text:
    A99A0486.
    T.A.I. COMPUTER, INC. v. CLN ENTERPRISES, INC.
    (516 SE2d 340)
   Blackburn, Presiding Judge.

T.A.I. Computer, Inc. appeals from the trial court’s denial of its motion to set aside the default judgment entered in favor of CLN Enterprises, Inc. and its motion for new trial. T.A.I. Computer contends the trial court erred by: (1) awarding damages without holding a hearing in violation of OCGA § 9-11-55 (a) because the alleged damages were unliquidated; (2) refusing to set aside the judgment although T.A.I. Computer was wrongly named as defendant; (3) granting default judgment when T.A.I. Computer lacked notice; and (4) granting default judgment although CLN Enterprises did not comply with Uniform Superior Court Rule 15. For the reasons discussed below, we reverse in part, affirm in part and remand the case to the trial court.

CLN Enterprises is a computer company which purchased computer products from T.A.I. Computer, a computer products distributor. On November 18, 1997, CLN Enterprises filed suit against T.A.I. Computer asserting counts in conversion, quantum meruit, and bad faith. CLN Enterprises alleged that T.A.I. Computer failed to refund the $20,287.30 it had paid for returned items. T.A.I. Computer failed to answer the suit, and on February 2, 1998 CLN Enterprises moved for the entry of default judgment. Attached to the motion was an affidavit in support of CLN Enterprises’ claim for attorney fees.

The trial court determined that the damages were liquidated and entered judgment against T.A.I. Computer in the amount of $23,977.37, which included the principal sum, pre-judgment interest, costs and attorney fees. T.A.I. Computer filed motions to set aside the judgment, to open default, and for a new trial. The trial court denied the motions. “A trial court’s decision regarding a motion to set aside a judgment will not be reversed absent a showing of manifest abuse of discretion.” Kent v. State Farm Mut. Auto. Ins. Co., 233 Ga. App. 564, 566 (2) (504 SE2d 710) (1998).

1. (a) T.A.I. Computer contends the trial court erred in holding the damages were liquidated and in entering judgment against it for damages without a trial and proof of damages.

If [a] case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence . . . unless the action . . . involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages.

OCGA § 9-11-55 (a).

Damages are liquidated when they are

an amount certain and fixed, either by the act and agreement of the parties, or by operation of law; a sum which cannot be changed by the proof; it is so much or nothing; and that the term does not necessarily refer to a writing: an open account is the reverse of this.

(Punctuation omitted.) Sellers v. Nodvin, 207 Ga. App. 742, 746 (3) (429 SE2d 138) (1993). On a motion for default judgment, the amount of damages must be ascertainable from the pleadings. Hazlett &c. Constr. Co. v. Virgil Womack Constr. Co., 181 Ga. App. 25, 26 (2) (351 SE2d 218) (1986); Sellers, supra.

Here, the complaint alleged that CLN Enterprises had purchased computer equipment from T.A.I. Computer, that CLN Enterprises returned the equipment, that T.A.I. Computer wrongfully failed to refund the purchase price, and that the amount to be refunded totaled $20,287.30. However, the invoices or agreements from which the amount of damage was derived were not attached to the complaint and incorporated therein. Thus CLN Enterprises did not establish with certainty the amount of the obligation as the law requires. See Hazlett &c. Constr. Co., supra. Compare Henry v. Adair Realty Co., 141 Ga. App. 182, 183 (1) (233 SE2d 39) (1977) (damages were liquidated where the complaint alleged facts from which damages could be determined by simple mathematical calculation). Consequently, the damages are unliquidated for the purposes of OCGA § 9-11-55 (a).

The fact of the default alone did not convert the damages into a liquidated claim. The conclusory allegations of the amount owed were not sufficient to render the damages liquidated. Otherwise every case where a specific amount is stated in the complaint as due and owing would be turned into a liquidated amount by the default, and the Code section’s provision for trial as to damages involving unliquidated amounts in contract cases would rarely if ever occur. Accordingly, the trial court’s determination that the damages alleged were liquidated was erroneous.

(Citations and punctuation omitted.) Sellers, supra at 746-747. This case must be remanded for a determination of the amount of damages by the trial court.

(b) T.A.I. Computer also contends the trial court erred by awarding attorney fees based solely on the affidavit of the attorney for CLN Enterprises. As the issue may be raised on remand, we want to make clear that on default judgment an award of attorney fees which is based solely on an affidavit is not necessarily erroneous, so long as the affidavit meets the requisite level of proof. See Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 668 (2) (476 SE2d 43) (1996). Here, counsel had the requisite personal knowledge to testify to the hours he personally worked and the rate he charged. However, the testimony regarding the tasks performed lacks sufficient particularity. “While a factfinder may find [counsel’s] affidavit sufficiently detailed to justify an award, the court recommends that, upon remand, counsel append billing and other business records to support the claims for services rendered.” Oden, supra at 669.

2. T.A.I. Computer contends that the trial court erred in failing to grant its motion to set aside the judgment pursuant to OCGA § 9-11-60 (d) (2). “A motion to set aside may be brought to set aside a judgment based upon . . . [flraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant.” T.A.I. Computer asserts it was mistakenly or fraudulently named as a defendant in the action and a sister corporation, Trans America International Corporation, is the company with whom CLN Enterprises did business.

“Relief under OCGA § 9-11-60 (d) (2) may be granted only where the grounds are unmixed with the negligence or fault of the movant.” (Punctuation omitted.) Gatefield Corp. v. Gwinnett County, 234 Ga. App. 621, 622 (1) (507 SE2d 164) (1998). There is no evidence that the judgment was obtained through “[flraud, accident, or mistake or the acts of [CLN Enterprises].” OCGA § 9-11-60 (d) (2). The judgment against T.A.I. Computer was entered because T.A.I. Computer negligently allowed the case to go into default. The essence of the mistake raised by T.A.I. Computer is that it was unable to refute the allegations of the complaint. See OCGA § 9-11-55 (a). If T.A.I. Computer had answered the complaint, it could have raised this defense. The trial court did not abuse its discretion in finding that this “mistake” was not sufficient to support setting aside the judgment with regard to T.A.I. Computer’s liability.

3. T.A.I. Computer contends that the trial court erred by granting default judgment, asserting that it was not served with a copy of the motion for default judgment in violation of Uniform Superior Court Rules 6 and 4.1. It is well settled that “the failure of a party to file pleadings in an action shall be deemed to be a waiver by him of all notices, including notices of time and place of trial, and all service in the action.” OCGA § 9-11-5 (a). Since T.A.I. Computer failed to answer the complaint, it waived any notice of further action in the case. Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 654 (1) (402 SE2d 753) (1991). The trial court did not err.

Decided April 13,1999.

Mark P. Groves, for appellant.

Isenberg & Hewitt, Melvin L. Hewitt, Jr., for appellee.

4. T.A.I. Computer contends that the trial court erred by granting default judgment, asserting that CLN Enterprises failed to comply with Uniform Superior Court Rule 15. Rule 15 requires

[t]he party seeking entry of a default judgment in any action shall certify to the court the date and type of service effected as shown by court records and that there has been no defensive pleading from the party against whom the judgment is sought. This certificate shall be in writing and must be attached to the proposed default judgment when presented to the judge for signature.

The record shows that CLN Enterprises did, in fact, file a certificate in compliance with Rule 15; therefore, this argument is without merit. The trial court did not err.

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

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


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A99A0916.
    AVILA-NUNEZ v. THE STATE.
    (516 SE2d 335)
   Judge Harold R. Banke.

Maria Avila-Nunez was convicted of two counts of cruelty to children. She enumerates six errors on appeal.

This case arose after Avila-Nunez and her husband (and codefendant) drove their two-year-old daughter to the emergency room of a local hospital. The child was near death due to a tear in her small intestine usually caused by a focused blow to the upper abdomen. Over time, waste had emptied into her abdominal cavity, causing infection and noticeable swelling. Her doctor theorized that the injury had occurred as long as three days before and serious distress would have been apparent at least a day after the injury. Nurses observed severe bruising on the child’s back, buttocks, legs and hands and scratches on her face. X-rays revealed a rib fracture, broken clavicles on both the right and left, and fractures of both the upper arm and left elbow. Many of these injuries had occurred at different times over a three-week period.

After emergency resuscitation, the child underwent surgery to correct the intestinal tear. Emergency room personnel contacted law enforcement and the Department of Family & Children Services, suspecting child abuse. After an investigation, both Avila-Nunez and her husband were arrested. The two-count indictment charged her with (1) causing the injuries and (2) failing to seek medical care. Held:

1. Avila-Nunez maintains her trial counsel was ineffective for (a) failing to properly subpoena an emergency room physician who would have testified that lying in one place could have caused the child’s bruising; (b) failing to assure that she properly waived her right to testify; (c) failing to object to Dr. Kelly’s opinions, which invaded the jury’s province, that an immediate family member had inflicted the injuries and there was no doubt of repeated child abuse; (d) injecting bad character evidence that Avila-Nunez was under investigation for fraud in obtaining public assistance, was an illegal alien, and might be deported; (e) failing to object to the admission of emergency room photographs of the victim which were not cropped to exclude efforts taken to revive the child; (f) failing to inquire into the interpreter’s qualifications; and (g) failing to timely file a written motion to sever parties.

To establish ineffectiveness, a defendant must show that trial counsel’s performance was deficient and the deficiency caused sufficient prejudice to deprive him of a fair trial. Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188) (1992). Such evidence must overcome the “strong presumption” that counsel’s performance fell within the wide range of reasonable professional assistance. Id. We need not reach the deficiency issue absent a showing of prejudice. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995).

(a) The record shows that trial counsel attempted to subpoena Dr. Hawkins for trial, but he was not personally served and did not appear. During his deposition, Dr. Hawkins testified that the victim’s extensive bruising could have been caused by blows or by lividity from the abdominal injury rather than abuse.

Bruising was only one of many injuries the victim suffered. The evidence of abuse also included the tom small intestine, blood in the urine, a rib fracture, broken clavicles on both the right and left, and fractures of both the upper arm and left elbow. Because Dr. Hawkins’ testimony did not mitigate that evidence, we find it highly probable that Dr. Hawkins’ speculation that either abuse or blood pooling from lividity could have caused the bruising would not have affected the trial’s outcome.

(b) The record refutes Avila-Nunez’s contention that trial counsel did not assure that she properly waived her right to testify. Although trial counsel’s untimely death prevented him from appearing at the motion for new trial hearing, counsel for Avila-Nunez’s husband testified that on several occasions he heard Avila-Nunez’s trial counsel tell her about the right to testify and why, strategically, it was a bad idea. He also reported that Avila-Nunez expressed a fear of testifying. Thus, the record shows that Avila-Nunez was aware of her rights before deciding not to testify. See Backey v. State, 234 Ga. App. 265, 267 (5) (506 SE2d 435) (1998). Notwithstanding Avila-Nunez’s inference to the contrary, no law mandates that trial courts inquire whether defendants are waiving the right to testify, although the better practice is to do so. Id.

(c) The record likewise refutes Avila-Nunez’s claim that counsel was ineffective for failing to object to testimony by Dr. Kelly which invaded the jury’s province. Notwithstanding Avila-Nunez’s contrary claim, Dr. Kelly did not testify that a member of the immediate family had committed the crimes. The language at issue was introduced in the context of an explanation of the Battered Child Syndrome. Dr. Kelly’s testimony addressed only the general issue of who usually commits the abuse “in a significant number of cases,” not in this specific case.

Nor was his expert opinion that the child undoubtedly suffered abuse improper. His scientific conclusions on the etiology of the child’s myriad injuries were not within the ken of ordinary jurors. Baise v. State, 232 Ga. App. 556, 559 (2) (502 SE2d 492) (1998). Moreover, even if the jury accepted his opinion, such did not interfere with the jury’s duty to decide who inflicted the injuries. See id. at 560. Nor did it detract from Avila-Nunez’s own defense that a babysitter abused the victim.

(d) Trial counsel’s decision to inform the jury that Avila-Nunez was an illegal alien being investigated for welfare fraud was clearly strategic. See Powell v. State, 210 Ga. App. 409, 413 (6) (b) (437 SE2d 598) (1993). In his opening statement, counsel used that information to explain his client’s apparent evasiveness with the authorities.

(e) Trial counsel’s failure to object to the admission of uncropped photographs showing the victim’s condition in the emergency room was not deficient. The photos showed the child lying in the hospital, attached to various monitors and intravenous devices. None of them could be characterized as inflammatory, much less so gruesome as to trigger the rule in Brown v. State, 250 Ga. 862, 866 (5) (302 SE2d 347) (1983), on which Avila-Nunez relies. Moreover, Brown is distinguishable in that the photos showed mutilation arising from an autopsy, not from the crime itself, as here. Whether the extensive bruising shown in the photos was caused by resuscitation efforts was a jury question.

(f) Avila-Nunez failed to satisfy her burden of showing prejudice arising from trial counsel’s failure to inquire into the interpreter’s qualifications before trial. See Turpin v. Mobley, 269 Ga. 635, 638 (3) (502 SE2d 458) (1998). Her husband’s bilingual counsel testified that although the translation during trial was “somewhat loose,” none of the looseness involved material aspects of the case. He also testified that Avila-Nunez was fairly conversant in English. Moreover, the record shows that either he or trial counsel brought the issue to the trial court’s attention and a different translator was then used.

(g) Trial counsel’s failure to file a written motion to sever based upon Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), did not constitute ineffectiveness. The record shows that before trial counsel asserted a motion in limine seeking exclusion of the husband’s statement to authorities. Although the motion was unsuccessful, the statement was redacted to exclude all comments incriminating Avila-Nunez, except that she had cared for the victim during a time when she claimed the child was at the babysitter’s. Counsel also objected to the statement’s admission at trial. Because the statement at issue, as redacted, did not directly inculpate Avila-Nunez, Bruton did not apply. Hanifa v. State, 269 Ga. 797, 802 (2) (505 SE2d 731) (1998). Thus, a written motion to sever would have had no greater success than Avila-Nunez’s motion in limine.

2. Avila-Nunez argues that the trial court violated Bruton by admitting her husband’s above-mentioned statements. The arresting officer testified that the husband stated he was at home until 2:30 the day before the child was hospitalized, then he left for work, and the child seemed well, but sad. A neighbor also testified that he saw the child around the same time and she seemed “like any normal kid.” Because the husband’s statement was not directly inculpatory, exclusion was not required. Id. Had it been, the evidence was cumulative in any event. Id.; Tate v. State, 230 Ga. App. 186, 189 (3) (495 SE2d 658) (1998).

3. The evidence was sufficient to show that Avila-Nunez maliciously caused cruel or excessive physical or mental pain to a child under the age of 18. OCGA § 16-5-70 (b). The child’s treating physician testified that “[t]he combination of the type of injury that she had to her abdomen, the length of time that she had had that injury, her overall physical state with the kidney failure and stopping breathing, the bruises from head to toe, the fractures from multiple time periods” left “no doubt” that she had been physically abused. He also testified that in a significant number of cases, immediate family members inflict such abuse. He reported generally that had anyone else inflicted such injury, immediate medical attention would have been sought.

The record further shows that Avila-Nunez, her husband, and the victim lived in so small an apartment that the child’s cries of pain could easily be heard. The victim slept in the same room as her parents. The testimony of Avila-Nunez’s husband and neighbor placed Avila-Nunez with the child the day and night before the offense was discovered by authorities. Both the husband and the neighbor observed the victim during the afternoon before her admission and neither saw the bruising so apparent hours later. See Wilkins v. State, 267 Ga. 86, 87 (1) (475 SE2d 607) (1996); Wilkins v. State, 266 Ga. 278-279 (1) (466 SE2d 592) (1996).

Avila-Nunez’s ineffectual attempts to inculpate an alleged babysitter damaged her defense. She could not give authorities an address, notwithstanding the fact that she told detectives that she had dropped the child off at the babysitter’s the day prior to the hospitalization. Initially, Avila-Nunez gave authorities the name of Anna Garcia, and described her as tall with shoulder length red hair and spots on her face. Although a woman with that name was found, she did not match the description Avila-Nunez gave. When confronted with this fact she gave another name, but authorities could not locate such a person. Avila-Nunez never filed a complaint against the alleged babysitter. The jury was free to reject Avila-Nunez’s inconsistent story of the babysitter, particularly when the record shows that many of the baby’s injuries occurred over several weeks, not during the short time span the babysitter purportedly kept the child. See Prejean v. State, 209 Ga. App. 411, 412 (1) (433 SE2d 628) (1993). The evidence was sufficient to present a jury question on whether Avila-Nunez maliciously inflicted physical pain on the child. See Morris v. State, 202 Ga. App. 673, 674 (415 SE2d 485) (1992).

Although Avila-Nunez called her husband at work around 9:00 p.m. to tell him the baby was sick and she needed him, the child received no medical attention until 8:00 a.m. the next morning, when she was near death. This evidence and the medical testimony of the pain caused by the injury provide a sufficient factual basis for the failure to provide medical care charge. Lewis v. State, 191 Ga. App. 287, 288 (1) (381 SE2d 558) (1989). Viewed in the light most favorable to the verdict, the evidence was sufficient to sustain the conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In light of our finding, we need not reach enumeration no. 4 which challenges the trial court’s denial of Avila-Nunez’s motion for directed verdict of acquittal on Count 1.

4. Avila-Nunez argues that the trial court abused its discretion in its use of the interpreters. Counsel for Avila-Nunez’s husband testified that none of the discrepancies in translation involved material aspects of the case and Avila-Nunez was fairly conversant in English. Pretermitting whether the issue was properly preserved, the failure to demonstrate harm from the alleged error precludes reversal. White v. State, 225 Ga. App. 74, 77 (9) (483 SE2d 329) (1997).

Decided April 13,1999.

Michael R. McCarthy, for appellant.

Hermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

5. Avila-Nunez asserts that the two counts should be merged for sentencing purposes. As a preliminary matter, we note that Avila-Nunez offered no reference to the record showing that this enumeration was properly preserved for appeal. Court of Appeals Rule 27 (c) (3) (i). Nor did she provide a transcript of the sentencing hearing. See Adams v. State, 234 Ga. App. 696, 697 (3) (507 SE2d 538) (1998).

Pretermitting whether the issue was properly preserved, affirmance is appropriate. Two crimes merge as a matter of fact only when the same or less than all the facts are used to prove both. Harmon v. State, 208 Ga. App. 271, 275 (8) (430 SE2d 399) (1993).

Here, the factual predicate for Avila-Nunez’s two counts differed. The first charged her with cruelty to children by causing the injuries. The second count was premised on her failure to seek medical treatment. The first charge was complete when the blows were struck. The second arose the following day when Avila-Nunez’s failure to timely seek medical treatment despite her child’s suffering had nearly fatal consequences. See Stroud v. State, 193 Ga. App. 82, 83 (4) (387 SE2d 37) (1989). Under this evidence, two sequential but entirely different crimes were committed against the same victim authorizing a conviction and sentence for each. Id. at 83-84.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A99A0007.
    GRIMES v. THE STATE.
    (516 SE2d 378)
   McMurray, Presiding Judge.

Pro se appellant Anthony James Grimes was on probation arising from a conviction of involuntary manslaughter when he committed acts which resulted in his being prosecuted and convicted of a number of additional crimes, including four misdemeanor offenses, each of which resulted in consecutive twelve-month sentences. See Grimes v. State, 232 Ga. App. 155 (500 SE2d 609). After defendant began serving the misdemeanor sentence, two years of his probation on the felony sentence for involuntary manslaughter were revoked and he was committed to the custody of the Department of Corrections to enforce that felony sentence.

Decided April 14,1999.

Anthony J. Grimes, pro se.

J. Tom Morgan, District Attorney, Sarah E. Sullivan, Assistant District Attorney, for appellee.

Appellant then filed a pro se motion which maintained that his transfer to the state prison system was illegal, sought his return to the DeKalb County jail, and argues that under the good-time credit rules used in calculating a misdemeanor jail sentence, he is entitled to be released. This appeal is taken from the denial of the motion. Held:

Both of appellant’s enumerations of error are directed to challenging the transfer of his person into the state prison system. However, it is apparent, even under the authority cited by appellant, that the revocation of probation resulted in a sentence requiring that the Department of Corrections assume custody of appellant. In this connection, we note that the felony sentence for involuntary manslaughter provided for appellant’s confinement in the State Penal System. The trial court correctly determined that once sentencing was completed, it lacked authority to determine where defendant would be housed or when he would be released. See OCGA §§ 17-10-3; 42-4-7; 42-5-51; England v. Newton, 238 Ga. 534 (233 SE2d 787); In re Prisoners Awaiting Transfer, 236 Ga. 516, 517 (2) (224 SE2d 905); Eubanks v. State, 229 Ga. App. 667 (494 SE2d 564).

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


text:
    A99A0012.
    SOLOMON v. THE STATE.
    (516 SE2d 376)
   McMurray, Presiding Judge.

Defendant Jimmy Lee Solomon was on probation for violating the Georgia Controlled Substances Act. The trial court revoked defendant’s probation based on circumstantial evidence adduced at a probation revocation hearing indicating that defendant aided and abetted co-defendant Haynes commit an armed robbery. Defendant filed this appeal after we granted his application for appeal. We address defendant’s contention that the evidence was insufficient to support revocation of his probation. Held:

Decided April 14,1999.

Cecilia M. Cooper, for appellant.

John R. Parks, District Attorney, Richard E. Nettum, Assistant District Attorney, for appellee.

According to OCGA § 42-8-38 (c), the revocation or continuance of probation is within the discretion of the trial court so long as a ruling to revoke is based on at least a preponderance of the evidence, as required by OCGA § 42-8-34.1 (a). In deciding whether to revoke or continue probation the trial court may take into consideration other circumstances and may be directed by its own reason and conscience to a just result. See Scott v. State, 131 Ga. App. 504, 505 (206 SE2d 137). Although there is no direct evidence in the case sub judice placing defendant at the crime scene, there is proof that defendant was with co-defendant Haynes immediately before and immediately after the armed robbery; that defendant “got extremely hostile” when a police investigator questioned defendant’s landlord about defendant’s “whereabouts” on the night of the armed robbery; that defendant “bucked and tried to run” when officers tried to arrest him, and that defendant informed two girlfriends about an hour and a half before the armed robbery that he was going with co-defendant Haynes to “pick up some money.” This evidence and proof that defendant misinformed an investigating officer about his whereabouts on the night of the armed robbery authorize the trial court’s finding, by a preponderance of the evidence, that defendant aided and abetted co-defendant Haynes commit an armed robbery. See Riggins v. State, 206 Ga. App. 239, 240 (1) (424 SE2d 879). We find no error in the trial court’s decision to revoke his probation.

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


author: Barnes, Judge.

text:
    A99A0050.
    SCHWARTZ v. HARRIS WASTE MANAGEMENT GROUP, INC.
    (516 SE2d 371)
   Barnes, Judge.

Hanspeter Schwartz sued Harris Waste Management Group, Inc. (“Harris Waste”), asserting that Harris Waste breached his employment contract by failing to pay him a bonus when the company was sold and failing to award him severance pay when he was terminated. Harris Waste denied owing Schwartz anything and moved for summary judgment. The trial court granted the motion in part, finding that the conditions under which Harris Waste would owe severance or bonus pay to Schwartz under the parties’ employment contract had not occurred. The court further denied the motion in part, finding that a question of fact remained as to whether Schwartz was entitled to severance pay under the company’s general severance policy. Schwartz appealed the partial summary judgment to Harris Waste. For the reasons that follow, we affirm.

Harris Waste manufactured equipment for use in the waste recycling industry. In December 1994, Hanspeter Schwartz became president of Harris Waste, which at that time was a wholly owned subsidiary of AMDURA Corporation. A December 16, 1994 letter from AMDURA’s Chief Operating Officer to Schwartz forms the heart of the dispute here. Harris Waste asserts that the letter is an enforceable employment contract; Schwartz contends the letter is only evidence of an oral contract between the parties, which contained more inclusive terms than the letter did.

The letter begins, “Dear Pete: I am pleased to confirm the terms of your employment with Harris Waste Management Group, Inc.” Following are descriptive paragraphs with headings, identifying Schwartz’s title, start date, salary, primary location, benefits, stock options, relocation benefits, “other,” and supplemental severance agreement. We are concerned with the last two descriptions, which read as follows:

Other AMDURA’s strategic decision is to divest the Harris division through either the sale of Harris assets or the sale of the stock of Harris Waste Management Group, Inc. from AMDURA to a third party. Upon the consummation of such a transaction, you will be paid a one-time bonus of $75,000. [“bonus paragraph”]
Supplemental Severance Agreement If after the sale of Harris, your employment is terminated, other than for cause, you will be entitled to a supplemental severance payment of $150,000, payable in a lump-sum within 30 days after the date of termination. [“supplemental severance paragraph”]

A few months after Schwartz assumed the presidency of Harris Waste, ADU Acquisition, Inc. purchased all of AMDURA’s stock. AMDURA survived as a corporation, and Harris Waste remained a wholly owned subsidiary of AMDURA. A month later, Harris Waste fired Schwartz, who then sought a $75,000 bonus and $150,000 in severance pay. Harris Waste declined to pay either sum because it did not divest from AMDURA to a third party as specified in the December 16, 1994 letter.

The trial court granted partial summary judgment to Harris Waste on Schwartz’s claim for the bonus and severance pay under the December 16, 1994 letter because the letter clearly and unambiguously defined the terms under which Schwartz was entitled to those sums. Those terms were not met, the trial court held, as Schwartz admitted in his complaint that Harris Waste still remained a subsidiary of AMDURA and did not sell its stock or assets to a third party. The trial court thus declined to consider Schwartz’s parol evidence explaining that “sale” also meant a change in control of Harris Waste.

Schwartz appealed, enumerating as errors the trial court’s ruling that the December letter constituted an integrated contract; that the letter was unambiguous and could not be explained by parol evidence; that parol evidence was inadmissible; and that evidence of the parties’ intent did not create a question of fact defeating summary judgment.

Under OCGA § 9-11-56 (c), summary judgment should be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review de novo a grant of summary judgment, viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

1. The threshold issue is whether the December 16, 1994 letter constitutes a contract between the parties. Schwartz argues that it is not a contract, but rather “a letter evidencing an oral agreement between Schwartz” and Harris Waste that did not contain all the terms of Schwartz’s employment. He contends that the terms set forth in the letter are not as expansive as the parties intended them to be.

In support of this argument, Schwartz cites Pope & Fleming v. Graniteville Mfg. Co., 1 Ga. App. 176 (57 SE 949) (1907), for the proposition that a letter confirming an oral agreement is not a contract. Harris Waste responds that Pope stands for the proposition that, unlike this case, the letter at issue was not a contract but merely an offer. The December 16, 1994, letter in this case, Harris Waste argues, is a contract for additional compensation that Schwartz accepted by continuing his employment after its receipt.

Pope held that an oral agreement containing mutual promises was enforceable, and that a subsequent written letter did not merge but was merely an offer because neither party performed under its terms. Id. at 184. The issue before us is similar, involving both an oral agreement and a subsequent written letter. The first issue is whether the written letter was even a contract. If it is, the next issue is whether the antecedent oral agreement merged into the subsequent written contract.

Both parties here performed under the terms of the written letter. Schwartz performed the job as Harris Waste’s president, and Harris Waste paid him a salary. Therefore, the written letter constitutes a contract between the parties.

The next issue is whether the antecedent oral agreement merged into the written contract, the letter of December 16, 1994.

The test to determine whether the oral agreement is one which the law will permit to be [pled] and proved is whether the oral agreement constitutes a part of the written contract or whether, instead, it is a separate and distinct, oral contract which is not inconsistent with the written contract. If the latter, it admits of pleading and proof.

S & S Builders v. Equitable Investment Corp., 219 Ga. 557, 561 (2) (134 SE2d 777) (1964).

Schwartz argues that the letter merely includes some of the terms of the oral contract, in which he and Harris Waste’s representative agreed that he should receive a bonus and severance if the company underwent a change of control. Assuming that the parties entered into an oral contract as Schwartz describes, and keeping in mind that we have already determined that the letter constitutes a contract, the issue before us is whether the oral contract merged into the letter. To decide that issue, we must determine whether the terms of the oral contract contradict or vary from the terms of the letter. If they do contradict the written contract, then the oral agreement merges and the written contract prevails. Vulcan Materials Co. v. Douglas, 131 Ga. App. 21 (1) (205 SE2d 84) (1974).

The written contract between Schwartz and Harris Waste defines precisely the terms under which a “sale” of the company will take place: by divesting “the Harris division through either the sale of Harris assets or the sale of the stock of Harris Waste Management Group, Inc., from AMDURA to a third party.” Schwartz’s argument that the oral agreement included an understanding that any change in the control of Harris would trigger his bonus and severance pay varies the terms set forth in the written contract. Therefore, we conclude that the oral agreement merged into the written letter. Compare Brannen/Goddard Co. v. Collin Equities, 227 Ga. App. 352, 354 (489 SE2d 106) (1997) (no merger because oral contract to pay monthly rental percentage was not inconsistent with written contract to pay lump rental percentage); Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 62 (240 SE2d 572) (1977) (no merger because oral agreement to pay additional sums for good performance did not contradict written employment contract).

Here, Schwartz testified in deposition that the letter reflected his understanding of the agreement he reached with Harris Waste’s representative. When asked whether he understood that the letter contained the terms and conditions of his employment, he answered yes. When further asked if he knew of “anything else that wasn’t included” in the letter, he responded, “At that time, no.” Finally, he admitted that the parties never contemplated the sale of AMDURA as a whole when he took the position of president. We find that the trial court did not err in concluding that the December 16,1994 letter constitutes a valid contract, and that the antecedent oral agreement merged into the written letter.

2. Schwartz’s remaining enumerations of error address the question of whether the December 16, 1994 letter is an ambiguous contract whose terms can be explained or amplified by parol evidence.

The construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. [Cit.]

CareAmerica v. Southern Care Corp., 229 Ga. App. 878, 880 (1) (494 SE2d 720) (1997).

The trial court found that the definition of sale within the contract is unambiguous, as it preconditions the payments on the condition that AMDURA “divest the Harris division through either the sale of Harris assets or the sale of stock of Harris Waste Management Group, Inc., from AMDURA to a third party.” We agree with the trial court that this language clearly states that a sale must take place, identifies what must be sold and identifies the party to which the sale must be made. The parties agreed that Harris Waste still remained a subsidiary of AMDURA and did not sell its stock or assets to a third party. Thus the trial court did not err in finding that the definition of “sale” in the contract is unambiguous and that the condition precedent to the bonus and severance payments did not occur.

Schwartz argues that the second reference to “sale” in the December 16, 1994 letter, contained in the supplemental severance paragraph, did not encompass the explicit definition of “sale” in the preceding bonus payment paragraph. He argues that the dictionary definition of the word “sale” includes a change in control, as happened with Harris Waste when ADU purchased AMDURA’s assets. Thus the term is ambiguous and its meaning should be resolved by a jury, Schwartz contends.

Decided April 14,1999.

Powell, Goldstein, Frazer & Murphy, Jerry B. Blackstock, John W. Harbin, Carrie A. Hanlon, for appellant.

We do not find this argument persuasive. First, Schwartz admitted in his deposition that “sale of Harris” in the second supplemental severance paragraph means the same thing as “sale of Harris” in the first bonus paragraph.

Second, under general rules of contract construction, a limited or specific provision will prevail over one that is more broadly inclusive. Central Ga. Elec. &c. Corp. v. Ga. Power Co., 217 Ga. 171, 173-174 (121 SE2d 644) (1961).

The whole contract must be looked to in arriving at the construction of any part. ... It does not follow that merely because there are two possible interpretations which might be employed in construing a contract the matter automatically becomes a question for the jury. If that were true the court would rarely, if ever, construe a contract as OCGA § 13-2-1 declares its duty to be. The role and function of a court [are] higher than that of a mere referee.

(Citations and punctuation omitted.) Capriulo v. Bankers Life Co., 178 Ga. App. 635, 637 (1) (344 SE2d 430) (1986).

Here, the employer specifically outlined both its purpose (“AMDURA’s strategic decision is to divest the Harris division”) and the conditions under which the bonus payment would become due (upon “either the sale of Harris assets or the sale of the stock of Harris Waste Management Group, Inc. from AMDURA to a third party”). We hold that the trial court did not err in concluding that the highly specific description of “sale” in the bonus paragraph also applies to the word “sale” in the subsequent severance payment paragraph.

Judgment affirmed.

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

Robins, Kaplan, Miller & Ciresi, Lisa L. Heller, Thomas J. Gallo, Marla R. Butler, for appellee.


author: Smith, Judge.

text:
    A99A0309.
    In the Interest of K. M. L. et al., children.
    (516 SE2d 363)
   Smith, Judge.

The mother of K. M. L. and B. J. D. C. appeals from the order of the Cobb County Juvenile Court terminating her parental rights to these minor children. The mother does not challenge the sufficiency of the evidence to support the termination of her rights, but she raises challenges to the court’s jurisdiction and venue and claims ineffective assistance of counsel. We find no merit in these enumerations and affirm.

The record shows that in February 1996 the mother was en route from Florida to Tennessee with K. M. L. and B. J. D. C., then aged eight and four, respectively. She was driving on 1-75 when a snowstorm caused them to seek shelter at a motel in Cobb County. The children played in the snow in the motel parking lot, and the mother began to drink in her room. She drank all night, and the next morning she continued drinking and sent the children to the lobby to get breakfast. The police were called, and the mother was arrested. The children were placed in the temporary custody of the Cobb County Department of Family & Children Services (DFACS) when the mother was arrested. When she was released, she resumed her planned move to Tennessee. Her children remained in Cobb County, in the custody of DFACS. The temporary placement order recites that “[t]he mother agrees for the children to remain in protective custody.” Indeed, at the termination hearing the mother testified she was still not ready to be granted custody of her children.

1. The mother first contends that jurisdiction and venue were not proper in the Juvenile Court of Cobb County because the children were not Georgia residents. We do not agree. First, although her attorney at the termination hearing mentioned in opening and closing that he felt the case should have been transferred to Tennessee at the outset, no specific challenge was raised to jurisdiction or venue even at the termination hearing. The record reflects affirmatively that the mother consented to the children’s remaining in Cobb County at the outset. She did not appeal the deprivation order.

It is well established that parties cannot, by consent, give subject matter jurisdiction to a court; it is limited by the power conferred upon a court by law. But one may consent to bring oneself within the jurisdiction of a court, thereby waiving lack of personal jurisdiction. Apparel Resources Intl. v. Amersig Southeast, 215 Ga. App. 483, 484 (1) (451 SE2d 113) (1994). By consenting to the juvenile court’s placing legal custody of the children with the Cobb County DFACS, the mother waived any objections to jurisdiction and venue.

Moreover, as to venue, “[i]t may be presumed as a matter of law, subject to rebuttal,” that a child placed in the custody of a county department of family and children services thereafter assumes the residence of that county department. In the Interest of S. K. L., 199 Ga. App. 731, 735 (405 SE2d 903) (1991); In the Interest of A. M. C., 213 Ga. App. 897, 898 (446 SE2d 760) (1994). See also OCGA § 19-2-4 (b), which provides that when a child’s parents have been deprived of custody by court order, the child’s domicile is that of the person having legal custody. And “legal residence for the purpose of being sued in this state is generally the same county as his or her domicile.” Sorrells v. Sorrells, 247 Ga. 9, 11 (3) (274 SE2d 314) (1981).

Because the requirements for venue in Cobb County were met, the fact that their mother was in the process of moving to Tennessee when DFACS obtained custody is insufficient to rebut the presumption that the children resided in Cobb County. Juvenile court proceedings are specifically and explicitly excepted from the general constitutional venue provision requiring all civil cases to be brought in the county of the defendant’s residence. Ga. Const, of 1983, Art. VI, Sec. II, Par. VI. OCGA § 15-11-15 (a) provides that, with certain exceptions not applicable here, a juvenile court proceeding “may be commenced in the county in which the child resides” and that a deprivation action “may be brought in the county in which the child is present when it is commenced.” Venue was therefore proper at the outset in Cobb County. Thereafter, the children “resided” in Cobb County, and jurisdiction and venue were proper there.

2. OCGA § 15-11-44 (a) provides that if a court finds that a child who has been adjudged deprived is, or is about to become, a resident of another state that has adopted the Uniform Juvenile Court Act or a similar act, the court may defer a dispositional hearing and request the juvenile court of the child’s residence or prospective residence to assume jurisdiction. Because the language of OCGA § 15-11-44 is permissive and not mandatory, however, we find no merit in the mother’s contention that the juvenile court erred in failing to transfer the proceedings to Tennessee on its own motion.

Decided April 14,1999.

D. Kent Shelton, for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Sanders B. Deen, Kenneth A. Thompson, Jr., for appellee.

3. The mother alleges she received ineffective assistance of counsel because her attorneys failed to move the juvenile court to transfer the case to Tennessee. We reject the State’s argument that the mother was not entitled to effective assistance of counsel because a termination proceeding is a civil case, not a criminal case. See In the Interest of A. H. P., 232 Ga. App. 330, 333-335 (2) (500 SE2d 418) (1998). Relying in part on language in Nix v. Dept. of Human Resources, 236 Ga. 794 (225 SE2d 306) (1976) indicating that the entire legislative scheme of the Juvenile Code was intended to provide to indigent parents “effective representation at all stages of any proceeding involving” the termination of their parental rights, id. at 796, we found in A. H. P. that claims of ineffective assistance of counsel may arise from proceedings involving termination of parental rights. Id. at 334.

But to show ineffective assistance of counsel, the mother must show that counsel’s performance was deficient and that the result of the proceeding would have been different but for that deficient performance. A. H. P., supra at 334. In this case, the mother’s counsel was not ineffective in failing to request transfer to Tennessee. Because our law does not mandate transfer, failing to move for a transfer was not deficient. Moreover, we have determined that venue was proper in Cobb County because the children had been residing there for two years and the mother had waived any objection to jurisdiction and venue in Cobb County by failing to object during previous proceedings. Counsel’s failure to move for transfer was not deficient for this reason as well.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       The mother has two other children: C. J. W. and C. K. W. C. J. W., now eighteen, has lived with friends in Florida for two years. The mother has not supported him. Her parental rights to C.K.W., a girl now 16, were terminated in Oregon in 1991.

       She caused some damage to the police car, and she was eventually charged with interference with government property, criminal trespass, public drunkenness, and obstruction of an officer. She pled guilty and was sentenced to three years probation under the First Offender Act.

       It is unclear whether the mother is challenging personal jurisdiction or subject matter jurisdiction. We have assumed she challenges personal jurisdiction, because subject matter jurisdiction is clear, under OCGA § 15-11-5 (a) (1) (C) and (2) (C).


author: McMuRRAY, Presiding Judge.

text:
    A99A0325.
    SERITT et al. v. THE STATE.
    (516 SE2d 366)
   McMuRRAY, Presiding Judge.

Jointly tried before a jury, defendant Marvin Eugene Seritt was found guilty of battery for intentionally causing visible bodily harm to his son, Marvin Eugene Seritt, Jr. (“Marvin, Jr.”), by hitting the child in the face with his fist. Defendant Terry Elizabeth Seritt was found guilty of battery for intentionally causing visible bodily harm to Christopher Freeman Alan Seritt (“Chris”), by kicking that child in the face. Viewed in the light most favorable to the jury’s verdicts, the evidence at trial revealed the following:

The defendants are husband and wife, and the two victims are defendant Marvin Eugene Seritt’s sons from a prior marriage. Marvin, Jr. was age nine at trial, and Chris was eight. On the day in question, defendant Marvin Eugene Seritt disciplined Marvin, Jr. for urinating on the bedroom floor. In addition to spanking Marvin, Jr., defendant hit him once in the face with his hand. “Junior said his daddy punched him in the mouth. . . .” Chris Seritt testified his stepmother, defendant Terry Elizabeth Seritt, “kicked [him] in the lip and then . . . stuck [his] head in the [toilet] water,” because she thought Chris had gotten up in the middle of the night to get a drink of water. Each child’s version of events was corroborated by their mother, Kimberly Kay Waddell, and by Laura Worley McElrath, a detective with the Gordon County Sheriff’s Department who interviewed the children separately.

Defendants’ joint motion for new trial and extraordinary motion for new trial were denied, and this appeal followed. Held:

1. The trial court directed the prosecutor “not to go into [prior events of arguable abuse or neglect] covered by [defendants’] Motion in Limine in [the State’s] case in chief.” During cross-examination of Kimberly Kay Waddell, counsel for defendant Marvin Eugene Seritt asked whether Waddell pulled her car over to the side of the road upon first hearing the disturbing allegations of hitting and kicking from her sons. But rather than answering “yes” or “no,” the witness instead blurted out an unresponsive reference to alleged “abuse that happened before. . . .” The trial court denied defendants’ motion for mistrial but gave immediate curative instructions that the jury should “disregard the previous statement. ... It has no relevance. It has no bearing,” because defendant was on trial only for the acts alleged in the indictment. Thereafter, counsel continued his cross-examination.

(a) Defendants enumerate the denial of this motion for mistrial. There is considerable doubt whether defendants’ attempt to renew the motion for mistrial at the close of all the evidence is timely. Pretermitting whether this issue was not properly preserved for appellate review, due to the failure to renew the motion immediately after the trial court’s curative instructions, we conclude the trial court’s curative instructions were adequate to remove the inappropriate reference to extrinsic acts from the jury’s consideration, thus preserving defendants’ right to a fair trial. Maddox v. State, 227 Ga. App. 602, 603 (2) (490 SE2d 174).

(b) In the same enumeration, defendants assign error to other instances where the trial court refused to grant a mistrial. OCGA § 5-6-40 directs the enumeration of errors “shall set out separately each error relied upon.” Since we have addressed the substance of the primary error asserted in this enumeration, these additional matters will not be considered. Robinson v. State, 200 Ga. App. 515, 518 (2) (b) (408 SE2d 820).

2. The denial of defendants’ extraordinary motion for new trial on the ground of newly discovered evidence is enumerated as error. Our review is circumscribed because motions for new trial on this ground are addressed to the sound discretion of the trial judge, and a refusal to grant the motion will not be reversed unless that discretion is abused. Davis v. State, 221 Ga. App. 375, 377 (471 SE2d 307).

At the hearing on their motion, defendants proffered the expert opinion testimony of a licensed psychologist, Richard D. Hark, who conducted court-ordered evaluations of defendants and the two boys as part of a parent visitation assessment in a separate civil action to “determine whether or not the children would be safe in visiting Mr. and Mrs. Seritt.” At the time of defendants’ criminal trial, Dr. Hark “hadn’t finished the assessments yet.”

Defendants’ trial was conducted on November 5 and 6, 1997. As of November 1997, both boys were taking medication for attention deficit disorder (“ADD”), and Dr. Hark was particularly interested in “whether the medication was effective, because that [affects] a child’s ability to make sense, to — either not distort reality or to remember it correctly.” In Dr. Hark’s opinion, both children were undermedicated. An undermedicated ADD child is impulsive, dis-inhibited, and rambunctious. He or she “often distorts the truth or distorts reality, has memory problems, will give inconsistent comments, will tend to exaggerate.”

“It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.” [Cits.] All six requirements must be complied with to secure a new trial. [Cit.] Implicit in these six requirements is that the newly discovered evidence must be admissible as evidence.

Timberlake v. State, 246 Ga. 488, 490-491 (1) (271 SE2d 792).

We assume, without deciding, evidence showing Marvin, Jr. or Chris was, either at the time of the incident or at trial, under medication capable of altering his perception of reality is material and not merely impeaching. But in this case, such medical opinion evidence is not newly discovered. It is merely newly available from this particular witness. See Davis v. State, 221 Ga. App. 375, 377, supra, applying Hester v. State, 219 Ga. App. 256 (1) (465 SE2d 288). This type of medical opinion evidence could have been offered by the physician who prescribed the medication for ADD. It was not necessary to await the results of Dr. Hark’s court-ordered family assessment in order to obtain an admissible medical opinion as to the behavior, perception, and memory of non-medicated or undermedicated ADD children. For aught that appears of record, defendants did not seek county assistance to obtain an expert witness nor did they move for a continuance of the trial pending the outcome of Dr. Hark’s assessment. As there are no special circumstances present in this case, the trial court did not abuse its discretion in denying defendants’ extraordinary motion for new trial on the ground of newly discovered evidence. Id. at 257 (1).

3. Defendants enumerate the general grounds for their respective convictions for battery.

(a) “A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” OCGA § 16-5-23.1 (a). As used in this Code section, the term “visible bodily harm” includes “substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.” OCGA § 16-5-23.1 (b).

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). [Cit.] Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld. [Cit.]

Decided April 14,1999.

Ronald G. Shedd, for appellants.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Ringo v. State, 236 Ga. App. 38, 39 (510 SE2d 893).

(b) “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. In the case sub judice, Marvin, Jr. testified defendant Marvin Eugene Seritt struck him in the face with his hand. Although Marvin, Jr. could not recall at trial whether this blow was with an open hand or a closed fist, his contemporaneous account to his mother described it as a “punch,” resulting in a swollen lip. This is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdict beyond a reasonable doubt that defendant intentionally caused visible bodily harm by hitting Marvin, Jr. in the face with his fist, as alleged in Count 2 of the indictment. Danzis v. State, 198 Ga. App. 136, 137-138 (4) (400 SE2d 671). Consequently, the trial court did not err in refusing to direct a verdict of acquittal in favor of defendant Marvin Eugene Seritt. Humphrey v. State, 252 Ga. 525, 526-527 (1) (314 SE2d 436).

(c) Similarly, the testimony of Chris that defendant Terry Elizabeth Seritt kicked him in the mouth as punishment or discipline, thereby causing a swollen lip, is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, to authorize the jury’s verdict that she is guilty, beyond a reasonable doubt, of committing the battery alleged in Count 3 of the indictment. OCGA § 16-5-23.1 (a).

4. The jury’s verdict acquitting defendant Marvin Eugene Seritt of the separate battery alleged in Count 1 renders moot his contention that the trial court erred in failing “to merge count one and count two of the indictment,” as urged in the fifth enumeration. Poole v. State, 175 Ga. App. 374, 375 (2) (333 SE2d 207).

Judgments affirmed.

Andrews and Ruffin, JJ, concur.

       Defendant Marvin Eugene Seritt was acquitted of another count of battery for allegedly striking his son with a belt.

       The natural mother, Kimberly Kay Waddell, refused to participate in family sessions with Dr. Hark.


text:
    A99A0404.
    ROUNDTREE v. THE STATE.
    (516 SE2d 533)
    Decided April 14,1999.

      Straughan & Straughan, William T. Straughan, for appellant.

      Timothy G. Vaughn, District Attorney, Russell P. Spivey, Karen J. Rice, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of robbery. This appeal followed the denial of defendant’s motion for new trial. Held: Defendant contends the State’s eyewitness testimony was insufficient to authorize the jury’s finding that he committed the robbery. This assertion is without merit.

Determinations of witnesses’ credibility, including the accuracy of eyewitness identification, are within the jury’s exclusive province. Norris v. State, 258 Ga. 889, 890 (1) (376 SE2d 653) (1989). Our role [as an appellate court] is limited to evaluating the sufficiency of the evidence, not reweighing it. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

Jones v. State, 232 Ga. App. 630 (502 SE2d 557). The victim’s testimony that defendant assaulted and robbed him is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of the crime charged in the case sub judice. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


text:
    A99A0428.
    KNIGHT v. THE STATE.
    (516 SE2d 532)
   McMurray, Presiding Judge.

Defendant Knight appeals his conviction of the offense of burglary. The sole enumeration of error challenges the sufficiency of the evidence to authorize the guilty verdict returned by the jury. Held:

The evidence stated in the light most favorable to sustaining the verdict of the jury shows that defendant was apprehended by a patrolling deputy sheriff as he exited a business premises during the early morning hours, apparently approximately 1:00 or 2:00 a.m. The business had been closed for the night, and defendant did not have permission to be upon the premises. The building, which had been tidied, closed, and locked the preceding evening, had been entered by prying open a door, and the contents of a desk therein were found in disarray. A roll of stamps had been taken from the desk, and a roll of stamps was found on defendant’s person. A metal box containing documents of the business which had been left in the building was found outside on the ground. The building also contained various tools and equipment of value used in the business.

Decided April 14,1999.

Ronald L. Beckstrom, for appellant.

J. David Miller, District Attorney, A. Scott Gunn, Wesley J. Lewis, Assistant District Attorneys, for appellee.

Defendant testified that he had stepped to the corner of the building to relieve himself and had not entered the building. The credibility issue thus presented was a matter for the jury. Telfair v. State, 234 Ga. App. 444 (507 SE2d 195); Howard v. State, 227 Ga. App. 5, 8 (6) (488 SE2d 489).

The evidence could be determined to have established all of the elements of the crime of burglary. See Freelove v. State, 229 Ga. App. 310, 311 (494 SE2d 72). In particular, an intent to commit a theft could be inferred from evidence that the building contained tools, a desk, and other items of value. Underwood v. State, 221 Ga. App. 93, 94 (2) (470 SE2d 699). After considering all of the evidence of record, we conclude that a rational trier of fact was authorized to find that defendant was guilty beyond a reasonable doubt of the offense of burglary Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Bowen v. State, 194 Ga. App. 80, 82 (4) (389 SE2d 516); Vinson v. State, 190 Ga. App. 676 (1) (379 SE2d 792).

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


text:
    A99A0492.
    COLVERT v. THE STATE.
    (516 SE2d 377)
   McMurray, Presiding Judge.

Defendant Colvert filed an application for appeal from a superior court order revoking his probation. OCGA § 5-6-35 (a) (5). The evidence adduced at a probation revocation hearing reveals that defendant’s probation was revoked because police officers found illegal drugs in a car in which defendant was a passenger. We granted this appeal because the trial court refused to consider defendant’s motion to suppress. Held:

In Amiss v. State, 135 Ga. App. 784 (219 SE2d 28), this Court held that items seized during an illegal search are not admissible during probation revocation proceedings and concluded that the trial court erred in failing to conduct an evidentiary hearing on that appellant’s motion to suppress. Id. at 786-787. In the case sub judice, the trial court revoked defendant’s probation based on the admission of evidence regarding his possession of illegal drugs that were seized from a car in which defendant was a passenger. The trial court, however, refused to consider defendant’s properly filed motion to suppress this evidence. Because it appears defendant’s probation was revoked based on evidence that may be subject to suppression, we must vacate the judgment of the trial court and remand for the trial court to consider defendant’s motion to suppress. Id. at 787; see Adams v. State, 153 Ga. App. 41, 42 (264 SE2d 532).

Decided April 14,1999.

Larry D. Wolfe, for appellant.

William T. McBroom III, District Attorney, for appellee.

Judgment vacated and case remanded with direction.

Andrews and Ruffin, JJ, concur.


author: McMURRAY, Presiding Judge.

text:
    A99A0605.
    WATKINS v. THE STATE.
    (516 SE2d 377)
   McMURRAY, Presiding Judge.

Defendant was tried before a jury and convicted of one count of aggravated child molestation and three counts of child molestation. The evidence which authorized these convictions reveals that defendant engaged in sexual acts with a 14-year-old child. Defendant filed this appeal after the denial of his motion for new trial. Held:

After the trial court announced the jury’s verdict, the jury’s foreman informed the trial court: “Sir, we thought that in the beginning the victim was an active participant and it was consensual, and we wanted consideration for that during sentencing.” Defendant contends this recommendation requires a new trial because the jury’s finding with regard to the victim’s consent is inconsistent with their finding that defendant is guilty of child molestation and aggravated child molestation. We do not agree.

While the element of force to overcome a victim’s will must be proved when a defendant is charged with forcible rape of a child (State v. Collins, 270 Ga. 42 (508 SE2d 390)), the presence of such force is irrelevant when a defendant is charged with child molestation or aggravated child molestation. See Hines v. State, 173 Ga. App. 657, 658 (1) (327 SE2d 786). Because consent is not a defense to child molestation or aggravated child molestation (Coker v. State, 164 Ga. App. 493-494 (1) (297 SE2d 68)), it was unnecessary in the case sub judice for the jury to find that defendant forced the 14-year-old victim to submit to the sexual acts which constitute the offenses for which defendant was convicted. “Child molestation is, by its very nature, a crime involving a forcible and violent act. [Cits.]” Brown v. State, 268 Ga. 154, 155 (486 SE2d 178). See Gibbins v. State, 229 Ga. App. 896 (1) (495 SE2d 46).

Decided April 14,1999.

Levinson & Paul, Christopher G. Paul, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

The trial court did not err in denying defendant’s motion for new trial.

Judgment affirmed.

Andrews and Ruffin, JJ., concur.


text:
    A99A0661.
    STEWARD v. THE STATE.
    (516 SE2d 534)
   McMURRAY, Presiding Judge.

Following a hearing on his motion to suppress evidence seized, Willie Steward was convicted of possession of cocaine with intent to distribute and possession of cocaine with intent to distribute within 1,000 feet of a public housing project. Although the record does not indicate it, Steward states in his brief that he and the district attorney agreed to submit the case to the trial court on the motion “in lieu of a trial as the ruling on suppression would be dispositive of the case.” In his sole enumeration of error, Steward contends the trial court erred by denying his motion to suppress. We affirm.

In reviewing a trial court’s decision on a motion to suppress evidence seized, we construe the evidence most favorably to uphold the findings and judgment of the trial court. We adopt the trial court’s findings on disputed facts and on the credibility of witnesses unless those findings are clearly erroneous. Those findings will not be disturbed if there is any evidence to support them. Sprauve v. State, 229 Ga. App. 478, 479-480 (1) (494 SE2d 294). Viewed in this light, the record reveals that on February 5, 1998, Investigator Bobby Young of the Vidalia Police Department obtained a warrant to search for drugs in an apartment located within a housing project. Officer Young sought the warrant based on community complaints of drug dealing from the apartment, information provided by a confidential informant, several weeks of surveillance, and the informant’s controlled buy of a $50 rock of crack cocaine from a woman in the apartment on February 5, 1998.

Officer Young learned from his informant that the residents of the apartment, Natasha Mincey and Wick Loristan, would advertise that drugs were available from them by turning their porch light off. The informant also told the police that Mincey and Loristan obtained their drugs from a partner in Miami. The partner was described as having “a mouth full of gold teeth.” The informant explained that dealing from the apartment was currently “pretty heavy” because the partner had just come in town to resupply Mincey and Loristan with cocaine. Because people in addition to Mincey and Loristan were likely to be in the apartment, Young obtained a search warrant that authorized the search of “other parties” who either were there to buy drugs or were co-conspirators in the sale or distribution of drugs.

During the evening of February 5, 1998, Young and four other officers drove to the apartment to execute the warrant. When they arrived, the porch light was on, indicating that the residents were not selling drugs at present. However, because they believed they had been spotted by neighbors, the officers went ahead and executed the warrant. As soon as they entered the apartment, the officers detained a woman found inside and began their search. They also turned off the porch light. After searching for about 15 minutes, the officers heard someone knocking at the front door.

Officer Donald Williams answered the door, invited Willie Steward into the apartment, and asked him for his identification. Steward handed Officer Williams his wallet. The officer testified that when he took the wallet he noticed that it contained a very large amount of cash. Steward said the $842 in cash was lottery winnings. Also, Steward’s driver’s license revealed he was from Miami, Florida. Officer Young testified that as he and Officer Williams questioned Steward, they noticed that Steward had several gold teeth. Both officers immediately suspected that Steward was the partner from Miami.

Officer Williams told Officer Young to search Steward. Steward, who had been sitting in the living room, stood up and tossed off his jacket, and began to undress. Because the woman was also being detained in the living room, Officer Young told Steward to follow him into another room. During the search, Officer Young found less than an ounce of marijuana concealed in Steward’s underwear. While Officer Young was searching Steward, another officer, Baxley, found Steward’s jacket and searched it. Officer Baxley found several individually packaged rocks of crack cocaine in the jacket pocket.

In his sole enumeration of error, Steward argues that the cocaine evidence used against him was illegally seized and should have been suppressed because the search of Steward’s person and personal belongings was not authorized under OCGA § 17-5-28.

OCGA § 17-5-28 provides that during the execution of a search warrant, an officer may reasonably detain or search any person in the place at the time: (1) to protect himself from attack; or (2) to prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant. See, e.g., Ledford v. State, 233 Ga. App. 445 (504 SE2d 512); Brown v. State, 181 Ga. App. 768, 770 (1) (353 SE2d 572). In Wallace v. State, 131 Ga. App. 204, 205 (1) (205 SE2d 523), we explained that this Code section describes the maximum extent “to which the particularity of description required by the Fourth Amendment may be encroached upon by the practical necessities of the search environment.” Thus, to authorize a search under subsection (2) of the statute of those “other persons” not particularly named in a search warrant but found on the premises, the State must show

a nexus between what the officers are authorized to search for, based on the criminal activity which they had probable cause to believe was and/or still is occurring and which prompted the warrant, the nature of the evidence sought, the environment in which the search is authorized, and the person searched. There must be a connection between that person and the activity which logically leads to a belief that the person is in possession of a targeted item.

State v. Hawkins, 187 Ga. App. 826, 828 (1) (371 SE2d 668).

In this case, although there were facts that strongly suggested a logical link between Steward and items sought in the warrant, there was no risk of his concealing or disposing of any of those items because the premises had been secured before Steward arrived. An “other party” entering the premises during the search may not be searched when that person had no opportunity to conceal any of the items described in the search warrant. Wallace v. State, supra at 205 (1). Therefore, unless the police had independent probable cause justifying the warrantless search of Steward’s person and personal belongings, the cocaine seized should have been suppressed. See id.; see also State v. Anderson, 195 Ga. App. 793 (395 SE2d 50); Logan v. State, 135 Ga. App. 879, 885 (3) (219 SE2d 615).

Under the peculiar circumstances of this case, we believe the officers had probable cause to search Steward. As we have explained, OCGA § 17-5-28 does not limit an officer’s right to search persons for whom probable cause for a warrantless search exists. Ledford v. State, 233 Ga. App. 446 (1), supra. A finding of probable cause is not limited or defined “ £in relation to any one particular element, but may exist because of the totality of the circumstances surrounding a transaction.’ ” Moody v. State, 232 Ga. App. 499, 504-505 (4) (b) (502 SE2d 323).

Decided April 14,1999.

D. Duston Tapley, Jr., for appellant.

Richard A. Malone, District Attorney, for appellee.

In this case, the officers knew that drug dealing from the apartment had been heavy that day. They knew the apartment residents were being supplied by a Miami connection who had gold teeth. They also knew that when the porch light was turned off, people interested in making drug deals would come to the apartment. Steward, who arrived while the porch light was off, matched the description of the Miami dealer. When Steward presented the officers with his wallet, it contained both a Florida driver’s license and a large wad of cash. These facts were sufficient to give the police probable cause to believe that Steward was the Miami supplier and that he was either in possession of, or a party to the possession of, unlawful contraband. See Logan v. State, supra at 885 (3).

Judgment affirmed.

Andrews and Ruffin, JJ., concur.


text:
    A99A0738, A99A0739.
    PINCHON v. THE STATE (two cases).
    (516 SE2d 537)
   McMurray, Presiding Judge.

In Case Nos. A99A0738 and A99A0739, Elizabeth Pinchón and Tameca Pinchón, respectively, appeal their convictions for misdemeanor obstruction of a law enforcement officer. OCGA § 16-10-24. Because these appeals arise from the same trial, we consolidate them. We affirm.

Viewed in the light most favorable to the verdicts, the record reveals that on May 22, 1997, a City of Atlanta police officer cited Elizabeth Pinchón for impeding the flow of traffic. After some debate, Elizabeth Pinchón refused to accept the citation. The officer told her to take the citation, that it was a courtesy, and that he could arrest her. She got out of her car, began arguing with the officer, and demanded his badge number. The officer told Elizabeth Pinchón to take the citation or he would place her under arrest. When she again refused, the officer took her arm, told her she was under arrest,.and began to escort her to the patrol car. Elizabeth Pinchón tried to pull away from the officer. When Tameca Pinchón, Elizabeth Pinchon’s sister and passenger, saw Elizabeth Pinchón struggling against the officer, she got out of the car and demanded to know what was happening. The officer told her that Elizabeth Pinchón was under arrest. Tameca Pinchón grabbed Elizabeth Pinchon’s free arm and began to pull her away from the officer in what the officer described as “a human tug of war.” The officer called for backup assistance. When the officer finally got Elizabeth Pinchón in the patrol car, Tameca Pinchón ran around to the other side of the car and opened the door, apparently to let Elizabeth Pinchón out. When the officer followed, Tameca Pinchón got inside the patrol car and sat next to her sister. They were both arrested and charged with obstruction.

Decided April 14,1999.

Walbert & Mathis, Charles A. Mathis, Jr., for appellants.

Both Tameca Pinchón and Elizabeth Pinchón, in four separate enumerations of error, argue the evidence adduced was insufficient to support their convictions for obstruction. We disagree. Under OCGA § 16-10-24 (a) “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties” is guilty of misdemeanor obstruction. Youhoing v. State, 226 Ga. App. 475, 476 (1) (487 SE2d 86). In this case, the officer was lawfully discharging his duties. He was authorized to arrest Elizabeth Pinchón without a warrant for traffic offenses committed in his presence. Id. at 476-477. Further, the fact that Elizabeth Pinchón was not convicted of impeding the flow of traffic is immaterial. The State does not have to prove the offense that caused the officer to act initially, only the elements of obstruction. Kight v. State, 181 Ga. App. 874, 875 (1) (354 SE2d 202). Finally, both Tameca Pinchón and Elizabeth Pinchón engaged in conduct that can hinder or obstruct a law enforcement officer from discharging his lawful duties. As we explained in Duke v. State, 205 Ga. App. 689 (423 SE2d 427), violence or forcible resistance is not required to prove that an officer was hindered or obstructed in a misdemeanor obstruction case. Argument, flight, stubborn obstinance, and lying are all examples of conduct that may satisfy the obstruction element. Id. at 690 (verbal exchanges, wilfully lying); Leckie v. State, 231 Ga. App. 760, 761 (500 SE2d 627) (stubborn obstinance); Walker v. State, 228 Ga. App. 509, 512 (4) (493 SE2d 193) (flight). Whether a defendant’s conduct has the effect of hindering or obstructing the officer in making his arrest is for the trier of fact to decide. Duke v. State, supra. We find the evidence sufficient to permit a rational trier of fact to find both Elizabeth Pinchón and Tameca Pinchón guilty of misdemeanor obstruction beyond a reasonable doubt. See Leckie v. State, supra.

Judgments affirmed.

Andrews and Ruffin, JJ., concur.

Joseph J. Drolet, Solicitor, Julie A. Kert, Assistant Solicitor, for appellee.


text:
    A99A1298.
    JOHNSON v. THE STATE.
    (516 SE2d 539)
    Decided April 14,1999.
    David Johnson, pro se.

      J. Brown Moseley, District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant, appearing pro se, filed this direct appeal after the trial court entered orders revoking defendant’s probation and granting defendant’s motion for out-of-time appeal. Defendant, appearing pro se, previously had filed an application for discretionary appeal from these orders, pursuant to OCGA § 5-6-35 (a) (5), in Court of Appeals Case No. A99D0185, but this application was dismissed because it was not filed within 30 days of the trial court’s order granting defendant’s motion for out-of-time appeal as required by OCGA § 5-6-35 (d). Held:

Appeals from orders revoking probation must be made by application filed directly with the appropriate court within 30 days of the date of the revocation order. See OCGA § 5-6-35 (a) (5) & (d). As no such application was [timely] filed in [the] case [sub judice within 30 days after entry of the order revoking defendant’s probation or within 30 days after entry of the order granting defendant’s motion for out-of-time appeal, this direct] appeal must be dismissed for lack of jurisdiction.

Scriven v. State, 179 Ga. App. 513 (346 SE2d 906).

Appeal dismissed.

Andrews and Ruffin, JJ, concur.


text:
    A99A0277.
    THE STATE v. SULLIVAN.
    (516 SE2d 539)
   Smith, Judge.

Ricky Mario Sullivan was convicted by a Whitfield County jury of one count of aggravated assault and one count of aggravated battery. The State appeals the superior court’s order quashing Sullivan’s indictment for lack of jurisdiction. We agree with the trial court’s thorough and well-reasoned order concluding that it did not have jurisdiction because exclusive jurisdiction was in the juvenile court at the time the indictment issued. We therefore affirm.

The State does not contest the procedural history of this case as set out by the trial court. At the time of the indictment on May 2, 1997, a delinquency petition had been pending in the juvenile court since November 1996. At a hearing on April 16, 1997, the juvenile court announced from the bench that it would transfer the case to superior court, but the ruling was not reduced to writing until May 22, 1997, 20 days after the date of the indictment.

It is well established that exclusive jurisdiction vests in the juvenile court when a petition of delinquency is filed. Flowers v. State, 265 Ga. 688, 689 (3) (461 SE2d 533) (1995). If a transfer order is defective, the juvenile court retains jurisdiction until a proper transfer order is issued. Livingston v. State, 266 Ga. 501, 506 (4) (467 SE2d 886) (1996).

The oral declaration of the juvenile judge that the case would be transferred to superior court is not a proper transfer order. “ ‘What the judge orally declares is no judgment until it has been put in writing and entered as such.’ ” G. M. J. v. State of Ga., 130 Ga. App. 420, 421 (1) (203 SE2d 608) (1973) (ruling on delinquency petition). And “ ‘[u]ntil an order is signed by the judge (and is filed) it is ineffective for any purpose.’ [Cit.]” State v. Moore, 207 Ga. App. 677, n. 1 (428 SE2d 815) (1993).

At the time the indictment issued, therefore, the superior court lacked jurisdiction. “The judgment of a court having no jurisdiction of the person or subject matter . . . is a mere nullity.” OCGA § 17-9-4. An indictment in a court without jurisdiction must be quashed, Griffin v. State, 266 Ga. 115-116 (1) (464 SE2d 371) (1995), and the right to attack it cannot be waived or destroyed by laches. Hubbard v. State, 225 Ga. App. 154, 155 (483 SE2d 115) (1997). For these reasons, the trial court correctly quashed the indictment.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

Decided April 15,1999.

Kermit N. McManus, District Attorney, Forest L. Miles, Assistant District Attorney, for appellant.

Jerry W. Moncus, for appellee.

       An exception to this general rule may be made when an order is entered nunc pro tunc to the date of the court’s oral ruling. See Franklin v. State of Ga., 227 Ga. App. 30, 31, n. 1 (488 SE2d 109) (1997). But the State has failed to include in the record on appeal the transfer order or indeed any portion of the record in the juvenile court.
      It is a well-established appellate rule that the burden is on the appellant to show error by the record, and when a portion of the evidence bearing upon the issue raised by the enumeration of error! ] is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.
      (Citations and punctuation omitted.) Ross v. State, 195 Ga. App. 624, 626 (3) (394 SE2d 418) (1990).


author: Eldridge, Judge.

text:
    A99A0794.
    PRINE v. THE STATE.
    (515 SE2d 425)
   Eldridge, Judge.

A Fulton County jury found Dillon Lester Prine guilty of driving under the influence of alcohol — less safe driver, OCGA § 40-6-391 (a) (1). Without challenging the sufficiency of the evidence introduced against him, Prine raises two alleged errors of law. We affirm his conviction.

1. Prine first makes a Sixth Amendment challenge. He contends that the Fulton County jury panel to which he posed voir dire questions and from which he selected a petit jury was not composed of a fair cross section of the community because such panel had thirteen black members and one white member.

[C]riminal defendants in state courts have the right to challenge, under the Sixth Amendment, petit juries not selected from a fair cross section of the community. Duren v. Missouri, 439 U. S. 357 (99 SC 664, 58 LE2d 579) (1979). . . . See also, Walraven v. State, 250 Ga. 401 (3) (297 SE2d 278) (1982). However, . . . the defendant must establish prima facie that a distinct and identifiable group in the community is substantially underrepresented on the jury venire being challenged.

(Punctuation omitted.) Wilson v. State, 250 Ga. 630, 635 (3) (a) (300 SE2d 640) (1983). See also Larmon v. State, 256 Ga. 228 (345 SE2d. 587) (1986).

In this case, Prine put forward no evidence of the racial composition of the population of Fulton County, other than to state, “my client, being white, and we only have one white female juror out of the entire panel, I think it’s just not a good cross section and it’s not representative.” That was all. We find that this statement fails to meet Prine’s burden to “establish prima facie that a distinct and identifiable group in the community is substantially underrepresented on the jury venire being challenged.” Wilson v. State, supra at 635.

Further, it is the pool of jurors from which the jury sent to be voir dired is drawn that must be representative of the community, not the individual panel sent to a courtroom for voir dire purposes. “[T]he jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” (Citation and punctuation omitted; emphasis supplied.) Avery v. State, 174 Ga. App. 116, 117 (1) (329 SE2d 276) (1985). In this case, Prine’s complaint was centered solely on the composition of this single jury panel subject to voir dire in this particular case. Such complaint was defective. In fact, Prine’s attorney admitted during trial that most of the Fulton County jury panels he subjects to voir dire are “fifty-fifty” in racial composition. Accordingly, nothing in the record supports the notion that white citizens have been “substantially under represented” in Fulton County’s jury pool. Wilson v. State, supra at 635.

2. Prine contends that the trial court erred in failing to charge the jury that “intent” is an essential element of any crime and that the State has the burden of proving “intent” beyond a reasonable doubt. We disagree.

(a) DUI is a crime of general, not specific, intent. Tam v. State, 232 Ga. App. 15 (501 SE2d 51) (1998). In a crime of general intent, the “intent” required is proved through proof of the commission of the act itself. In a DUI case such as the one charged herein, the act consists of (1) driving, (2) after consuming alcohol to the extent that one is (3) a less safe driver. OCGA § 40-6-391 (a) (1). There is no proof of intent beyond proof of the act.

To prove DUI, the State need not prove intent to commit the crime [,] but it must show the condition of being under the influence of alcohol to the extent of impairment and the intent to drive while in this condition. This general intent may be inferred from the conduct of the accused and other circumstances. OCGA § 16-2-6.

Decided April 1,1999

Reconsideration denied April 16,1999.

William C. Head, for appellant.

Joseph J. Drolet, Solicitor, Marko L. Burgar, Assistant Solicitor, for appellee.

Tam v. State, supra at 15 (1). Since the trial court in this case charged the jury that the State must prove the commission of the act or offense beyond a reasonable doubt and also charged the jury regarding the law of general intent pursuant to OCGA §§ 16-2-5 and 16-2-6, such is sufficient to encompass the notion that “general intent” must be proved beyond a reasonable doubt. Accordingly, “we find nothing in the transcript to support appellant’s contention that the jury could not, or did not, understand the charge on intent as applied to [DUI].” (Citation and punctuation omitted.) Fowler v. State, 188 Ga. App. 873 (374 SE2d 805) (1988).

(b) Moreover,

[Prine] did not request the charge that he complains was not given. OCGA § 5-5-24 (b) places a duty on the defendant to request jury instructions. The defendant is relieved of this duty only in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence. Carr v. State, 183 Ga. App. 36 (3) (357 SE2d 816) (1987). The trial court’s charge on general criminal intent, when considered together with the charges on the elements of [an offense of general intent] and the State’s burden of proving each element of the offense [,] provided sufficient guidelines to the jury. The omission complained of by the defendant herein does not fall into the clearly harmful and erroneous category; consequently, since he did not request the charge in question, he cannot complain.

(Citations and punctuation omitted.) Dixson v. State, 191 Ga. App. 410 (382 SE2d 357) (1989).

Judgment affirmed.

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

       Prine did not raise this enumeration of error in his motion for new trial, and in his brief before this Court, Prine attempts to submit U. S. Census Bureau statistics regarding the City of Atlanta’s population. It is well settled that
      the burden is on the appellant to show error by the record, and when a portion of the evidence bearing upon the issues raised by the enumerations of error[ ] is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.
      (Punctuation omitted.) Burks v. First Union Mtg. Corp., 209 Ga. App. 41, 42 (432 SE2d 822) (1993).