text:
    A98A1010.
    In the Interest of D. A. P. et al., children.
    (506 SE2d 438)
   Smith, Judge.

The biological father of D. A. R, who is also the “legal” father of M. W. P. and S. L. W., appeals from the order of the Chatham County Juvenile Court terminating his parental rights as to all three children. We find no error and affirm.

These children, aged thirteen, eight, and five at the time of the termination hearing, have been in the temporary legal custody of the Chatham County Department of Family & Children Services (DFACS) since 1993, when they were first adjudicated as deprived. Their mother has been in and out of substance abuse treatment and detoxification facilities for many years. The youngest child was born cocaine positive, the mother having used cocaine during her pregnancy. In 1992, the mother was separated from appellant but still married to him. She and the biological father of the younger children (the “other father”), along with the children, were living in a homeless shelter. The mother released all three children into foster care for a 90-day period in February 1993 so that she could enter detoxification and drug treatment. But in May 1993, the mother was still homeless and on drugs, and DFACS filed a petition requesting temporary custody for two years, which was granted.

A case plan for reunification was established for the mother and for the other father, but no case plan was established for appellant. He was incarcerated several times and was transferred from facility to facility, making it difficult for DFACS to locate him. He was never served in the prior deprivation proceeding, he did not participate in that proceeding, and the juvenile court recognized that his parental rights were not affected.

The mother and the other father made no significant progress toward complying with the case plans established for them, and after two orders extending temporary custody, DFACS filed a petition in December 1996 seeking to terminate the parental rights of appellant, the mother, and the other father. Appellant was found and served with process at the Albany Transitional Center. He appeared at the hearing on the petition, he was represented by counsel, and he participated in the proceedings.

1. Appellant contends his constitutional rights to due process and equal protection were violated because he was not apprised of the prior proceedings, he did not participate in those proceedings, and he was not given the same “opportunities by the Department to try to better his parental situation” that the mother and the other father were given. We do not agree.

“Due process of law means the administration of general laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the subject matter, and proceeding upon notice and hearing.” (Citation and punctuation omitted.) Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 311 (2) (127 SE2d 454) (1962). “The fundamental idea of due process is notice and an opportunity to be heard. [Cit.]” Nix v. Long Mtn. Resources, 262 Ga. 506, 509 (422 SE2d 195) (1992). Appellant unquestionably had a fundamental right to maintain a parent-child relationship with his children. Stanley v. Illinois, 405 U. S. 645, 651 (92 SC 1208, 31 LE2d 551) (1972). But when DFACS sought to terminate appellant’s rights, it located him and ensured that he was properly served and received notice of the proceedings and an opportunity to be heard, and he availed himself of that opportunity.

Moreover, although appellant was not afforded the same opportunities for remediation the mother and the other father received in the prior proceeding, this was not the result of a denial of equal protection of the law. Appellant possessed a constitutionally protected interest that could not be denied him by State action. But his inability to parent his children properly was not the result of any action on the part of the State. His failure to parent his children and his inability to be involved in the prior proceedings are the direct result of his incarceration after being convicted several times of felonies. He cannot now object to the natural consequences of his own criminal behavior. Turner v. Wright, 217 Ga. App. 368, 369 (1) (457 SE2d 575) (1995).

2. Appellant also contends that insufficient evidence was presented to support the termination of his parental rights. He argues basically that his parental rights were terminated because of the mother’s failures, not his own, because he was incarcerated for most of the applicable time period and was unable to do more for the children. On the contrary, clear and convincing evidence was presented that supports the juvenile court’s termination of appellant’s parental rights.

“Termination of parental rights under OCGA § 15-11-81 is a two-step process. The court must first determine whether clear and convincing evidence exists of parental misconduct or inability. The court then determines whether termination is in the best interest of the child. [Cit.]” In the Interest of R. L. M., 221 Ga. App. 343 (471 SE2d 245) (1996). Our standard on review is whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights were lost. Id.

The evidence presented showed that appellant has been incarcerated five times since the birth of the oldest of these three children. During appellant’s incarcerations the children had no contact with him. Appellant conceded that his incarcerations had a negative effect on his children. It is clear that appellant did not provide proper parenting for these children. Although incarceration alone need not always compel the termination of parental rights, it can support such a ruling when sufficient aggravating circumstances are present. In the Interest of S. K. L., 199 Ga. App. 731, 733 (1) (405 SE2d 903) (1991). When “an incarcerated parent has a criminal history of repetitive incarcerations for the commission of criminal offenses . . ., this constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.” (Citations and punctuation omitted.) In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). Appellant’s almost continuous incarceration for repeated criminal offenses clearly constitutes an aggravating circumstance.

When children are not in the custody of the parent whose rights are subject to termination, in determining whether the child is without proper parental care or control, the juvenile court must consider whether that parent without justifiable cause failed significantly for one year or longer prior to the filing of the petition for termination: “(i) [t]o communicate or to make a bona fide attempt to communicate with the child in a meaningful, supportive, parental manner; (ii) [t]o provide for the care and support of the child as requested by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent or parents.” OCGA § 15-11-81 (b) (4) (C) (i)-(iii).

Appellant did not communicate with the children after DFACS obtained temporary legal custody of them, notwithstanding evidence presented that he was aware of this circumstance. He did not make any contact with DFACS until after he was served with the termination petition. He provided no support and sent no gifts, letters, or other correspondence to these children. He made no attempt to find out from DFACS where his children were located.

Decided September 8, 1998.

Darden & Moyers, Andrea S. Moyers, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, William C. Joy, Senior Assistant Attorneys General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Leo G. Beckmann, Jr., for appellee.

At the time of the hearing, appellant was serving a six-year prison sentence. He acknowledged that the sentence would not be completed until the year 2000. Contrary to appellant’s arguments, the possibilities that he might be released soon on parole and that he would be able to care for the children after that release are based entirely upon conjecture. This Court has held that “ ‘(t)he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ [Cit.]” In the Interest of D. I. W., 215 Ga. App. 644, 646 (451 SE2d 804) (1994). In considering the best interest of the children, the juvenile court may further consider their need for stability and the harmful effects of prolonged foster care. Id. Based on appellant’s past behavior, the juvenile court was authorized to conclude that deprivation was not likely to be remedied in the future and that it was in the children’s best interest that appellant’s parental rights be terminated. After reviewing the evidence in the light most favorable to appellant, any rational trier of fact could find by clear and convincing evidence that his parental rights have been lost. See generally In the Interest of L. F., supra.

Judgment affirmed.

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

       The father originally filed his appeal in the Supreme Court, and the State filed a motion to dismiss the appeal for lack of jurisdiction. The Supreme Court denied the motion to dismiss and transferred the case to this Court.

       An older child was not included in these proceedings. She was voluntarily placed in the home of an elderly woman by her parents in 1987, after she accused appellant of sexually abusing her.


source: Caselaw Access Project

author: Pope, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    A98A1401.
    HOWARD v. THE STATE.
    (506 SE2d 648)
   Pope, Presiding Judge.

After a jury trial in 1995, Marc Howard was convicted of trafficking in cocaine under OCGA § 16-13-31. Because Howard had two prior convictions for possessing cocaine with intent to distribute, the trial court sentenced him to life in prison pursuant to OCGA § 16-13-30. Howard appealed from the conviction, challenging the trial court’s denial of his motion to suppress and refusal to give a requested jury charge. This Court affirmed the conviction in Howard v. State, 220 Ga. App. 579 (469 SE2d 746) (1996). In 1997, more than two years after his conviction, Howard filed a motion to correct what he claims is an illegal life sentence. The trial court denied the motion. Howard filed this direct appeal from the denial of his motion.

1. Howard’s motion to correct an illegal sentence and his direct appeal from the denial of that motion are procedures that have been approved by the Georgia courts. “Although appellant did not challenge the validity of his sentence in his first appeal, if the sentence imposed was a void sentence, then a new and valid sentence can be imposed by the trial judge at any time. See also McCranie v. State, 157 Ga. App. 110, 111 (3) (276 SE2d 263) (1981), which holds that although habeas corpus would have been an appropriate remedy to determine the validity of a sentence, it is not necessarily an exclusive or sole remedy; such an action may be brought in the trial court.” (Citations and punctuation omitted.) Jefferson v. State, 205 Ga. App. 687 (1) (423 SE2d 425) (1992). Accordingly, Howard’s appeal is properly before us. See generally Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991).

2. Howard argues the life sentence is illegal because cocaine trafficking is a crime under OCGA § 16-13-31, for which the maximum sentence is 30 years, and is not a crime under OCGA § 16-13-30, which allows for a life sentence on a repeat offense of sale of cocaine or possession of cocaine with intent to distribute. This argument has been rejected. “Fruitless is the argument that the sentence of life imprisonment for trafficking was unauthorized because it is an offense under OCGA § 16-13-31 rather than OCGA § 16-13-30 (b).” Covington v. State, 231 Ga. App. 851, 852 (1) (501 SE2d 37) (1998). Howard’s “ ‘conviction for the more serious offense of trafficking in cocaine under OCGA § 16-13-31 was sufficient in conjunction with his previous conviction[s] for possession of cocaine with intent to distribute under OCGA § 16-13-30 (b) to trigger the mandatory life sentence provisions of OCGA § 16-13-30 (d). [Cits.]’ ” Brundage v. State, 231 Ga. App. 478, 480 (4) (499 SE2d 408) (1998). The trial court therefore did not err in sentencing Howard to life in prison. See generally Gilbert a State, 208 Ga. App. 258, 259-262 (1) (430 SE2d 391) (1993).

3. Howard contends the state’s notification that his two prior convictions would be used against him at sentencing was untimely because it was given only ten minutes before the trial started. It is true that if a life sentence is to be imposed under OCGA § 16-13-30 (d), the state must notify the defendant before trial of any conviction it intends to use in aggravation of punishment so the defendant has a chance to discover any defects that render the convictions inadmissible during the pre-sentencing phase of the trial. Armstrong v. State, 264 Ga. 237, 238 (1) (442 SE2d 759) (1994); Sinkfield v. State, 262 Ga. 239 (1) (416 SE2d 288) (1992). But contrary to Howard’s contention, we have previously held that notification on the day of trial, so long as it was given before the trial started, is sufficient. See Day v. State, 188 Ga. App. 648, 650-651 (8) (374 SE2d 87) (1988); Williams v. State, 162 Ga. App. 120, 121 (2) (290 SE2d 341) (1982). Consequently, the notice given by the state to Howard before the trial started was timely. Godfrey v. State, 227 Ga. App. 576, 577 (1) (489 SE2d 364) (1997); Payne v. State, 219 Ga. App. 318, 319 (4) (464 SE2d 884) (1995).

Judgment affirmed.

Ruffin, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 1 and 2. With respect to Division 3,1 concur because, although the record we have does not show when notice was given to defendant that the State would seek an enhanced sentence, what controls is that it also does not show that defendant objected to the amount of notice when the State introduced evidence of the prior convictions at the sentencing phase.

In Howard’s Memorandum in Support of Motion to Correct Illegal Sentence, filed in the trial court, he alleges that he was notified ten minutes before the start of trial that the State planned to use two prior convictions in aggravation of punishment. There is no evidence of this. The State’s attorney, in the letter response to the motion, asserted that “Mr. Howard and his trial attorney, Mr. Grayson Lane were most definitely aware of his prior convictions and myself and Mr. Lane had discussed the fact that the State would use these in aggravation of punishment long before the Motion to Suppress and the trial of the case.” The court’s order denying the motion does not state how the court resolved this factual dispute, if it did.

It is appellant’s responsibility to show error by the record. Arnold v. State, 198 Ga. App. 514, 516 (3) (402 SE2d 312) (1991). Since that has not been done concerning the time notice was given, we cannot address that point. Howard has shown no reversible failure to comply with OCGA § 17-10-2 (a).

But even if advance notice was not given at all, Howard cannot complain because there is nothing in the record to show he objected at trial. The Supreme Court held in Armstrong v. State, 264 Ga. 237, 239 (3) (442 SE2d 759) (1994): “[W]e affirm the judgment of the Court of Appeals because defendant did not interpose an objection when the state introduced defendant’s prior conviction into evidence during the pre-sentencing phase of the trial. The error is deemed waived. [Cits.]” The same result is inevitable here.

Decided September 8, 1998.

Daniel B. Kane, David R. Trainor, for appellant.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A98A1463.
    SMITH, BASSETT, PURCELL & KOENIG v. WORD OF GOD MINISTRIES, INC. et al.
    (506 SE2d 427)
   Smith, Judge.

Smith, Bassett, Purcell & Koenig, attorneys at law, represented The Word of God Ministries, Inc., Willie Callaway, and Yvette Callaway (collectively “the church”), in a dispute with the seller of property to the church. The attorneys filed an action for specific performance of the sale, and the seller counterclaimed for ejectment. That dispute was settled and the underlying actions were dismissed. Claiming that additional attorney fees remained unpaid, the law firm filed this action against its former clients, seeking to foreclose a lien on the real property recovered in the settlement of the prior action. After a show cause hearing, the trial court ruled against the plaintiff, concluding that the law firm could not recover its fees by way of lien foreclosure because its lien was extinguished when the lawsuits were dismissed. The law firm appeals. We conclude that the attorney’s lien was not extinguished, and we reverse the judgment below.

OCGA § 15-19-14 (c) provides: “Upon all actions for the recovery of real or personal property and upon all judgments or decrees for the recovery of the same, attorneys at law shall have a lien for their fees on the property recovered superior to all liens except liens for taxes, which may be enforced by mortgage and foreclosure by the attorneys at law or their lawful representatives as liens on personal property and real estate are enforced. The property recovered shall remain subject to the liens unless transferred to bona fide purchasers without notice.”

In ruling against the law firm, the trial court relied upon Brown v. Ga. Carolina & Northern R. Co., 101 Ga. 80 (28 SE 634) (1897), in which the Supreme Court held that “[t]he lien, according to the language of the statute, attaches to the suit only; and hence when for any reason the suit is finally disposed of, the lien is discharged.” Id. at 83. But Brown was decided on unusual facts; it is inapplicable here for two reasons. First, Brown did not involve a lien arising under the same subsection of the statute governing the lien in this case. The underlying action in Brown was not an action brought to recover real or personal property, but an action for damages for personal injury brought on a contingent fee basis. Id. Second, Brown involved the dismissal of a suit because of a settlement of which the attorney was unaware. The plaintiff’s attorney subsequently attempted to revive his lien for attorney fees by initiating a second suit on a cause of action that had been extinguished by the settlement of the first suit. Id. at 83-84. The Supreme Court noted that the lien does not attach to the cause of action but only arises upon institution of suit. Plaintiff’s attorney could have preserved his lien by moving to vacate the original judgment and reviving the original action, even after the settlement. Id. at 83. But he did not do so. His initiation of the second suit was properly nonsuited because no cause of action remained. Id. at 83-84.

Decided September 8, 1998.

Smith, Bassett, Purcell & Koenig, Robert R. Smith, for appellant.

James D. Stokes, for appellees.

It is well established that the attorney’s lien created under OCGA § 15-19-14 (c) “attaches to the fruits of the labor and skill of the attorney, whether realized by judgment or decree, or by virtue of an award, or in any other way, as long as they are the result of his exertions.” (Punctuation omitted; emphasis supplied.) Middleton v. Westmoreland, 164 Ga. 324, 329 (1) (138 SE 852) (1927). See John J. Woodside Co. v. Irwin, 79 Ga. App. 252, 254-255 (1) (53 SE2d 246) (1949). The phrase “or in any other way” includes settlement. Brotherton v. Stone, 197 Ga. 74, 75 (3) (28 SE2d 467) (1943); Hester v. Chalker, 222 Ga. App. 783, 784 (1) (476 SE2d 79) (1996). The fruits of the law firm’s labor in this case include the settlement agreement under which the church recovered the real property in issue. The law firm’s lien on that property was not extinguished by the dismissal of the action it brought to recover that very property, under the terms of the settlement agreement. The trial court erred in denying the petition for foreclosure.

Judgment reversed.

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


author: Blackburn, Judge.

text:
    A98A1713.
    BACKEY v. THE STATE.
    (506 SE2d 435)
   Blackburn, Judge.

After a jury trial, Michael Backey appeals from his conviction for incest, contending: (1) that the evidence was insufficient to support the verdict; (2) that the trial court erred in denying his motion to suppress certain incriminating statements made by him; (3) that he received ineffective assistance of counsel; (4) that the trial court erred by denying his request to be present at the hearing on his motion for new trial; and (5) that the trial court failed to affirmatively instruct him on his rights to testify or not at his trial. For the reasons set forth below, we affirm.

1. Backey contends that the evidence was insufficient to support the verdict.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Backey] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier could have found the essential elements of the crime beyond a reasonable doubt.” (Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

“A person commits the offense of incest when he engages in sexual intercourse with a person to whom he knows he is related either by blood or by marriage as . . . [u]ncle and niece.” OCGA § 16-6-22 (a) (6).

The evidence shows that Backey entered his sister’s trailer on the night of May 25, 1997, climbing through the window of his minor niece’s bedroom. Backey’s niece testified that Backey entered and exited her bedroom several times, and then he climbed on top of her and forced his penis into her vagina.

After Backey’s niece reported the crime to the police, Officer Sean Daniels contacted Backey by telephone and asked him to come to the police department. Backey complied, and at that time he admitted only that he had entered his sister’s trailer on the night in question. After he gave this statement, Backey was arrested and taken to jail. Later that same day, Backey contacted Daniels and told him that his prior statement was not completely truthful. At that time, Backey admitted that he had engaged in sexual intercourse with his niece. Again, Backey made this statement both orally and in writing. Accordingly, the evidence in this case amply supported the conviction for incest.

2. Backey contends that the trial court should have suppressed certain incriminating statements which he now claims that he did not make.

At a Jackson-Denno hearing, the trial court found that both of the admissions made by Backey were freely and voluntarily given, and such admissions were allowed into evidence. Backey made no objection to the admission of such evidence at the time. Although Backey had initially represented to his attorney that he had written both statements, he told his attorney during trial that he had not written a portion of the incriminating statements. Backey admits that no error appears on the face of the record, but he now contends that his allegation that a portion of his written statement was forged could indicate that it was not freely given.

Backey did not object to the admission of his written statements on the grounds he now raises on appeal either during the JacksonDenno hearing or at any other time during his trial. In order to preserve an objection upon a specific ground for appeal, “the objection must be made at trial upon the specific ground.” (Punctuation omitted.) Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395) (1990). As such, Backey has waived the right to raise such issues before this Court. Moreover, even if Backey had preserved his right to raise this issue, his argument lacks merit. Backey made both oral and written admissions in this case. Even if the written admissions were rejected, the oral admissions would be admissible. Furthermore, although Backey contends that he did not write the “middle part” of the statement, he never delineates exactly what part of the statement to which he refers. In essence, then, Backey’s argument in this regard is based on vagaries, speculation, and conjecture, and, as such, it is untenable.

3. Backey contends that he received ineffective assistance of counsel, alleging that his counsel did not “visit him enough times,” did not perform a proper investigation, did not move for a directed verdict following the State’s case, and did not ask the trial court to instruct Backey on his right to testify.

“In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), [Backey] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. See also Bowley v. State, 261 Ga. 278 (4) (404 SE2d 97) (1991). Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” (Punctuation omitted.) Stephens v. State, 265 Ga. 120, 121-122 (2) (453 SE2d 443) (1995). “There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Punctuation omitted.) Binion v. State, 222 Ga. App. 333, 334 (1) (474 SE2d 208) (1996).

Decided September 8, 1998

Gerald B. Williams, Willie C. Weaver, for appellant.

Kenneth B. Hodges III, District Attorney, Tracia M. King, Assistant District Attorney, for appellee.

Backey has failed to carry his burden of showing that the contended deficiencies of his counsel’s performance prejudiced his defense. The record shows that Backey’s counsel and associate did meet with him and were adequately prepared for trial. The record also reflects that Backey’s attorney instructed him about his right to testify at trial. Based on the overwhelming evidence of Backey’s guilt of incest, a directed verdict on this count would have been inappropriate and the failure to so move could not amount to deficient performance. Ney v. State, 227 Ga. App. 496, 502 (4) (f) (489 SE2d 509) (1997).

4. Backey erroneously contends that the trial court denied him due process by denying his motion to be present during the hearing on his motion for new trial. “A criminal defendant who is not laboring under the penalty of death has no right to be present during the hearing held upon his motion for new trial.” Moore v. State, 254 Ga. 525, 531 (4) (c) (330 SE2d 717) (1985).

5. Backey contends that the trial court erred by not instructing him of his right to testify.

Backey’s attorney testified that he fully explained Backey’s rights to him. Therefore, Backey was aware of his rights prior to making his decision not to testify. “While a review of the authorities does not persuade us that we should mandate the trial court to engage in an on-the-record colloquy with a defendant to inquire of the non-testifying defendant whether he desires to waive his right to testify, we acknowledge that the better practice would be for the trial court to include this inquiry as a matter of routine in order to avoid a post-conviction attack of the nature raised in this appeal.” (Citation omitted.) Barron v. State, 264 Ga. 865, 866, n. 2 (452 SE2d 504) (1995). Thus, while it would have been preferable for the trial court to make a record of Backey being advised of his right to testify, it was not reversible error to fail to do so.

Judgment affirmed.

McMurray, P. J, and Eldridge, J, concur.


text:
    A98A1922.
    GIDDEN v. THE STATE.
    (506 SE2d 448)
   Blackburn, Judge.

John Wesley Gidden was convicted by a jury of rape, aggravated sodomy, and aggravated sexual battery. Following the denial of his motion for new trial, Gidden appeals, contending that the trial court erred in denying his motion to suppress his custodial statement in violation of OCGA § 24-3-50. Because Gidden’s statement was voluntarily given, we affirm the trial court’s denial of his motion to suppress.

“When reviewing a ruling on a suppression motion, the evidence must be construed most favorably toward the trial court’s findings and judgment unless they are clearly erroneous.” Anderson v. State, 224 Ga. App. 608, 610 (1) (481 SE2d 595) (1997). “Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.” (Punctuation omitted.) Hunter v. State, 204 Ga. App. 25, 26-27 (418 SE2d 402) (1992).

Gidden contends that his statement was not voluntary because the detective who took it led him to believe that if he gave a statement he would be allowed to leave, but that if he did not give a statement he would be taken to jail. During the Jackson v. Denno hearing, Detective Broehl testified that he arrested Gidden at home, impounded his car pursuant to a warrant, and took him to the station. At the station, Detective Broehl determined that Gidden could read and understand the English language. He then read the Miranda warnings form to Gidden. Gidden signed the waiver of rights form and indicated that he would make a statement. Detective Broehl testified that he told Gidden: “[I]f you don’t want to make a statement that’s up to you. That’s certainly your right, and at which time you will be turned over to the Sheriff. You will be taken out to the jail for process. It is a standard procedure on an arrest.” Detective Broehl testified that he made it clear that whether or not Gidden made a statement he was going to go to jail. Gidden testified that he “felt that was conditions on the statement. Either [he] made a statement at that time or either [he] would go down to the Cobb County Jail at that time. That was a choice.” He further testified that he thought that “if [he] made a statement at that time [he] would just walk out on [his] own recognizance. It would be over with until maybe a further date.”

Decided September 8, 1998.

Richard O. Allen, for appellant.

Benjamin F. Smith, Jr., District Attorney, Debra H. Bernes, Nancy I. Jordan, Joel C. Pugh, Assistant District Attorneys, for appellee.

Based upon the foregoing facts, the trial court’s determination that Gidden’s statement was voluntary is not clearly erroneous. Detective Broehl’s statements were mere truisms “or recounting of facts rather than a threat of injury or promise of benefit within the meaning of OCGA § 24-3-50.” Anderson, supra at 610 (1). See also Hunter, supra at 27.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       OCGA § 24-3-50 provides: “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.”

       On appeal Gidden also contends that he made the statement because he had been led to believe he would receive bond in return. However, his testimony makes it clear that any discussion regarding bond did not take place until after his statement was given.


author: Andrews, Chief Judge.

text:
    A98A0859.
    HOLLIS v. THE STATE.
    (505 SE2d 837)
   Andrews, Chief Judge.

Lewis Michael Hollis appeals from the judgment entered on a jury verdict finding him guilty of driving while an habitual violator, fleeing and attempting to elude, obstruction of an officer, driving under the influence of alcohol, improper tag, running a stop sign, and reckless driving. On appeal, Hollis argues the evidence was insufficient to prove he was driving while an habitual violator and driving while under the influence of alcohol. He also argues that the trial court improperly admitted evidence of his refusal to submit to chemical testing of his blood and urine.

The evidence at trial, taken in the light most favorable to the jury’s verdict, Gazaway v. State, 207 Ga. App. 641, 642 (428 SE2d 659) (1993), was that on October 15, 1995, Hollis was observed running a stop sign by Jackson County Sheriff’s Deputy Michael Boyle. Boyle turned his vehicle around and began pursuit of Hollis’ blue Plymouth Duster. Hollis refused to pull over, and Boyle called for assistance. Upon activation of the blue lights, an in-car video camera was activated in the police car, and it recorded a 12-minute chase during which Hollis was observed weaving across the road and running another stop sign. Deputy Boyle called in the license tag and learned it was assigned to a different vehicle. Other officers joined the pursuit, and a rolling roadblock was established to stop Hollis.

Upon stopping the vehicle, the officers ordered Hollis out of the Duster. When he refused, he was forcefully removed. Pepper spray and batons were used on Hollis who continued to struggle and fight the officers throughout the arrest. In the course of this struggle, Deputy Boyle received cuts, scrapes, and a twisted knee that later required surgery, as well as being accidentally sprayed with pepper spray. After being placed in the back of another officer’s car and taken to jail, Hollis was washed to remove the pepper spray. After he was read the Implied Consent Notice, Hollis refused to submit to blood or urine testing. Further investigation revealed Hollis had been declared an habitual violator.

1. On appeal, Hollis argues that' it was a legal impossibility for him to be convicted for driving after being declared an habitual violator, relying on Wilson v. Miles, 218 Ga. App. 806 (463 SE2d 381) (1995) and that admission of State’s Exhibit 3 and denial of his motion for directed verdict on this ground were error. In Wilson, this Court determined that under OCGA § 40-5-58, three separate and unrelated transactions are required for designation as an habitual violator.

State’s Exhibit 3 is the Official Notice Of Revocation of February 3, 1992, which declares Hollis an Habitual Violator. It reflects that the declaration arose out of only two arrest incidents, but three convictions, and Hollis objected to it based on Wilson, supra.

Wilson, however, was an appeal from the superior court’s affirmance of the Department of Public Safety’s declaration of Wilson as an habitual violator, the appropriate procedure for contesting the declaration and a process of which Hollis did not avail himself. Smith v. State, 248 Ga. 828, 831 (3) (286 SE2d 709) (1982); Hardison v. Shepard, 246 Ga. 196, 198 (2) (269 SE2d 458) (1980).

This Court has repeatedly held that the essence of the offense is driving after being notified that one may not do so because, by doing so, one is “ ‘ “(flouting) the law even if one or more of the underlying convictions is voidable [or void]. . . .” (Cit.)’ [Cit.]” Youmans v. State, 207 Ga. App. 373, 374 (427 SE2d 848) (1993). The State is required to prove only that the accused was declared an habitual violator and operated a vehicle without having obtained a valid driver’s license. State v. Oliver, 202 Ga. App. 613, 614 (415 SE2d 54) (1992); State v. Tart, 183 Ga. App. 737, 738 (359 SE2d 722) (1987); State v. Bell, 182 Ga. App. 860 (357 SE2d 596) (1987).

There was no error in admitting State’s Exhibit 3 or denying the motion for directed verdict on this ground.

2. Hollis next contends that the evidence was insufficient to convict him of driving under the influence of alcohol, correctly pointing out that in order to be convicted of driving under the influence of alcohol, some evidence that the accused was under the influence of alcohol must be proffered.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence; moreover[,] an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) [(1991)]; King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) [(1994)].” Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995). In the instant case, there is no evidence of impairment due to alcohol. While circumstantial evidence has been sufficient to convict defendants of driving under the influence of alcohol, in such cases, the circumstances included demeanor evidence from the arresting officer of the defendant’s behavior and appearance. Such factors as odor of alcohol, bloodshot eyes, and unsteadiness on the feet were used to convict. See Jones v. State, 187 Ga. App. 132 (369 SE2d 509) (1988); Blackwell v. State, 180 Ga. App. 253 (349 SE2d 13) (1986). In this case, while evidence of unsafe driving existed, the transcript is devoid of any evidence of alcohol indicia. When driving under the influence of alcohol is alleged, the presence of alcohol must be proven by the State. For this reason, the evidence was insufficient to convict the defendant of driving under the influence of alcohol, and that conviction is reversed.

Therefore, it is irrelevant that evidence of the defendant’s refusal to take the blood test was admitted. We note for the record that the refusal was properly admitted for the following reasons. Hollis contends evidence of his refusal of the test was improperly admitted at trial because he was not read the implied consent warning in a timely manner.

In Perano v. State, 250 Ga. 704 (300 SE2d 668) (1983), the Supreme Court held that failure to read the independent test rights in a timely manner renders the results of chemical testing inadmissible, and Hollis argues the officer was not unable to read the implied consent warnings at the scene, since he was able to drive the defendant to the jail. In Perano, the court allowed the reading of implied consent warnings at the hospital, instead of the scene of arrest because the defendant’s wife was continuing to cause commotion at the scene. The court preferred Perano to be able to make an intelligent and informed decision about his rights and felt the hospital was a more appropriate place for him to do so. Id. at 704.

Additionally, this Court has held that “notification is timely if given ‘at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.’ ” Mason v. State, 177 Ga. App. 184 (338 SE2d 706) (1985). Here, Hollis and both deputies had been sprayed with pepper spray. The officers attributed their delay in reading implied consent warnings to concern about washing the pepper spray from both themselves and Hollis. Pepper spray is an extreme irritant used as a nonlethal method of disabling resistant suspects, and Deputy Boyle testified as to the unpleasant effects of pepper spray at trial. In addition to making the reading of implied consent warnings difficult for the deputies, it undoubtedly would have distracted Hollis from fully considering his rights.

Decided August 25, 1998

Reconsideration denied September 9, 1998

Donna L. Avans, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Deputy Boyle explained that proper police procedure for a suspect that has been sprayed is to get him to the station and wash the irritant off his face and body. Hollis argues that, based on the deputies’ own testimony, the pepper spray seemed to have no effect on him and there could not have been any concern about removing it from him. Hollis, however, testified “they say [the pepper spray] didn’t have no effect, but it — it affected me for a long time after that.” The deputies’ actions in first taking Hollis to the station and washing him off before reading him implied consent warnings was as close in time to the arrest as practicable, and therefore justified. Evidence of Hollis’ subsequent refusal to take the test was properly admitted.

For the above-stated reasons, the conviction for driving while under the influence of alcohol is reversed. The conviction for driving while an habitual violator is affirmed as are the convictions for obstructing an officer, fleeing and attempting to elude, improper tag, reckless driving, and running a stop sign which were not contested.

Judgment affirmed in part and reversed in part.

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


text:
    A98A0975.
    HAYNES v. THE STATE.
    (507 SE2d 151)
   Andrews, Chief Judge.

Darren Pernell Haynes was found guilty by a jury of voluntary manslaughter and possession of a firearm during the commission of a crime. Haynes brings this out-of-time appeal from the judgment of conviction entered on the guilty verdicts.

Haynes was charged with murder for shooting and killing Victor Maurice Martin. The evidence showed that Haynes and a friend were engaged in an argument with Martin’s brother. Martin was present but was not engaged in the argument. None of the persons present at the argument was armed. Haynes then left the scene of the argument with his friend, retrieved a handgun, and both returned to the scene about five minutes later. Martin and his brother were still there, and the argument resumed. The handgun retrieved by Haynes was prominently displayed stuck in the waistband of Haynes’ pants. Martin saw the handgun in Haynes’ pants and said, “I see you’ve got your gun, so I guess I’ll get mine.” At that point, Martin turned and started to walk away, then turned around and walked toward Haynes. One witness at the scene testified that Martin walked up to Haynes, and Haynes and Martin were facing each other “fussing” when Haynes pulled the gun and shot Martin. Another witness testified that Martin approached Haynes, said some words, made no attempt to attack Haynes, and Haynes shot him. A third witness testified that Martin came toward Haynes “like he was fixing to grab him,” and Haynes shot him. This witness also testified that Martin did not have his fists balled and did not appear as though he was going to hit Haynes. Haynes testified that Martin approached him “like he was trying to grab the gun” and that Martin pushed him. Haynes said that he knocked Martin’s hand away, stepped back from him, pulled the gun and shot him. Haynes was then heard to say, “Now I got to do a hundred years for some bull shit.”

1. The evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Haynes was guilty of the lesser offense of voluntary manslaughter and was guilty of possession of a firearm during the commission of a crime. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). For the reasons which follow, the trial court did not err in denying Haynes’ motion for a new trial.

2. Haynes claims the trial court erred by refusing to admit evidence that the victim had committed specific acts of violence toward third persons and had a reputation for violence.

“[E]vidence of specific acts of violence by a victim against third persons is admissible when the defendant claims justification. [Such evidence] can be relevant in weighing the truth of the defendant’s claim of justification. The defendant has the burden of proving that the evidence of specific acts of violence by the victim should be admitted. To meet that burden, the defendant must, at a minimum, (1) follow the procedural requirements for introducing the evidence, (2) establish the existence of prior violent acts by competent evidence, and (3) make a prima facie showing of justification. ... To make this prima facie showing, the defendant must show that the victim was the aggressor, the victim assaulted the defendant, and the defendant was honestly trying to defend himself.” (Citations omitted.) Laster v. State, 268 Ga. 172, 173-174 (486 SE2d 153) (1997).

Haynes met the procedural requirements by giving the State pretrial notice of his intent to present evidence that the victim had committed specific acts of violence against third persons. Uniform Superior Court Rule 31.6. He also proffered competent evidence of the existence of the prior violent acts. We agree with the trial court, however, that Haynes failed to make a prima facie showing of justification. Haynes’ testimony that Martin approached him, pushed him, and tried to grab the gun may have provided some evidence that Martin acted aggressively and assaulted him. However, additional testimony that, after Haynes knocked Martin’s hand away, he stepped back from Martin, then pulled out his gun and shot him, does not show that Haynes was honestly trying to defend himself when he fired the fatal shot. See Walden v. State, 267 Ga. 162, 163 (476 SE2d 259) (1996). Since Haynes did not make out a prima facie case of justification, the trial court properly excluded evidence of the victim’s specific acts of violence toward third persons.

Haynes also proffered and sought admission of evidence that the victim had a general reputation for violent behavior. “The general rule is that the character of a victim is not admissible because it is as unlawful to kill a violent person as to kill a non-violent person. The exception to this rule, and the only situation in which a defendant may show the victim’s reputation for violence, is where the defendant makes a prima facie showing that the victim was the aggressor, that the victim assaulted the defendant, and that the defendant was honestly trying to defend himself.” (Citations omitted.) Chapman v. State, 258 Ga. 214, 215 (367 SE2d 541) (1988).

This is the identical prima facie showing Haynes failed to make for admission of evidence that the victim committed specific acts of violence toward third persons. Since we have determined that Haynes failed to make the necessary prima facie case, the trial court also correctly excluded evidence of the victim’s reputation for violence.

3. It follows from the holding in Division 2, supra, that the trial court did not err in refusing to charge the jury with respect to the victim’s commission of specific acts of violence toward third persons and the victim’s reputation for violence.

4. Haynes claims that his trial counsel was ineffective because: (a) he did not effectively argue for the admission of certain evidence, (b) he did not argue in closing as strongly as he should have that Haynes acted in self-defense, and (c) he failed to argue that the conviction for aggravated assault merged with the voluntary manslaughter conviction.

“The Sixth Amendment right to assistance of counsel also guarantees a criminal defendant the right to effective . . . counsel. Black v. State, 264 Ga. 550 (448 SE2d 357) (1994). In order to obtain the reversal of a conviction on a claim of ineffectiveness of counsel, a defendant has the burden of proof under both prongs of the test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Zant v. Moon, 264 Ga. 93, 97 (440 SE2d 657) (1994). Under Strickland, supra, the defendant must prove: (1) counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced the defense. In determining whether or not counsel’s performance was deficient under the first prong, a court must measure counsel’s performance against an objective standard of reasonableness in light of all the circumstances and apply the strong presumption that all of counsel’s significant decisions were made in the exercise of reasonable professional judgment. Strickland, supra; Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985). Under the second prong, the test is whether there was a reasonable probability that the outcome of the proceedings would have been different but for counsel’s deficient performance. Id. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.’ Williams v. State, 214 Ga. App. 106 (446 SE2d 789) (1994).” Parker v. State, 220 Ga. App. 303, 306-307 (469 SE2d 410) (1996).

Since on remand the trial court merged the aggravated assault conviction with the voluntary manslaughter conviction, the claim that trial counsel was ineffective for failing to raise this argument is moot. Cunningham v. State, 222 Ga. App. 740, 744 (475 SE2d 924) (1996).

As to the claim that trial counsel did not argue forcefully enough in closing that the shooting was in self-defense, the trial court concluded that, based on the lack of evidence supporting that argument and the fact that Haynes was charged with murder, defense counsel’s closing arguments with regard to self-defense and other evidence supporting the conclusion that Haynes committed lesser offenses than murder were within the parameters of acceptable trial strategy. We find no clear error in the trial court’s finding that trial counsel was not ineffective in his closing argument.

Haynes also contends that trial counsel was ineffective because he failed to cite all of the applicable legal authority to support the argument that the trial court should have admitted evidence that the victim of the shooting had committed specific acts of violence toward third persons. Since we concluded in Division 2, supra, that the trial court properly refused admission of this evidence, there is no basis for concluding that trial counsel was ineffective for failing to obtain its admission.

5. Haynes contends the State violated his Equal Protection Clause rights under the Fourteenth Amendment by exercising its peremptory strikes to exclude African-American potential jurors on the basis of race. He contends the trial court erred by denying his motion making this claim under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). See also Hernandez v. New York, 500 U. S. 352 (111 SC 1859, 114 LE2d 395) (1991); Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992); Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995).

A claim under these authorities of a race-based violation of equal protection initiates a three-step process. First, the trial court must determine if the party challenging a strike has established a prima facie inference that the strike was exercised with racially discriminatory intent. Second, if a prima facie case of racial discrimination is established, then the burden of production shifts to the proponent of the strike to give a race-neutral explanation for striking the potential juror in question. Although the explanation must be race-neutral on its face and must be a clear, reasonably specific explanation of the proponent’s legitimate reasons for exercising the strike, the explanation is not required to be persuasive or even plausible. A legitimate reason under Step 2 is not required to make sense, but need only be a reason that does not deny equal protection. In Step 2, the facial validity of the explanation is the issue, and unless a racially discriminatory intent is inherent in the explanation, the trial court is required to accept it as race-neutral. Although the burden of producing an explanation shifts to the proponent of the strike in Step 2, the ultimate burden of persuasion regarding discriminatory intent remains with and never shifts from the party challenging the strike. Third, if the proponent of the strike carries the Step 2 burden of giving a facially race-neutral explanation, the trial court must then evaluate the persuasiveness of the proponent’s explanation and determine whether the party challenging the strike has carried the burden of proving that the strike was exercised with racially discriminatory intent. In carrying out this task under Step 3, the trial court must decide whether to believe the explanation and accept that the strike was not racially motivated or to find the explanation unpersuasive and conclude that the strike was exercised with racially discriminatory intent. In making its determinations under the three-step process, the trial court is entitled to great deference and its findings should not be disturbed unless clearly erroneous. Jackson v. State, 265 Ga. 897 (463 SE2d 699) (1995); Chandler v. State, 266 Ga. 509 (467 SE2d 562) (1996); Malone v. State, 225 Ga. App. 315 (484 SE2d 6) (1997).

Decided August 25, 1998

Reconsideration denied September 9, 1998.

Parker & Lundy, Richard J. Lundy, for appellant.

James R. Osborne, District Attorney, for appellee.

The State exercised three of its peremptory strikes to exclude African-American potential jurors. The trial court found that Haynes established a prima facie inference that the three strikes were exercised with racially discriminatory intent and required the State to give explanations for the strikes. The State explained that two of the potential jurors were struck because they either knew the defendant or the victim, or they were friends with witnesses in the case. The State said it struck the third potential juror because she was friends with the mother of a key defense witness. The trial court concluded that the State’s explanations were persuasive, the strikes were not racially motivated, and Haynes had not carried his burden of proving the strikes were exercised with racially discriminatory intent. The trial court’s findings were not clearly erroneous; therefore, we find no error. King v. State, 224 Ga. App. 400, 401 (480 SE2d 385) (1997).

Judgment affirmed.

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

       In Haynes v. State, 227 Ga. App. 64 (488 SE2d 119) (1997), we remanded this case to the trial court for a hearing to determine whether Haynes was entitled to an out-of-time appeal. On remand, the trial court granted an out-of-time appeal and set aside Haynes’ conviction for aggravated assault, concluding that it merged with the voluntary manslaughter conviction.


author: Beasley, Judge.

text:
    A98A1120.
    COMVEST, L.L.C. v. CORPORATE SECURITIES GROUP, INC. et al.
    (507 SE2d 21)
   Beasley, Judge.

In January 1996, Comvest, L.L.C., sued Corporate Securities Group, Inc. (CSG), J. W. Charles Securities, Inc. (JWCS), J. W. Charles Clearing Corporation (JWCCC), Patrick Dennis, and Eugene Tournour in the State Court of DeKalb County for the principal amount of $2,052, based on allegations of fraud in the sale of securities. This is an interlocutory appeal from the grant of defendants’ motion to compel arbitration and stay the suit pending arbitration. The court ruled that Comvest is bound by an arbitration clause in a customer agreement that was sent to Comvest but never signed.

Comvest is an investment corporation whose president is Marvin Nodvin, an attorney. In October 1994, Dennis and Tournour, as representatives of CSG, contacted Nodvin to sell units of stock and warrants in an initial public offering of The Singing Machine Company, Inc. On behalf of Comvest, Nodvin purchased the units for $2,052 the following month.

Affidavits by CSG’s director of compliance Wagner and Corn-vest’s account representative Tournour show that when a new customer account is opened at CSG, the name and address of the customer are entered into the CSG computer system resulting in the assignment of an account number. On the next day the system generates two bar-coded mailing labels containing the name, address, and account number of the customer. One label is placed on a customer agreement, and the other is placed on an envelope in which the customer agreement is mailed to the customer. This practice allows the customer to receive the customer agreement before the settlement date of the customer’s first trade with CSG. CSG’s policy is that all customers must sign a customer agreement, although CSG allows its clients as a courtesy to place an initial transaction order at the time the account is opened and before the customer agreement is returned by the customer.

These affidavits further evidence that every 30 days, CSG’s documentation department checks every account to assure that necessary paperwork, including the customer agreement, has been returned by the customer. Each month, a deficiency report is generated for each representative who has an account which lacks any required documents. In December 1994, the documentation department determined that the customer agreement for the Comvest account was not on file, and Tournour was notified of this fact via the deficiency report. As a result, he mailed a second copy of the customer agreement to Nodvin with a request that it be signed and returned to CSG. The Comvest account was also coded on the firm’s computer system so as to place it on restricted status and prohibit further trading.

Attached to Wagner’s affidavit is a bar-coded mailing label containing the correct name, address, and account number for the Com-vest account and a copy of the customer agreement form then used by CSG requiring that all controversies be submitted to arbitration.

Affidavits by Scarlett, CSG’s general counsel, and Hovdesven, an attorney who practices with the law firm representing defendants, show that it is the practice of virtually every firm in the securities industry to utilize customer agreements which provide for mandatory arbitration of all customer/broker disputes. Scarlett testified that if Comvest had informed CSG it was unwilling to sign a customer agreement, CSG would have refused to open an account for it.

Hovdesven testified that he personally conducted a search of the DeKalb County court records which revealed three actions in state court and one action in superior court filed by Nodvin or entities controlled by him alleging fraud in the purchase or sale of securities. A default judgment was entered in the first state court action. In the remainder, defendants presented customer agreements containing arbitration clauses. A motion to compel arbitration was granted in one action and another was dismissed with prejudice. In the last action, which was removed from superior court to federal court, Nodvin claimed he had not signed the customer agreement.

In this case, Nodvin testified by affidavit that he did not receive correspondence from any of the defendants regarding an arbitration agreement. Nevertheless, the court found that a customer agreement was sent to Nodvin and concluded that, considering all the circumstances, Comvest is bound by the arbitration clause even if Nodvin did not sign the agreement.

1. The transaction is governed by the Federal Arbitration Act. The parties have not made an appeal issue of what law applies. Defendants argued in the trial court that the FAA does, although the customer agreement provides that “[it] and its enforcement shall be governed by the laws of the State of Florida. . . .” Florida law was not presented. Since the contract relates to transactions in interstate commerce, we decide the case pursuant to the FAA. Accordingly, the court decides the issue of whether a party is bound to arbitrate an agreement. Thus questions of credibility are for the court as factfinder.

2. Contrary to arguments advanced by Comvest, the court did not find that Nodvin signed the customer agreement. The evidence supports findings that the customer agreement was mailed to and received by Nodvin and that he knew it was standard practice for brokerage firms to require customers to submit disputes to arbitration.

In reliance on Bank South v. Grizzle, Comvest questions whether there was sufficient evidence of mailing and receipt. Grizzle recognized that no presumption arises that a letter has been received by the addressee unless it is shown that the letter was written, was properly addressed to the party, contained the correct postage, and was duly mailed in the United States Post Office. Grizzle attempted to infer from circumstances that Bank South had received a letter he claimed he had sent. We held there was no showing the letter was mailed, and the ambiguous circumstances relied on by Grizzle did not create an issue of fact as to whether the letter was received.

Unlike Grizzle, the evidence in Comvest’s case shows that agreements were mailed on two occasions and were properly addressed. Although Wagner’s and Tournour’s affidavits did not establish all the elements necessary to create a rebuttable presumption of receipt, their testimony created an issue as to this fact. The evidence supports resolution of the issue in defendants’ favor.

The affidavits of Hovdesven and Scarlett authorized the court to find that Nodvin purchased the securities with knowledge of the industry practice requiring the submission of customer/broker disputes to arbitration. It is proper in determining the enforceability of an unsigned arbitration agreement to consider whether the customer was knowledgeable of industry practices. Meritless is Comvest’s argument that Hovdesven’s testimony concerning other litigation involving Nodvin lacks probative value. Comvest relies on Bowden v. Taylor, which states that the only legal method to prove judicial proceedings is by an extract from the court minutes, duly certified by the clerk. Most of the litigation referred to in Hovdesven’s affidavit took place in the DeKalb State Court, and a court may take judicial notice of its own records for evidentiary purposes in a case.

Although Comvest objected to the trial court’s consideration of defendants’ affidavits on other grounds, rulings on these objections have not been enumerated as error and thus have not been preserved for appellate review.

3. The court did not err in concluding that even in the absence of Nodvin’s signature, Comvest is bound by the arbitration clause.

“[A] party may be bound by an agreement to arbitrate even in the absence of his signature. [Cits.] Ordinary contract principles determine who is bound by a written arbitration agreement. [Cits.]” “[P]arties may become bound by the terms of a contract, even though they do not sign it, where their assent is otherwise indicated, such as by the acceptance of benefits under the contract, or the acceptance by one of the performance by the other.” Comvest ratified the contract through its retention of the securities for over one year before bringing this suit.

Decided August 21, 1998

Reconsideration denied September 9, 1998

Marvin P. Nodvin, for appellant.

Sadler & Associates, John P. Sadler, Eric R. Hovdesven, for appellees.

4. Comvest contends that it is only bound to arbitrate controversies with JWCCC, because that corporation and Comvest are the only parties to the agreement allegedly mailed to Comvest. Yet in its complaint, Comvest acknowledges that CSG and JWCS are alter egos of JWCCC. Non-signatory business entities are covered by arbitration agreements entered into by corporations which are their alter egos.

As employees and representatives of CSG, Dennis and Tournour are likewise governed. “Because a principal is bound under the terms of a valid arbitration clause, its agents, employees, and representatives are also covered under the terms of such agreements. [Cits.]” What is more, the customer agreement expressly states that the arbitration clause applies to the broker.

Judgment affirmed.

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

        See Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488, 490 (299 SE2d 538) (1983).

       9 USC § 1 et seq., which establishes “ ‘a federal policy favoring arbitration.’ ” Shearson/American Express v. McMahon, 482 U. S. 220, 226 (107 SC 2332, 96 LE2d 185) (1987).

       OCGA §§ 9-11-43 (c); 24-7-24 (a). See KMM Indus. v. Professional Placement Assn., 164 Ga. App. 475 (297 SE2d 512) (1982) (where a person relies on the law of another state, the law of the foreign state must be proven).

        See North Augusta Assoc. v. 1815 Exchange, 220 Ga. App. 790, 791 (1) (469 SE2d 759) (1996) (as held by United States Supreme Court, FAA governs interstate commerce contract unless agreement contains choice of law provision); Columbus Anesthesia Group v. Kutzner, 218 Ga. App. 51, 52 (1) (459 SE2d 422) (1995) (FAA not applicable because contract did not involve interstate commerce).

        AT&T Technologies v. Communications Workers of America, 475 U. S. 643, 649 (106 SC 1415, 89 LE2d 648) (1986).

       218 Ga. App. 462 (1) (462 SE2d 170) (1995).

       81 Ga. 199, 202 (3) (6 SE 277) (1888).

        Graves v. State, 227 Ga. App. 628, 630 (490 SE2d 111) (1997).

       See William N. Robbins, P.C. v. Burns, 227 Ga. App. 262, 265 (2) (488 SE2d 760) (1997).

        Valero Refining v. M/T Lauberhorn, 813 F2d 60, 64 (4) (5th Cir. 1987).

       (Footnotes omitted.) 17A AmJur2d 195-196, Contracts, § 185 (1991).

        Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, 7 F3d 1110, 1122 (9) (3rd Cir. 1993).

       Id. at 1121 (8); accord Ross v. Mathis, 624 FSupp. 110, 113 (2) (N. D. Ga. 1985).


text:
    A98A1185.
    THE STATE v. STANSBURY.
    (505 SE2d 564)
   Andrews, Chief Judge.

The State appeals from the trial court’s order granting Sean Stansbury’s motion to suppress the results of an aleo-sensor test and subsequent field sobriety tests. The trial court found that the officers did not have a reasonable, articulable suspicion to detain Stansbury and administer the aleo-sensor test. We disagree and reverse.

The facts in this case are undisputed. Two Cobb County police officers on routine patrol were driving behind Stansbury’s car when they noticed his license tag was expired. The officers pulled Stansbury over, and one officer went up to the man sitting on the passenger side and the other officer went to talk to Stansbury, who was in the driver’s seat. Both officers noticed a strong odor of alcohol coming from the car and could see that the passenger was intoxicated.

One of the officers asked Stansbury if he had been drinking, and Stansbury said he had not. He said the other man in the car was a friend of his and he had picked him up to take him home because he had too much to drink. The passenger in the car confirmed that he had been drinking and that was why Stansbury was driving.

The officers decided to give Stansbury an “alco-sensor” test so they could make sure it was safe for Stansbury to drive. When Stansbury’s alco-sensor test registered positive for alcohol, the officers administered several field sobriety tests. After giving Stansbury the field sobriety tests, the officers took him to the hospital where he was given a blood test. The results of the blood test showed a blood alcohol level of 0.17 grams.

A videotape of the stop was played at the hearing. Officer Blakeney, the officer who went up to the driver’s side of the car and spoke to Stansbury stated: “There’s a strong odor of alcohol coming from the passenger side. [2nd OFFICER]: Well, I could tell, he’s toasted. OFFICER BLAKENEY: Yeah, he [Stansbury] said that he works for Marietta Country Club, or Marietta City Club and he picked the other guy up. I’m going to go ahead and ask him if he’ll do a field Alko for me. [2nd OFFICER]: Yeah. That way we’ll know for sure that the odor of alcohol is only coming from the passenger.”

After the hearing, the trial court found that the only reason the officers had Stansbury blow into the alco-sensor was to make sure he was safe to drive home. Accordingly, the court found the alco-sensor test was administered without reasonable, articulable suspicion. This appeal followed.

“An officer must have a reasonable and articulable suspicion that a person is involved in criminal activity to justify seizing that person for a brief period of time without probable cause to make an arrest.” State v. Bishop, 188 Ga. App. 881, 882 (374 SE2d 808) (1988). See also Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). The state contends that the strong odor of alcohol coming from the car and the officers’ inability to determine if only one or both of the occupants were intoxicated gave rise to a reasonable and articulable suspicion upon which to detain Stansbury and administer the alcosensor test to him in order to determine if it was safe for him to drive. We agree.

It is clear that the original stop and detention for an expired license tag were valid. The question then becomes whether the officers, after handling the license tag violation, were authorized to request that Stansbury get out of the car and perform the alco-sensor test. “It is well established that the police may ‘seize’ an individual for a brief period of time without probable cause to make an arrest, provided there exists a reasonable and articulable suspicion that the person is involved in criminal activity.” State v. Golden, 171 Ga. App. 27, 30 (3) (318 SE2d 693) (1984). See also Terry v. Ohio, supra. “The purpose of such a detention is to maintain the status quo while investigating the circumstances which give rise to the suspicion of criminal wrongdoing. The validity of an officer’s investigative or protective conduct upon making a ‘Terry stop’ is determined in each case by balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which is sought to be advanced.” (Citations omitted.) Golden, supra at 30. “Momentary detention and questioning are permissible if based upon specific and articulable facts which, taken together with rational inferences from those facts, justify a reasonable course of inquiry not based on mere inclination, caprice, or harassment.” (Citations, punctuation and emphasis omitted.) State v. Roberson, 165 Ga. App. 727, 729 (302 SE2d 591) (1983).

Here, there is no question that the officers were acting on mere inclination or caprice or for the purpose of harassment. Given the strong odor of alcohol coming from the car and the occupants’ admission that they had just come from a place where the passenger admittedly had drunk too much, the officers were justified in their concern for the safety of Stansbury and his passenger and other drivers. Therefore, we cannot say that the additional time required to perform a simple alco-sensor test was not justified under the circumstances. This is especially true since Stansbury had already been detained due to the expired tag, and the additional intrusion occasioned by asking him to get out and blow into the alco-sensor must be considered minimal. Golden, supra at 31.

State v. Burke, 230 Ga. App. 392, 393 (496 SE2d 755) (1998), relied on by Stansbury is not to the contrary. In Burke, this Court upheld the trial court’s grant of defendant’s motion to suppress because there were no outward indicia of intoxication and the defendant was placed under arrest only because he had an accident on his motorcycle and admitted to having “two or three beers.” The facts set out above show that is not the situation in this case.

Accordingly, we find there was a reasonable, articulable suspicion for the officers to ask Stansbury to perform the alco-sensor test. The court erred in granting the motion to suppress the results of the test.

Judgment reversed.

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

Decided August 25, 1998

Reconsideration denied September 9, 1998

Barry E. Morgan, Solicitor, Alice B. Kamerschen, Assistant Solicitor, for appellant.

William H. Toler III, for appellee.


author: McMurray, Presiding Judge.

text:
    A99A0001.
    ANDERSON et al. v. GGS HOTEL HOLDINGS, GEORGIA, INC.
    (505 SE2d 572)
    Decided August 27, 1998
    Reconsideration denied September 9, 1998.
   McMurray, Presiding Judge.

Plaintiffs Rita M. Anderson and her husband, Charles Arthur Anderson, brought this tort action against defendant GGS Hotel Holdings, Georgia, Inc., seeking to recover for personal injuries sustained when defendant’s bellman “let go of [a] luggage cart which caused harmful bodily contact to Plaintiff Rita M. Anderson.” The case was arbitrated on December 5, 1997, and in an order entered on February 3, 1998, the trial court made the award of the arbitrators the judgment of the court. On May 15, 1998, the trial court denied plaintiffs’ motion to set aside the judgment, and a notice of appeal was filed. Held:

“Under OCGA § 5-6-35 (a) (8), orders denying ‘all motions to set aside a judgment, including those predicated on a nonamendable defect or lack of jurisdiction, may be appealed only by discretionary grant unless the motion to set aside was combined with a motion for new trial or a motion for j.n.o.v. See Martin v. Williams, 263 Ga. 707, 710 (438 SE2d 353); OCGA § 5-6-34 (d).’ [Cit.]” Kappelmeier v. Homer, 226 Ga. App. 379 (486 SE2d 612). In the case sub judice, plaintiffs’ notice of direct appeal does not confer appellate jurisdiction on this Court to consider the trial court’s denial of plaintiffs’ motion to set aside the judgment incorporating the award of the arbitrators, in the absence of a proper and timely order granting permission to pursue a discretionary appeal. Consequently, Case No. A99A0001 must be dismissed.

Appeal dismissed.

Andrews, C. J., and Ruffin, J., concur.

Allyson C. Charnay, for appellants.

Hawkins & Parnell, Anita W. Thomas, for appellee.


author: Ruffin, Judge.

text:
    A98A0970.
    In the Interest of B. J. G., a child.
    (506 SE2d 449)
   Ruffin, Judge.

The Juvenile Court of Fayette County found B. J. G., a minor, committed the offenses of violating curfew (OCGA § 15-11-2 (12) (E)) and possession of alcohol by a minor (OCGA § 3-3-23) and adjudicated her a delinquent child. B. J. G. appeals, challenging the sufficiency of the evidence and asserting that the juvenile court improperly convicted her of a crime, failed to issue an order adjudicating her a delinquent child, and failed to hold a dispositional hearing. For reasons which follow, we affirm.

1. “ ‘On appeal the evidence must be viewed in a light most favorable to support the findings and judgment. . . . Where a juvenile is charged with an offense which would constitute a crime if committed by an adult, the standard of proof in the lower court is “beyond a reasonable doubt.” (Cit.)’ In the Interest of A. D. C., 228 Ga. App. 829, 830 (493 SE2d 38) (1997). Moreover, conflicts in the evidence are decided by the trier of fact, which was the juvenile court judge. [Cit.] And, ‘ “where issues of fact are in conflict, this court passes only on the sufficiency and not on the weight of the evidence. (Cit.)” (Cit.)’ ” In the Interest of J. J. K., 232 Ga. App. 470 (502 SE2d 313) (1998).

Viewed in a light most favorable to support the juvenile court’s judgment, the evidence shows that B. J. G. and her family lived in Peachtree City, Georgia. At approximately 1:30 a.m. on July 29, 1997, officers from the Peachtree City Police Department went to B. J. G.’s house to speak with her father concerning several juveniles who had left the house the night before and been arrested for DUI. While they were talking to B. J. G.’s father, B. J. G. drove up in her vehicle with two other juveniles as passengers. None of the juveniles was wearing a seatbelt, and they were out past the 12:00 a.m. curfew imposed by OCGA § 15-11-2 (12) (E). One of the officers testified at trial that he spoke with B. J. G. that night and noticed that her breath smelled of alcoholic beverages. He also noted that she had bloodshot and watery eyes. According to the officer, B. J. G. admitted that she drank a beer with her father at their house at approximately 9:00 p.m. that evening. B. J. G. was subsequently charged with the curfew violation and underage alcohol possession violations.

B. J. G. denied at trial that she drank alcohol or smelled of alcohol on the night in question. B. J. G.’s father testified that he did not see his daughter drink alcohol, did not smell alcohol on her breath, and did not give her anything alcoholic to drink. Finally, one of B. J. G.’s friends testified that he was with her that evening and did not see her drink alcohol.

Although there is a conflict in the evidence, we find that there was sufficient evidence from which any rational trier of fact could conclude beyond a reasonable doubt that B. J. G. committed the offenses of which she was charged. See In the Interest of J. J. K., supra; Dickerson v. State, 193 Ga. App. 605, 606 (2) (388 SE2d 736) (1989).

2. B. J. G. asserts that “[t]he petition for delinquency and the order of probation executed by the juvenile court judge, are based upon allegations that the child committed offenses which are criminal, and a] juvenile cannot commit a criminal offense.” Other than a possible assertion that the juvenile court improperly convicted her of criminal acts as opposed to adjudicating her a delinquent child, it is unclear from this enumeration and the appellate brief what alleged error B. J. G. is claiming. And, our review of the record reveals no error.

The record shows that the State filed two petitions for delinquency which alleged that B. J. G. violated OCGA §§ 15-11-2 (12) (E) and 3-3-23 and consequently was a “delinquent/unruly child.” The petitions make clear that B. J. G. was charged with delinquent acts, which are defined as acts “designated [crimes] by the laws of this state, or by the laws of another state if the [acts] occurred in that state, under federal laws, or by local ordinance. . . .” OCGA § 15-11-2 (6) (A). The juvenile court conducted the trial and found that B. J. G. committed the offenses. In its order, the juvenile court ruled that B. J. G. “is found to have committed the offense of OCGA § 3-3-23 Possession of Persons Under 21 of Alcoholic Beverage, and OCGA § 15-11-2 Curfew Violation, and this juvenile is, therefore, a delinquent child.” In the Order of Probation, the juvenile court found that B. J. G. committed the offenses and that she is “in a state of delinquency/unruliness and in need of treatment, rehabilitation or supervision.” Accordingly, it is abundantly clear that the State charged B. J. G. with committing delinquent acts, that the juvenile court concluded that she committed the delinquent acts, and that the juvenile court appropriately entered an order adjudicating her a delinquent child. There is simply no evidence that the juvenile court convicted B. J. G. of a crime.

3. In a separate enumeration of error, B. J. G. contends that the juvenile court erred because it did not enter an order on the adjudicatory hearing. This assertion is without merit. As we concluded in Division 2, the juvenile court did in fact enter an order finding that B. J. G. committed the offenses and was a delinquent child.

Decided September 9, 1998.

Saia, Richardson & Meinken, Joseph J. Saia, for appellant.

William T. McBroom III, District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.

4. B. J. G. asserts that the juvenile court erred in failing to conduct a dispositional hearing after adjudicating her a delinquent child. We disagree.

OCGA § 15-11-33 (c) provides that “[i]f the court finds on proof beyond a reasonable doubt that the child committed the acts by reason of which he is alleged to be delinquent or unruly, it shall proceed immediately or at a later time to conduct a dispositional hearing for the purpose of hearing evidence as to whether the child is in need of treatment, rehabilitation, or supervision and shall make and file its findings thereon.”

At the conclusion of the trial in this case, the juvenile court judge stated “[w]ell, I find that she did commit the offense. And the dispositional phase, have you ever been up here before?” B. J. G’s attorney, answering on B. J. G.’s behalf, responded in the negative. The judge then asked B. J. G. if she had ever been charged with underage drinking before and whether she had previously been on probation. Based in part on B. J. G.’s responses to these questions, the juvenile court placed her on probation. Given this evidence, we find that the juvenile court did conduct a dispositional hearing, albeit a brief one. See D. C. A. v. State of Ga., 135 Ga. App. 234 (217 SE2d 470) (1975). As B. J. G.’s only assertion of error in this regard is that the juvenile court did not conduct the dispositional hearing, there is nothing remaining for this Court to review.

Judgment affirmed.

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

       The remaining assertion in this enumeration of error is not supported in the brief by citation of authority or argument and is, accordingly, deemed abandoned. Court of Appeals Rule 27 (c) (2).


text:
    A98A1117.
    ROBERTS v. CITY OF MACON.
    (506 SE2d 650)
   Ruffin, Judge.

Brenda Roberts sued the City of Macon for damages resulting from an automobile accident allegedly caused by a malfunctioning traffic light. Roberts appeals the trial court’s order granting the City’s motion for summary judgment on Roberts’ negligence and nuisance claims. For reasons which follow, we affirm.

“ ‘To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.’ (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review is de novo. Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995).” Walker v. Virtual Packaging, 229 Ga. App. 124 (493 SE2d 551) (1997).

Viewed in the light most favorable to Roberts, the record shows that on July 21, 1995, a witness, Patsy Law, observed a traffic light produce a continuous green light for both Broadway and Guy Paine Road at their intersection in the City of Macon. She first saw this alleged condition around 4:30 p.m. Law claims she reported the malfunctioning light to the City of Macon Police Department between 4:30 p.m. and 4:35 p.m. and was advised that “someone was on the way to the location to monitor traffic.” Around 5:00 p.m., Law called the police department again because no one had arrived to monitor traffic. Law “was again told someone was en route to the intersection.” Approximately ten to twenty minutes later, Law saw a car driven by Roberts collide with a truck in the intersection. According to Law, both vehicles entered the intersection with a green light, even though they were traveling on different streets. It is undisputed that no City personnel arrived to repair the light or direct traffic until after the accident occurred.

In support of its motion for summary judgment, the City submitted the affidavit of William Billings, the manager of the Traffic Signal Division for the City. In his affidavit, Billings explained that the Traffic Signal Division received a report that the traffic light at issue was “flashing” around 6:00 p.m., after the accident had already happened. Repair personnel dispatched to the intersection reported that the light was flashing amber and red. They finished repairing the light around 7:35 p.m. Billings claims that “the Traffic Signal Division had never received a report that the traffic signal in issue was showing green in multiple directions” before the date of the accident. Finally, Billings related that the Traffic Signal Division received numerous reports of power outages and problems with traffic lights on the evening of the accident as a result of a violent storm.

In support of her opposition to the City’s motion, Roberts submitted an affidavit from Law and Tommy McDaniel. McDaniel stated that he also saw the traffic light simultaneously signal green for both Broadway and Guy Paine Road on the date of the accident. McDaniel further stated that he “had personally observed this same traffic light malfunction on several occasions. I have seen and know of several auto accidents which have occurred at this intersection before July 21, 1995, because of the traffic light’s malfunction.”

The City claimed it was entitled to summary judgment because (1) it is immune from liability for negligence in maintaining the traffic light, and (2) the undisputed facts do not support a valid nuisance claim against the City. The trial court agreed and granted summary judgment to the City on both the negligence and nuisance theories of recovery.

On appeal, Roberts contends summary judgment should not have been granted to the City because there are material issues of fact as to “whether the negligently maintained traffic light constitutes a nuisance.” Roberts also asserts that the trial court improperly placed the burden of proof on her, the non-movant. Roberts does not complain about the grant of summary judgment to the City on her negligence claim.

1. “Before a municipality may be held liable for maintenance of a nuisance, (1) the alleged defect or degree of misfeasance must exceed mere negligence; (2) the act must be of some duration and the maintenance of the act or defect must be continuous or regularly repetitious; and (3) the municipality must have failed to act within a reasonable time after knowledge of the defect or dangerous condition. [Cits.]” Shuman v. Mayor &c. of Savannah, 180 Ga. App. 427, 428 (349 SE2d 239) (1986).

In this case, the City submitted an affidavit in support of its summary judgment motion which established that the City Traffic Signal Division “never received a report that the traffic signal in issue was showing green in multiple directions” before the day of the accident. The City also argued in the trial court that there was no evidence to satisfy the third requirement for a valid nuisance claim against the City. As a result, the burden shifted to Roberts to “point to specific evidence giving rise to a triable issue.” Lau’s Corp., supra.

Roberts attempted to satisfy this burden through the affidavits of Law and McDaniel. Law’s affidavit established that the City’s police department was notified that the light was producing simultaneous green lights approximately 45 minutes before Roberts’ accident. Some of the statements in McDaniel’s affidavit are ambiguous and can be interpreted differently. Construing the affidavit in the light most favorable to Roberts, it shows that McDaniel observed the traffic light malfunction in the same manner on several occasions before Roberts’ accident. According to McDaniel, these malfunctions also caused several auto accidents.

We find this evidence insufficient, as a matter of law, to create a triable issue as to whether the City acted within a reasonable time to remedy the defect after knowledge of the same, the third element of a valid nuisance claim. In City of Bowman v. Gunnells, 243 Ga. 809 (256 SE2d 782) (1979), the Supreme Court of Georgia held, as a matter of law, that a city acted within a reasonable time when it replaced a traffic light bulb approximately four hours after receiving notice of the burned out bulb. Id. at 809, 811 (2). In the case before us, it is undisputed that the City repaired the light approximately three hours after the first alleged report of its malfunction. Thus, evidence that Law notified the City approximately 45 minutes before Roberts’ accident does not preclude summary judgment in favor of the City.

Likewise, McDaniel’s affidavit also fails to create a triable issue. Although it does establish that the light malfunctioned in the same manner before Roberts’ accident, there is no evidence that the City had actual or constructive knowledge of these malfunctions or the accidents they allegedly caused. Because Roberts failed to produce evidence showing the City failed to act within a reasonable time after knowledge of the dangerous condition, the trial court properly granted summary judgment to the City. See Earnheart v. Scott, 213 Ga. App. 188, 190 (1) (444 SE2d 128) (1994); Moon v. City of Eatonton, 184 Ga. App. 114, 115 (361 SE2d 6) (1987); Shuman, supra at 428.

2. Based upon our holding in Division 1, we reject Roberts’ contention that summary judgment should not have been granted to the City because it failed to negate at least one essential element of Roberts’ nuisance claim. The trial court did not improperly place the burden of proof upon Roberts, the non-movant. “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp., supra.

Judgment affirmed.

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

Decided September 9, 1998.

Buzzell, Graham & Welsh, Neal B. Graham, for appellant.

Chamhless, Higdon & Carson, Thomas F. Richardson, for appellee.

       Although Roberts did not assert a nuisance claim in her complaint, she did assert a nuisance theory in response to the City’s motion for summary judgment.

       These statements are as follows: “On July 21,1995,1 witnessed the malfunction of the traffic light at the intersection of Broadway and Guy Paine Road in Macon, Georgia. Before this date, I had personally observed this same traffic light malfunction on several occasions. I have seen and know of several auto accidents which have occurred at this intersection before July 21, 1995, because of the traffic light’s malfunction.”