stargels.” The Hickses argue that in deciding these issues, the trial court did not weigh the evidence fairly or scrutinize the credibility of the adoptive parents.

The trial court is given wide discretion in determining matters in adoption proceedings, and when as here, the court has the opportunity to question and observe the parties, “if the court’s judgment is supported by any evidence, and is not clearly erroneous, an appellate court is not authorized to set it aside.” (Citations and punctuation omitted.) Schumacher v. Sexton, 216 Ga. App. 628, 630 (455 SE2d 348) (1995), disapproved on other grounds, In the Interest ofB. G. D., supra at 128. The reasons given by the Hickses for revoking their consent, as set out above, show no evidence of fraud, duress or incapacity sufficient to invalidate the consent. Mrs. Hicks testified at the hearing that she and her husband were in the attorney’s office signing and going over the adoption papers for an hour and a half. She stated that they were given copies of the documents before the attorney went over the papers with them. Both Mr. and Mrs. Hicks said they read the documents before signing. The court questioned Kimberly Hicks in detail as to whether she could read and whether she understood the surrender and release. Mrs. Hicks replied that she was a high school graduate. When questioned by the court, she admitted she gave up the child and then later decided she wanted him back. She also admitted the lawyer explained that this was an adoption and that it was permanent, not temporary. Stephen Hicks testified that he went through the tenth grade in school and also testified that he read the adoption papers.

The attorney who prepared the adoption papers stated that he went over the contents of the documents twice, once with Kimberly and once with Stephen. He testified that there was no confusion as to what the adoption meant, that it was to be permanent and not temporary. He also stated that no pressure was put on the Hickses to sign the document. The attorney testified that the only comment he heard the adoptive parents make in that context was that if the Hickses wanted them to take and raise the child, then it would have to be done legally because they did not want the Hickses to come back later and take the child away. Accordingly, the trial court correctly determined that there was no legal reason to revoke the Hickses’ surrender of parental rights.

2. The Hickses also argue that the court improperly intervened on behalf of the adopting parents. They complain that the trial court’s questions were designed to elicit evidence favorable to the adoptive parents. This enumeration is totally unsupported by citations to the record. Although appellants’ brief states that an attachment lists citations to the transcript of comments by the court, we find no attachment. Moreover, it was certainly proper for the court, as factfinder in this case, to ask any and all questions it deemed necessary in order to reach a decision. See, e.g., Haralson v. State, 223 Ga. App. 787, 791 (479 SE2d 115) (1996) (trial judge has right to question witnesses for the purpose of developing fully the truth of the case).

3. In their last enumeration, the Hickses claim they were induced to surrender their child by payments in the form of food, lodging, and transportation. OCGA § 19-8-24 (a) makes it unlawful for anyone to hold out inducements to parents to part with their children. It defines the term “ ‘inducement’ to include any direct or indirect financial assistance except ‘payment or reimbursement of the medical expenses directly related to the mother’s pregnancy and hospitalization for the birth of the child and medical care for the child.’ ” Douglas v. State, 263 Ga. 748, 749 (3) (438 SE2d 361) (1994).

At the time of the adoption, the Hickses were living with Mrs. Stargel’s mother, who was also Stephen Hicks’ aunt. The Hickses claim that it is not necessary to find that this was done with the intent to unduly influence the Hickses, but rather that it reflected on the inability of the parties to reach an arm’s length agreement. We disagree. The law is that financial assistance must be held out in order to induce the parents to part with their child. Douglas, supra at 749. While it can be argued that offering shelter to the Hickses is a form of indirect financial assistance, the Hickses must show that it was offered as an inducement to part with their child. Id. They point to no evidence in the record showing that Mr. Hicks’ aunt took them in on the condition that they give their child up for adoption.

The Hickses also point to the Stargels’ testimony that they (the Stargels) were buying the baby’s milk, diapers, clothes, and bottles. But, the Hickses admit they left the baby with the Stargels before the adoption proceedings and asked them to care for him. Since the care and feeding of the baby was done at the Hickses’ request, they cannot now claim that it was an inducement to part with the child. See In the Interest of A. M. Y., 189 Ga. App. 847 (377 SE2d 893) (1989) (other than assumption of the financial obligation to provide care for the child, there was no financial inducement or consideration flowing from petitioner to biological mother).

Judgment affirmed. Beasley, J., concurs specially.

McMurray, P. J., concurs in the judgment only.

Beasley, Judge,

concurring specially.

I concur in the judgment, with the following qualifications.

1. The opinion measures the Hickses’ evidence, with respect to their reasons for revoking consent, by the test provided by law for revocation of surrender of their son. The opinion states that the Hickses must show evidence (presumably by preponderance) "of fraud, duress or incapacity sufficient to invalidate their consent.” In In the Interest of B. G. D., 224 Ga. App. 124, 127 (479 SE2d 439) (1996), we agreed whole court that a surrender can be set aside if (by preponderating evidence) it was "based on duress, fraud, incapacity or other grounds which address the voluntariness of the consent.” We should keep the exact language; as it is a court-created rather than statutory legal test, it will be used repeatedly, and it is crucial to the finality of adoptions.

2. Further, the opinion states that “the Hickses must show that [shelter] was offered as an inducement to part with their child.” As authority for the establishment of this requirement of proof of fact and burden of proof, Douglas v. State, 263 Ga. 748, 749 (3) (438 SE2d 361) (1994), is cited. The opinion in that case does say that “In order to violate § 19-8-24 (a) (2), . . . the financial assistance must be held out to induce parents to ‘part’ with their child.” The Court is there construing a criminal statute and interpreting it to mean that the State must prove this fact beyond a reasonable doubt. This statute has implications in the context of the adoption proceeding as well, in that the same requirement of proof of fact would be put on the surrendering parents as put on the State, but for a different purpose. The State seeks to prove a criminal act. The surrendering parents seek to prove, by this same evidence, that the surrender was not voluntary as a matter of law because it was illegally induced. That would be one of the “other grounds” referred to in B. G. D., supra.

Decided June 3, 1997.

Before Judge Stevens.

Thurmond, Mathis & Pickett, Janice L. Mathis, for appellants.

Knox & Swan, William B. Swan, Jr., for appellees.

It helps put the evidence in context when it is known that the child was a baby when the adoption proceeding began in April 1996 and concluded in September. The child was born October 17, 1995.


author: Ruffin, Judge.

text:
    A97A0501.
    HASH v. THE STATE.
    (487 SE2d 452)
   Ruffin, Judge.

A jury found Robert Hash guilty of theft by receiving. In his sole enumeration of error, Hash argues that the evidence was insufficient to support his conviction. For reasons which follow, we affirm.

“‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and [Hash] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) ((1979)). ... As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ . . . [Cit.]” Leigh v. State, 223 Ga. App. 726, 728 (2) (478 SE2d 905) (1996).

Construed most favorably to support the verdict, the record shows the following. Hash was dating Merri Fries, who lived with her son, Phillip, in a trailer home in Cherokee County, Georgia. While at the trailer home one evening, Hash and Phillip decided to visit Merri at the nearby Waffle House where she worked. The two men drove in separate cars from the Fries’ trailer, and at some point, Hash turned onto a side street. Phillip proceeded to the Waffle House, where Hash met him approximately 30 minutes later. Hash testified that he did not follow Phillip directly to the Waffle House because he stopped briefly at a friend’s home.

Hash and Phillip ate at the Waffle House and then returned to the Fries’ trailer. Upon their return, they found Merri Fries’ bedroom in disarray and determined that the VCR and several compact discs were missing from the living room. Phillip telephoned the police department, which dispatched an officer to investigate and prepare an incident report.

During the investigation, Hash became a suspect in the burglary and was interviewed by Detective Michael Sweat. Sweat testified about the interview as follows. Hash stated that after the theft, he saw the Fries’ VCR and other property in a van belonging to Jesse Melton, who told Hash that he stole the property. Hash pulled his car to the side of the van and moved the property from the van to his vehicle. Hash further told Sweat that “he took the items to a house in Kennesaw and that if [the police] went looking for the property there would be a shoot-out.”

Detective Sweat testified that he also questioned Melton, who reportedly saw Hash with a VCR and compact discs and discussed selling the VCR with Hash. Melton testified at trial that he bought the VCR from Hash for $60 in drugs.

We find this evidence sufficient to sustain Hash’s conviction for theft by receiving stolen property. Under OCGA § 16-8-7 (a), “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control or lending on the security of the property.”

According to Detective Sweat, Hash admitted that he took possession of the stolen property, which he delivered to another location. The State also presented evidence that Jesse Melton saw Hash with a VCR and compact discs and that Hash sold him the VCR for $60 in drugs. On appeal, Hash challenges the credibility of this testimony. Witness credibility, however, is determined by the jury, not this Court. Leigh, supra; Walker v. State, 171 Ga. App. 926 (321 SE2d 766) (1984).

“Based on all of the evidence adduced at trial, any rational trior of fact could have concluded beyond a reasonable doubt that [Hash] was guilty of theft by receiving. [Cits.]” Id. at 926. Accordingly, his enumeration of error is without merit.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

Decided June 3, 1997.

Before Judge Roach.

Barry W. Bishop, for appellant.

Garry T. Moss, District Attorney, Morris H. Wiltshire, Jr., Kimberly K. Frye, Assistant District Attorneys, for appellee.


text:
    A97A0550.
    SAYERS v. THE STATE.
    (487 SE2d 437)
   Ruffin, Judge.

Timothy Sayers appeals from his conviction for driving under the influence of alcohol. In his sole enumeration of error, Sayers argues that the trial court erred in failing to suppress evidence gathered as a result of an investigatory traffic stop. For reasons which follow, we affirm.

“ Tn reviewing a trial court’s decision on a motion to suppress . . . , our responsibility is to ensure that there was a substantial basis for the decision. In so doing, we may consider all relevant evidence of record, wherever located, including evidence introduced at a suppression hearing and that introduced at trial; we construe the evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them.’ . . . [Cits.]” (Emphasis omitted.) State v. Brodie, 216 Ga. App. 198, 199 (1) (c) (453 SE2d 786) (1995).

Viewing the evidence most favorably to uphold the trial court’s ruling, the record shows the following. Yvonne Weed testified that while driving home one evening on 1-20 near Atlanta, she encountered a white pickup truck pulling a flatbed trailer. The pickup truck, which was weaving and swerving in the center lane, almost struck her vehicle and another vehicle on the interstate. Concerned about the truck driver’s ability to maintain his lane, Weed called 911. She described the truck to the 911 dispatcher and, at the dispatcher’s request, continued to follow it. She observed the truck weave toward another car and then swerve into the right-hand lane, where it began to travel partially in the emergency lane. Weed reported the truck’s movements to the 911 dispatcher.

Several miles after Weed began following the truck, it exited from the interstate and pulled into a service station. At the direction of the 911 operator, Weed followed and stopped in the service station parking lot where she could observe the truck. She saw Sayers exit the truck, stumble, and have difficulty working the gasoline pump. Weed further testified that his “gait was staggered, ... he was not quite balanced, and he had to put his hand up against his vehicle to brace himself.”

Shortly thereafter, Rockdale County Sheriffs deputies arrived at the scene. When a male deputy approached Weed, she “told him exactly what had happened; that [she] began following the vehicle at 1-20 just before Evans Mill Road and continued to describe . . . what [she] had observed.” Weed then identified the truck for the deputy.

Deputy Robert Rowe testified that he responded to the service station, where he spotted an unoccupied truck that met the description given by Weed to the 911 dispatcher. Rowe then located Weed, who identified the truck and stated that Sayers was in the service station store paying for gasoline. After speaking with Weed, Rowe parked his patrol car in front of Sayers’ truck to prevent its exit and watched Sayers as he walked from the store. According to Rowe, Sayers was “swaying like he was unsteady on his feet[, and] [w]hen Sayers approached his vehicle, [Rowe] noticed a strong odor of alcoholic beverage about his person.” Rowe took Sayers’ driver’s license and held him until another deputy arrived, at which point Sayers submitted to several field sobriety tests and was subsequently arrested.

Sayers argues that by blocking his truck with a patrol car, Deputy Rowe improperly seized him without any articulable suspicion of wrongdoing. We disagree.

An officer may conduct a brief investigatory stop when “ ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). [Cit.]” Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994). In determining whether the facts authorized the stop, a court must “take the totality of the circumstances into account and determine whether the detaining officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ [Cit.]” Id.

The parties do not dispute that an investigatory stop took place. The State argues, however, that Weed’s information provided the basis for stopping Sayers. Sayers responds that Weed’s tip was not sufficient and that the police had no other articulable basis for the stop until after it occurred. In particular, Sayers argues that Rowe’s testimony regarding Sayers’ unsteady gait when walking from the service station store cannot support the stop because Rowe blocked the truck before he observed Sayers’ behavior.

Pretermitting any question of when the stop actually occurred, we find that Rowe had a reasonable articulable suspicion that Sayers was under the influence of alcohol before he blocked the truck. “ ‘Although a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity, if the tip is detailed enough to provide some basis for predicting the future behavior of the suspect, reliability may be established if the details are corroborated by the observations of the police.’. . . [Cit.]” Brown v. State, 223 Ga. App. 364, 366 (477 SE2d 623) (1996). Weed’s detailed information regarding Sayers’ movements and behavior, combined with Rowe’s observation of the truck when he first arrived at the scene, provided sufficient basis for the stop.

“ A concerned citizen has always been given a preferred status regarding the testing of the credibility of [her] reported information. [Cit.]’ [Cits.]” Id. Weed’s credibility deserves this preferred status. She did not simply leave an anonymous tip. Compare VonLinsowe v. State, 213 Ga. App. 619, 620 (1) (445 SE2d 371) (1994) (information provided by unidentified caller had no inherent reliability and was insufficient to authorize a stop). Rather, she telephoned 911, followed Sayers at the 911 dispatcher’s request, and gave detailed information over an extended period of time regarding Sayers’ truck, his movements, and his erratic driving behavior. She also met with Rowe at the scene and reported that Sayers had difficulty walking once he exited the truck. Weed’s information was corroborated by Rowe, who arrived at the scene and immediately saw the truck described by Weed to the 911 operator.

Considering the totality of the circumstances, the trial court properly found that Rowe had “ ‘a particularized and objective basis for suspecting [Sayers] of criminal activity.’ [Cit.]” Vansant, supra at 320 (2). That Deputy Rowe did not witness Sayers’ erratic behavior before he blocked the truck does not undermine the legality of the stop. “ ‘Given the fact that [Rowe] had received information that the driver of this [truck was unsteady on his feet and driving erratically], . . . and that he first spotted the [truck at a gasoline pump, raising the reasonable inference that the truck would soon reenter] a public thoroughfare, it is obvious that he had a legitimate purpose in stopping the [truck] without a traffic violation having occurred [in his presence] in order to ascertain the condition of the driver.’ ” State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991).

Accordingly, the trial court did not err in refusing to suppress information gathered during the investigatory stop. See Brown, supra; McFarland, supra. Compare Vansant, supra at 321 (2) (concerned citizen’s tip regarding intoxicated hit-and-run driver in white van did not give officer sufficient basis to stop appellant’s van because officer “did not have a particularized description of the vehicle; he did not know the direction in which the vehicle had left the scene of the purported hit-and-run; he had not observed criminal activity on the part of the [appellant]; [and] he had no knowledge or suspicion that the vehicle had been involved in other similar criminal behavior”).

Decided June 3, 1997.

Before Judge Todd.

Robert W. Chestney, for appellant.

Michael M. Hawkins, Solicitor, James M. Miskell, Assistant Solicitor, for appellee.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J, concur.


author: Johnson, Judge.

text:
    A97A0602.
    STEPHENS v. ADKINS et al.
    (487 SE2d 440)
   Johnson, Judge.

Plaintiff Barbara Stephens Adkins and defendant Larry Stephens are the children of Elza Ray Stephens. It is undisputed that Larry Stephens killed their father, for which he was convicted of voluntary manslaughter. In brief, the evidence shows Larry Stephens shot his father in the legs with a shotgun, then used the gun as a club to strike a fatal blow to his head.

Adkins, individually and in her capacity as the administrator of Elza Stephens’ estate, filed a declaratory judgment action against her brother and Equicor, Inc., her father’s life insurance company, seeking to establish that Larry Stephens could neither inherit from the estate nor receive the life insurance benefits to which he would otherwise have been entitled as a named beneficiary under the policy. The trial court granted Adkins partial summary judgment as to the life insurance benefits, which this Court affirmed in an earlier opinion. Stephens v. Adkins, 214 Ga. App. 653 (448 SE2d 734) (1994). The trial court then granted summary judgment to Adkins on the inheritance issue as well, from which Stephens now appeals. We reverse.

1. In ruling on a motion for summary judgment, a court must construe the evidence and all inferences and conclusions arising from it most favorably toward the nonmovant. SunAmerica Financial v. 260 Peachtree Street, Inc., 202 Ga. App. 790, 793 (2) (a) (415 SE2d 677) (1992). The motion should be granted when the evidence, so construed, shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See OCGA § 9-11-56 (c). We review a grant of summary judgment de novo. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

2. OCGA § 53-4-6 (a) provides that one who kills “with malice aforethought” may not inherit from the victim’s estate. Stephens correctly contends the trial court erred in finding that no genuine issue remains as to whether he acted with malice aforethought.

(a) Stephens’ voluntary manslaughter conviction does not establish that he acted with malice, because malice is not an element of voluntary manslaughter. See generally McGill v. State, 263 Ga. App. 81, 83 (3) (428 SE2d 341) (1993). Nor is malice established by Stephens v. Adkins, supra, because a valid voluntary manslaughter conviction is sufficient to render one ineligible to receive life insurance benefits under OCGA § 33-25-13. See Stephens v. Adkins, supra at 654.

(b) A killing done with malice aforethought is murder. OCGA § 16-5-1 (a). However, the fact that the jury in Stephens’ criminal case failed to find him guilty of murder does not establish that he acted without malice aforethought. This is so for several reasons: (1) The record does not show Stephens was even charged with murder in the criminal trial. (2) The evidence in the present record is not the same evidence adduced in the criminal trial. (3) While the jury in the criminal trial was bound by the “beyond a reasonable doubt” standard, a jury in the present proceeding would decide the case under the “preponderance of the evidence” standard. See generally Neal v. Neal, 160 Ga. App. 771, 772-773 (287 SE2d 109) (1982).

(c) We must therefore consider whether the evidence in this record establishes that Stephens acted with malice aforethought. We hold that it does not.

“ ‘Malice is a matter of intent, and the intent of a criminal accused is a matter peculiarly within his own knowledge. . . .’ ” Sheffield v. State, 241 Ga. 245, 246-247 (2) (244 SE2d 869) (1978). Proof of malice therefore “does not readily lend itself to summary disposition.” (Citation and punctuation omitted.) Barber v. Perdue, 194 Ga. App. 287, 289 (390 SE2d 234) (1990). In this case, as in most cases in which the defendant’s intent is an issue, the only direct evidence of intent is the defendant’s own statement. In his affidavit, Stephens contends that his father attacked him in their house with a shotgun; that he wrestled the shotgun away, then followed his father outside because he feared the elder Stephens would retrieve another weapon from his truck; that the shotgun discharged accidentally, striking his father’s legs; and that his father then attacked him again, so he struck the fatal blow in self-defense. Though this statement is suspect both because it is self-serving and because it contradicts the accounts of several eyewitnesses, ultimately the question of whether to believe Stephens or the other witnesses is one of credibility. Where credibility is the controlling question, summary judgment is not appropriate. Harding v. Ga. Gen. Ins. Co., 224 Ga. App. 22, 25 (479 SE2d 410) (1996). “The success of an attempt to impeach a witness is always a jury question, as is the credibility of the witnesses.” (Citation and punctuation omitted.) Id.

Decided June 3, 1997.

Before Judge Overstreet.

William R. McCracken, for appellant.

Dunstan, Dunstan & Cleary, Mark A. Cleary, for appellees.

Moreover, a jury could infer a lack of malice from deposition testimony Stephens presents of a neighbor, a police officer, and a psychiatrist. The neighbor testified that until the killing Stephens had been a kind, respectful person, and had a high regard for his father. The police officer said that, based in part on his investigation of the physical evidence inside the house, he believed there had been a physical or verbal altercation inside before the killing outside. The psychiatrist opined that Larry Stephens had a longstanding and “fairly severe” paranoid personality disorder.

Though Adkins presented compelling evidence on the issue of malice, neither the trial court nor this Court may engage in weighing it against Stephens’ evidence to the contrary. See Washington v. Ga. Baptist Med. Ctr., 223 Ga. App. 762, 767 (3) (478 SE2d 892) (1996). The trial court therefore erred in granting summary judgment to Adkins.

Judgment reversed.

Pope, P. J., and Blackburn, J., concur.

        Barber deals with “actual malice” in a defamation case, which of course is defined differently than “malice aforethought” as used in OCGA § 53-4-6 (a). See OCGA § 16-5-1 (b). However, because both kinds of malice are states of mind, the same principles of proof apply.


text:
    A97A0656.
    SANDERS v. THE STATE.
    (487 SE2d 442)
   Ruffin, Judge.

A jury found Thomas Sanders guilty of selling cocaine in violation of the Georgia Controlled Substances Act. Sanders appeals, challenging the sufficiency of the evidence, certain evidentiary rulings by the court, and the court’s ruling allowing him to conduct his own closing argument. We affirm.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that in 1991, the Athens-Clarke County Drug Task Force was conducting an undercover drug operation. As part of the task force, undercover Detective Jim Armstrong visited different bars throughout Clarke County and attempted to make contact with individuals selling drugs. Armstrong testified that after meeting a suspect, he would attempt to “get him to sell to you later on down the road[,]” which Armstrong explained could be up to six months. Detective Armstrong stated that he met Sanders in January 1991 at the Night Owl Lounge through another individual, Ronnie Stone, who “was involved in the sale of cocaine.” After meeting Sanders, Armstrong saw him at the Night Owl Lounge on a weekly basis.

The cocaine sale which is the subject of this case occurred on April 15,1991. Detective Armstrong testified that he told Sanders he was looking for some marijuana, and Sanders responded that he could get him some cocaine. Armstrong and Sanders then walked to Armstrong’s car to complete the transaction. Armstrong testified that when they arrived at the car, Sanders told him that Ronnie Stone was his source for the cocaine, then “reached into his pocket, pulled out a baggie, a plastic bag that contained at least seven half grams of cocaine. He sold [Armstrong] two of those [half grams] for one hundred dollars.” Armstrong testified that after Sanders left the car, he field-tested the substance and it tested positive for cocaine. The substance subsequently tested positive for cocaine at the state crime laboratory. Detective Armstrong identified Sanders at trial as the individual who sold him the cocaine.

We find meritless Sanders’ argument that Armstrong’s identification testimony, which came approximately three and one-half years after the sale, was insufficient to support the conviction. The issue of whether Armstrong accurately recalled the events after this lapse of time is a matter of credibility which was properly resolved by the jury. See Ledford v. State, 221 Ga. App. 238 (1) (470 SE2d 796) (1996). Furthermore, the fact that Sanders was the sole eyewitness to the cocaine sale does not render the evidence insufficient. Detective Armstrong had numerous opportunities to observe Sanders and unequivocally identified him at trial as the individual who sold him the cocaine. Under these circumstances, we find that the evidence was sufficient for a rational trier of fact to find Sanders guilty beyond a reasonable doubt of selling cocaine. See id.; Muff v. State, 210 Ga. App. 309 (1) (436 SE2d 47) (1993).

2. Sanders asserts that the trial court erred in admitting testimony that put his character in evidence. The testimony referred to was that given by Detective Armstrong during direct examination when the assistant district attorney was asking him about meeting people in bars: “Q. Did you get to meet a lot of different people during that time? A. Yes, I met a lot of people. Ronnie Stone was one individual at. the Night Owl Lounge that was — he was involved in the sale of cocaine. That’s how I was able to meet Tommy Sanders, was through Ronnie Stone.”

Even if we find that such testimony impermissibly placed Sanders’ character in evidence by showing he associated with a drug dealer, its admission was harmless in this case. Detective Armstrong’s other testimony concerning the discussion which occurred during the cocaine sale showed that Stone was Sanders’ source for the cocaine. This testimony, which also showed that Sanders associated with Stone, a drug dealer, was admissible as part of the res gestae. See Riseden v. State, 181 Ga. App. 453 (1) (352 SE2d 634) (1987). Accordingly, the testimony which Sanders relies on in support of this enumeration was merely cumulative of other admissible testimony. “Evidence is harmless where admissible evidence of the same fact is before the jury. [Cits.]” Scott v. State, 206 Ga. App. 23, 26 (1) (c) (424 SE2d 328) (1992). See also Riseden, supra. Accordingly, this enumeration is without merit.

3. Sanders asserts that the trial court erred in admitting evidence concerning the cocaine because the State’s chain of custody evidence contained gaps. We disagree.

“A chain of custody is sufficiently established when circumstances establish a reasonable assurance of the identity of the sample. [Cit.] The State’s burden is met with a showing that, with reasonable certainty, the evidence examined is the same as that seized and that there has been no tampering or substitution; where there is only a bare speculation of tampering, it is proper to admit the evidence and ‘let whatever doubt remains go to its weight.’ . . . [Cit.]” Jordan v. State, 223 Ga. App. 176, 182 (3) (477 SE2d 583) (1996).

In this case, the chain of custody evidence showed that after purchasing the cocaine, Detective Armstrong put it into a bag, stapled a completed evidence control form to the bag, and placed it in a safe. The control form contained Armstrong’s name, the name of the individual he purchased the substance from, Tommy Sanders, the location of the purchase, a description of the evidence, a case number, and the chain of custody. Another task force agent, Charles Porterfield, testified that he received the evidence from George Garrison, the evidence custodian at the time, and gave it to Larry Wheeler, a forensic chemist at the crime laboratory. Porterfield further stated that only two people had access to the evidence safe, George Garrison and Jimmy Carroll. Larry Wheeler testified that after receiving the evidence from Porterfield, he put it in a locked cabinet until he tested it.

Despite Sanders’ unsubstantiated speculation that the cocaine was tampered with, the above evidence established, with reasonable certainty, that the substance tested was the cocaine Detective Armstrong purchased from Sanders. See id. Furthermore, the fact that the evidence was destroyed between the time of the testing and the offer of the test results in evidence did not render those results inadmissible. Spivey v. State, 170 Ga. App. 196, 199 (316 SE2d 822) (1984). The trial court did not err in admitting the results.

4. In his final enumeration of error, Sanders, who was represented by trial counsel, asserts that the trial court erred in allowing him to conduct his own closing argument. We disagree.

The transcript shows that after Sanders requested the right to conduct closing argument, his trial counsel and the trial court both warned him of the risks, and Sanders stated that he understood the risks. Furthermore, after the trial court granted Sanders’ request, it required counsel to continue his representation of Sanders. See Lazenby v. State, 181 Ga. App. 854 (1) (354 SE2d 196) (1987) (trial court’s decision to afford appellant right of self-representation and right to have counsel present was not erroneous). Finally, even if the trial court’s decision had been erroneous, Sanders has not shown by the record how he was harmed by the ruling. In the absence of such a showing, and in light of the evidence presented, Sanders’ assertion that the ruling “effectively sabotaged any chance for acquittal” is mere speculation and not a ground for new trial. See id. at 854-855; Kennedy v. State, 205 Ga. App. 152, 155 (4) (421 SE2d 560) (1992).

Decided June 3, 1997.

Before Judge Stephens.

Joel N. Shiver, for appellant.

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A0708.
    MANCHESTER v. THE STATE.
    (487 SE2d 449)
   Ruffin, Judge.

A jury found Paul Manchester guilty of two counts of armed robbery and one count of possession of a firearm during the commission of a felony. Manchester appeals from the denial of his motion to suppress pretrial statements and his motion for new trial. For reasons which follow, we affirm.

The convictions stemmed from the robbery of a Subway restaurant located in Duluth, Georgia. At approximately 10:30 p.m., a masked individual entered the restaurant, pulled out a gun, and demanded money. The manager gave the individual the money in the cash register, and a customer emptied her purse on the counter. The perpetrator took the money and exited the store.

Four days after the robbery, Manchester appeared at the Gwinnett County Detention Center. Deputy Lana Rutledge, who was working internal security at the detention center, testified that she was asked to report to the detention center lobby because Manchester was turning himself in for committing a crime. She described the lobby as a large, open room with no holding cells, in which people are free to come and go. When Deputy Rutledge arrived, Manchester was sitting in the lobby. Deputy Rutledge asked Manchester for his name and address. Although Manchester gave her the information, Rutledge could not locate an arrest warrant for him. Rutledge asked Manchester if he was sure there was a warrant for his arrest. According to Rutledge, Manchester responded that “there might not be if nobody knew who did it.” Deputy Rutledge told Manchester to “stay where he was,” and returned to the front desk to discuss the situation with another deputy.

After speaking with the other deputy, Deputy Rutledge asked Manchester to come over to the front desk with her. When Manchester came to the front desk, Rutledge told him that she was going to ask him some questions. Manchester responded that “ ‘he was reluctant to answer any questions.’ ” Another deputy explained to Manchester that in order to help him, they had to ascertain whether he committed a crime. In response to questions posed by Deputy Rutledge, Manchester then stated that he robbed the Subway off Peachtree Industrial Boulevard at approximately 11:00 p.m.

Rutledge then accompanied Manchester back to the seating area while the other deputy contacted the Duluth Police Department. According to Rutledge, when they arrived at the seating area, she did not initiate any conversation, but “Manchester volunteered the fact he could prove that he had committed the crime. . . .” Manchester told Rutledge that “he had gotten $280 in the robbery[,] ... he had used a gun[,] . . . [and he] had a mask on.” Manchester was then placed in a holding cell where he waited until investigators from the Duluth Police Department questioned him. Deputy Rutledge testified that Manchester was not in custody until he was placed in the holding cell.

When Duluth Police Department Detectives Logan and Stephens arrived at the detention center approximately one and one-half hours later, they met with Manchester in an interview room. Detective Stephens asked Manchester what he was there for, and Manchester replied “ ‘because of the robbery at Subway’ or ‘I did the robbery.’ ” Detective Stephens then read Manchester his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Immediately thereafter, Manchester stated “ ‘you can’t use this. I know my rights. You can’t use this.’ ” Detective Stephens proceeded with the questioning during which Manchester periodically repeated the preceding statements. Detective Logan testified that no promises were made to Manchester, that he never requested an attorney, and that he never told the detectives that he wanted to stop the interview.

Manchester moved the trial court to suppress all the statements he made to both the Gwinnett County deputies and the Duluth detectives. The trial court denied the motion with regard to most of the statements, but suppressed Manchester’s response to Detective Stephens’ first question, which the court found was posed while Manchester was in custody but before he was informed of his Miranda rights.

1. Manchester asserts that his statements to the Gwinnett County deputies should have been suppressed because he was in custody at the time and was not informed of his Miranda rights. According to Manchester, he was in custody by virtue of Deputy Rutledge’s statement to him to “stay where he was.”

“In determining whether a suspect was in custody for Miranda purposes, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. The ultimate inquiry is a mixed question of law and fact.” (Citations and punctuation omitted.) State v. Wintker, 223 Ga. App. 65, 66 (476 SE2d 835) (1996). The task of ascertaining the circumstances surrounding the interrogation is a purely factual determination and, on appeal, receives deferential treatment. Id. In this case, although the trial court did not make any findings concerning the surrounding circumstances, those facts are not disputed. Given those circumstances, we must now determine whether “a reasonable person in [Manchester’s] position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.” Id. at 67. Under this test, we conclude that Manchester was not in custody at the time he was questioned by the Gwinnett deputies and they were not required to inform him of his Miranda rights. Moreover, an arrest is not usually effectuated with such a bland command.

We note first that the mere fact that the questioning took place in the detention center does not require a finding that Manchester was in custody. Hardeman v. State, 252 Ga. 286, 288 (1) (313 SE2d 95) (1984). Neither is such a finding required by Deputy Rutledge’s statement to Manchester that he should “stay where he was.” See id. at 287. Furthermore, Manchester entered the detention center voluntarily in an effort to surrender to police. His statements to the deputies were not the result of any coercion, but were made in an effort to inform them of the offenses he committed and thereby accomplish his surrender. Cf. Moses v. State, 264 Ga. 313, 315 (1) (444 SE2d 767) (1994), citing Minnesota v. Murphy, 465 U. S. 420, 433 (104 SC 1136, 79 LE2d 409) (1984), for the proposition that “ ‘[c]ustodial arrest is said to convey to the suspect a message that he has no choice but to submit to the officers’ will and to confess.’ ”). The Gwinnett deputies’ questioning occurred solely in the detention center lobby where people are generally free to come and go. And, although Deputy Rutledge told Manchester to stay in the lobby area, she did so only because she left the area to discuss the situation with another deputy. Finally, it appears from the circumstances that Manchester had no intention of leaving the detention center until he accomplished his surrender. There is little else to account for Manchester’s unsolicited statement that “he could prove that he had committed the crime. ...” A reasonable person would not believe he had been arrested under these circumstances. See Hardeman, supra; Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16) (1995). Accordingly, the trial court did not err in refusing to suppress Manchester’s statements to the deputies on this ground.

2. Manchester also asserts that his statement to Deputy Rutledge that “ ‘he was reluctant to answer any questions’ ” constituted an equivocal invocation of his right to remain silent, and that upon such invocation, the most the deputies could do was ask questions to clarify the invocation. Manchester argues that even if he was not in custody, the deputies were still required to clarify his intentions. We disagree.

Pretermitting the question of whether Manchester’s statement constituted an equivocal invocation of his rights, we find that such requirement would have applied only if Manchester was in actual police custody. In Miranda, the Court clearly limited the requirements concerning a defendant’s right to remain silent to custodial interrogations. See Miranda, supra at 444-445, 473-474; see also Michigan v. Mosley, 423 U. S. 96 (96 SC 321, 46 LE2d 313) (1975). We have similarly recognized that “ ‘[o]nly in-custody statements by the accused give rise to the issues of voluntariness and the Miranda warnings.’ ” (Citation omitted.) Tibbs v. State, 207 Ga. App. 273 (1) (427 SE2d 603) (1993); see also Brady v. State, 259 Ga. 573, 576 (1) (385 SE2d 653) (1989); Hatcher v. State, 259 Ga. 274, 275 (2) (379 SE2d 775) (1989). Accordingly, because Manchester was not in police custody at this time, we find no error.

3. In two enumerations of error, Manchester asserts that his custodial statement to the Duluth detectives should have been suppressed. We pretermit resolution of this assertion, however, because we conclude that any error in admitting the statement was harmless. At trial, Duluth Detective Logan’s testimony concerning Manchester’s custodial statement showed that Manchester admitted to committing the offenses and related some of the details concerning the offenses. Deputy Rutledge, however, related substantially the same facts when she testified concerning Manchester’s precustody statements in which he admitted to committing the offenses. Moreover, Deputy Rutledge’s testimony concerning Manchester’s confession was corroborated by the Subway manager who was working the night of the robbery and the customer in the restaurant at the time. See Bigham v. State, 222 Ga. App. 353, 354 (474 SE2d 254) (1996). Because Detective Logan’s testimony was merely cumulative of Deputy Rutledge’s legally admitted testimony, any error in admitting evidence of Manchester’s custodial statement would have been harmless. See Tankersley v. State, 261 Ga. 318, 321 (2) (b) (404 SE2d 564) (1991); Griffis v. State, 222 Ga. App. 322, 324 (2) (474 SE2d 119) (1996).

Decided June 3, 1997.

Before Judge Clark.

Shaul, Sheinis & Hudson, Richard N. Sheinis, for appellant.

Daniel J. Porter, District Attorney, Ben L. Leutwyler III, Assistant District Attorney, for appellee.

4. Finally, we conclude that the foregoing evidence was sufficient for any rational trier of fact to find Manchester guilty beyond a reasonable doubt of the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Bigham, supra.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


author: Judge Harold R. Banke.

text:
    A97A0926.
    WILLIAMS et al. v. SING BROTHERS, INC.
    (487 SE2d 445)
   Judge Harold R. Banke.

Bessie Williams sued to recover for damages allegedly sustained when she slipped and fell while grocery shopping at Sing Brothers, Inc. d/b/a Food Mart (“Sing”). James Williams brought a loss of consortium claim. The Williams appeal the trial court’s grant of summary judgment to Sing.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence was as follows. Williams had shopped at this store on numerous occasions. On this particular visit, her sole objective was to purchase milk. After she obtained the milk and arrived at the checkout counter, the cashier advised her that for an additional ten cents she could purchase a gallon of milk instead of a half-gallon. A surveillance videotape clearly depicts Williams retracing her steps to the dairy section but suddenly slipping and falling while en route. Without elaborating on any reasons, the trial court found for Sing. Held:

1. The trial court properly granted summary judgment. It is undisputed that Williams was an invitee at the time of the incident. Liability for an invitee’s injuries in a slip and fall premises liability case is determined by the relative knowledge possessed by the owner and the invitee of the condition or hazard which resulted in injury. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305) (1992).

Decided June 3, 1997.

Before Judge Cowart.

Roy W. Copeland, for appellants.

To avoid summary judgment on her slip and fall claim, Williams had to show: (1) that Sing had actual or constructive knowledge of the foreign substance, and (2) that she was without knowledge of it or for some reason attributable to Sing was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Sing would be entitled to summary judgment if Williams knew about the alleged hazard or should have discovered and avoided it, unless the store somehow prevented her from discovering it. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991).

Pretermitting consideration of whether Williams can satisfy prong one of Ligón, the evidence shows she cannot satisfy prong two. A customer, like Williams, must exercise ordinary care for her own safety, and must by the same degree of care avoid the effect of the owner’s negligence after it becomes apparent to her or in the exercise of ordinary care, she should have learned of it. Bloch v. Herman’s Sporting Goods, 208 Ga. App. 280, 281 (430 SE2d 86) (1993). Notwithstanding Williams’ claim to the contrary, the videotape indisputably shows that Williams returned to the dairy case using the exact same path she had traversed moments before. When a person has successfully negotiated an allegedly dangerous condition on a previous occasion, that person is presumed to have knowledge of that condition and cannot recover for a subsequent injury resulting therefrom. Souder v. Atlanta Family Restaurants, 210 Ga. App. 291, 292 (1) (435 SE2d 764) (1993); Harpe v. Shoney’s, Inc., 203 Ga. App. 592, 593 (1) (417 SE2d 184) (1992); Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 612 (3) (376 SE2d 698) (1988). Having successfully pierced an essential element of Williams’ case, Sing was entitled to summary judgment as a matter of law. Lau’s Corp., 261 Ga. at 495.

2. It is not a ground for reversal that the trial court elected not to issue findings of fact and conclusions of law when it ruled on the summary judgment motion. Hopkins v. Hudgins & Co., 218 Ga. App. 508, 510 (1) (d) (462 SE2d 393) (1995). OCGA § 9-11-52; Dixie Diners Atlanta v. Gwinnett Fed. Bank, FSB, 211 Ga. App. 364, 366 (1) (439 SE2d 53) (1993).

Judgment affirmed.

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

Fendig, McLemore, Taylor, Whitworth & Durham, James B. Durham, Beth M. Duncan, for appellee.


author: Birdsong, Presiding Judge.

text:
    A97A1074.
    CARSON v. CARSON.
    (487 SE2d 447)
   Birdsong, Presiding Judge.

Appellant/defendant Vera Mapp Carson appeals from the final order of divorce, entered by the superior court, as to the limited appellate issues of lack of an award of attorney fees, regarding post-temporary hearing representation, and from the superior court’s modification and changing of the terms of a previous order entered for payment of temporary attorney fees. Appellant did not request and the appellate record does not include a transcript of either the temporary hearing at which temporary attorney fees were originally awarded or that portion of the trial record containing the subsequent hearing pertaining to attorney fees.

Appellee/plaintiff Stanley Carson filed for divorce; service initially was not completed. Appellant, through present counsel, filed a motion to dismiss upon special appearance; a hearing was held and the motion denied. Fifteen months after filing the divorce complaint, appellee executed out-of-state service on appellant; appellant filed an answer and a rule nisi was filed setting a date for a temporary hearing. Appellant then filed a motion to dismiss alleging that the out-of-state service had been defective and that a reconciliation of the marital status had occurred. Appellee responded by filing an amendment to divorce and served it on appellant on the day of filing. Appellant filed an amendment to the answer to the complaint for divorce and in the alternative an answer to the amendment to the complaint for divorce, a demand for jury trial and an amendment to the motion to dismiss. Upon hearing on the motion, an order was entered denying appellant’s motion. Thereafter, a temporary hearing was held to determine issues of custody, child support, alimony and attorney fees. The hearing judge entered an order which, in part, awarded appellant temporary attorney fees in the amount of $2,000 payable within 60 days. Appellee objected to the award and to other portions of the order and filed a motion for reconsideration; one of the several issues presented therein was the award of attorney fees. Appellant filed a response to the reconsideration motion. The case was tried by jury. Prior to the return of the verdict, appellant moved for additional attorney fees for post-temporary hearing representation. After the verdict but prior to the entry of final judgment, appellant requested a written finding on the issue of the additional attorney fees. Judgment was entered; however, no written finding was made on the issue of additional attorney fees and the award of $2,000 temporary attorney fees was modified to extend the due date to one year and eight months (payable in $100 monthly installments). Held:

1. Appellant’s brief contains references to item numbers in the index to the record rather than direct cites to the page of the record to which appellant is referring. Court of Appeals Rule 27 (a) (1), requiring “a citation of such parts of the record or transcript essential to a consideration of the errors complained of,” means that page citations to the trial record and transcript shall be provided. References to index items do not meet these requirements and diminishes this Court’s ability to find rapidly critical documents and testimony in records and transcripts; such practice should be discontinued forthwith.

2. Appellant contends the trial court erred in modifying and changing the terms of the order awarding temporary attorney fees. “This court will not control the discretion of a trial judge in awarding temporary alimony and attorney fees ‘. . . unless it can be clearly shown by the appellant that the trial court committed grievous error or a gross abuse of discretion.’ [Cit.]” Bowman v. Bowman, 242 Ga. 259, 260 (248 SE2d 654); see also Weaver v. Weaver, 263 Ga. 56 (428 SE2d 79). Absent the temporary hearing transcript and that portion of the trial transcript pertaining to the award of attorney fees, we cannot determine whether such an abuse occurred. Both error and harm must be shown affirmatively by the record to obtain reversal on appeal. Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901); Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510). Moreover, when a portion of the evidence bearing upon an appellate issue is not brought up so that this Court can make its determination from a consideration of all relevant evidence bearing thereon, an affirmance of that issue must result. Nodvin v. West, 197 Ga. App. 92, 97 (3) (c) (397 SE2d 581); compare Young v. Young, 227 Ga. 570, 571 (1) (181 SE2d 867); Marchman v. Head, 135 Ga. App. 475, 477 (2) (218 SE2d 151), overruled on other grounds, Gen. Recording Corp. v. Chadwick, 136 Ga. App. 213, 214 (220 SE2d 697). Appellant has failed to carry her burden as to this enumeration of error.

3. Appellant contends the trial court erred in failing to make findings of fact, as requested, regarding the issue of additional attorney fees (for representation subsequent to the temporary hearing). In view of our holding in Division 2 above, we conclude that had error occurred as asserted in appellant’s second enumeration of error that it would be harmless. By failing to provide this Court with the requisite transcripts, we must assume as a matter of law that the trial court’s rulings regarding attorney fees were correct and affirm them. See generally Johnson v. State, 261 Ga. 678, 679 (2) (409 SE2d 500); Nodvin, supra; Attwell v. Heritage Bank &c., 161 Ga. App. 193, 194 (291 SE2d 28); see Young, supra. The mere existence of findings of fact would not change this result. This enumeration as crafted is without merit.

Decided June 3, 1997.

Before Judge George.

Katrina L. Breeding, for appellant.

M. V. Booker, for appellee.

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.