text:
    A02A1355.
    DEPARTMENT OF CORRECTIONS v. BARKWELL.
    (570 SE2d 13)
   Blackburn, Chief Judge.

In this action regarding the State’s duty to provide medical care to its inmates pursuant to OCGA § 42-5-2, the Georgia Department of Corrections appeals the trial court’s grant of summary judgment to Mitchell Randy Barkwell, contending that the trial court erred by concluding that the Department could not bring suit against Bark-well for reimbursement of State funds used to treat inmates injured in an automobile collision allegedly caused by Barkwell. For the reasons set forth below, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

The relevant facts of this case are undisputed. On May 18, 1999, Barkwell drove his truck into the path of a Department van transporting inmates. In order to avoid a collision, the driver of the Department van swerved quickly, and the van ran into an embankment. As a result of this accident, the State incurred $27,319.51 in expenses to treat the injuries of the inmates riding in the van.

On January 19, 2001, the Department brought suit against Barkwell, seeking reimbursement for the expenses of treating the injured inmates. On July 19, 2001, Barkwell filed a motion for summary judgment, contending that the State had the duty and sole responsibility to pay for the inmates’ care pursuant to OCGA § 42-5-2. Barkwell further argued that no statutory or common law principles of law would allow the State to recover the damages precipitated by his negligent act. We disagree.

OCGA § 42-5-2 (a) provides:

Except as provided in subsection (b) of this Code section, it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him food, clothing, and any needed medical and hospital attention. . . . Except as provided in subsection (b) of this Code section, it shall be the responsibility of the department to bear the costs of any reasonable and necessary emergency medical and hospital care which is provided to any inmate after the receipt by the department of the notice provided by subsection (a) of Code Section 42-5-50 who is in the physical custody of any other political subdivision or governmental agency of this state, except a county correctional institution, if the inmate is available and eligible for the transfer of his custody to the department pursuant to Code Section 42-5-50. Except as provided in subsection (b) of this Code section, the department shall also bear the costs of any reasonable and necessary follow-up medical or hospital care rendered to any such inmate as a result of the initial emergency care and treatment of the inmate. With respect to state inmates housed in county correctional institutions, the department shall bear the costs of direct medical services required for emergency medical conditions posing an immediate threat to life or limb if the inmate cannot be placed in a state institution for the receipt of this care. The responsibility for payment will commence when the costs for direct medical services exceed an amount specified by rules and regulations of the Board of Corrections. The department will pay only the balance in excess of the specified amount. Except as provided in subsection (b) of this Code section, it shall remain the responsibility of the governmental unit having the physical custody of an inmate to bear the costs of such medical and hospital care, if the custody of the inmate has been transferred from the department pursuant to any order of any court within this state. The department shall have the authority to promulgate rules and regulations relative to payment of such medical and hospital costs by the department.

Barkwell argues that, because OCGA § 42-5-2 (a) makes the State responsible for the medical care of inmates, negligent third parties who injure such inmates are essentially absolved from any liability for their actions. We reject this construction of the statute.

“Code sections [42-4-5 and 42-5-2] recognize that, to the very limited extent of providing necessaries, the relationship between warden and inmate is akin to that of guardian and ward, always subject to the exigencies of incarceration and prison life.” Jackson v. Zant. A guardian has a statutory duty to provide necessaries and medical care for his ward, just as a parent must provide for his child. See OCGA §§ 29-2-1; 19-7-2. If, however, a third party negligently injures a ward, the guardian may bring an action against that third party on behalf of the ward to recover medical expenses. To hold otherwise would immunize the negligent from responsibility for damages resulting from their conduct.

Barkwell cannot escape the consequences of his acts simply because the State has a statutory duty to care for the inmates it holds. Once the State fulfills its duty to provide care, as it has done so in this case, it may proceed against a third party such as Barkwell who caused the injuries. While Barkwell would have us rule that the taxpayers of this State must insure negligent parties who bring harm to inmates, we reject his interpretation of the law. If it is proven that he drove negligently, he may be held responsible for the damages resulting from that negligence.

Decided July 25, 2002

Reconsideration denied August 7, 2002.

Thurhert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, John B. Ballard, Jr., Senior Assistant Attorney General, Reddy & Silvis, K. Prabhaker Reddy, Donahue S. Silvis, for appellant.

Downey & Cleveland, Robert C. Harrison, for appellee.

Southern Gen. Ins. Co. v. Ezekiel and Govt. Employees Ins. Co. v. Hirsh, cited by Barkwell, are distinguishable on their facts from this matter. Those cases stand for the proposition that an insurance company may not directly sue a tortfeasor due to OCGA § 44-12-24’s prohibition on the assignment of personal injury claims. Here, there is no insurance company involved, no insured paying premiums for coverage, and no subrogation issues. Accordingly, the mandates of these cases and OCGA § 44-12-24 are simply not applicable.

Judgment reversed.

Johnson, P. J., and Miller, J., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Jackson v. Zant, 210 Ga. App. 581 (436 SE2d 771) (1993).

        Southern Gen. Ins. Co. v. Ezekiel, 213 Ga. App. 665 (445 SE2d 807) (1994).

        Govt. Employees Ins. Co. v. Hirsh, 211 Ga. App. 374, 375 (439 SE2d 59) (1993).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A02A1468.
    THOMAS v. FOOD LION, LLC et al.
    (570 SE2d 18)
   Johnson, Presiding Judge.

Corine Thomas, as mother and administrator of the estate of Henry Tanksley, sued Food Lion and its assistant manager, Chad Reid, for a fatal shooting that occurred miles away from the grocery store. The trial court granted summary judgment to Food Lion and Reid. Thomas now appeals, alleging the trial court erred in failing to find that Food Lion and Reid had an affirmative duty to notify Tanksley that someone might cause him harm, and that the trial court erred in failing to find that the unauthorized disclosure of Tanksley’s image was a violation of his right to privacy. Because these enumerations of error lack merit, we affirm the trial court’s grant of summary judgment to Food Lion and Reid.

The evidence in the record shows that on September 8, 1998, between 1:30 p.m. and 1:45 p.m., Gina Warren went to Food Lion on Windsor Springs Road to do her weekly food shopping. While reaching for a can on one of the merchandise shelves, Warren felt someone grabbing between her legs. The man who grabbed her “smelled really like he’d been drinking a lot, and his eyes were bloodshot red.” He was the same man who spoke to her at the end of the aisle earlier. Warren reported the incident to an employee, who in turn called management.

Assistant manager Reid was called to the front of the store, where he found Warren crying. Warren told Reid she had just been assaulted in the store. Reid asked her if he should call the police, and Warren said yes. Reid then took Warren to a room in the back and played the surveillance video from the camera mounted over the front door. Warren identified a man wearing a white t-shirt and camouflage pants as the person who committed the assault. However, she did not know the man’s name. When the police arrived, Reid showed the tape to the police with Warren present. Warren again identified the man who grabbed her between the legs, but still did not know the man’s name. The police then escorted Warren to her car, and Warren and the police left the store.

When Warren arrived home, she told her husband what had happened. Her husband went to the Food Lion to view the videotape, but Reid was not there. The husband returned home, spoke with his wife for a few minutes, and then walked to his brother’s house. He asked his brother to go to the Food Lion with him and try to help identify the man on the videotape. Subsequently, Warren’s husband and his brother went back to the Food Lion and asked Reid if they could view the videotape. According to Reid, the two men appeared calm and did not appear angry. From the videotape, Reid showed the men what was essentially a still shot of the man who had assaulted Warren. The record shows that the brothers thought they knew the man. However, the record is devoid of any evidence showing that the brothers told Reid the identity of the man, gave Reid the man’s address, or informed Reid that they were going to find the man. The husband thanked Reid, and he and his brother left the store. According to Reid, he had absolutely no reason to believe that any violence would occur.

After leaving the Food Lion, Warren’s husband and his brother went to Tanksley’s mother’s house “to make a positive ID and to give him the benefit of the doubt. If it was him that maybe we can talk this out and be over with it.” When they arrived at Tanksley’s mother’s house, Tanksley was sitting next to the trailer. He had on a white t-shirt and camouflage pants. Warren’s husband told Tanksley that he knew about the assault on his wife and that he was calling the police on his cell phone. Tanksley moved toward Warren’s husband and tried to hit him with a tire iron. Robbie Warren, the brother, grabbed a shovel and deflected the tire iron, knocking himself to the ground. When Tanksley again tried to hit Warren’s husband with the tire iron, Warren’s husband shot Tanksley. According to Robbie Warren, Tanksley “was the aggressor. He came toward us. We did not show him any threat whatsoever. We just wanted to talk to him. We had a 20-year relationship; we figured we can talk this thing out. But Mr. Tanksley was not in his right mind that day.” In this case, Thomas seeks to hold Food Lion and Reid liable for the shooting death of Tanksley.

1. In her first enumeration of error, Thomas alleges the trial court failed to find an affirmative duty on the part of Food Lion and Reid to notify Tanksley that Warren’s husband and his brother might cause Tanksley harm. We find that no such duty existed under the present circumstances.

A duty may arise from statute or contract. Here, no duty existed between Food Lion, Reid, and Tanksley at the time of the alleged tort. Generally, there is no duty to control the conduct of third persons to prevent them from causing physical harm to others. Moreover, as clearly established by Reid, he had no indication that any violence or harm was going to occur, and he had no knowledge that Tanksley was being placed in any danger. In fact, he did not even know that Tanksley was the individual on the videotape.

Furthermore, even if a duty did exist under Georgia law, and even if that duty was breached, we find that such a breach did not constitute the legal and proximate cause of Tanksley’s death. Negligence is not actionable unless it is the proximate cause of the injury. And it is well established that a wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience. “The natural and probable consequences are those which human foresight can foresee, because they happen so frequently that they may be expected to happen again. The possible consequences are those which happen so infrequently that they are not expected to happen again.” Thus, negligence is predicated on what should have been anticipated rather than on what happened.

Moreover, generally, an independent, intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury superseding any negligence of the defendant, unless the intervening criminal act is a reasonably foreseeable consequence of the defendant’s negligent act. Although the question of proximate cause is ordinarily for the jury to decide, plain and indisputable cases may be decided by the court as a matter of law. In such plain cases, the inquiry is whether the causal connection between the defendant’s conduct and the injury is too remote for the law to countenance a recovery.

Here, we find that the trial court correctly granted summary judgment to Food Lion and Reid. No jury could reasonably conclude that Reid’s act of showing Warren’s husband and his brother the still picture proximately caused Tanksley’s death. Reid testified by deposition that Warren’s husband and his brother appeared calm and that he had no reason to believe they would harm the individual on the videotape. In fact, the record is devoid of any evidence that Reid even knew Tanksley was the individual on the videotape. So, Reid could not possibly have warned Tanksley of any potential harm. Reid was doing nothing more than aiding in the identification of someone who had just committed a crime in his grocery store. Furthermore, the record is devoid of any evidence that Warren’s husband and his brother went to Tanksley’s mother’s house to harm Tanksley.

2. Thomas contends the trial court erred in failing to find that the unauthorized disclosure of Tanksley’s image was a violation of his right to privacy. We disagree.

An invasion of privacy claim must fall within one of the following four categories: (1) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs, (2) public disclosure of embarrassing facts about the plaintiff, (3) publicity which places the plaintiff in a false light in the public eye, or (4) appropriation of the plaintiff’s name or likeness for the defendant’s advantage. Thomas’ claim for invasion of privacy is based on Food Lion’s alleged appropriation of Tanksley’s likeness for Food Lion’s benefit. Thomas’ sole argument in this regard is as follows:

While publishing the image to the police was couched in the altruistic purpose of aiding law enforcement, there was no such motive in displaying the image to the husband of the wife who claimed that her assailant was identifiable by the image. A reasonable jury could conclude that the motivation for such a publication of the image was to cater to the base instinct of revenge by store patrons.

Decided July 26, 2002

Reconsideration denied August 7, 2002

John M. Brown, for appellant.

McLain & Merritt, Howard M. Lessinger, for appellees.

However, the record is devoid of any evidence that Food Lion or Reid benefitted from the use of Tanksley’s image.

An essential element of the “appropriation for one’s advantage” category of breach of privacy is that the wrongdoer appropriate the plaintiff’s likeness to the wrongdoer’s advantage. There must be an appropriation for the defendant’s benefit, advantage, or use for commercial exploitation. Here, the undisputed evidence discloses that no wrongful appropriation occurred since Food Lion and Reid received nothing of value for Tanksley’s likeness. Reid displayed a portion of the store’s security tape to the police and to Warren’s family solely to aid in the identification of the alleged perpetrator. There is no evidence that Food Lion or Reid was paid any money or received any benefit or advantage by displaying the videotape to the Warren family. Furthermore, Warren’s husband and his brother were not even positive as to whose likeness was depicted on the videotape. The trial court correctly granted summary judgment to Food Lion and Reid on Thomas’ tortious invasion of privacy claim.

Judgment affirmed.

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

       OCGA § 51-1-8.

        Shortnacy v. North Atlanta Internal Medicine, 252 Ga. App. 321, 325 (2) (556 SE2d 209) (2001).

        Morris v. Baxter, 225 Ga. App. 186, 187 (483 SE2d 650) (1997).

       (Citations and punctuation omitted.) Id.

        Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 67 (2) (d) (397 SE2d 576) (1990).

       Id.

        Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 704-705 (1) (409 SE2d 835) (1991).

       See Jarrett v. Butts, 190 Ga. App. 703, 705 (2) (379 SE2d 583) (1989).

         Williams v. Church’s Fried Chicken, 158 Ga. App. 26, 32 (5) (279 SE2d 465) (1981).


text:
    A02A1496.
    BROOKINS v. THE STATE.
    (570 SE2d 72)
   Johnson, Presiding Judge.

Clarence Brookins appeals after being convicted of possession of cocaine and possession of marijuana. He contends the evidence was insufficient to support the convictions because there was evidence that others had equal access to his residence, where the drugs were found. Because the evidence was sufficient, we affirm Brookins’ convictions.

When reviewing a conviction, we determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. We determine only the sufficiency of the evidence and not the weight of the evidence or the credibility of the witnesses. As long as some competent evidence exists to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

Viewed in a light most favorable to support the verdict, the evidence shows that police obtained a warrant to search Brookins’ house for drugs and related contraband. Brookins lived alone and was at work on the day the warrant was to be executed. He had several large dogs inside his residence, and, rather than enter the home without him, officers followed Brookins home from work, greeted him outside his home, and had him enter the house with them so they could execute the warrant.

Once inside, officers found on the nightstand in Brookins’ bedroom a medicine bottle bearing a prescription label with Brookins’ name and address. The bottle contained five large rocks of crack cocaine. A plastic bag containing marijuana was also on the nightstand. Officers found a utility bill showing Brookins’ name and the address of the premises being searched. They also found various drug-related paraphernalia, including rolling papers, razor blades (typically used for cutting crack cocaine), cash, and a ledger book showing individual’s names and dollar amounts.

Brookins claims that the evidence does not support the verdict because there was evidence that others had equal access to the premises. Brookins points to the officer’s testimony that when he applied for the warrant, he told the magistrate that he expected other people to be in the house during the search (contrary to his testimony at trial that he did not expect anyone to be at Brookins’ home at that time). Brookins also relies on evidence that he had been at work all day before the search took place, rather than at home, and that no drugs were found on his person. His arguments present no basis for reversal.

The equal access defense is based on the rule that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had an equal opportunity to commit the crime. In this case, it was undisputed that Brookins lived on the premises alone and that, other than law enforcement officers, he was the only person present when the drugs were found. And, the officer explained that the reason he told the magistrate he expected others to be present at the home was that police had information that Brookins was selling drugs from his residence, and that sometimes his customers were there. Thus, it did not affirmatively appear from the evidence that anyone had an opportunity equal to Brookins to commit the crimes.

Decided August 7, 2002.

James D. Crowe, for appellant.

Kenneth W. Mauldin, District Attorney, Daniel F. Piar, Assistant District Attorney, for appellee.

Moreover, even if there had been affirmative evidence of equal opportunity, whether the evidence presented was sufficient to rebut the evidence of equal access was an issue for the jury. A jury could have found from the evidence presented that no one had an opportunity equal to Brookins to place the contraband in the area where it was found. The evidence is sufficient to authorize a rational trier of fact to find Brookins guilty beyond a reasonable doubt of possession of cocaine and possession of marijuana.

Judgment affirmed.

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

        Goodman v. State, 237 Ga. App. 795, 796 (516 SE2d 824) (1999).

       Id.

       Id.

        Sears v. State, 244 Ga. App. 718-719 (536 SE2d 605) (2000).

       See Turner v. State, 247 Ga. App. 775, 776 (1) (544 SE2d 765) (2001); Gurr v. State, 238 Ga. App. 1-2 (1) (a) (516 SE2d 553) (1999).

        Sears, supra.

       See id.

       See id.; Carlisle v. State, 242 Ga. App. 253, 255 (1) (529 SE2d 385) (2000).


text:
    A02A1596.
    HAMBY v. THE STATE.
    (570 SE2d 77)
   Johnson, Presiding Judge.

Following a bench trial, Timothy Hamby was found guilty of three counts of homicide by vehicle in the second degree, and one count each of speeding, driving too fast for conditions, and failing to exercise due care for pedestrians in the roadway. Hamby appeals, arguing the evidence is insufficient to support his convictions, he was denied effective assistance of counsel, and the trial court erred in sentencing him. We find no merit in Hamby’s contentions and affirm his convictions.

1. Viewed in a light most favorable to support the factfinder’s verdict, the evidence shows that a witness observed Hamby’s vehicle strike a 13-year-old victim, who was riding his bike on the road. The witness saw Hamby’s vehicle for a distance of 50-75 yards prior to impact and estimated that Hamby was traveling 50-55 mph in the 45-mph speed zone. According to the witness, Hamby took no action to avoid the collision and did not brake, slow down, or sound his horn. Hamby stipulated that the victim died as a result of the collision.

The officer who responded to the scene testified that Hamby told the officer he had seen the victim in the roadway when Hamby left his home to go to the store and on his way back from the store. Hamby also told the officer he was driving 60 mph and he knew the speed limit was 45 mph. According to the officer’s testimony, Hamby told the officer that he thought the victim was going to go to the left, so he steered his car to the right to go around him and at the last moment the victim cut back to the right into his path.

An accident reconstruction expert testified that Hamby would have had 350 feet of sight distance in which to see the victim and take appropriate action to avoid a collision. He conservatively estimated Hamby’s speed at 55-57 mph immediately before the collision.

Hamby contends the evidence was insufficient to support his convictions because the only evidence presented against him was that the vehicle he was driving struck the victim and the victim died as a result of being struck. We disagree. The evidence in the record clearly shows that Hamby was speeding, that he had 350 feet of sight distance in which to see the victim, and that he did not brake, slow down, or sound his horn prior to striking the victim.

OCGA § 40-6-180 mandates that “[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing.” These hazards include pedestrians or other traffic in the roadway. Based on the evidence in the record, the trial judge, as factfinder, was authorized to conclude that Hamby was speeding, driving too fast for conditions, and failed to exercise due care for pedestrians in the roadway. Since these three charges formed the bases of Hamby’s three vehicular homicide counts, the trial court was also authorized to conclude that Hamby was guilty of these three counts of vehicular homicide.

2. Hamby contends he was denied effective assistance of counsel because his trial attorney failed to hire a defense expert in collision reconstruction. However, Hamby has failed to provide this Court with a reasonable probability that the result of his trial would have been different had his attorney hired a reconstruction expert.

To establish the prejudicial effect of his trial counsel’s failure to present a reconstruction expert, Hamby is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case. At the hearing on Hamby’s motion for new trial, Hamby presented evidence from a reconstruction expert that disputed only his speed at the time of the collision. Yet, Hamby admitted that he was traveling 60 mph prior to the collision, and a witness estimated his speed at 50-55 mph in the 45-mph speed zone. Thus, trial counsel’s performance, even if deemed deficient, did not prejudice Hamby’s defense.

3. The record shows that the trial court found Hamby guilty of all six counts. However, the trial court sentenced Hamby on only two counts: (1) homicide by vehicle based on failure to exercise due care for pedestrians in the roadway and (2) speeding. Hamby contends the trial court erred in refusing to merge the speeding conviction with the homicide by vehicle conviction which was based on the speeding charge. Given the circumstances of this case, we find no error.

The evidence in this case supports the trial court’s finding that the speeding offense had been completed prior to the collision with the victim. Hamby admitted to the officer that he had been speeding, and both the witness and reconstruction expert testified that Hamby was speeding prior to the collision with the victim. Moreover, contrary to Hamby’s contention, the evidence supports the finding that Hamby failed to exercise due care for pedestrians in the roadway. The witness testified that Hamby never used his brakes, slowed down, or sounded his horn, and the reconstruction expert testified that Hamby would have had 350 feet of sight distance in which to see the victim and take appropriate action to avoid a collision.

Since speeding was a separate and distinct offense that had already occurred before the offense of failure to exercise due care for pedestrians in the roadway, this evidence permitted the trial court to sentence Hamby on both the homicide offense based on failure to exercise due care for pedestrians and the speeding offense. While the conviction for failure to exercise due care for pedestrians in the roadway merged into the vehicular homicide conviction, the prohibited speeding did not merge as it was not the underlying offense for the vehicular homicide for which Hamby was sentenced. We find no error.

Judgment affirmed.

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

Decided August 7, 2002.

LaMalva, Read & Oeland, David A. LaMalva, Paul J. Oeland IV, for appellant.

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

       See OCGA § 40-6-180.

        Ware v. State, 273 Ga. 16, 17-18 (3) (537 SE2d 657) (2000).

        Higgins v. State, 251 Ga. App. 175, 178 (3) (554 SE2d 212) (2001).

       See Diamond v. State, 267 Ga. 249, 251 (3) (b) (477 SE2d 562) (1996); compare Gilpatrick v. State, 226 Ga. App. 692 (487 SE2d 461) (1997) (trial court erred in sentencing defendant for the separate offense of speeding since it considered this offense as the direct and proximate cause of the vehicular homicide).


author: Blackburn, Chief Judge.

text:
    A02A1621.
    PEARCE v. THE STATE.
    (570 SE2d 74)
   Blackburn, Chief Judge.

Following his conviction by a jury of child molestation, LaMorris D. Pearce appeals the denial of his motions for new trial as to sentence alone and for modification of sentence, arguing that the trial court erred in (1) admitting evidence in aggravation during his sentencing hearing without notice being given by the State as required by OCGA § 17-10-2 (a) and (2) denying him his constitutional right to confront the witnesses against him. For the reasons set forth below, we affirm.

After jury deliberation had already begun, a special agent with the Georgia Bureau of Investigation who had been involved in the case was approached by a person who reported that several women who worked with Pearce had complained that Pearce had exposed himself and masturbated in their presence. The special agent then informed the sheriff, the district attorney, and Pearce’s attorney that there were two potential witnesses to inappropriate sexual behavior on Pearce’s part. He was told by the district attorney to locate and talk with the women. The special agent was unable to speak with the women, but had both subpoenaed at the plant at which they worked so that they could testify at the sentencing hearing. The GBI agent spoke with each of them for the first time shortly before the hearing began.

At the outset of the sentencing hearing, Pearce objected to the court’s allowing the witnesses to testify on the ground that he had not been provided notice of the testimony as required by OCGA § 17-10-2 (a). The judge heard testimony from the GBI agent about his inability to locate and speak with the witnesses prior to the hearing. The trial judge overruled Pearce’s objection and allowed the witnesses to testify. Both testified that Pearce had masturbated in their presence and the presence of other female employees at the workplace on separate occasions. The trial judge then ruled that he would admit and consider the witnesses’ testimony in imposing Pearce’s sentence.

1. In his first enumeration of error, Pearce argues that the trial court erred in admitting the testimony of the two witnesses because the State failed to provide notice of the testimony pursuant to OCGA § 17-10-2 (a). We disagree.

At a sentencing hearing, OCGA § 17-10-2 (a) allows the State to introduce evidence in “aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or nolo contendere of the defendant . . . , provided that only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial shall be admissible.” “It is clear from that language that the legislature intended that such evidence show that the defendant was found guilty or admitted guilt of another offense.” Sinkfield v. State. Thus,

[t]he notice requirement of OCGA § 17-10-2 (a) goes to the State’s use of a defendant’s prior convictions in aggravation of sentence: the purpose of § 17-10-2 is to give defendant a chance to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.

Demetrios v. State. As to evidence other than prior convictions, “sentencing courts are authorized to consider in aggravation any lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes.” (Punctuation omitted.) Phillips v. State.

In Demetrios v. State, supra, the appellant argued that the trial court erred in permitting the State to offer evidence of his violent conduct while in jail when notice of its intent to use the evidence had not been given prior to trial as required by OCGA § 17-10-2 (a). In rejecting the appellant’s argument, we reasoned:

The statute was not intended to preclude a trial court from considering a defendant’s violent conduct which occurred during trial or, as in this case, after trial and prior to sentencing: “a defendant’s character in general, and his conduct while in prison, are relevant to the question of sentence.” If such conduct/evidence is “relevant to the question of sentence,” the fact that it occurs after trial does not make it any less relevant, even though pretrial notice under OCGA § 17-10-2 is rendered impossible. That a defendant should receive a “windfall” due to the timing of his violent misconduct makes little sense, since the purpose of the statute is not directed to such conduct in the first place.

Decided August 7, 2002.

William P. Nash, Jr., for appellant.

(Footnote omitted.) Demetrios v. State, supra at 510-511.

Following the same reasoning, we conclude that OCGA § 17-10-2 was not intended to preclude a trial court from considering a defendant’s criminal conduct of which the State had no knowledge until just prior to the sentencing hearing. If such conduct is relevant to the question of sentence, as the trial judge found Pearce’s conduct to be in this case, the fact that the State did not learn of such conduct until just before the hearing “does not make it any less relevant, even though pretrial notice under OCGA § 17-10-2 is rendered impossible.”

We also note that, as explained above, the purpose of the notice requirement in OCGA § 17-10-2 (a) is to give the defendant a chance to question the State’s evidence. Where the evidence in aggravation presented by the State is the in-court testimony of a witness, the defendant is afforded a similar chance to question the evidence through cross-examination of the witness. In this case, Pearce did in fact cross-examine both witnesses. He did not challenge, or ask for a continuance in order to seek evidence that would call into doubt, the truth of the witnesses’ testimony.

2. In his second enumeration of error, Pearce maintains that the trial court’s admission of the testimony at the sentencing hearing also denied him the right of confrontation as guaranteed by the Sixth Amendment to the United States Constitution and Art. I, Sec. I, Par. XIV of the 1983 Georgia Constitution. This contention, however, was not raised in the trial court, Pearson’s sole objection being that he was not given notice of the testimony as required by OCGA § 17-10-2 (a). “It is well settled that on appeal the ground of the objection stated below cannot be enlarged to include grounds not urged before the trial court.” (Punctuation omitted.) Kent v. Henson Generally, our review of the admission of the evidence enumerated as error is “limited strictly to the ground of objection stated on the trial.” (Punctuation omitted.) Id.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

J. Gray Conger, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.

        Sinkfield v. State, 262 Ga. 239, 240 (2) (416 SE2d 288) (1992).

        Demetrios v. State, 246 Ga. App. 506, 510 (4) (541 SE2d 83) (2000).

        Phillips v. State, 241 Ga. App. 689, 690 (527 SE2d 283) (1999).

        Kent v. Henson, 174 Ga. App. 400, 403 (2) (330 SE2d 126) (1985).


text:
    A02A1879.
    SHOCKLEY v. THE STATE.
    (570 SE2d 67)
   Blackburn, Chief Judge.

Following a jury trial, Joshua Shockley appeals his convictions for driving with a suspended license, driving under the influence, and falsely reporting a crime, contending that: (1) the evidence was insufficient to support the verdict of driving under the influence; and the trial court erred by (2) denying his motion for mistrial after inappropriate arguments by the State regarding his future dangerousness during closing argument; (3) refusing to charge the jury on the lesser included offense of reckless driving; (4) improperly charging the jury on driving under the influence; (5) allowing prior DUI convictions to be used as similar transactions showing bent of mind; and (6) preventing him from commenting on the State’s failure to obtain a breath sample, despite the fact that he refused to consent to testing. For the reasons set forth below, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and [Shockley] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

Phagan v. State.

Viewed in this light, the record shows that, on the night of July 26, 2001, Officer Robin Floyd was almost struck by Shockley, who was driving his green truck down the wrong lane of traffic. Officer Floyd, who was accompanied by a police trainee, turned around and followed the truck, which came to a stop in a small parking area adjacent to a home at 293 Cleveland Avenue in Athens. Officer Floyd pulled up behind Shockley’s truck, initiated her blue lights, and stepped out of her police car. Shockley exited the truck, and Officer Floyd called out to him. Shockley turned, looked at Officer Floyd, and ran into the bushes just behind the adjacent house.

Officer Floyd decided not to pursue Shockley because, at that time, an unrelated police chase was underway, and, in order to keep the radio free for the officers involved in this chase, Officer Floyd could not radio for backup assistance. Instead, Officer Floyd approached the abandoned truck, and she found a photo identification of Shockley inside. She also noted that the interior of the cab strongly smelled of alcoholic beverages. Officer Floyd secured the truck, and, although she circled the immediate area in her vehicle, she could not find Shockley.

At that point, Officer Floyd went to an unrelated crime scene to assist other officers. While there, Officer Floyd heard over the radio that Officer Gipson had been dispatched to 293 Cleveland Avenue to investigate a recent report of a stolen green truck. Officer Floyd asked Officer Gipson to stop by and talk with her first, and Officer Floyd related the events earlier that evening to Officer Gipson and gave him a physical description of Shockley. Officer Floyd also told Officer Gipson that she believed that Shockley might have falsely reported the theft in order to cover up his own criminal behavior.

Officer Gipson then traveled to 293 Cleveland Avenue, which turned out to be Shockley’s home. Once there, Officer Gipson called Officer Floyd to tell her that Shockley matched her description. Officer Floyd traveled to Shockley’s house, and, 30 to 45 minutes after first seeing Shockley run from his truck, Officer Floyd immediately recognized him. When Officer Floyd arrived at Shockley’s home, Shockley’s eyes were red, his speech was slurred, and his breath smelled of alcoholic beverages. In addition, Shockley was extremely nervous about the stolen vehicle report. Shockley refused to submit to a State-administered breath test. After further investigation, Officer Gipson arrested Shockley for driving with a suspended license, driving under the influence, and falsely reporting a crime.

Shockley was subsequently tried and convicted on each count. Shockley now appeals.

1. Shockley contends that the evidence was insufficient to convict him for driving under the influence. We disagree.

The evidence at trial showed that Officer Floyd witnessed Shockley driving erratically, that he fled the scene when Officer Floyd arrived, that immediately thereafter, the truck smelled strongly of alcoholic beverages, and that a short time after he was seen driving, Shockley was noticeably intoxicated. This evidence, along with evidence of prior DUI convictions presented at trial by the State, was sufficient to support the DUI conviction.

A conviction for driving or being in actual physical control of a moving vehicle while under the influence of intoxicants may be based on circumstantial evidence. The circumstantial evidence need not exclude every hypothesis save that of guilt, but only reasonable hypotheses, so as to justify a finding of guilt beyond a reasonable doubt. There is evidence that appellant was driving the car, based on [Officer Floyd’s testimony]. There is also evidence that appellant was intoxicated at the time he encountered the [police officer subsequent to fleeing. A] short time passed between the time defendant drove . . . and the time the officer found the defendant in the condition described above.

(Citations and punctuation omitted.) Moon v. State. Based on this evidence, the jury could reasonably infer that Shockley was a less safe driver at the time of the incident. Id.

2. Shockley further contends that the trial court improperly denied his motion for a mistrial, based upon the State improperly commenting, during its closing argument, on the future danger he might impose on society. In fact, the transcript reveals that the State merely commented on the nature of the crime for which Shockley was being tried, not his future behavior. During closing, the State argued: “[S]omeone who continues to drive under the influence of alcohol puts themselves and their heavy machinery, we’re talking about a pickup truck here, on the highways of our state and our city where we drive, that’s not a nuisance, it’s a threat.” In context, this comment focused on Shockley’s past actions, not his future ones. As such, Shockley’s enumeration lacks merit. See generally Philmore v. State.

3. Shockley next contends that the trial court erred by refusing his written request to charge the jury on reckless driving as a lesser included offense of driving under the influence. One crime may be a lesser included offense of another crime as a matter of law or as a matter of fact. OCGA § 16-1-6 provides:

An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

It is undisputed that reckless driving is not a lesser included offense of driving under the influence as a matter of law, as the crimes have different elements. Shockley argues, however, that, in this case, it is a lesser included offense as a matter of fact.

[T]he lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. Thus, whether a lesser offense is included in a greater offense as a matter of fact must be determined on a case-by-case basis, depending upon the facts alleged in the indictment and the evidence presented at trial.

(Citations, punctuation and emphasis omitted.) Strickland v. State

Here, Shockley was indicted for “driving and being] in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe ... to drive, in violation of OCGA § 40-6-391 (a) (1).” The indictment does not allege that Shockley placed anyone else in harm or danger, a fact necessary for a reckless driving charge. Thus, the facts alleged in the indictment are insufficient to support a charge for reckless driving, and, as such, reckless driving is not a lesser included offense of driving under the influence as a matter of fact in this case. See Cooney v. State.

This Court has previously held that reckless driving may never appropriately be a lesser included offense of driving under the influence as a matter of law or fact. The offenses are equally serious. The offense of DUI results when an intoxicated person drives or controls a vehicle. This is true without regard to the commission of any specific act of endangerment to the public. While such drivers often commit other offenses, such as driving in the wrong lane as occurred here, such offenses are independently chargeable and are not lesser included offenses of DUI. We consider whether the act of DUI as charged is such an act of endangerment to the public as to authorize the jury to consider reckless driving as a lesser included offense. The underlying basis for the DUI statutes is clearly the prevention of endangerment of the public. However, the indictment here would not support a conviction for reckless driving on the DUI charge. It could not be a lesser included offense as a matter of fact. As we have held:

By virtue of its codification in Article 15 of Title 40, reckless driving is as “serious a traffic offense” as driving under the influence. However, as defined in OCGA § 40-6-390 (a), reckless driving requires proof of a specific act which evidences a reckless disregard for the safety of persons or property. Driving under the influence, on the other hand, requires no proof of such a specific act, but proof of a general intoxicated condition. Considering that the elements are different and that both reckless driving and driving under the influence are equally “serious traffic offenses,” it would appear that they are entirely separate and distinct crimes and that neither can ever be considered a lesser included offense of the other, as either a matter of law or of fact.

(Citations, punctuation and emphasis omitted.) Kirkland v. State.

4. Shockley argues that the instructions given to the jury by the trial court regarding the charge of driving under the influence were erroneous and argumentative. The challenged jury instruction, however, is adjusted from the pattern charge found in Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed. rev. 1996), pp. 138-138a (T) (2) (a) (1). Contrary to Shockley’s contention, this largely pattern charge neither overemphasizes the evidence regarding the odor of alcohol, Pecina v. State nor inappropriately comments on the evidence of guilt. Park v. State. This argument is without merit.

5. Shockley argues that the trial court erred by allowing the State to offer prior DUI convictions as similar transactions in this case. However,

[t]he State satisfied all three prerequisites for the introduction of similar transaction evidence. First, the State introduced evidence of the prior DUI offense for the purpose of showing [Shockley’s] bent of mind to consume alcohol and then operate a motor vehicle. Introduction of a prior DUI to show bent of mind in a subsequent DUI prosecution is a permissible purpose. Second, the State showed that [Shockley] was the perpetrator of the prior DUI. Third, the State showed that proof of the former DUI tended to prove the charge of driving under the influence. In considering this issue, we have noted that, unlike crimes against persons or property which might occur under various factual circumstances, it is the simple act of driving while under the influence that establishes the commission of the crime. Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.

Decided August 7, 2002.

Gordon, Brown & Eberhardt, Michael E. Eberhardt, for appellant.

(Citations and punctuation omitted.) Reese v. State. We find no error by the trial court in admitting evidence of Shockley’s prior DUIs.

6. Finally, Shockley contends that the trial court erred by granting the State’s motion in limine precluding him from commenting on the State’s failure to produce a chemical test of his blood alcohol content, despite the fact that the State was prevented from pointing out that Shockley refused such a test. This issue has previously been ruled on adversely to Shockley’s argument.

The trial court did not err by excluding comment on the inability of the prosecution to present evidence of an alcohol test. . . . Here, at [Shockley’s] request, the prosecution was prevented from presenting evidence concerning his refusal to take a [breath] test. It would be manifestly unfair to prevent the prosecution from presenting this evidence and at the same time comment upon the prosecution’s failure to do so. Moreover, the exclusion of this argument is but a logical extension of the trial court’s initial ruling excluding mention of the failure of [Shockley] to take the [breath] test.

Piast v. State.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

Ralph W. Powell, Jr., Solicitor-General, Patrick S. Ferris, Assistant Solicitor-General, for appellee.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Phagan v. State, 243 Ga. App. 568, 569-570 (2) (533 SE2d 757) (2000).

       We note that Shockley does not challenge the sufficiency of the evidence to convict him for driving with a suspended license or falsely reporting a crime. As such, we do not consider these issues in this opinion.

        Moon v. State, 211 Ga. App. 559, 560 (2) (439 SE2d 714) (1993).

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

        Strickland, v. State, 223 Ga. App. 772, 774 (1) (a) (479 SE2d 125) (1996).

         Cooney v. State, 205 Ga. App. 385 (422 SE2d 286) (1992).

        Kirkland v. State, 206 Ga. App. 27, 33-34 (17) (424 SE2d 638) (1992).

        Pecina v. State, 274 Ga. 416 (554 SE2d 167) (2001).

        Park v. State, 220 Ga. App. 215 (469 SE2d 353) (1996).

        Reese v. State, 252 Ga. App. 650, 652 (2) (556 SE2d 150) (2001).

        Piast v. State, 230 Ga. App. 222, 223 (1) (495 SE2d 875) (1998).


author: Andrews, Presiding Judge.

text:
    A02A0923.
    HUNTER et al. v. HUNTER.
    (569 SE2d 919)
   Andrews, Presiding Judge.

Forrest Hunter, Edward Hunter, and Donald Hunter, beneficiaries under the will of Arthur Hunter, deceased, filed a caveat in probate court against the petition for year’s support of Imodean Hunter, the surviving spouse of the decedent. The probate court denied the caveat and awarded the surviving spouse real property (the marital residence) from the decedent’s estate valued at $91,500 as year’s support. The caveators appeal claiming the award was excessive. We agree the award was excessive and reverse because there is no evidence in the record to support the probate court’s determination that $91,500 of property was the amount reasonably needed to support and maintain the surviving spouse for a period of 12 months from the decedent’s death at the standard of living she had prior to the death of the decedent.

The surviving spouse filed her petition for year’s support after the decedent’s will was probated awarding her a life estate in the marital residence, which was titled in the decedent’s estate. The will left a remainder interest in this property in the caveators, the decedent’s three adult sons by a prior marriage. Under the will, the life estate continued so long as the surviving spouse elected to live in the residence and did not remarry. Upon moving out of the residence or remarrying, the life estate would terminate and the property would be sold and the proceeds divided equally between the surviving spouse and the three caveators.

In order to sustain the probate court’s year’s support award and denial of the caveat, there must be some evidence that the amount of property awarded bears a reasonable relationship to the amount the surviving spouse needs for a period of 12 months from the decedent’s death to maintain the standard of living she had prior to the decedent’s death. Burkett v. Estate of Burkett, 248 Ga. App. 719, 720 (548 SE2d 628) (2001); Adams v. Adams, 249 Ga. 477, 480-481 (291 SE2d 518) (1982); OCGA §§ 53-3-1 (c); 53-3-7. In making this determination, the probate court takes into consideration (1) the support available to the surviving spouse from sources other than year’s support, including but not limited to the principal of any separate estate and the income and earning capacity of the surviving spouse, (2) the solvency of the decedent’s estate, and (3) such other relevant criteria as the court deems equitable and proper. OCGA § 53-3-7 (c). The probate court’s determination of the amount awarded as year’s support will be upheld on appeal absent an abuse of discretion. Burkett, 248 Ga. App. at 720.

The record shows that, prior to the death of the decedent, the decedent was disabled and the surviving spouse and the decedent resided in the marital residence at issue and had joint gross yearly income of about $27,500 comprising earnings by the surviving spouse and Social Security payments to the decedent and the surviving spouse. The year after the decedent’s death, the surviving spouse had gross yearly income of about $28,500 comprising $18,706 earned by the surviving spouse and the remainder in Social Security payments to the surviving spouse. The surviving spouse had about $9,300 in savings and checking accounts. There was also evidence of the surviving spouse’s monthly expenses. However, other than evidence she purchased a new car after the decedent’s death, there was no evidence that the monthly expenses necessary to maintain her standard of living increased after the decedent’s death. See Richards v. Wadsworth, 230 Ga. App. 421, 422 (496 SE2d 535) (1998). Evidence showed that the marital residence has a fair market value of about $91,500, is debt free, and that the surviving spouse continued to live there at the time of the year’s support hearing (over two years after the decedent’s death) by virtue of the life estate given to her in the decedent’s will.

The surviving spouse testified at the year’s support hearing that, given these circumstances and income levels, she was better off financially after the decedent’s death than before it. But she also testified that at age 74 and suffering from arthritis, she was unsure how much longer she would be able to supplement her Social Security income by continuing the dry cleaning business work she had done for the last 15 years. She further testified that she should be entitled to year’s support because she took care of the decedent for the many years he was sick and disabled, and argued that, because of her contributions to the marriage of over 30 years, she had an equitable interest in the marital residence.

On these facts, we find no evidence that could support the probate court’s determination that the surviving spouse needed the award of $91,500 of estate property as year’s support. Taking into consideration all of the factors set forth in OCGA § 53-3-7 (c), the award of title to the entire marital residence as year’s support clearly exceeded the amount necessary to support and maintain the surviving spouse for a period of 12 months from the decedent’s death at the standard of living she had prior to the decedent’s death. This sum would be excessive under the statutory criteria even if the 74-year-old surviving spouse did not work to supplement her income. Although, as she testified, the surviving spouse made many personal sacrifices during the marriage, “[y] ear’s support is not intended to pay the surviving spouse for loss of the relationship or for personal sacrifices made during the marriage. . . .” Richards, 230 Ga. App. at 425 (4). Nor do the contributions made by the surviving spouse during the marriage entitle her to claim year’s support based on an equitable interest in the marital residence. This claim, in essence for equitable division of the property, cannot be maintained apart from divorce proceedings. Segars v. Brooks, 248 Ga. 427, 428 (284 SE2d 13) (1981).

Decided July 17, 2002

Reconsideration denied August 8, 2002

Richard A. Newton, Leo W. Clifton, Sr., for appellants.

W. Allen Separk, R. Stacy Hylton, for appellee.

Because there is no evidence to support the award under the statutory criteria for year’s support, the probate court abused its discretion, and the award must be reversed.

Judgment reversed.

Phipps and Mikell, JJ, concur.

       Nothing in the will required the surviving spouse to make an election between the life estate and year’s support. Russell v. Hall, 245 Ga. 677, 678 (266 SE2d 491) (1980); OCGA § 53-3-3.


text:
    A02A1203.
    BANISTER v. THE STATE.
    (570 SE2d 11)
   Blackburn, Chief Judge.

Following a jury trial, Jimmy Ray Banister appeals his conviction for theft by receiving a stolen vehicle, contending that the trial court erred by admitting similar transaction evidence of a prior guilty plea. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that, on the evening of May 23, 2000, a suspicious citizen called police when she witnessed a gold Volvo crashing through the gate of an auto shop across the street from her home. A couple of hours later, Banister was pulled over by Deputy Paul Ward for driving erratically. Deputy Ward asked Banister for his driver’s license and insurance card, and Banister “started patting around like he was looking for his driver’s license.” Banister then lied that he had left his license at home and gave Deputy Ward a false name and date of birth. Deputy Ward immediately noticed the smell of an alcoholic beverage on Banister’s breath. After checking with his dispatcher and confronting Banister about his lies, Deputy Ward discovered that Banister was an habitual violator and that the car he was driving had been stolen from the auto shop earlier in the evening.

Deputy Ward then asked Banister to perform field sobriety tests. At that point, Banister became irate and started to curse. To avoid any further confrontation, Deputy Ward handcuffed and arrested Banister. Banister was then taken to the police station and formally charged.

During trial, the State was allowed to elicit evidence of a prior theft by receiving incident to which Banister pled guilty in 1991. Lieutenant Larry Gibson testified that, on January 26, 1991, he stopped Banister for weaving. Lieutenant Gibson then requested Banister’s license and proof of insurance, and, after fumbling through his wallet, Banister failed to provide the requested information. Lieutenant Gibson asked Banister to step out of the car and noticed a strong alcohol beverage smell. Shortly thereafter, Lieutenant Gibson discovered that the car that Banister was driving had been stolen.

At that point, Lieutenant Gibson, who was on a motorcycle, called a paddy wagon to pick up Banister. Lieutenant Gibson determined that field sobriety tests were unnecessary because Banister was so obviously impaired. After Lieutenant Gibson informed Banister that he was under arrest for theft by receiving, driving under the influence, and driving without a license, Banister became irate and started to curse. Banister subsequently pled guilty to this crime.

In this appeal, Banister argues that the 1991 similar transaction should not have been admitted into evidence because it was too dissimilar and too remote. This argument is patently erroneous.

“[M]ere lapse of time between the commission of any prior similar crime and the commission of the offense currently at trial does not render the evidence automatically inadmissible; lapse of time is but one factor to be taken into consideration in determining admissibility.” Harris v. State. “It is, moreover, the similarity of the offenses within the meaning of Williams v. State that determines the admissibility of such evidence, not whether the span of time between offenses is brief.” Nelson v. State.

Decided July 24, 2002

Reconsideration denied August 8, 2002.

Richard M. Thompson, Mary Erickson, for appellant.

Jimmy R. Banister, pro se.

David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellee.

In this case, both crimes are markedly similar. On each occasion, Banister was discovered driving a stolen car while under the influence. In both cases, he lied to arresting police, failed to produce a license, and became irate. There is no question that the 1991 conviction was sufficiently similar to the present crime, and, although there may have been some differences between the two incidents, courts must focus on similarities, not differences, when determining whether prior transactions are sufficiently similar. Guild v. State. Given the similarity between the two incidents in question, the trial court did not abuse its discretion in admitting the former conviction. Arnold v. State.

Judgment affirmed.

Johnson, P. J, and Miller, J., concur.

       Banister also pled guilty to operating a motor vehicle after revocation of his license as an habitual violator, driving under the influence, and giving a false name to a law enforcement officer.

        Harris v. State, 222 Ga. App. 52, 54 (2) (a) (473 SE2d 232) (1996).

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

        Nelson v. State, 242 Ga. App. 63, 65 (4) (528 SE2d 844) (2000).

        Guild v. State, 236 Ga. App. 444, 445 (2) (512 SE2d 343) (1999).

        Arnold v. State, 236 Ga. App. 380, 382 (2) (511 SE2d 219) (1999).


author: Phipps, Judge.

text:
    A02A1551.
    STINSON v. THE STATE.
    (569 SE2d 858)
   Phipps, Judge.

Following remand in State v. Stinson, James Stinson was tried and convicted of one count of aggravated sexual battery and four counts of sexual battery. In this appeal of his convictions, he complains of certain of the trial court’s evidentiary rulings and jury instructions. We find no error and affirm.

State’s evidence showed that in the early morning hours of February 14,1998, the complaining witness, K. D., was sitting in a car in the parking lot of a supermarket. She was there with a man with whom she had previously worked and had an affair. Stinson, a uniformed Gwinnett County police officer, appeared on the scene and decided to investigate. After discovering that K. D.’s driver’s license had been suspended, Stinson instructed her male companion to leave. While detaining K. D., Stinson sexually battered her in various ways and forced her to perforin oral sex. Following this incident, K. D. and her husband divorced. Stinson’s defense was that his sexual contact with K. D. was consensual.

1. Stinson charges the trial court with error in refusing to admit pleadings in a civil action by K. D. against him, his chief of police, and Gwinnett County arising from the subject incident.

Although K. D. dismissed her action prior to trial, Stinson argues that the county’s answer should have been admitted because in it the county denied that Stinson committed the acts giving rise to this prosecution. According to Stinson, the State is, therefore, judicially estopped from taking a contrary position in this proceeding. There is no merit in this argument.

“The federal doctrine of judicial estoppel ‘precludes a party from asserting a position in a judicial proceeding which is inconsistent with a position previously successfully asserted by it in a prior proceeding.’ ” In the prior civil case, however, K. D. sued Gwinnett County. This is a prosecution by the State of Georgia against Stinson. The State could not have asserted an inconsistent position in the prior proceeding, because it was not a party to it. Moreover, the defense of estoppel is unavailable against the State where its application would thwart a strong public policy, such as enforcement of the criminal law. For these reasons, the county’s denial of the allegations of K. D.’s civil complaint in no way estops the State from bringing these criminal charges. In addition, the court allowed Stinson to elicit testimony concerning the county’s answer to K. D.’s civil complaint, and defense counsel was permitted to comment on its contents during closing argument. The court merely ruled that the complaint could not go out with the jury. We find neither harm nor error.

2. Stinson contends that the trial court erred in refusing to admit K. D.’s petition for divorce. Stinson argues that statements in the divorce petition contradicted K. D.’s trial testimony. We find no contradiction.

3. Stinson complains of the trial court’s refusal to instruct the jury on impeachment by proof of general bad character.

“A witness may be impeached by evidence as to his general bad character. The impeaching witness should first be questioned as to his knowledge of the general character of the witness, next as to what that character is, and lastly he may be asked if from that character he would believe him on his oath.” In this case, neither the State nor Stinson used this mode of impeachment at trial. Instead, Stinson sought to impeach K. D. based on prior contradictory statements. The court charged the jury on that method of impeachment. The court did not err in refusing to charge the jury on the method of impeachment set forth in the requested charge.

Decided May 30, 2002

Reconsideration denied August 8, 2002

Chandler & Britt, Walter M. Britt, Deborah F. Weiss, for appellant.

4. Stinson contends that the court erred in refusing to charge the jury on OCGA § 24-9-68: “The state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury.”

Stinson argues that this charge should have been given because of the civil lawsuit K. D. filed against him and the county. But, as previously noted, K. D. dismissed that suit. Moreover, the court charged the jury that in passing upon credibility of witnesses, it could consider their interest or lack of interest in the occurrences about which they testified. That was the applicable legal principle here. The court did not err in refusing to give the requested charge.

5. Contrary to argument advanced by Stinson in his final claim of error, the court did not err in refusing to instruct the jury that it should consider K. D.’s character in determining whether the sexual contact with him was consensual or against her will.

As authority in support of this request to charge, Stinson relied on the rape shield statute. That statute, however, is not directly applicable to sexual offenses such as sexual battery or aggravated sexual battery. Moreover, even if it were directly applicable, it precludes admission of evidence concerning the complaining witness’s past sexual behavior unless, among other things, that behavior involved the participation of the accused. Here, there is no evidence of any past sexual behavior between Stinson and K. D. The court did not err in refusing to give this request to charge, as it was not supported by any legal authority.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

       244 Ga. App. 622 (536 SE2d 293) (2000) (reversing trial court’s grant of Stinson’s motion to suppress his pretrial statements to police).

       Compare Chancellor v. State, 165 Ga. App. 365, 372 (23) (301 SE2d 294) (1983).

       (Footnote omitted.) Wolfork v. Tackett, 273 Ga. 328 (540 SE2d 611) (2001).

        State Soil & Water Conservation Comm. v. Stricklett, 252 Ga. App. 430, 435 (2) (555 SE2d 800) (2001).

       OCGA § 24-9-84.

       OCGA § 24-2-3.

       See Mobley v. State, 212 Ga. App. 293, 294 (1) (441 SE2d 780) (1994).

       OCGA § 24-2-3 (b).

       See Woityra v. State, 213 Ga. App. 89 (1) (443 SE2d 867) (1994).


author: Miller, Judge.

text:
    A02A1221.
    In the Interest of O. J., a child.
    (570 SE2d 79)
   Miller, Judge.

A single mother’s chronic schizophrenia divorced her from reality and hindered her ability to care for her five-year-old daughter. With the daughter in tow, she once stubbornly remained homeless despite offers of help, and on another occasion she knowingly allowed a man who had molested her daughter to continue contacting the child. The mother could not care for herself or her child but relied on other adults to supervise and assist. Based on expert testimony, the juvenile court terminated the mother’s parental rights. We affirm, holding that the evidence sufficed to sustain the judgment.

Construed in favor of the juvenile court’s ruling, the evidence showed that in October 1998, the mother with her daughter O. J. stubbornly remained homeless despite agency offers of free housing. The mother was placed in a hospital, where she was diagnosed as suffering from chronic paranoid schizophrenia. This illness caused her to be paranoid and delusional with loose associations and aggressive behaviors and to have frequent auditory and visual hallucinations. She was nonfunctional and a recluse. Based on a finding of deprivation, the juvenile court placed the child in Department of Family & Children Services (DFACS) custody.

After the mother received treatment and stabilized, her daughter was returned to her in April 1999. Within a few months, a male friend of the mother molested the daughter, which the daughter reported to the mother. The mother, who had ceased her medication and was hearing multiple voices, refused to acknowledge the problem. She continued to allow the molester back in her home and to allow him to have access to and contact with the child. Due to her failure to protect her child, the court ordered the child back into foster care.

Citing the mother’s mental deficiency, DFACS petitioned to' terminate her parental rights. After a hearing, the juvenile court granted the petition on this ground. The mother appeals, arguing that (1) the evidence was insufficient, (2) the court erred in admitting hearsay testimony, and (3) the court erred in not appointing her an attorney for the deprivation hearings. We hold that the evidence was sufficient, that the court could admit the hearsay testimony, and that her failure to request an attorney was fatal to her last enumeration. Accordingly, we affirm.

1. To terminate parental rights, a court must find clear and convincing evidence of parental misconduct or inability and must also find that termination is in the best interest of the child. OCGA § 15-11-94 (a); see In the Interest of D. W., 235 Ga. App. 281-282 (509 SE2d 345) (1998). Parental misconduct or inability is proven by evidence showing (i) the child is deprived, (ii) lack of proper parental care or control is the cause of the deprivation, (iii) the cause of the deprivation is likely to continue, and (iv) continued deprivation is likely to cause serious harm to the child. OCGA § 15-11-94 (b) (4) (A) (i)-(iv); D. W., supra, 235 Ga. App. at 281-282.

(a) In her first enumeration of error, the mother claims the evidence did not support findings under subdivision (i) — present deprivation, and subdivision (iii) — likely to continue. She does not challenge the evidence supporting subdivision (ii) — lack of parental care caused deprivation, and subdivision (iv) — serious harm likely if deprivation continued.

(i) Deprivation. Prior to the termination hearing, the court on multiple occasions found the child deprived in court orders arising out of deprivation hearings. These orders were admitted at the termination hearing, and the court took judicial notice of them also. See D. W., supra, 235 Ga. App. at 282. Since the mother did not appeal any of these orders, she is bound by the findings of deprivation, and the first factor is satisfied. In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997).

Moreover, the evidence showed that the mother’s mental disorder had left the child homeless and exposed to continued molestation, and that the mother could not care for the child. Deprivation was shown.

(ii) Likely to Continue. The mother claims that her regular visits to the child and her compliance with the reunification plans mandated a finding in her favor that the cause of the deprivation was not likely to continue. She ignores, however, that she continues to suffer from a permanent case of chronic paranoid schizophrenia. This medically verifiable deficiency of her mental condition (see OCGA § 15-11-94 (b) (4) (B) (i)) has disabled her from employment, subjected her daughter to homelessness and molestation exposure, required other adults to handle the shopping, finances, and transportation for her, and caused her to be so passive and nonfunctional as to lack any parenting skills. Similar mental deficiencies have led to the termination of parental rights. See, e.g., In the Interest of A. G., 253 Ga. App. 88, 90 (1) (b) (558 SE2d 62) (2001) (psychological disorders resulted in poor motivation); In the Interest of J. M. D., 249 Ga. App. 457, 460 (548 SE2d 454) (2001) (untreated mental condition made mother unable to parent adequately); In the Interest of A. M. R., 230 Ga. App. 133, 135 (1) (a) (495 SE2d 615) (1998) (mental condition and erratic behavior showed parental inability); In the Interest of J. M. G., 214 Ga. App. 738, 740 (5) (448 SE2d 785) (1994) (schizoid personality caused lack of motivation and inability to care for child alone).

Evidence showed that this condition was likely to continue. The mother’s repeated refusal to take her medication exacerbated the symptoms of her mental disorder, which disorder was a permanent condition. The court could also consider her past conduct in determining the likelihood that such would continue and could discount her recent efforts to reform. In the Interest of J. M. C., 201 Ga. App. 173, 174-175 (410 SE2d 368) (1991); see D. W., supra, 235 Ga. App. at 282.

(b) Evidence supported the finding that termination was in the child’s best interest. The same factors which show the mother’s inability to rear her daughter may also provide evidence that termination of her rights would be in the best interest of the child. D. W., supra, 235 Ga. App. at 283. The court could also consider the child’s need for a stable and secure home, the severe detrimental effects of a prolonged stay in foster care under the ephemeral hope of change, and the danger of the child’s being lost in foster care drift. In re G. M. N., 183 Ga. App. 458, 461 (1) (359 SE2d 217) (1987); see In the Interest of M. C. L., 251 Ga. App. 132, 136 (2) (553 SE2d 647) (2001).

2. The mother complains that one caseworker’s testimony relied in part on case notes generated prior to the caseworker’s involvement in the case. The mother contends that this was hearsay and inadmissible.

The case began in October 1998 when the mother was hospitalized for her schizophrenia. Physicians testified as to this. The caseworker who testified became personally involved six months later in April 1999 and worked on the case for the next two and one-half years through the October 2001 trial hearing. She testified as to events occurring during the entire three-year period, relying on case notes as to the first six months of activity.

“[A] 11 information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition.” (Emphasis supplied.) OCGA § 15-11-56 (c); accord In the Interest of C. N. S., 248 Ga. App. 84, 87 (545 SE2d 633) (2001); see In the Interest of A. T. H., 248 Ga. App. 570, 574 (2) (547 SE2d 299) (2001); In the Interest of M.L.P., 236 Ga. App. 504, 510-511 (2) (512 SE2d 652) (1999). “To the degree any such information contained hearsay, the courts are presumed to have disregarded it. [Cits.]” C. N. S., supra, 248 Ga. App. at 87; see In the Interest of M. A. C., 244 Ga. 645, 655 (4) (261 SE2d 590) (1979) (it is presumed the trial judge “separates the wheat from the chaff. . . . [Cit.]”). Here, the court expressly said it was disregarding hearsay.

There is no reversible error where the evidence introduced (not including the hearsay) is sufficient to support the findings of the trial judge. In the Interest of A. A., 252 Ga. App. 167, 168 (1) (555 SE2d 827) (2001); see M. A. C., supra, 244 Ga. at 655 (4). As set forth above, the evidence (not including the caseworker’s pre-April 1999 testimony) supported the findings necessary to terminate the mother’s parental rights. Accordingly, there was no reversible error.

3. Although represented by appointed counsel at the termination hearing, the mother claims that the court erred in not appointing her an attorney for the deprivation hearings. Right to appointed counsel, however, is available “upon the request of [the indigent party].” OCGA § 15-11-6 (b). Thus, “[a] request is required before an appointment is made. [Cit.]” A M. R., supra, 230 Ga. App. at 137 (2).

Here the mother was notified of each of the deprivation hearings by a summons that specifically informed her, in the following language, that she was entitled to appointed counsel upon request: “If you want a lawyer but are not able to hire a lawyer without undue financial hardship, you may ask for a lawyer to be appointed to represent you. The Court would inquire into your financial circumstances and if the Court finds you to be financially unable to hire a lawyer, then a lawyer will be appointed to represent you.”

The mother never requested an attorney, and therefore there was no error in failing to appoint her counsel. See A. M. R., supra, 230 Ga. App. at 136-137 (2). Indeed, only at the State’s request did the court appoint her counsel for the termination hearing. Following this appointment, two additional custody extension orders (each finding the child was deprived) were entered with no objection from the mother’s counsel. Since even with counsel the mother did not object to two unappealed orders finding deprivation, she can show no harm from the previous deprivation hearings at which she did not ask for representation. We discern no reversible error.

Decided August 8, 2002.

Vernita L. Lee, for appellant.

Thurbert E. Baker, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, William D. Edwards, Charles R. Red-dick, for appellee.

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.


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    A02A1228.
    PUPLAMPU v. THE STATE.
    (570 SE2d 83)
   Miller, Judge.

Emanuel Puplampu appeals from the trial court’s denial of his motion and plea in bar of double jeopardy. On appeal he contends, and the State concedes, that the trial court erred by improperly terminating his first trial after the first witness had already been sworn and then resetting the trial to begin again before a different judge. We agree and reverse.

The record reveals that on December 20, 2001, Puplampu appeared at a bench trial for an alleged speeding violation. After the first witness was sworn for the trial but before any questions were asked, the solicitor-general informed the court that he did not have the documents necessary to lay the foundation for the admission of his laser speeding device evidence. Over objection from defense counsel, the trial judge then decided to reset the case for the next week to give the solicitor-general time to obtain the necessary documents.

One day before the second trial, Puplampu filed a motion for plea of double jeopardy, and on the date of the second trial the case was set to commence before a different judge from the one who reset the case from the prior week. The case was called, and Puplampu entered a plea of double jeopardy. Following a hearing on the issue, the court denied Puplampu’s plea, reasoning that the court was not convinced that jeopardy had yet attached in the case. Puplampu now appeals.

“No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.” Ga. Const, of 1983, Art. I, Sec. I, Par. XVTTT- “The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” (Citation and punctuation omitted.) Wilson v. State, 229 Ga. App. 455 (494 SE2d 267) (1997).

Decided August 8, 2002.

Bernard S. Brody, for appellant.

Joseph J. Drolet, Solicitor-General, Katherine Diamandis, Assistant Solicitor-General, for appellee.

OCGA § 16-1-8 (a) (2) provides that “[a] prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution . . . [w]as terminated improperly . . . in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts. . . .”

Termination of a trial is not improper where:

(1) The accused consents to the termination or waives by motion to dismiss or other affirmative action his right to object to the termination; or (2) The trial court finds that the termination is necessary because: (A) It is physically impossible to proceed with the trial; (B) Prejudicial conduct in or out of the courtroom makes it impossible to proceed with the trial without injustice to the defendant; (C) The jury is unable to agree upon a verdict; or (D) False statements of a juror on voir dire prevent a fair trial.

OCGA § 16-1-8 (e).

The record reveals that Puplampu’s first trial was terminated after the first witness was sworn and before findings were rendered by the trier of facts to allow the solicitor-general time to better prepare for trial. This is clearly not a proper basis for terminating a criminal-bench trial at this stage of the proceedings. See OCGA § 16-1-8 (e). Furthermore, unlike a case of a continuance, where the trial would simply be recessed for a brief time and then continued before the same trier of facts (see Knight v. State, 197 Ga. App. 250, 252 (5) (398 SE2d 202) (1990)), this bench trial case was completely terminated and then started anew before an entirely different judge. We hold that the case was improperly terminated, and we therefore reverse the judgment of the trial court denying Puplampu’s plea of double jeopardy. See Dean v. State, 214 Ga. App. 768, 770 (449 SE2d 158) (1994).

Judgment reversed.

Blackburn, C. J., and Johnson, P. J., concur.


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    A02A1383.
    DEVORE v. LIBERTY MUTUAL INSURANCE COMPANY.
    (570 SE2d 87)
   Andrews, Presiding Judge.

At issue is whether an amended version of OCGA § 46-7-12 (c) allowing a direct action against the insurer of a motor common carrier, despite the failure to file prescribed forms evidencing the insurance policy, should be applied retroactively. Because applying the amended statute does not affect vested substantive rights, we find it has retroactive application. Accordingly, the trial court erred by refusing to give retroactive application to the statute and by refusing to allow a direct action against the motor carrier’s insurer, Liberty Mutual Insurance Company.

Kevin Devore sued a motor common carrier for injuries he allegedly suffered in a March 1999 collision with a truck operated by the carrier and joined the motor carrier’s insurer, Liberty Mutual, as a party defendant under the provisions of OCGA § 46-7-12. The provisions of OCGA § 46-7-1 et seq. in effect at the time of the collision provided in general: (1) that the Public Service Commission (the commission) was empowered to regulate motor common carriers by establishing rules and conditions for issuance of a certificate of public convenience and necessity which the motor carrier was required to obtain before commencing operations, (2) that no certificate shall be issued or continued in operation unless the motor carrier gives a bond or, in lieu of bond, a policy of indemnity insurance is filed and approved by the commission, and (3) that if a bond is given or a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the bond surety or the insurance carrier with the motor carrier as defendants in a suit claiming injuries caused by the motor carrier. OCGA §§ 46-7-3 through 46-7-12.

At the time of the subject collision, subsection (c) of OCGA § 46-7-12 provided that:

The commission may, in its discretion, allow the holder of such certificate to file, in lieu of such bond, a policy of indemnity insurance in some indemnity insurance company authorized to do business in this state, which policy must substantially conform to all of the provisions of this article relating to bonds. Such policy must also be approved by the commission.

The commission adopted rules permitting a motor carrier to comply with this subsection by filing a certificate of insurance on forms approved by the commission in lieu of filing the indemnity insurance policy. Commission Rule 1-8-1-.07; Kinard v. Nat. Indem. Co., 225 Ga. App. 176, 180 (483 SE2d 664) (1997). Here, the motor carrier filed one of the two forms prescribed by the commission rules but not the other. In McAdams v. U. S. Fire Ins. Co., 234 Ga. App. 324 (506 SE2d 679) (1998), we held that, under the commission rules, a direct action was authorized under § 46-7-12 only if both of the prescribed forms were filed in lieu of the indemnity insurance policy.

During the 2000 legislative session, the legislature amended OCGA Title 46, Chapter 7 to provide that, effective July 1, 2001, motor common and contract carriers are regulated by and obtain certificates of public convenience and necessity from the commissioner of public safety. Ga. L. 2000, pp. 951,1043-1058. The amended Chapter 7 continues to provide that no certificate shall be issued or continued in operation unless the motor carrier gives a bond or, in lieu of bond, a certificate of insurance is filed on forms prescribed by the commissioner, and that, if a bond is given or a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the bond surety or the insurance carrier with the motor carrier as defendants in a suit claiming injuries caused by the motor carrier. Additionally, the legislature approved a separate amendment to subsection (c) of OCGA § 46-7-12, effective July 1, 2000, addressing the prescribed forms evidencing a certificate of insurance. Ga. L. 2000, p. 1583. Under these amendments, subsection (c) of § 46-7-12 now provides that:

The commissioner may, in his or her discretion, allow the filing of a certificate of insurance on forms prescribed by the commissioner, in lieu of such bond, evidencing a policy of indemnity insurance in some indemnity insurance company authorized to do business in this state, which policy must substantially conform to all of the provisions of this article relating to bonds. Such certificate shall be filed by the insurer. The failure to file any form required by the commissioner shall not diminish the rights of any person to pursue an action directly against a motor carrier’s insurer.

It is undisputed that the motor carrier at issue was operating at the time of the collision with a valid certificate of public convenience and necessity issued after giving evidence of an approved policy of indemnity insurance issued by Liberty Mutual which was in effect at the time of the collision. After Devore joined the motor carrier’s insurer, Liberty Mutual, as a defendant in his suit under the applicable statute, Liberty Mutual, citing McAdams, supra, and the prior version of OCGA § 46-7-12 (c) in effect at the time of the collision, moved for summary judgment in October 2001 on the basis that the failure to file one of the prescribed forms evidencing the insurance policy precluded any direct action against it. Devore argued that the trial court should retroactively apply the amended version of § 46-7-12 (c), which provided that the failure to file the required form did not preclude a direct action against the insurer. The trial court granted summary judgment in favor of Liberty Mutual concluding that retroactive application of the amended statute would improperly impair Liberty Mutual’s substantive rights which vested under the prior statute.

Decided August 8, 2002.

Dietrich, Evans, Scholz & Williams, Richard W. Summers, for appellant.

Carter & Ansley, Michele A. Ritz, Tommy T. Holland, for appel-lee.

The prohibition in Art. I, Sec. I, Par. X of the Georgia Constitution of 1983 against retroactive laws applies only to those laws which affect or impair substantive rights under prior law which have vested at the time the subsequent law takes effect. Bituminous Cas. Corp. v. United Svcs. Auto. Assn., 158 Ga. App. 739, 740 (282 SE2d 198) (1981). Where an amendment to a statute changes procedure or rules of evidence, it does not affect or impair vested substantive rights, and it is to be given retroactive effect absent the legislature’s expressed contrary intention. Harris v. Murray, 233 Ga. App. 661, 662 (504 SE2d 736) (1998); Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273) (1988).

The amendments to OCGA § 46-7-12 (c) did not affect substantive rights. Rather, the amended provisions at issue altered the evi-dentiary rules regarding the necessity of using forms evidencing a motor carrier’s policy of insurance for purposes of pursuing a direct action against the insurer. The substance of the statutory scheme was to create a direct cause of action against insurers which issued the required policies to the motor carriers. There is no dispute that Liberty Mutual issued the insurance policy and that it was in effect at the time of the subject collision. Liberty Mutual had no vested substantive right in the prior evidentiary rules for showing that it issued the policy.

Judgment reversed.

Phipps and Mikell, JJ., concur.


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    A02A1532.
    WORTHINGTON v. THE STATE.
    (570 SE2d 85)
   Miller, Judge.

Following a jury trial, Stacy Franklin Worthington was convicted on one count of committing terroristic threats. In his sole enumeration of error on appeal, Worthington contends that the trial court erred in denying his motion for a directed verdict of acquittal, arguing that the evidence was insufficient to sustain his conviction because the victim did not testify at trial. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that Worthington’s ex-wife was playing a board game with the victim and two others at a friend’s apartment. While playing the game, the ex-wife’s pager rang several times. In an effort to stop the calls, the victim called the number on the pager, and Worthington answered the phone. The conversation between the victim and Worthington took place on speaker phone, and the ex-wife and her companions were able to identify Worthington as the man with whom the victim was speaking based on his voice. During the victim’s conversation with Worthington, Worthington said, “I’ll kill you, put you in a pine box and ship you back to wherever you came from.” Worth-ington also said, “I will kill you, I’ll put a bullet in your head. . . .”

Less than 20 minutes after the conversation ended, the owner of the apartment and his guests saw Worthington driving slowly through the apartment complex parking lot. The apartment owner saw Worthington stop at his apartment, noticed that Worthington had a gun, and then called 911. The police found Worthington at a nearby business and observed that Worthington had two loaded handguns with him.

After learning that the victim was unavailable to testify at trial, Worthington moved to dismiss the indictment and moved for a directed verdict of acquittal. The court denied his motions, indicating that the victim was not required to testify for there to be sufficient evidence for the jury to consider the issue of whether Worthington communicated terroristic threats. The jury found Worthington guilty, and he now appeals.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. Hash v. State, 248 Ga. App. 456, 457 (1) (546 SE2d 833) (2001). We view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id.; see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided August 8, 2002.

Stephen F. Lanier, for appellant.

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

A person would be guilty of committing a terroristic threat “when he threatens to commit any crime of violence or to bum or damage property with the purpose of terrorizing another. . . .” OCGA § 16-11-37 (a). The statute states further that “[n]o person shall be convicted [of committing a terroristic threat based] on the uncorroborated testimony of the party to whom the threat is communicated.” Id.

Worthington argues that the evidence was insufficient to sustain his conviction because, in light of the victim’s failure to testify, there was no “testimony” for other witnesses to corroborate, which he contends negates the possibility of the evidence being sufficient to sustain a conviction for terroristic threats. However, Worthington’s argument is without merit, as there is no requirement that the victim testify for there to be sufficient evidence to sustain a conviction for terroristic threats. See Warnock v. State, 195 Ga. App. 537, 540 (4) (394 SE2d 382) (1990) (although the terroristic threats statute requires that the victim’s testimony be corroborated “if the State offers only the testimony of the party to whom the threat is communicated . . . [, the statute] does not require that party to testify and it does not require corroboration of the testimony of a non-party”).

Here, several witnesses actually heard Worthington make the threats to the victim, and they identified Worthington at trial as the person who made the threats. Worthington appeared with a gun in the parking lot outside of the apartment where the victim was located, which the jury could construe as additional circumstantial evidence that Worthington made the threats with the purpose of terrorizing the victim. See, e.g., Gay v. State, 179 Ga. App. 430, 432 (2) (346 SE2d 877) (1986) (terroristic threats might be shown from defendant threatening to get a gun and shoot an officer’s car, and then turning around as if to obtain gun). The evidence was sufficient to sustain the conviction, and the trial court therefore did not err in denying Worthington’s motion for a directed verdict.

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.