text:
    A98A0710.
    In the Interest of S. S. et al., children.
    (501 SE2d 618)
   McMurray, Presiding Judge.

In September 1997, the Gwinnett County Department of Family & Children Services (“DFACS”), initiated a deprivation petition in the juvenile court, alleging that the minor children S. S., aged ten; T. S., aged seven, and S. S. (“ST. S.”) aged three, were deprived within the meaning of OCGA § 15-11-2 (8) (A) because their “house was very cluttered. There were clothes on the floor, piles of garbage, and a foul odor throughout the house.” The petition also alleged the “home [was] unsanitary.” The children have been under the supervision of DFACS since “5 a.m., on 7/24, 1997.” At the deprivation hearing, the following evidence was adduced:

The instant case was initiated when Officer D. M. Plunkett of the Gwinnett County Police Department responded to a medical alarm at appellant’s home on July 24, 1997. Officer Plunkett “was met at the back door by a three year old nude boy, ([ST. S.]). [Officer Plunkett] entered the residence and observed a very cluttered house. There were piles of clothes on the floor, piles of garbage and a foul odor through out the residence.” Officer Plunkett summoned Steve Gill, a DFACS caseworker, who immediately visited the home and took photographs documenting the cluttered and filthy condition of the home. The back porch was “cluttered with boxes, clothes, so it was hard to get past the back porch. [As Steve Gill] walked in, [he saw] clothes on the floor, there was food, there was a smell . . . [of] bad food. The children’s rooms, the boys’ room was effectively blocked off because of stuff in the front door. And [the same with] the little girl’s room. . . .” One of the children was still running around naked. “[T]here was trash, there was food. You couldn’t get into rooms, the beds were stained. The bed that the daughter was sleeping on just had this huge, black, sort of moldy looking stain in the middle of it. . . .” When he left, Steve Gill discovered he had picked up a slug on his leg while walking through the house. On the day before the hearing, appellant would not allow Steve Gill into her home. He was able to observe through the windows from the back porch that the children’s rooms were still filled with clutter. And, although the back porch had been cleaned up, it was still so infested with fleas that when Steve Gill left the porch his legs were covered with them. Steve Gill thought reunification efforts should cease because “this is the third time the house was not a safe place for the children to be.”

DFACS became first involved with appellant and her children in 1995. Twice prior to the instant deprivation hearing, appellant’s children were removed from the home because of unsafe and unsanitary living conditions. Appellant is physically able to perform housekeeping but is unable to master her environment. Specifically, Karen Thatcher, a Family Support Services parent aide assigned to assist appellant, testified she gave appellant realistic housekeeping goals and while “the kitchen [is] clean and presentable!, and] the porch has been cleared off[, still, the] bedrooms are still pretty much how they were[, and] the living room area is about the same.” Only in “the last two ... to three weeks [before the hearing was there any] major improvement. For a while there, nothing had really changed.” In Karen Thatcher’s opinion, the “bedrooms were not livable for the children^ in that they] were just full of junk. . . . There just would be nowhere for them to sleep.” There remains an overpowering stench of dog and cat urine, and everytime Karen Thatcher visited appellant’s home, she had fleas on her when she left. Appellant explained that she is overburdened partly because she cares for her elderly and terminally ill parents, both of whom are incontinent and one of whom is bedridden. Appellant remains unemployed. She has a history of alcohol abuse and has received rehabilitative treatment. Although appellant contends she no longer drinks, Karen Thatcher found a “24 pack of beer in the refrigerator” one week before the deprivation hearing.

The juvenile court determined the children were deprived; that continuation in the home would be contrary to the welfare of the children; that reasonable efforts had been made to prevent removal; but that the best interest of the children warranted “continuing temporary custody . . .” with DFACS. The parents were ordered to “cooperate with [DFACS] and to follow its recommendations designed to reunify the family.” The court withheld decision on whether DFACS could suspend reunification efforts pursuant to OCGA § 15-11-41 (i) pending a psychological evaluation of appellant, the natural mother. In this direct appeal, appellant’s sole enumeration of error contends the evidence was insufficient to warrant a finding of deprivation and the resulting continued temporary custody of the children with DFACS. Held:

A “ ‘Deprived child’ means a child who . . . [i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for [the] child’s physical, mental, or emotional health or morals[.]” OCGA § 15-11-2 (8) (A). This deprivation must be established by clear and convincing evidence. OCGA § 15-11-33 (b) (1); Watkins v. Watkins, 266 Ga. 269, 272 (2), 273, n. 19 (466 SE2d 860). Consequently, we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the children were deprived and whether, under the circumstances of this case, the court properly continued temporary custody of the children in DFACS. In the Interest of S. A. W., 228 Ga. App. 197, 199 (2), 200 (491 SE2d 441); OCGA § 15-11-41 (b). “This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met. [Cit.]” In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243).

To authorize “even a loss of temporary custody by a child’s parents, on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.” In re D. H., 178 Ga. App. 119, 124 (342 SE2d 367) (whole court). If a child is found to be deprived by clear and convincing evidence under these standards, the court may transfer temporary legal custody to DFACS. OCGA §§ 15-11-33 (b); 15-11-34 (a) (2) (C); In the Interest of A. L. L., 211 Ga. App. 767 (440 SE2d 517). The temporary order removing a child from the home “shall be based upon a finding by that court that continuation in the home would be contrary to the welfare of the child.” OCGA § 15-11-41 (b). Further, the court must make a factual finding that DFACS made reasonable efforts to remedy the need to remove the children from their home. Id.

1. Appellant argues that the case sub judice “is very similar to In [the Interest of] D. S.,” 217 Ga. App. 29, 30 (1), 31 (456 SE2d 715), where this Court reversed a finding of deprivation and award of temporary custody to the Heard County DFACS based upon evidence that children were living in unsanitary conditions. But that case is physical precedent only under Georgia Court of Appeals Rule 33 (a), and so is not binding precedent applicable to this case. Moreover, the reunification efforts of DFACS in the case sub judice, such as providing a parent aide to appellant and encouraging her to fulfill realistic goals, are sufficient to distinguish this case.

2. Appellant’s home is not, as she argues, merely an example of bad housekeeping. Rather, it is an example of an environment which poses a substantial threat to the physical health of its occupants. A child existing in such an environment is “without the care or control necessary for his physical . . . health” and, is therefore deprived within the meaning of OCGA § 15-11-2 (8). The expert opinion of Karen Thatcher that the bedrooms are unlivable is entitled to some weight. Moss v. Moss, 135 Ga. App. 401, 404 (5) (218 SE2d 93). The legislative definition of “deprived” uses broad enough terminology to allow the juvenile court a sound discretion in reaching such a finding. In the Interest of C. N. G., 204 Ga. App. 239 (419 SE2d 42); Moss v. Moss, 135 Ga. App. 401, 405 (6), supra. That the house lapsed repeatedly into a putrid and infested state demonstrates appellant’s neglect of her children’s health and physical well-being, tantamount to an incapability to care for them. Because the unwholesome condition of the home is the cause of the children’s deprivation, the juvenile court was authorized to conclude that allowing them to remain in the home under those persistent conditions would be contrary to their welfare. The evidence further shows that, despite efforts of caseworkers and the parent aide to alleviate the conditions in appellant’s home, appellant allowed the home to remain in its unhealthy and unsanitary state through the date of the hearing. The juvenile court’s disposition of the children was, in our view, warranted by the evidence.

Decided April 16, 1998.

Julie B. Prokopovich, for appellant.

Thurbert E. Baker, Attorney General, William C. Joy, Dennis R. Dunn, Senior Assistant Attorneys General, Shalen A. Sgrosso, Assistant Attorney General, Cheeley & King, Joseph E. Cheeley III, Deborah A. Stone, for appellee.

Judgment affirmed.

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

       Although issues remain pending in the juvenile court, the appellant was not required to comply with the interlocutory appeal procedure. In the Interest of S. A. W., 228 Ga. App. 197 (1) (491 SE2d 441).


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A98A0436.
    SMITH v. THE STATE.
    (501 SE2d 523)
   Beasley, Judge.

John Andrew Smith appeals his conviction for aggravated assault (OCGA § 16-5-21) arising out of his pouring rubbing alcohol on his girl friend and setting her afire. He claims the court erred in (a) admitting evidence he previously attacked his estranged wife with a machete and (b) sua sponte charging the jury on voluntary intoxication.

1. “The object of all legal investigation is the discovery of truth. The rules of evidence are framed with a view to this prominent end, seeking always for pure sources and the highest evidence.” An age-old question is whether and under what circumstances evidence of prior bad acts advances this object. Does such evidence actually materially tend to show the defendant committed the crime in question, or does it unfairly prejudice the jury against the defendant because of his character?

The pertinent statute provides that “[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” The primary aim of this rule is to avoid the forbidden inference of propensity. Just because a defendant has committed wrongful acts in the past is not alone legal grounds to believe he has done so on the occasion under scrutiny. “It is a fundamental principle in our system of jurisprudence, intended to protect the individual who is charged with crime, and to insure him of a fair and impartial trial before an unbiased jury, that the general character of the defendant and his conduct in other transactions is irrelevant unless the defendant chooses to put his character in issue. It is universally recognized ... on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible.”

The basis for this rule is a policy decision, for “character evidence is logically relevant: [cjharacter is circumstantial evidence of conduct and state of mind. A person is more likely to act in accord with his character than contrary to it. Nonetheless, because the probative value of such evidence is outweighed by the danger of prejudice, such evidence is generally legally irrelevant. . . . However, if the evidence is substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character, it is admissible even if it incidentally puts the defendant’s character in issue.

“Purposes for which evidence of previous criminal acts might be offered, other than to show criminal character, include: [mjotive; intent; absence of mistake or accident; plan or scheme, of which the crime on trial is a part; and identity. Thus, in certain circumstances, evidence of independent crimes is admissible. Two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.”

As an additional safeguard against the improper introduction of this inflammatory evidence, Williams v. State and Uniform Superior Court Rule 31.3 require that a hearing be held in which the State must demonstrate, and the court must find (by a preponderance of the evidence), as to each independent act the State seeks to introduce (a) the evidence will be introduced for an appropriate purpose and not to raise an improper inference as to the accused’s character, (b) the accused committed the independent act, and (c) there is a sufficient connection or similarity between the independent act and the crime charged so that proof of the former tends to prove the latter.

Even if all of these criteria are met, “the trial court retains the sound legal discretion to exclude relevant similar crimes evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice.” As the New Jersey Supreme Court observed, the “inflammatory characteristic of other-crime evidence mandates a careful and pragmatic evaluation by trial courts, based on the specific context in which the evidence is offered, to determine whether the probative worth of the evidence outweighs its potential for undue prejudice.” This final guardian of fairness allows the court, on reflection, to exclude the evidence as simply too prejudicial in the court’s judgment when compared to its probative value. But an express finding that the scales weigh in favor of admission is not required.

In exercising this discretion, the court should consider whether “the State’s need for the similar transaction evidence outweigh[s] the prejudice inherent to the defendant.” This consideration consists of at least two questions. First, is the issue for which the State is introducing the evidence a genuinely disputed issue? For example, if identity is the State’s announced purpose but is not an issue contested by defendant, then the probative value of the similar transaction evidence is acutely if not fatally diminished.

Second, does the State need this evidence to prove the issue, or can the fact be proved otherwise? "An important factor in weighing the probative value of other-crime evidence is whether other, less-inflammatory evidence can prove the same fact in issue.” Citing analogous federal law, the United States Supreme Court held that “[t]he determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof. . . .” To illustrate, where intent may be easily inferred from the commission of the act itself, the probative value of similar transaction evidence proffered to prove intent will generally be outweighed by its prejudicial effect.

On occasion, the erroneous admission of similar transaction evidence is considered harmless because of the overwhelming weight of the evidence. In such cases, the elements of the crime were proven through means other than the similar transactions, eliminating the necessity for such evidence. Requiring the State to rely on less inflammatory evidence enhances adherence to the general rule against admitting prior bad acts and stems a tide of exceptions from drowning the rule.

Applying these principles to this case, the court did not err in admitting the similar transaction evidence. The facts underlying the charged crime are that for six to eight months Smith engaged in a romantic relationship with Phalesha Turner, who would spend several nights a week with him at his residence. One night as she lay sleeping next to him Smith woke her up and began arguing. When she ignored him, he poured rubbing alcohol over her and demanded she leave his residence. She declined, and he poured more alcohol on her and ignited it with a cigarette lighter, resulting in severe burns to her right hand and arm and to the right side of her torso. His defense was that she was massaging him with alcohol when he went to light his cigarette and accidentally ignited her hand.

The prior transaction occurred three years earlier when, without warning, he arrived at his estranged wife’s home with a machete and chopped down the front door. He slammed her up against the wall and cut her with the machete. His version was that she and others present attacked him.

At the Rule 31.3 hearing, the State announced four purposes for the evidence: to show absence of accident, course of conduct, motive, and bent of mind. The State argued the evidence demonstrated that in unprovoked domestic situations Smith reacted violently and with weapons when upset with his sexual partner. The court found that there was no question Smith committed the independent act and that the act was sufficiently similar to show his course of conduct or bent of mind to react violently and without provocation to those with whom he was intimate. Because the evidence focused on his state of mind, it would tend to disprove accident. The court further found the probative value of the evidence outweighed its prejudice to Smith. During trial, the court heard the estranged wife’s testimony outside the presence of the jury and reaffirmed its finding of similarity. The court instructed the jury at the time of the testimony and again in the final charge about the limited purposes of the testimony.

The court’s findings are measured by the clearly erroneous standard. Because they both relate to intent, bent of mind and course of conduct, they are permissible purposes in assault cases, particularly to assess defendant’s claim of accident.

Smith does not challenge the fact he committed the independent act. Instead, he argues the independent act against his estranged wife was not sufficiently similar. “While Uniform Superior Court Rule 31.3 speaks of similar transactions, the issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. Depending upon the purpose for which the extrinsic offense is offered, the state may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar.”

Intent or lack of mistake requires less similarity than identity. “Generally, when similar transactions are being introduced to prove such issues as bent of mind, motive, intent or lack of mistake, less similarity need be shown than when identity is sought to be proved thereby.” Thus, in such cases fewer points of contact are required to establish the needed logical connection.

In cases of domestic violence, prior incidents of abuse against family members or sexual partners are more generally permitted because there is a logical connection between violent acts against two different persons with whom the accused had a similar emotional or intimate attachment. A prior act can show the accused’s attitude or mindset (i.e., his bent of mind) as to how children or sexual partners should be treated or “disciplined.” A prior act can also show his actual course of conduct in reacting to disappointment or anger in such a relationship, evidencing a pattern. As our counterpart in New York has concluded, “[i]n domestic violence cases, evidence of prior bad acts is especially probative in overcoming a defense based on mistake. [Cit.]”

Domestic violence usually occurs in the privacy of the home and because of loyalties and lack of witnesses is often difficult to prove. “Certain otherwise inexplicable assaults, such as occur in a series of incidents of wife or child abuse, particularly lend themselves to this exception to the ‘other offenses’ rule on questions of both identity and motive.” Citing this doctrine, Sapeu v. State admitted previous incidents of domestic violence against a mother and her children to help prove child cruelty by the father against one of the children.

Even without the domestic element, other cases have admitted prior violent assaults or batteries by the accused against others to show bent of mind or course of conduct to initiate and continue violent encounters, which tended to disprove a defendant’s claim of self-defense (analogous to accident in that the act has an innocent explanation) in a murder or battery charge.

Smith argues that the incidents are not sufficiently similar because a machete was used in one and rubbing alcohol and a cigarette lighter in the other. But that may just depend on what was a handy or desirable means for attack at the moment. “When sufficient basis exists to admit the evidence, dissimilarities such as the type of weapon used or the precise igniting act do not destroy the basis for admitting evidence as a similar transaction. [Cit.]” The use of lethal or opportunistic weapons may be sufficient when considered in the context of other similarities. The focus of the inquiry is on the similarities between the incidents, not on their differences.

In both the prior transaction and the crime charged, Smith, acting without provocation and to express his anger, used a lethal weapon to attack a woman with whom he had an emotional attachment through a sexual partnership. The machete incident is sufficiently similar to help show his intent (through his bent of mind and course of conduct) to harm Ms. Turner in the burning incident, which could disprove his defense of accident. Because intent was not easily inferable from the lighting of the fire itself, there was not less inflammatory evidence available to prove this element. The court did not clearly err in admitting the similar transaction.

Decided April 3, 1998

Reconsideration denied April 17, 1998

James D. Michael, for appellant.

J. Tom Morgan, District Attorney, Priscilla E. N. Carroll, Kevin N. Levitas, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

2. The court sua sponte charged the jury on voluntary intoxication. Citing Smith v. State defendant contends the charge confused and misled the jury. But in Smith the evidence of defendant’s intoxication had been struck. Here defendant admitted he had drunk three beers and a bottle of liquor that evening, which evidence was not struck. Accordingly, a charge of voluntary intoxication was proper.

Judgment affirmed.

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

       OCGA § 24-1-2.

       OCGA § 24-2-2.

       (Citations and punctuation omitted; emphasis in original.) Bacon v. State, 209 Ga. 261, 262 (71 SE2d 615) (1952); see Stephens v. State, 261 Ga. 467, 469 (6) (405 SE2d 483) (1991).

       (Citations and punctuation omitted; emphasis in original.) Walraven v. State, 250 Ga. 401, 407-408 (4) (b) (297 SE2d 278) (1982); see Stephens, supra, 261 Ga. at 469.

       261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

        Freeman v. State, 268 Ga. 185, 188 (4) (486 SE2d 348) (1997).

        White v. State, 213 Ga. App. 429, 430-431 (1) (445 SE2d 309) (1994), citing Brockman v. State, 263 Ga. 637, 640 (3) (436 SE2d 316) (1993).

       (Citations and punctuation omitted.) State v. Cofield, 605 A2d 230, 233 (N.J. 1992).

        Farley v. State, 265 Ga. 622, 625-626 (2) (458 SE2d 643) (1995).

       (Emphasis supplied.) Phillips v. State, 215 Ga. App. 526, 527 (4) (451 SE2d 517) (1994).

       See Cofield, supra, 605 A2d at 235 (“material issue must be genuinely disputed”); State v. Bedker, 440 NW2d 802, 805 (Wis. Ct. App. 1989) (“If the state offers other crimes evidence as relevant to specific elements of the crime charged, and those elements are not at issue, the other crimes evidence is inadmissible”).

        State v. Oliver, 627 A2d 144, 149 (N.J. 1993); see State v. Harris, 365 NW2d 922, 925 (Wis. Ct. App. 1985) (“The availability of other evidence ... is a factor relevant to determining the admissibility of other wrongs evidence”).

        Old Chief v. United States, - U. S. -(117 SC 644, 652, 136 LE2d 574) (1997) (quoting Advisory Committee’s Notes on Fed. Rule Evid. 404, 28 USCA, p. 861); see United States v. Astling, 733 F2d 1446, 1456 (11th Cir. 1984).

       See People v. Alvino, 519 NE2d 808, 812 (N.Y. 1987); People v. Carr, 618 NYS2d 379, 380 (N.Y. App. Div. 1994).

       See McGee v. State, 267 Ga. 560, 564 (2) (480 SE2d 577) (1997); Jones v. State, 226 Ga. App. 721, 724 (1) (487 SE2d 618) (1997); Weems v. State, 204 Ga. App. 352, 355 (419 SE2d 346) (1992).

        Stephens, supra, 261 Ga. at 469, fn. 2; Parson v. State, 229 Ga. App. 117, 118 (1) (493 SE2d 256) (1997).

       See Willingham v. State, 268 Ga. 64, 65 (3) (485 SE2d 735) (1997); Farley, supra, 265 Ga. at 623 (2); see also Woods v. State, 224 Ga. App. 52, 55 (3) (479 SE2d 414) (1996) (jury can infer intent from course of conduct); Cole v. State, 216 Ga. App. 68, 70 (1) (453 SE2d 495) (1994) (intent can be shown through course of conduct).

        Simmons v. State, 266 Ga. 223, 224-226, 230 (466 SE2d 205) (1996); McKibbons v. State, 226 Ga. App. 452, 455 (3) (486 SE2d 679) (1997).

       (Citations, punctuation, and emphasis omitted.) Brockman, supra, 263 Ga. at 640 (3).

        Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989); Banks v. State, 225 Ga. App. 754, 755 (2) (484 SE2d 786) (1997).

        Daniel v. State, 194 Ga. App. 495, 496 (1) (391 SE2d 128) (1990); see Davis v. State, 229 Ga. App. 787 (494 SE2d 702) (1997); Hargrove v. State, 202 Ga. App. 854, 856 (1) (415 SE2d 708) (1992).

        Raulerson v. State, 268 Ga. 623, 631 (8) (491 SE2d 791) (1997); Fields v. State, 223 Ga. App. 569, 571 (2) (479 SE2d 393) (1996).

        Howard v. State, 228 Ga. App. 775, 776 (1) (492 SE2d 683) (1997) (“The evidence was probative of [defendant’s] method of resolving disputes with his girl friends by committing violent acts upon them”); Grier v. State, 218 Ga. App. 637, 639 (2) (463 SE2d 130) (1995) (abuse of former girl friend admitted to prove battery of another girl friend); cf. Ward v. State, 262 Ga. 293, 295 (2) (417 SE2d 130) (1992) (“The extrinsic transactions in this case show that [defendant] is obsessed with having control and dominance over women”).

       See Sapeu v. State, 222 Ga. App. 509, 510-511 (4) (474 SE2d 703) (1996); Bohannon v. State, 208 Ga. App. 576, 579-580 (2) (b) (431 SE2d 149) (1993) (“evidence of prior acts of violence against the victim and others was properly admitted to show his motive, scheme, course of conduct, and bent of mind — i.e., his continuing pattern of abusing and intimidating the victim and other women is evidence that he likely abused and coerced the victim on this occasion”).

        People v. Davis, 628 NYS2d 742, 743 (N.Y. App. Div. 1995); see State v. Moorman, 670 A2d 81, 87 (N.J. Super. Ct. App. Div. 1996) (“Evidence of prior episodes of child abuse unconnected with the direct cause of the child’s death was admissible as proof of absence of accident or mistake”); People v. Rios, 624 NYS2d 459 (N.Y. App. Div. 1995) (admitted prior conviction for assaulting other son to rebut contention that this son’s death was accidental); State v. Clark, 507 NW2d 172 (Wis. Ct. App. 1993) (admitted evidence that accused had battered a previous girl friend as proof of intent to injure current girl friend); but see People v. Williams, 623 NYS2d 441 (N.Y. App. Div. 1995) (defendant charged with Wiling infant; court erred in admitting evidence of accused’s assault of infant’s mother a week earlier).

       See People v. Henson, 304 NE2d 358, 363 (N.Y. 1973) (evidence of previous abuse negates the defense of accident and “is especially warranted in cases . . . where the crime charged has occurred in the privacy of the home and the facts are not easily unraveled”).

       (Citations and punctuation omitted.) Herring v. State, 224 Ga. App. 809, 814 (4) (481 SE2d 842) (1997); Haygood v. State, 154 Ga. App. 633 (1) (269 SE2d 480) (1980).

       Supra, 222 Ga. App. at 510 (4).

       See Farley, supra, 265 Ga. at 624 (2) (“Under numerous decisions of this court, the prior aggravated battery committed by appellant was relevant to rebut his claim of self-defense in this case by showing that he has a propensity for initiating and continuing unprovoked encounters which result in bodily harm to those whom he attacks”); Gentry v. State, 250 Ga. 802, 803 (1) (301 SE2d 273) (1983) (“Since appellant claimed self-defense, evidence of previous unprovoked attacks was relevant to show malice, intent, motive, and bent of mind”); Sloan v. State, 214 Ga. App. 784, 785 (1) (449 SE2d 328) (1994) (“Evidence of similar violent or hostile acts against others likewise may be admitted to show bent of mind or course of conduct”) (citations and punctuation omitted); Willis v. State, 214 Ga. App. 479, 480 (3) (a) (448 SE2d 223) (1994) (previous incident showed accused’s temper and propensity to act violently and impulsively in response to disappointment, jealousy or misunderstanding).

        Willis, supra, 214 Ga. App. at 480.

        Jimenez v. State, 228 Ga. App. 668 (492 SE2d 530) (1997).

        Smith v. State, 267 Ga. 363, 364 (3) (478 SE2d 379) (1996).

        Farley, supra, 265 Ga. at 624.

       228 Ga. App. 507, 508 (2) (492 SE2d 271) (1997).

        Creson v. State, 218 Ga. App. 184, 186 (2) (460 SE2d 83) (1995).


author: Birdsong, Presiding Judge.

text:
    A98A0048.
    A98A0049.
    A98A0050.
    CHANEY v. THE STATE. HYSMITH v. THE STATE. SKIPPER v. THE STATE.
    (500 SE2d 416)
   Birdsong, Presiding Judge.

Appellants William D. Chaney, William M. Skipper and Ray Hysmith, and a large number of other persons, were charged by accusation with cruelty to animals in violation of OCGA § 16-12-4, for having intentionally encouraged another “to commit the crime of cruelty to animals by aiding in the holding of chicken fights, causing unjustifiable suffering to chickens.” Appellants were found guilty and were each sentenced to 12 months in prison and to pay a $1,000 fine.

The State showed that an agent of the Department of Natural Resources, a corporal in law enforcement, was called to the scene of a possible cock fight in progress, and found a shelter located in the back of a field about 300 yards off a state road where a large number of vehicles were parked. The officer found buildings containing chickens, game cocks, and roosters, and a shelter hidden from the highway view by a felt curtain.

At this shelter, the officer observed two cock fights. The shelter was equipped with five rows of wooden bleachers down two sides of the shelter, and under the shelter there were three “pits” which were formed by lengths of tin roofing or other metal laid in a circle or square to a height of approximately two or three feet so as to be completely separated from the surrounding areas. There was a round main pit and two square side pits. A set of weighing scales was placed nearby with a note pad and a composition book containing the entrants’ weights and numbers listed. The shelter was lit by fluorescent lights and was serviced, by a barbecue grill and concessions selling hamburgers and hot dogs. The officer testified that as he arrived, cock fights were in progress in two of the three pits. In one square side pit, two fighting roosters were equipped with spurs which were attached to the chickens’ feet with leather bands; these spurs were made of stainless steel and were curved “like an ice pick.” When the officer arrived, he saw appellants Chaney and Hysmith standing in this pit with the chickens and a third person. Chaney had a three-foot stick in his hand. The pits were surrounded by people and there were people sitting and standing in the bleachers, shouting and cheering. In the center round pit the officer saw two fighting roosters accompanied by appellant Skipper and two other persons. The officer testified as to his experience investigating four cock fights, including the set up of cock fighting pits and record-keeping methods. He testified that the pit usually contains two fighting roosters and the two handlers who are “pitting” their roosters, and a referee. Only the roosters’ handlers and the referee are allowed in the pits during cock fights.

The officer testified that when he arrived at the shelter there were about 125 persons watching and cheering the cock fights, although about 20 to 30 of those left when he yelled to get the crowd’s attention. He saw two fights going on in two pits. In the square pit he saw appellants Chaney and Hysmith and a third person with two fighting roosters. Hysmith was in the pit, standing behind one of the fighting roosters. Chaney had a stick in his hands about three feet long, which he dropped when he saw the officer arrive. The officer saw Hysmith take one of the roosters out of that pit, take it to a vehicle and cut the spurs off. The officer got the spurs. He also got Chaney’s and Hysmith’s driver’s licenses but the third person in the square pit left without being identified. The officer examined one of the roosters in this pit and found it to be exhausted, not moving and apparently injured. Appellant Hysmith removed the other rooster in the pit and cut off its spurs. Inside the main round pit were appellant Skipper and two other persons. Skipper was in the middle of that pit and tried unsuccessfully to leave the pit before the officer could get his identification. Later, in a cage behind a van near the shelter, the officer found an injured rooster with spurs tied to his feet. In other areas he found about five dead roosters and several live roosters.

All three appellants contend they were entitled to directed verdicts of acquittal because there was no evidence they actually engaged in cruelty to animals, in that the officer never testified he saw any of the appellants hit a chicken, touch a chicken or arm a chicken in a fight with another chicken. Chaney and Skipper contend they were selectively prosecuted because the officer did not see them do anything more to an animal on that day than did the other people who were not charged. Held:

1. On appeal from a finding of guilty on a criminal charge, the evidence must be viewed in the light most favorable to support the finding of the trier of fact and the defendant no longer enjoys a presumption of innocence; the standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) the evidence was sufficient for a rational trier of fact to find that the defendant was guilty of the offense charged beyond a reasonable doubt and, where appellant contends the circumstantial evidence is insufficient to prove his guilt, to the exclusion of every other reasonable hypothesis. Smith v. State, 222 Ga. App. 701 (1) (475 SE2d 715); Cody v. State, 222 Ga. App. 468, 470 (1) (474 SE2d 669); Lester v. State, 226 Ga. App. 373 (487 SE2d 25). The evidence that it is customary procedure at cock fights to have only the fighting roosters’ two handlers in the pit, with a referee, the evidence that each of the appellants was found in one of the pits with two other persons, and the other evidence of their acts observed while they were in the pit, including Chaney’s dropping of his stick and Skipper’s attempt to flee the pit without giving identification and Hysmith’s acts in removing one of the roosters and cutting off its metal spurs, was sufficient to authorize a conviction for aiding and encouraging cock fighting and cruelty to animals, beyond a reasonable doubt and to the exclusion of any other reasonable hypothesis. Smith, supra; Cody, supra; and Lester, supra.

Appellants contend this case is equal in lack of evidence as Brackett v. State, 142 Ga. App. 601, 602-603 (236 SE2d 689), so as to demand a directed verdict of acquittal. In Brackett, however, “[t]he only evidence that the appellants committed an act of cruelty to the gamecocks was that they were among the spectators. While it is obvious that someone among the group arranged the fight, set up the pit, and strapped on the spurs, there was no showing that any of the individual appellants had done any of these acts.” Id. at 602 (2). In the case now before us, the evidence viewed in favor of the jury’s verdict shows that it is customary procedure in cock fighting to allow only the birds’ two handlers and a referee in the pit, and each of the three appellants in this case was clearly observed in a pit during a cock fight with two other persons. Moreover, Chaney was seen in a pit with fighting roosters, holding and dropping a three-foot stick; Skipper was in the center of a pit and tried to flee; and Hysmith picked up one of the fighting chickens and took charge of it, removing its spurs. The evidence shows that each pit was about ten to twelve feet in diameter, was large enough to hold many men but held only three and was clearly and distinctly walled off in a knee-high metal circle or square designed to keep spectators out of that fighting area for a distance of several feet, with the result that persons standing in the pit would be clearly distinguishable from persons standing outside the pit. The evidence altogether is amply sufficient to support the findings of guilt for cruelty to animals by aiding and encouraging a cock fight in violation of OCGA § 16-12-4.

Decided April 17, 1998.

Dillard & Tucker, Rebecca R. Crowley, Mary E. Lysak, for Hysmith.

Charles D. Joyner, for Chaney and Skipper.

Michael D. DeVane, Solicitor, for appellee.

2. The issue of selective prosecution was not raised in the trial court and cannot be addressed on appeal for the first time. See Rinker v. State, 228 Ga. App. 767, 768 (492 SE2d 746). Even if it had been properly raised, however, we would find no merit in this objection, for these prosecutions were not arbitrary but were based on the fact that appellants were not merely spectators but were the persons observed in the pit with the roosters. See Staples v. State, 209 Ga. App. 802, 806 (6) (434 SE2d 757).

Judgments affirmed.

Johnson and Smith, JJ, concur.


author: Ruffin, Judge.

text:
    A98A0280.
    LEE v. THE STATE.
    (501 SE2d 844)
   Ruffin, Judge.

A jury found George Lee guilty of committing the following offenses against his minor stepson and stepdaughter: one count each of aggravated sodomy, child molestation, statutory rape and incest, and two counts of cruelty to children. Lee appeals, asserting (1) that there was insufficient evidence showing he committed one of the counts of cruelty to children within the statute of limitation, (2) that there was insufficient evidence supporting his conviction for statutory rape and (3) that the trial court erred in allowing a State’s expert witness to testify concerning a victim’s credibility. For reasons which follow, we affirm.

1. There was sufficient evidence showing the State prosecuted Lee for cruelty to his stepson within the statute of limitation.

A person “commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” OCGA § 16-5-70 (b). A prosecution for the felony of cruelty to children must generally be commenced within four years after commission of the crime. See OCGA §§ 17-3-1 (c); 16-5-70 (c). However, when the victim is under fourteen years old, the limitation period for prosecuting the offense is extended to seven years from the commission of the crime. OCGA § 17-3-1 (c). At trial, “[t]he date of the offense need not be proved with preciseness, but only that it occurred during the period of limitation. It may be established by circumstantial evidence.” (Citations and punctuation omitted.) Peavy v. State, 179 Ga. App. 397 (1) (346 SE2d 584) (1986). Finally, in determining whether a crime is prosecuted within the limitation period, the date of prosecution is the date the indictment was filed. OCGA § 16-1-3 (14). See also id.; State v. Rustin, 208 Ga. App. 431, 433 (2) (430 SE2d 765) (1993).

Viewed in a light most favorable to support the jury’s verdict, the evidence supporting Lee’s cruelty to children conviction shows as follows. George Lee and Bonnie Lee were married in 1983. After the wedding, Bonnie Lee’s two children from a previous marriage lived with George and Bonnie Lee. In 1988, when the stepson was 13 years old, Lee regularly forced him to have sexual intercourse with his mother. The stepson testified that Lee “called [the intercourse] sugar. And he would ask you, or ask me would I want some sugar.” The evidence showed that if the stepson refused to have intercourse with his mother, Lee would beat him with a belt, a board or a stick.

Although there is no evidence showing the specific dates on which Lee committed these acts, the evidence does establish that the acts occurred when the stepson was age 13, and that he turned 14 on December 30, 1988. The stepson’s testimony also reveals that the forced intercourse happened “[a]ll the time. . . . [T]here was never set dates or set times. It was just whenever. I mean, sometimes a week would go by and it didn’t happen, and sometimes it would happen every day.” Finally, the record shows that Lee was indicted for cruelty to children on December 18, 1995.

Because the stepson was thirteen at the time of the offense, the State had seven years to commence its prosecution. OCGA § 17-3-1 (c). Accordingly, any acts which occurred after December 18, 1988 (seven years prior to the indictment) and before December 30, 1988 (the victim’s 14th birthday), could form the basis of the prosecution. Inasmuch as the evidence showed that the acts occurred almost daily, and only a week lapsed between the incidents, a jury could find that Lee committed an act during this twelve-day period which fell within the seven-year statute of limitation. See OCGA § 17-3-1 (c). Accordingly, the trial court properly denied Lee’s motion for directed verdict on this ground. See Peavy, supra.

2. We also find that the trial court properly denied Lee’s motion for directed verdict on the statutory rape charge. “A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.” OCGA § 16-6-3 (a). Lee asserts that the trial court erred in denying his motion because there was no corroborating evidence supporting the victim’s testimony. We disagree.

“ A child-victim’s prior consistent statements, as recounted by third parties to whom such statements were made, can constitute “sufficient substantive evidence of corroboration” in a statutory rape case. [Cit.]’ [Cit.]” Turner v. State, 223 Ga. App. 448, 450 (2) (477 SE2d 847) (1996). The transcript here contains such corroborating testimony. The victim testified that Lee repeatedly had intercourse with her in her bedroom when she was between 12 and 17 years old. The transcript shows that the victim told her mother, Bonnie Lee, about the offenses and the mother testified about the victim’s statements at trial. In addition, Bonnie Lee testified that Lee was frequently alone with the victim in the bedroom and that on one occasion she, Bonnie Lee, went into the bedroom and found Lee “on top of [the victim] naked.” This was sufficient corroborating evidence for a jury to find beyond a reasonable doubt that Lee committed statutory rape. See id.

3. Finally, Lee asserts that the trial court erred by allowing a clinical social worker to give an expert opinion as to the stepdaughter’s credibility. Again, we disagree.

The transcript reveals that the witness, a clinical social worker who specialized in child sexual abuse, testified extensively about the child abuse accommodation syndrome. Following this testimony, the prosecutor asked the witness: “Have you met with a young lady named [M. D., the victim]?” The witness responded: “I’m not able to disclose that because of privilege. I couldn’t say one way or the other at this point. I would have to have the permission of that person, if that were the case, to be able to disclose that.” Following this response, the prosecutor stated he had no further questions and Lee’s counsel similarly stated that he had no questions. Importantly, Lee never objected to the testimony and his failure to object precludes consideration of that assertion on appeal. See Ryans v. State, 226 Ga. App. 595 (2) (487 SE2d 130) (1997). Moreover, even if Lee had objected, contrary to his assertion, this testimony does not imply that the witness found the victim credible. Cf. Hilliard v. State, 226 Ga. App. 478 (487 SE2d 81) (1997) (expert testified that she met with the victim and that based on her observations she “ ‘firmly believe[d] that he was molested.’ ”).

Decided April 17, 1998.

John R. Thigpen, Sr., for appellant.

Richard E. Currie, District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Because this charge does not concern any acts that occurred on or after July 1, 1992, the tolling provision in OCGA § 17-3-2.1 does not apply. See OCGA § 17-3-2.1 (b).


text:
    A98A0286.
    FOSKEY v. THE STATE.
    (501 SE2d 856)
   Birdsong, Presiding Judge.

On July 23, 1993, Marshall Foskey pled guilty to 18 counts of burglary in Coffee County, and his sentences were made consecutive and concurrent to sentences passed in the counties of Ben Hill, Jeff Davis, Atkinson, Lowndes, Appling, and Glynn.

On August 4, 1997, Foskey filed a motion entitled “Out of Time Appeal” in Coffee County Superior Court. The motion sought to withdraw his guilty pleas. The trial court denied it and Foskey’s motion for reconsideration. This appeal follows. Held:

“The superior court’s jurisdiction to entertain a motion to withdraw a guilty plea ends after the term of court in which the judgment of conviction was rendered.” Lewis v. State, 229 Ga. App. 827, 829 (1) (494 SE2d 678); Dorrough v. State, 226 Ga. App. 362, 363 (486 SE2d 644); Cabell v. State, 221 Ga. App. 192 (471 SE2d 222); Stuckey v. State, 204 Ga. App. 793 (420 SE2d 655); Jarrett v. State, 217 Ga. App. 627, 628 (458 SE2d 414). For general procedural considerations, see Bice v. State, 212 Ga. App. 184 (441 SE2d 507).

Furthermore, “[i]t is well established that after the expiration of the term and of the time for filing an appeal from the conviction, the only remedy available to the defendant for withdrawing a plea is through habeas corpus proceedings. State v. Johnson, [222 Ga. App. 156 (473 SE2d 593)].” Lewis, supra.

Appellant contends that at the time he filed his motion seeking to withdraw guilty pleas, he was unaware that the superior court lacked jurisdiction to grant such relief, that this was an honest mistake on his part, and that the State is abusing his rights by arguing against this motion. However, when a court has no jurisdiction over a matter, it has no power to hear that matter. Jurisdiction is an ancient, formalized concept which prevents courts from abusing all persons by hearing matters which should properly be decided in another court or proceeding; the concept also prevents parties from abusing the orderly process of the courts. See generally In the Interest of I. B., 219 Ga. App. 268 (464 SE2d 865). If a court has no jurisdiction to hear a matter, neither the State nor the defendant has a power or right to relax those jurisdictional rules so as to have the matter heard.

Decided April 17, 1998.

Marshall Foskey, pro se.

Richard E. Currie, District Attorney, Kevin E. Hutto, Assistant District Attorney, for appellee.

Appellant’s many enumerations of error deal with the merits of whether his guilty pleas were properly made and accepted in 1993 and whether his concept of an “out of time” appeal to address his complaints concerning his 1993 guilty pleas should have been heard and granted. However, we have no authority to consider these enumerations, for the trial court was without jurisdiction to hear the request to withdraw guilty pleas. As to whether he should have an “out of time” appeal, the proper procedure was for the defendant to seek to withdraw his guilty pleas, but he was required to do so at the proper time. Lewis, supra; Dorrough, supra; Cabell, supra; Stuckey, supra. Otherwise, the appellant’s remedy is by habeas corpus proceedings, as we said above. State v. Johnson, supra.

Since the trial court lacked jurisdiction even to consider the substantive issues Foskey raised in his motion, the order appealed from is vacated because it is a nullity and it is void. Thus, the trial court is directed to dismiss for lack of jurisdiction the motion for out of time appeal by which appellant seeks to withdraw his guilty pleas. See Foskey v. State, 229 Ga. App. 209, 210 (493 SE2d 595), another appeal by which appellant attempted the same void procedure.

Judgment vacated and case remanded with direction.

Johnson and Smith, JJ, concur.


text:
    A98A0288.
    REID v. REID.
    (502 SE2d 269)
   Ruffin, Judge.

Linda Joyce Reid and Michael Jerome Reid divorced in 1990. As part of the settlement agreement, Ljnda Reid obtained custody of their minor children and Michael Reid was required to pay child support. In 1995, Linda Reid filed an affidavit for garnishment seeking recovery of unpaid child support owed by Michael Reid. Subsequently, in November 1996, Linda Reid amended her affidavit for garnishment, seeking interest on the unpaid child support in accordance with OCGA § 7-4-12.1, which became effective July 1, 1996. The trial court awarded Linda Reid the unpaid child support, but declined to award her any interest, concluding that OCGA § 7-4-12.1 should not be applied retroactively. Linda Reid filed an application for discretionary appeal, asserting that OCGA § 7-4-12.1 is remedial in nature and thus should be applied retroactively. We granted the application and, for the following reasons, reverse the trial court.

Prior to July 1, 1996, the rule in Georgia was “ ‘that in a proceeding to hold a party in contempt for failure to make alimony and child-support payments under a divorce decree, the court [was] vested with discretion in determining whether interest should be added to the arrearages found to be due.’ Turner v. Turner, 251 Ga. 435 (306 SE2d 650) (1983).” Leroux v. Avera, 192 Ga. App. 210 (384 SE2d 434) (1989). “Accordingly, . . . judgment interest on a child-support arrearage must itself be reduced to judgment in a contempt proceeding in order to be recoverable. [Cit.]” Id. OCGA § 7-4-12.1 changed this procedure, establishing that “[a]ll awards of child support expressed in monetary amounts shall accrue interest at the rate of 12 percent per annum commencing 30 days from the day such award or payment is due. This Code section shall apply to all awards, court orders, decrees, and judgments rendered pursuant to Title 19. It shall not be necessary for the party to whom the child support is due to reduce any such award to judgment in order to recover such interest.” OCGA § 7-4-12.1. Accordingly, under the new Code section, interest automatically accrues and a party has a vested right to the interest; it is no longer within the discretion of a trial judge to determine whether an award of interest is appropriate.

“ ‘In interpreting statutes, courts must look for the intent of the legislature and construe statutes to effectuate that intent. [Cit.]’” Dismer v. Luke, 228 Ga. App. 638, 639 (2) (492 SE2d 562) (1997). “Generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. On the other hand, where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. Retroactive effect is also given to statutes affecting the remedy only rather than the right to which the remedy attaches.” (Citations and punctuation omitted.) Barnes v. City of Atlanta, 219 Ga. App. 139, 141 (464 SE2d 609) (1995). See also OCGA § 1-3-5.

In the instant case, “[t]he legislature did not express an intention as to whether or not [OCGA § 7-4-12.1] should be given retroactive effect. [Therefore,] [i]n order to decide whether the statute should be given prospective or retrospective effect, the statute must be examined to determine whether it is substantive in nature or has a procedural or remedial nature.” Barnes, supra at 141.

We find that this change in the law affects an individual’s remedial rights and not the right to which the remedy attaches. See Glover v. Colbert, 210 Ga. App. 666, 668 (437 SE2d 363) (1993); Barnes, supra. OCGA § 7-4-12.1 in no way alters a person’s obligation to pay child support. It only alters the manner in which an obligee owed child support can proceed to obtain interest against the obligor on the unpaid child support payments. Before, an award of interest could be obtained if the trial court, within its discretion, considered such an award to be appropriate and the award was reduced to judgment. Now, an award of interest is automatic when requested by the person owed child support; there is no need to reduce the award to judgment. See OCGA § 7-4-12.1. OCGA § 7-4-12.1 is remedial in nature, rather than substantive, and thus it should be applied retroactively. Barnes, supra.

Moreover, we note that applying the Code section prospectively would unnecessarily create two classes of claimants: claimants owed child support before July 1, 1996 would be required to have the interest award determined by a trial judge and reduced to judgment while claimants owed child support after July 1, 1996 could obtain an award of interest as a matter of right. We see no reason why the legislature, in passing OCGA § 7-4-12.1, would have designed the statute so as to create confusion and classes of citizens with different rights. See Dismer, supra.

Rather, it appears that the legislature, by enacting OCGA § 7-4-12.1, was attempting to redefine this remedial law in order to make it more consistent with other Georgia and federal laws. Georgia has attempted to comply with federal law by enacting and amending the Child Support Recovery Act, OCGA § 19-11-1 et seq. See Dept. of Human Resources v. Bagley, 142 Ga. App. 353, 354 (235 SE2d 734) (1977); Dept. of Human Resources v. Jones, 221 Ga. App. 580 (472 SE2d 331) (1996). 42 USC § 654 (20) provides that “[a] state plan for child and spousal support must — (20) provide, to the extent required by section 666 of this title, that the State (A) shall have in effect all of the laws to improve child support enforcement effectiveness which are referred to in that section, and (B) shall implement the procedures which are prescribed in or pursuant to such laws[.]” 42 USC § 666 (a) (9) sets forth that “[i]n order to satisfy section 654(20) (A) of this title, each State must have in effect laws requiring the use of . . . (9) [procedures which require that any payment of installment of support under any child support order ... is (on and after the date it is due) — (A) a judgment by operation of law, with the full force, effect, and attributes of a judgment of the State, including the ability to be enforced. . . .”

Decided April 17, 1998

Mann, Bracken, Layng & Knezo, W. Christopher Bracken III, for appellant.

Parkerson, Shelfer & Groff, David B. Groff, for appellee.

Regarding interest on judgments, Georgia law provided that “[a]ll judgments in this state shall bear interest upon the principal amount recovered at the rate of 12 percent per year. . . .” OCGA § 7-4-12. Prior to the adoption of OCGA § 7-4-12.1, Georgia statutory authority established that OCGA § 7-4-12 did not apply to arrearages on unpaid child support and interest could only accrue on unpaid child support if it was within the trial court’s discretion. See Leroux, supra; Turner, supra. The language of OCGA § 7-4-12.1 brought Georgia law into conformance with federal law, and eradicated the illogical result of treating unpaid child support judgments differently from all other judgments in the state. Accordingly, we conclude after an examination of the statute as a whole, together with a review of other federal and state law, that the legislative intent of adopting OCGA § 7-4-12.1 was to have it apply to all child support arrearages, regardless of whether they accrued prior to or after July 1, 1996 when the new Code section became effective. See Canton Textile Mills v. Lathem, 253 Ga. 102, 103 (1) (317 SE2d 189) (1984). Therefore, the trial court erred in applying OCGA § 7-4-12.1 prospectively, and Linda Reid is entitled to interest on her ex-husband’s unpaid child support arrearage.

Judgment reversed.

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


text:
    A98A0365.
    TATTERSALL CLUB CORPORATION v. WHITE.
    (501 SE2d 851)
   Beasley, Judge.

A jury awarded John White compensatory damages and attorney fees against his former employer, Tattersall Club Corporation, because it terminated White in the middle of a one-year written employment contract. The jury also found against Tattersall on its counterclaim that it had overpaid White. Tattersall claims the court erred in denying its motion for judgment notwithstanding the verdict and its motions for new trial, and in entering judgment on the attorney fees claim.

1. The first three enumerations of error focus on the denial of the j.n.o.v. motion and the motions for new trial. In reviewing such, “this Court must determine whether there is any evidence to support the jury’s verdict. . . . We must construe the evidence in the light most favorable to the prevailing party to determine whether the elements of [the cause of action] have been proven.”

(a) Tattersall contends Robert Kurtz, its general manager and vice president of operations, lacked authority to execute the written employment contract with White. The jury resolved this hotly-disputed issue against Tattersall.

“The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him. . . .” Often referred to as actual or apparent authority, this is a question for the factfinder. “The principal shall be bound by all the acts of his agent within the scope of his authority. . . ,”

Evidence supported a finding of actual authority. Kurtz testified Tattersall gave him complete authority to hire and fire employees, including the authority to execute employment contracts. Tattersall hired Kurtz primarily for the purpose of hiring employees to reverse the corporation’s failing country club business. Even Tattersall’s president Rob Barnett admitted Kurtz had been hired to build a team and to develop and effectuate a business plan, and that hiring White was part of that plan. Kurtz’s predecessor in office had executed similar employment contracts, and Kurtz also signed other written contracts, including employment contracts, on behalf of Tattersall. Even managers under him had authority to sign written contracts.

Kurtz as general manager also had apparent authority to execute the contract on Tattersall’s behalf. He was on-site and ran the day-to-day operations of the club. Tattersall’s president Barnett, who was generally not present at the club, helped Kurtz interview White for the position but allowed Kurtz to be the primary negotiator. General managers in the industry normally have authority to hire and fire employees. For several months Barnett was aware that Kurtz had hired White and did not question it. Barnett even introduced White to the corporation’s board as Tattersall’s assistant general manager. He did not tell White or Kurtz that Kurtz lacked authority to sign an employment contract for Tattersall. Kurtz specifically told White he had such.

Nevertheless, Tattersall argues that its articles of incorporation and bylaws allowed only Barnett to execute such agreements. These corporate documents are not in the record and were not discussed by any witness. Appellant must show error by the record, not by unsupported assertions in its brief.

Tattersall claims Kurtz marked through Barnett’s name and title appearing under the signature line of the agreement and replaced it with his own title, which conclusively demonstrated both Kurtz and White knew Kurtz lacked authority to execute the agreement. Evidence showed the placement of Barnett’s name was simply a mistake by White’s lawyer in drafting the agreement; both White and Kurtz believed Kurtz had authority to sign.

Tattersall argues the evidence indisputably showed Kurtz and White acted in collusion in creating the agreement. Because both men denied any such collusion, the evidence did not demand the wished-for finding.

Tattersall contends Kurtz, not it, should be held liable on the agreement, but Kurtz signed as “Vice President, Operations, Tattersall Club Corp.” and would not be personally liable. Besides, the contract stated it was between Tattersall and White.

(b) Tattersall contends the agreement’s indefinite and vague description of White’s duties rendered it unenforceable. The agreement provided: “Club hereby employs White as its Membership Coordinator for the development of new memberships at the Horseshoe Bend Country Club located at 2100 Steeple Chase Drive, Roswell, Georgia 30075, which is owned and operated by Club. White’s duties shall consist of the following: (a) To market Horseshoe Bend in an attempt to increase the number of new members; (b) To provide a pro forma statement which projects the annual revenues and expenses associated with the development of new memberships; and (c) To render advice and opinions to Club management regarding the development of new memberships and the maintenance of existing memberships. White shall have the autonomy to work such hours and at such places as he deems best suited to the pursuit of his business hereunder.”

The phrase “market Horseshoe Bend” is not “absolutely meaningless.” “Market” means to sell or to expose for sale. The explanatory clause, “in an attempt to increase the number of new members,” immediately follows the phrase in the contract. The agreement obligates Tattersall to facilitate White’s marketing efforts by assisting in performing research, placing advertisements, preparing and mailing letters and fliers, and conducting telephone surveys. It also requires Tattersall to reimburse White for dining and entertainment expenses in recruiting potential new members.

The cases cited by Tattersall all concerned employment contracts that were either completely silent as to the services to be performed or only described the duties as “such as shall be assigned to him.” In addition to marketing, Tattersall ignores White’s duties to provide a pro forma statement and to render advice and opinions, both of which duties he performed.

Phrases similar to “market Horseshoe Bend” have been held sufficiently definite. McLean v. Continental Wingate Co. held that the phrase “promote the interest” of the employer in overseeing operations and developing new properties and the term “net proceeds” were not too vague. McLean emphasized, “it is well-settled that the policy of the law is against the destruction of contracts on the ground of uncertainty if it is possible in the light of the circumstances under which the contract was made to determine the reasonable intention of the parties.” If ambiguous, “[t]he meaning ascribed to technical or business terms used in such contracts may be supplied by parol.” Moreover, “part performance of the contract is sufficient to validate an otherwise vague and objectionable document, provided that the part performance itself relates to the contested clause.”

White testified he was to market Horseshoe Bend by selling memberships and increasing revenues. He promoted memberships through business contacts developed at the Atlanta Chamber of Commerce, the North Fulton Chamber of Commerce, and other business communities; he encouraged real estate agents who handled properties in neighboring residential communities to let their prospects know of the club; he attended functions of the Japan American Society and promoted the club to new businessmen moving to Atlanta; he wrote an article on golf in Georgia for the Japan American Society Quarterly magazine; he conducted receptions for prospective members; he sent out mailings of brochures promoting the club; he played golf with, gave tours to, and dined with prospective members; he made video presentations at reception booths; and he gave advice on the club’s business plans. Spending 50 to 60 hours per week in these activities, he helped produce 70 to 80 memberships during his six-month tenure, resulting in a net increase of $387,000 in club revenues over the previous year.

(c) In a related argument, Tattersall contends the agreement lacked mutuality because White’s duties were undefined. “A contract is unilateral in the sense that renders it invalid when one party to it is bound and the other is not, or when one party gets something and the other nothing. While a promise of another is a good consideration for a promise, the promise in each instance must be of such a character as to be capable of enforcement against the party making it, as otherwise neither party will be bound. It must be sufficiently definite both as to time and subject-matter. Unless the promises are of such character, the contract based solely on consideration thereof is unilateral and not binding. The test of mutuality is to be applied as of the time the contract is to be enforced; and if the promisee accomplishes the object contemplated, then the promise is rendered valid and binding.”

As stated above, White’s duties were sufficiently definite to be enforceable. Moreover, part performance of the contract supplied any missing mutuality. Tattersall’s argument that it did not know of the agreement ignores that its fully-authorized representative Kurtz negotiated, executed, and performed the agreement.

(d) Claiming the court erred in denying its motion for new trial solely on the counterclaim, Tattersall argues that post verdict interviews with the jurors indicated the “purported” written contract prejudiced the jurors against Tattersall’s counterclaim. Not only was the contract genuine, but vaguely referring to unsworn jury interviews not found in the record is completely futile and entirely disingenuous. Even sworn affidavits from jurors placed in the record will not be considered to impeach the verdict.

(e) In a vacuous effort to gain a new trial on all claims, Tattersall complains “[t]he jury, full of lay, sympathetic working class citizens, bought [White’s evidence of an agreement].” Nothing in the record supports this description of the jury it participated in selecting. But the fact that the jury believed White’s evidence over its evidence is perfectly within the bounds of its competence, as a jury.

2. Tattersall claims the court erred in allowing attorney fees to be awarded. OCGA § 13-6-11 authorizes such an award “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. . . .” This, too, “is a question for the jury and an award will be upheld if there is any evidence to support it. [Cit.]”

“Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated. It may be found in defendant’s carrying out the provisions of the contract, that is, in how defendant acted in his dealing with the plaintiff. Bad faith other than mere refusal to pay a just debt is sufficient, provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. So defendants can be held liable for attorney fees if they committed the breach in bad faith.”

Denying an employee compensation due under a contract and forcing him to sue to recover what he earned establishes the bad faith necessary to authorize attorney fees. Second, an “interested motive” sufficient to award attorney fees is present where, even though plaintiff performed as requested by defendant, defendant refuses to pay because it disliked the result and decided to blame plaintiff. Third, evidence of dishonesty in the business transaction will support an attorney fees award.

An interested or sinister motive is evident in that Tattersall not only expressed no dissatisfaction with White’s performance under the contract, but its president described him as having done a “pretty good job.” The club received significantly increased revenues and memberships as a result of White’s work. Inferable as the true motive was that as a result of a falling out between Kurtz and Barnett, Barnett desired to escalate the undoing of Kurtz by not only firing Kurtz but also firing the man he had hired, regardless of the latter’s performance or the terms of his contract. Also inferable is that Barnett considered White a convenient scapegoat to help compensate for Barnett’s perceived mistake in hiring Kurtz and allowing him to run the business inefficiently.

Decided April 17, 1998.

Weener & Mason, Philip H. Weener, William P. Mason, for appellant.

Bird & Associates, Wendell R. Bird, Jeffrey L. Pombert, for appellee.

Evidence also showed there was no bona fide controversy about White’s entitlement to receive payment under the contract. Absent a bona fide controversy, “that is, where there is no genuine dispute regarding the liability,” a jury may find stubborn litigiousness or unnecessary trouble and expense. Because the evidence was overwhelming Kurtz had the actual as well as the apparent authority to execute the contract, and because Barnett admitted he knew of no way White could have known Kurtz lacked such authority, and because the terms of the contract were clearly definite, White’s admittedly satisfactory performance would support a finding there was no question of liability.

Judgment affirmed.

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

       (Citations omitted.) Ga. Power Co. v. Irvin, 267 Ga. 760, 762 (1) (482 SE2d 362) (1997); see OCGA §§ 9-11-50; 5-5-21. See generally Mills v. State, 188 Ga. 616, 623 (4 SE2d 453) (1939) (trial court may grant new trial in its discretion; appellate court can only review whether law was followed).

       OCGA § 10-6-1.

        Thomas Register &c. v. Proto Systems &c., 221 Ga. App. 779, 780 (471 SE2d 235) (1996).

       OCGA § 10-6-51.

       See Holcomb v. Evans, 176 Ga. App. 654, 655-657 (1) (337 SE2d 435) (1985) (manager left in charge of premises has apparent authority to act on corporation’s behalf).

        CNL Ins. America v. Moreland, 226 Ga. App. 57 (485 SE2d 515) (1997).

       Compare Whitfield v. Broadview Plaza Ltd., 161 Ga. App. 248 (288 SE2d 313) (1982) (instrument neither named entity represented nor showed representative was signing in representative capacity).

       Webster’s Third New Intl. Dictionary, p. 1383.

        McTerry v. Free For All &c., 129 Ga. App. 724 (200 SE2d 915) (1973) (“no description”).

        Weill v. Brown, 197 Ga. 328, 329 (29 SE2d 54) (1944); see Farr v. Barnes Freight Lines, 97 Ga. App. 36, 37 (1) (101 SE2d 906) (1958) (“to do all work required of him”).

       212 Ga. App. 356, 357-359 (442 SE2d 276) (1994).

       (Citations and punctuation omitted.) 212 Ga. App. at 358 (1); see Touche Ross & Co. v. DASD Corp., 162 Ga. App. 438, 439-440 (1) (292 SE2d 84) (1982) (phrase “complete the computer programming and testing” of a “System Design” was not indefinite).

        Touche Ross, supra, 162 Ga. App. at 440 (1); see Gram Corp. v. Wilkinson, 210 Ga. App. 680, 681 (1) (437 SE2d 341) (1993) (parol evidence considered in construing employment contract).

        Touche Ross, supra, 162 Ga. App. at 440 (2); see Pine Valley Apartments, Ltd. v. First State Bank, 143 Ga. App. 242, 245 (237 SE2d 716) (1977) (“A contract which is originally and inherently too indefinite may later acquire precision and become enforceable by virtue of the subsequent acts, words, or conduct of the parties”) (citation and punctuation omitted).

       (Citations and punctuation omitted.) McMurray v. Bateman, 221 Ga. 240, 250-251 (1) (144 SE2d 345) (1965).

       See Spalding v. Southeastern Personnel of Atlanta, 222 Ga. 339, 342 (1) (149 SE2d 794) (1966) (agreement allowing employer to deem in its sole judgment whether employee had breached was enforceable after part performance); McMurray, supra, 221 Ga. at 251 (“if there had originally been a lack of mutuality in its provisions, the deficiency would have been supplied by performance”); Roberson v. Eichholz, 218 Ga. App. 511, 513 (2) (462 SE2d 382) (1995) (partial performance “furnished the consideration and mutuality for the original agreement, even if such agreement at its inception had been nudum pactum”) (citation omitted).

       OCGA § 9-10-9; Consolidated American Ins. Co. v. Spears, 218 Ga. App. 478, 479-480 (1) (462 SE2d 160) (1995).

        Service Merchandise v. Jackson, 221 Ga. App. 897, 899 (1) (473 SE2d 209) (1996).

        Duffy Street S.R.O. v. Mobley, 266 Ga. 849, 850 (4) (471 SE2d 507) (1996).

       (Citations and punctuation omitted.) Young v. A. L. Anthony Grading Co., 225 Ga. App. 592, 593 (484 SE2d 318) (1997).

        Southern Water Technologies v. Kile, 224 Ga. App. 717, 720 (3) (481 SE2d 826) (1997).

        Young, supra, 225 Ga. App. at 593-594.

        Shepherd v. Aaron Rents, 208 Ga. App. 139, 143-144 (4) (430 SE2d 67) (1993).

       (Citation omitted.) Cade v. Roberts, 175 Ga. App. 800, 801 (334 SE2d 379) (1985).


author: McMURRAY, Presiding Judge.

text:
    A98A0445.
    REID v. THE STATE.
    (501 SE2d 842)
   McMURRAY, Presiding Judge.

Defendant was tried before a jury and found guilty of two counts of aggravated assault by shooting a pistol in the direction of Paul Harris and by shooting Johnny Brown (“the victims”), armed robbery, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The jury found defendant not guilty of two counts of aggravated assault by ramming the victims’ vehicle with a car. The evidence adduced at trial reveals that defendant drove a car behind a vehicle which the victims occupied; that defendant fired a handgun in the direction of one of the victims (Harris), and shot the other victim (Brown) in the shoulder; and that defendant’s actions forced a collision between the two cars. Johnny Brown testified that, after this collision, defendant shot him, seized his gold necklace, and took money from his pocket.

Defendant filed this appeal after the denial of his motion for new trial. Held:

1. Defendant contends the trial court improperly expressed or intimated an opinion as to his guilt, in violation of OCGA § 17-8-57, by repetitively instructing the jury (on four occasions, after defining each charged offense and a lesser included offense) as to the form of the verdict should the jury find defendant guilty of an offense, beyond a reasonable doubt. Defendant argues that, while these instructions were correct statements of the law, repetition of the phrase, “ ‘We, the jury find the defendant guilty,’ ” could have caused the “jury to interpret that the judge was intimating that they had cause to find the defendant guilty on each count, especially since the jury heard this phrase over and over.” Defendant reasons that such prejudice is likely because the trial court did not also repetitively charge the jury as to the required verdict form should they find defendant not guilty.

In Tarpkin v. State, 236 Ga. 67 (222 SE2d 364), those defendants complained that the trial judge expressed an opinion as to their guilt by charging the jury only on the form of the verdict should they find the defendants guilty. “[B]y looking to the charge to the jury as a whole, [the Supreme Court of Georgia concluded] that the omission of the not guilty form of verdict was not an expression of the judge’s opinion to the jury. [The Supreme Court pointed out that immediately] following the instruction enumerated by [the defendants] the trial judge asked the jury, ‘Do you understand that you must find them guilty or not guilty of all three counts in this indictment?’ and later concluded with, “You must return a verdict on all three counts, either guilty or not guilty.’ [The Supreme Court reasoned that these] excerpts presented the jury with both guilty and not guilty options, and confirm our conclusion that the trial judge expressed no opinion as to the verdict he thought proper.” Id. at 69 (4), 70, supra. Similar circumstances appear in the case sub judice.

The trial court not only repetitively charged the jury as to the “guilty” and “not guilty” options, the trial court balanced its repetitive charge on the required verdict form (should the jury find defendant guilty of an offense) by instructing the jury, “If you do not believe that the defendant is guilty of any of these offenses or if you have any reasonable doubt as to the defendant’s guilt, then it would be your duty to acquit the defendant in which event the form of your verdict would be: ‘We, the jury, find the defendant not guilty.’ ” The trial court also properly charged the jury on the presumption of defendant’s innocence, the State’s burden of proving defendant’s guilt beyond a reasonable doubt, the consequences of the State’s failure to carry its burden, the concept of reasonable doubt, and the consequences of any such doubt. The trial court finally charged the jury that, “By no ruling or comment which the Court has made during the progress of the trial has the Court intended to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendant.” Under these circumstances, and in light of the jury’s verdict finding defendant not guilty of two counts of aggravated assault by ramming the victims’ vehicle with a car, we find nothing which effectively substantiates defendant’s contention that the trial court improperly commented on defendant’s guilt in violation of OCGA § 17-8-57.

2. Defendant challenges the sufficiency of the evidence in his remaining two enumerations of error, pointing to the weight of evidence supporting his defense of justification, conflicts in testimony supporting the State’s case, and deficiencies in the manner in which law enforcement officers conducted their investigation.

“This court as a reviewing court must not necessarily pass on the weight of the evidence, but on the sufficiency of the evidence to support the verdict. Harris v. State, 236 Ga. 766 (225 SE2d 263) (1976); Ingram v. State, 204 Ga. 164, 184 (48 SE2d 891) (1948). On appeal of a conviction based on a jury verdict we should examine the evidence in a light most favorable to support that verdict. Smith v. State, 245 Ga. 44, 46 (262 SE2d 806) (1980); Fleming v. State, 236 Ga. 434 (224 SE2d 15) (1976). We resolve all conflicts in favor of the verdict. Green v. State, 242 Ga. 261 (249 SE2d 1) (1978). It is the duty of this Court to sustain the verdict if we should find when viewing the evidence in a light most favorable to the verdict that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Patrick v. State, 245 Ga. 417 [(265 SE2d 553)] (1980); Shavers v. State, 244 Ga. 491 (1) (260 SE2d 491) (1979); Crenshaw v. State, 244 Ga. 430 (260 SE2d 344) (1979); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Anderson v. State, 245 Ga. 619, 622 (266 SE2d 221). In the case sub judice, the victims’ testimony regarding defendant’s violence and thievery on the night of the incident in question, as well as proof that defendant was a convicted felon when he shot Johnny Brown, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of two counts of aggravated assaults, armed robbery, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Jackson v. Virginia, 443 U. S. 307, supra.

Decided April 17, 1998.

Lambros & Lambros, Michael G. Lambros, for appellant.

Alan A. Cook, District Attorney, Leonard D. Myers, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Judge Harold R. Banke.

text:
    A98A0479.
    BDI DISTRIBUTORS, INC. v. BEAVER COMPUTER CORPORATION.
    (501 SE2d 839)
   Judge Harold R. Banke.

Beaver Computer Corporation (“Beaver”) sued BDI Distributors, Inc. (“BDI”) for an unpaid balance on a sales account. BDI counterclaimed against Beaver for fraudulent inducement and breach of an agreement underlying the account. BACI Service Corporation (“BACI”), who became the owner of Beaver’s accounts receivable after a foreclosure sale, was later substituted for Beaver.

The underlying dispute arose after BDI received various notebook computers and computer equipment from Beaver, a California company. According to BDI, when it contracted with Beaver to purchase these computer goods, Beaver agreed to provide certain support services, which it failed to render. Jay Werth, BDI’s president, testified that in reliance upon Beaver’s numerous representations, BDI agreed to do business with Beaver. According to Werth, Beaver agreed to furnish: $2,500 for a fax flyer, $10,000 in catalog support, sales incentives to BDI’s sales force, advertising accruals, stock rotations, price protection, and a promise to honor all warranties on Avanti notebook computers. BDI further claimed that it detrimentally relied on Beaver’s false assurances of its financial solvency. BDI claimed that Beaver entered into the agreement in bad faith because Beaver had either already defaulted on, or was dangerously close to defaulting on its obligations under a $1,700,000 promissory note. BDI asserted that only after it took possession of the computers and equipment did it discover that Beaver had gone out of business and would not be able to honor any of its representations. It is undisputed that BACI foreclosed on Beaver’s promissory note less than two weeks after Beaver’s last delivery to BDI. After foreclosure, BACI “wholly discontinued” Beaver’s business operations, claiming that it only acquired Beaver’s assets. BDI contends that Beaver’s fraudulent concealment and its breach excused BDI’s payment obligation.

In moving for summary judgment, BACI contended that it was not liable for any obligations of its predecessor, Beaver. It further argued that BDI was estopped from raising any defenses to its liability because it failed to reject the goods within a reasonable time as required by the UCC.

The trial court found that BDI’s failure to notify Beaver, the seller of the goods, within a reasonable time of its discovery of the alleged breach, barred BDI from any recovery. The court awarded judgment, interest, and attorney fees under OCGA § 9-15-14 to BACI. Asserting two errors, BDI appeals. Held:

1. BDI contends that genuine issues of disputed material fact as to whether it gave reasonable notice precluded summary judgment. In certain circumstances upon discovery of a defective condition, a buyer may be entitled to reject goods for nonconformance which substantially impairs the value of the goods. OCGA § 11-2-608. Further, a buyer may, upon notifying the seller of its intention to do so, deduct all or any part of the damages resulting from a breach of the contract from any part of the price still due under the contract. OCGA § 11-2-717. Where a buyer has accepted goods and given notice as required by OCGA § 11-2-607, he may recover damages for any nonconformity calculated in a reasonable manner. OCGA § 11-2-714. See Wolfes v. Terrell, 173 Ga. App. 835, 836 (2) (328 SE2d 569) (1985) (“OCGA § 11-2-714 applies where a buyer claims breach of contract regarding accepted goods.”).

What is problematic in applying the UCC here is that the alleged nonconformity related primarily to the services to be provided in the future and not to the goods as received. It is undisputed that BDI did not give notice to Beaver of its dissatisfaction with Beaver’s alleged breach of the agreement to furnish support services. Only when BACI asserted a demand for payment about six months after the last delivery, did BDI then register its complaints. BDI argues that in these circumstances, this was “reasonable notice” notwithstanding its delay.

The purpose of the “reasonable notice” requirement of OCGA § 11-2-607 (3) (a) is to allow a seller an opportunity to, inter alia, inspect, ascertain facts, preserve evidence, cure, minimize damages, or negotiate a settlement. Atwood v. Southeast Bedding, 226 Ga. App. 50, 52 (1) (485 SE2d 217) (1997); see Hudson v. Gaines, 199 Ga. App. 70, 72 (2) (403 SE2d 852) (1991). In this case, it is difficult to see that any of these goals could have been accomplished since Beaver completely ceased existence. We believe that whether BDI acted unreasonably in not notifying Beaver, a defunct company, that it was dissatisfied that Beaver would not be providing the support services allegedly agreed upon, must be resolved by a jury. SPS Indus. v. Atlantic Steel Co., 186 Ga. App. 94, 98 (2) (366 SE2d 410) (1988) (physical precedent only). BACI offered no authority and we know of none which requires a party to whistle in the wind. See Powell v. City of Snellville, 266 Ga. 315, 317 (467 SE2d 540) (1996) (no requirement to undertake an exercise in futility). In construing the notice statute at issue, we decline to ascribe to the legislature an intent to require a buyer to do a futile and useless thing. Burgess v. Travelers Indem. Co., 185 Ga. App. 82, 83 (363 SE2d 308) (1987).

Decided April 17, 1998.

Freed & Berman, Jeffrey N. Berman, Charles H. Van Horn, Abbey B. Cohen, for appellant.

Tait O. Norton, David G. Crockett, Douglas L. Brooks, for appellee.

Moreover, the issue of reasonableness of notice is ordinarily properly reserved for the factfinder except where the uncontroverted facts establish that the moving party is entitled to recover as a matter of law. Intl. Multifoods Corp. v. Nat. Egg Products &c., 202 Ga. App. 263, 266 (4) (414 SE2d 253) (1991). This is not such a case and summary judgment must be reversed. Great Western Press v. Atlanta Film Converting Co., 223 Ga. App. 861, 864 (1) (479 SE2d 143) (1996). Compare Buford v. Toys R’ Us, 217 Ga. App. 565, 567 (3) (458 SE2d 373) (1995).

2. BDI asserts that the trial court clearly erred in awarding attorney fees to BACI. Inasmuch as BACI was not entitled to judgment as a matter of law and there has been no final disposition of this case on the merits, the award of attorney fees to BACI under OCGA § 9-15-14 must be set aside. McCullough v. McCullough, 263 Ga. 794 (439 SE2d 486) (1994); see Fairburn Banking Co. v. Gafford, 263 Ga. 792 (439 SE2d 482) (1994).

Judgment reversed.

Blackburn and Eldridge, JJ., concur.

       The Foreclosure Bill of Sale reveals that “on March 20,1995 BACI, through its counsel ... delivered to BCC [Beaver] a letter regarding DEMAND FOR PAYMENT OF AMOUNTS DUE UNDER PROMISSORY NOTE.” By April 5, BACI was declaring its intent to foreclose. The record confirms that Beaver was still shipping equipment to BDI in late March and in mid-April.


author: McMurray, Presiding Judge.

text:
    A98A0486.
    DEWINTERS v. THE STATE.
    (501 SE2d 849)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of two counts of false imprisonment and one count of burglary. The evidence adduced at trial reveals that defendant, on June 2, 1995, disguised himself as an employee of the “Ritz Carlton Hotel” in Atlanta, Georgia, and gained entry into the hotel room of out-of-town guest, Wayne Moran, by offering Mr. Moran’s spouse complimentary room service. Once inside, defendant took certain items from the Morans, locked the couple in a bathroom, and fled. Three days later, on June 5, 1995, defendant disguised himself as an employee of the “Westin Peachtree Plaza” hotel in Atlanta, Georgia, and gained entry into the hotel room of out-of-town guest, Sandy Brewer, by offering to fix the plumbing in Ms. Brewer’s hotel room. Once inside, defendant took Ms. Brewer’s valuables and locked her in a bathroom. But this time, hotel security officers apprehended defendant at the scene.

This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion to sever, arguing that the offenses arising from the June 2, 1995, incident (involving the Morans) and the offenses arising from the June 5, 1995, incident (involving Ms. Brewer) were improperly joined based on similarity of character.

“Offenses may be joined for trial when they are based on the same or similar ‘conduct’ so as to evince a common scheme, plan, or modus operandi. Dingler v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975); Samples v. State, 217 Ga. App. 509 (460 SE2d 795) (1995); Davis v. State, 180 Ga. App. 190 (1) (348 SE2d 730) (1986). Severance is mandatory, upon defense request, if offenses are joined improperly, i.e., solely because they are of the same or similar ‘character.’ Dingler, supra; Swinney v. State, 217 Ga. App. 657, 659 (458 SE2d 686) (1995); Jordan v. State, 172 Ga. App. 496 (1) (323 SE2d 657) (1984).” Smith v. State, 225 Ga. App. 553 (1) (484 SE2d 515).

In the case sub judice, the State proved that defendant’s conduct during both episodes was sufficiently similar so as to evince a similar course of conduct, bent of mind and modus operandi. The incidents were closely related in time and involved high-rise hotels in downtown Atlanta, Georgia. Further, defendant victimized hotel patrons on both occasions who had just arrived in town on business, defendant targeted hotel rooms in both incidents that were remotely located on upper floors, and defendant employed disguises to gain entry into the respective victims’ hotel rooms. Further, during both episodes, defendant seized money and other valuables from the victims, disconnected telephone communication to the victims’ rooms and forced the victims into bathrooms. This proof demonstrates that “severance was not demanded, and joinder was appropriate. Whitfield v. State, 217 Ga. App. 402, 403 (457 SE2d 682) (1995); Miller v. State, 214 Ga. App. 393, 394 (448 SE2d 20) (1994).” Smith v. State, 225 Ga. App. 553 (1), 555, supra.

Decided April 17, 1998.

Megan C. DeVorsey, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Juliette O. W. Scales, Assistant District Attorneys, for appellee.

2. Defendant contends the trial court erred in recharging the jury that their verdict must be unanimous.

During deliberations, the jury informed the trial court that their vote was unanimous as to two counts of the eight count indictment. The trial court, after conferring with the State’s attorney and defense counsel, encouraged each juror to listen to the other jurors’ arguments, but preceded this instruction by admonishing the jury that their vote must be unanimous, “must be the conclusion of each juror and not mere acquiescence in order to reach an agreement. . . .” Under such circumstances, we find no basis for defendant’s argument that the trial court’s recharge to the jury encouraged the jurors to reach a compromise verdict. See Davis v. State, 225 Ga. App. 627, 629 (3) (484 SE2d 655).

3. Defendant also contends the trial court erred in recharging the jury as to the expense of the parties. We do not agree. “[Tjhere was no error in the Allen [v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528)] charge’s reference to the expenses incurred by the parties in trying the case. The language in this regard which defendant[, in the case sub judice,] complains of was approved in Blige v. State, 205 Ga. App. 133, 134 (1) (421 SE2d 547).” Smith v. State, 215 Ga. App. 673, 676 (5), 677 (452 SE2d 526).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.