author: Eldridge, Judge.

text:
    A00A2092.
    DEWS v. RATTERREE et al.
    (540 SE2d 250)
   Eldridge, Judge.

This Court first considered the instant case in Mike’s Garage Door Co. v. Dews, 220 Ga. App. 648 (469 SE2d 855) (1996). Therein, appellant-plaintiff Henry Dews III sued appellee-defendant Mike Ratterree and Mike’s Garage Door Company, Inc. (“Mike’s Garage Doors”), a company which Ratterree incorporated in September 1991, to recover money damages for fingers Dews lost while attempting to free a jammed garage door opener that the company installed in his home. For want of a transcript on appeal or a statutorily authorized substitute, we affirmed the trial court’s grant of partial summary judgment to Ratterree and, following a bench trial, its judgment for Dews in the amount of $15,000. Id. at 649. “Where the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.” (Citations and punctuation omitted.) Id.

Mike’s Garage Doors having been insolvent from the date the foregoing lawsuit was filed, Dews brought the instant action against Ratterree and appellee-defendant Cynthia Jeanine Ratterree, Ratterree’s wife, personally as the alleged owners of Mike’s Garage Doors seeking to pierce the corporate veil to recover damages for the injuries to Dews’ hand. It is from the Bibb County Superior Court’s order granting the Ratterrees summary judgment in this case that Dews now appeals. Held:

On a motion for summary judgment under OCGA § 9-11-56, the moving party may prevail by (1) presenting evidence which negates an essential element of the plaintiff’s claims, or (2) showing an absence of evidence to support the case as to any essential element. Caven v. Warehouse Furnishings Distrib., 209 Ga. App. 706 (434 SE2d 532) (1993). If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

Speir v. Krieger, 235 Ga. App. 392, 397 (2) (509 SE2d 684) (1998).

The Ratterrees each submitted an affidavit in support of their motion for summary judgment. By his affidavit, Mike Ratterree pertinently stated that he is the sole owner and shareholder of his business, Mike’s Garage Doors; that he has been the sole owner and shareholder of Mike’s Garage Doors from its inception as a corporation; that originally Mike’s Garage Doors operated as Mike’s Overhead Doors, Inc.; that, on or about February 13, 1996, he changed the name “Mike’s Garage Doors” in order to avoid confusion with a Conyers company known as Doors By Mike, Inc.; that “he [has] always operated . . . [Mike’s Garage Doors] as a separate and distinct entity”; that he has never commingled funds from Mike’s Garage Doors with his own personal funds; that Mike’s Garage Doors was formed to make a profit in Georgia; that “[t]he corporation has never been used to perpetrate fraud, confuse or avoid judgment creditors or avoid liability”; that when Dews’ hand was injured in 1991, Mike’s Garage Doors was operating as a corporation and was “virtually insolvent,” as it remains; that he was not present and had no participation in the installation of the overhead door at Dews’ residence; that he did not have knowledge the door had allegedly malfunctioned until he was served with Dews’ first lawsuit; and that his wife has no ownership interest in the corporation and does not participate in its operations in any capacity. Ms. Ratterree’s affidavit corroborated that of her husband, adding that “[she did] not handle and [was] not familiar with any funds or assets of [Mike’s Garage Doors].”

Dews opposed the Ratterrees’ motion for summary judgment, as he does on appeal, pointing to Mr. Ratterree’s deposition testimony. Pertinently, Mr. Ratterree deposed that he started the business in 1991 by depositing loans to the corporation from personal sources in the Ratterrees’ personal checking account, thereafter using the account for business and personal purposes until establishing an individual account for Mike’s Garage Doors approximately seven months later. Mr. Ratterree also deposed that, without dissolving Mike’s Garage Doors, he incorporated Mike’s Overhead Doors, Inc. in 1995; that Mike’s Overhead Doors subsequently made payments on loans to Mike’s Garage Doors as to which the Ratterrees were personally liable; and that Mike’s Garage Doors used and paid for several trucks he purchased in his own name and depreciated personally for tax purposes.

Initially, we point out that the affidavit Mr. Ratterree offered in support of his motion for summary judgment is conclusory insofar as it stated that corporate funds belonging to Mike’s Garage Doors had never been commingled with his personal funds; that Mike’s Garage Doors was insolvent at the time of the injuries to Dews’ hand and remains insolvent; and that “[t]he corporation has never been used to perpetrate fraud, confuse or avoid judgment creditors or avoid liability.” To the extent that Mr. Ratterree’s affidavit was conclusory it was inadmissible on motion for summary judgment. OCGA § 9-11-56 (e) (“[A]ffidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”).

The rule is that where an affidavit contains conclusions which would not be admissible in evidence, the conclusions are to be disregarded in considering the affidavit in connection with the motion for summary judgment. Chandler v. Gately, 119 Ga. App. 513 (1) (167 SE2d 697) (1969).

Love v. Love, 259 Ga. 423, 424 (1) (383 SE2d 329) (1989); Davis v. HauptBros. Gas Co., 131 Ga. App. 628, 629 (2) (206 SE2d 598) (1974) (“[N]o consideration is given conclusions. . . .”); Resolute Ins. Co. v. Norbo Trading Corp., 118 Ga. App. 737, 741-742 (1) (165 SE2d 441) (1968) (“Bare legal conclusions in affidavits create no issue of fact on motion for summary judgment. Benefield v. Malone, 112 Ga. App. 408 (2) (145 SE2d 732) [(1965)]; Cooper v. Brock, 117 Ga. App. 501 (3) (161 SE2d 75) [(1968)]; Bowen v. Consolidated Mortg. &c. Corp., 115 Ga. App. 874 (156 SE2d 168) [(1967)].”).

Notwithstanding the foregoing, unexplained conflict also exists between the affidavit Mr. Ratterree offered in support of his motion for summary judgment and his earlier deposition testimony, then otherwise of record. Gen. Motors Corp. v. Walker, 244 Ga. 191, 193 (259 SE2d 449) (1979) (deposition need only be on file to be considered on motion for summary judgment). That is, Mr. Ratterree states by affidavit he never commingled the corporate funds of Mike’s Garage Doors with his personal funds and that, to avoid confusion with another business, he renamed Mike’s Garage Doors as Mike’s Overhead Doors. However, in doing so, he makes no attempt to explain his deposition testimony to the contrary. Thus, the superior court was here obligated to apply the rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986) (party-witness’ self-conflicting testimony construed against the party-witness). Jury questions necessarily arise out of Mr. Ratterree’s affidavit as opposed, whether analyzed as conclusory or as inconsistent with his deposition testimony and unexplained under Prophecy.

Jury questions arise even upon an analysis of Mr. Ratterree’s affidavit as inconsistent with his deposition but explained. Upon accepting an explanation as reasonable on motion for summary judgment, any contradictory testimony remains, and we must consider all the evidence, favorable and unfavorable. Gentile v. Miller, Stevenson & Steinichen, Inc., 257 Ga. 583 (361 SE2d 383) (1987). So, construing the evidence on the question of whether funds were here commingled, Mr. Ratterree makes the statement by affidavit that no funds were commingled and evidently relies on his deposition testimony in which he explained that he deposited and maintained the corporate monies in his personal checking account as loans to the corporation. However, unlike our decision in Stewart Bros., Inc. v. Allen, 189 Ga. App. 816 (1) (377 SE2d 724) (1989), the Ratterrees presented no evidence showing that the loans were made or that payments were made toward their repayment. Further, although Mr. Ratterree explained by his affidavit the existence of Mike’s Overhead Doors as only a name change to avoid confusion with another business, he deposed that he incorporated Mike’s Overhead Doors “in 1995” and that Mike’s Overhead Doors made payments on loans to Mike’s Garage Doors as to which the Ratterrees were personally liable, among others. Finally, it is uncontroverted in the record that Mike’s Garage Doors used and paid for trucks Mr. Ratterree bought in his own name and depreciated personally for tax purposes.

Because Dews put forward at least some evidence that Mr. Ratterree commingled the assets of Mike’s Garage Doors with his own; acted to confuse Mike’s Garage Doors, Mike’s Overhead Doors and himself as separate legal entities to avoid judgment creditors; and used Mike’s Garage Doors as an instrumentality for the transaction of his own personal affairs, the instant case, however analyzed, presents issues of fact for jury determination as to whether the corporate veil should be pierced. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Speir v. Krieger, supra at 398. Accordingly, we conclude that the superior court erred in granting the Ratterrees’ motion for summary judgment.

Decided October 6, 2000.

Mullís, Marshall, Bindley & Powell, Julius A. Powell, Jr., for appellant.

Phillips & Phillips, Arthur B. Phillips, for appellees.

Judgment reversed.

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

       On being deposed, when asked if he could document his loans to Mike’s Garage Doors, Mr. Ratterree stated that such documentation had existed, but explained, “I can’t tell you where it’s at or what I’ve done with it.”

       On being deposed, Mr. Ratterree did not specify whether he incorporated Mike’s Overhead Doors before or after judgment was entered against him in Mike’s Garage Door Co. v. Dews, supra.

       In order to disregard the corporate entity because a corporation is a mere alter ego or business cbnduit of a person, it should have been used as a subterfuge so that to observe it would work an injustice. To prevail based upon this theory it is necessary to show that the shareholders disregarded the corporate entity and made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist. The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party has overextended his privilege in the use of a corporate entity in order to defeat justice, perpetuate fraud or to evade contractual or tort responsibility. Because the cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders, the mere operation of corporate business does not render one personally liable for corporate acts. Sole ownership of a corporation by one person or another corporation is not a factor, and neither is the fact that the sole owner uses and controls it to promote his ends. There must be evidence of abuse of the corporate form. Plaintiff must show that the defendant disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.

      (Citations and punctuation omitted; emphasis supplied.) Heyde v. Xtraman, Inc., 199 Ga. App. 303, 306 (2) (404 SE2d 607) (1991).


source: Caselaw Access Project

license: Public Domain

text:
    A00A2185.
    In the Interest of U. B. et al., children.
    (540 SE2d 278)
   Eldridge, Judge.

Appellant, the natural father of U. B. and V. B., appeals from the order of the Evans County Juvenile Court finding that the children, then approximately ages five and two-and-a-half, were deprived, relieving him and his former wife and the natural mother of the children of the custody of the children, placing them in the temporary custody of the Department of Family & Children Services (“DFCS”), and accepting DFCS’s recommendation that reunification services not be provided. Finding no reversible error, we affirm the judgment of the juvenile court. Held:

1. On appeal, the children’s father argues the insufficiency of the evidence to support the juvenile court’s determination that the children were deprived “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for [their] physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A). “A parent may lose custody where the court determines by clear and convincing evidence that the child is deprived and will likely be harmed by such deprivation. OCGA §§ [15-11-56 (b) (1)]; 15-11-34 (a) (2).” In the Interest of C. N., 231 Ga. App. 639, 640 (1) (500 SE2d 400) (1998); In re Suggs, 249 Ga. 365, 366 (2) (291 SE2d 233) (1982); In re R. R. M. R., 169 Ga. App. 373, 374 (1) (312 SE2d 832) (1983). Deprivation is established by showing parental unfitness upon “either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. [Cits.]” In re D. H., 178 Ga. App. 119, 124 (342 SE2d 367) (1986).

Herein the State offered evidence that U. B. and V. B., then approximately five and two and a half years old, respectively, were “deprived” children who lacked appropriate parental care and control to ensure that their physical, mental, emotional, and moral needs were met because of exposure to domestic violence and mental incapacity in the mother and the father. At the termination hearing conducted in January 2000, the mother, who had a history of mental illness, admitted she had a problem with her temper; that she verbally abused the children in front of neighbors by yelling obscenities at them; that she had been required to leave a Hinesville shelter for battered women upon the shelter’s claim she abused the children in the manner she spanked them; and that she was incapable of caring for the children. The mother testified that the father had beaten her throughout their marriage in the presence of the children; that the father was incapable of caring for the children because of his inability to control anger; that she feared the father’s beatings; that early in their marriage he threatened her life with a machete; that more recently he threatened her life with a butcher knife; that she feared for the children because the father twice hit V. B. by striking her as she held the infant in her arms; that he spanked the children for not sleeping when told to nap; and that he used excessive force in spanking the children.

The State also entered in evidence the father’s long criminal history for violence at the termination hearing. In other hearing testimony, a preschool teacher testified that she believed the children had been subjected to domestic violence because U. B., whom she knew to be truthful, reported that the father held a knife to the mother’s throat, cursed the mother, made the mother cry, and that she feared her parents might kill her. One of the caseworkers testified that the father had a low opinion of women, explaining that he had threatened her and been abusive of his first wife and the children’s mother. Another caseworker testified that the father became upset when visiting the children under DFCS supervision, physically removing them from the visitation room before being stopped by police who were called to the scene. Both children cried uncontrollably during this episode. U. B. later suffered a stress-related seizure because of it. There was evidence that U. B. had broken her arm while in the father’s care, the parents thereafter variously explaining how it happened, and that the father had indicated to caseworkers he was unable to care for the children, once offering to commit himself to a mental hospital if DFCS allowed the children to remain with the mother.

On cross-examination, although generally denying the mother’s allegations, the father admitted that he had been diagnosed as retarded; that he had a long history of circumstances in which he directed his anger at the mother in the presence of the children; that he was concerned to see U. B. exhibit the abusive behavior she observed in the home by spitting and cursing at the mother; and that he had a problem controlling his temper but had participated only intermittently in 12 years of counseling for the problem. Other evidence showed that the father could not read, did not have a valid driver’s license, and required DFCS services to assist him in his daily needs activities.

Under these circumstances, we conclude that the evidence was sufficient to permit the juvenile court to find clear and convincing evidence of U. B.’s and V. B.’s deprivation and that the father’s misconduct or inability to care for their physical, mental, emotional, and moral needs rendered him unfit to retain custody. See OCGA § 15-11-81 (b) (4); In the Interest of R. U., 239 Ga. App. 573, 577 (1) (521 SE2d 610) (1999) (“On appeal, this [C]ourt neither weighs the evidence nor determines the credibility of witnesses; we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met.”).

2. The children’s father further enumerates that there was insufficient evidence to support the juvenile court’s determination that reunification not be attempted. OCGA § 15-11-58 (h) pertinently provides:

[t]here shall be a presumption that reunification services should not be provided if the court finds by clear and convincing evidence that: (1) The parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family; (2) A child has been removed from the home on at least two previous occasions and reunification services were made available on those occasions; (3) Any of the grounds for the [termination of] parental rights exist, as set forth in subsection (b) of Code Section 15-11-94; or (4) Any of the circumstances set out in paragraph (4) of subsection (a) of this Code Section exist, making it unnecessary to provide reasonable efforts to reunify.

We have held that the existence of any one of the foregoing criteria is sufficient to support a presumption that further reunification efforts should not be provided. In the Interest of K. M., 240 Ga. App. 67, 71 (522 SE2d 667) (1999).

It is undisputed that the children were twice removed from the parents’ custody and were returned to them after receiving DFCS reunification services. There was clear and convincing evidence on which to terminate the father’s parental rights to the children for medically verifiable, longstanding deficiencies in the father’s mental and emotional health, for imprisonment negatively impacting the children’s lives, for egregious conduct toward the children, and for mentally and emotionally neglecting them. OCGA § 15-11-94 (b) (4) (B) (i), (iii), (iv), and (v), respectively. See Division 1.

At the termination hearing, DFCS’s caseworkers and the children’s guardian ad litem unanimously recommended that reunification services not be rendered. Further, the father’s treating mental health counselor at the time of the termination hearing testified that, although the father had been diagnosed with intermittent explosive disorder, he believed that depression was also present. He also opined that treatment would take two to three years; that relapse was a possibility; and that he did not recommend the children be returned to the father any earlier than a year from the time of the hearing. And, while the father testified he would never hurt the children in the fiiture despite his difficulties with anger, “ ‘the 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 (1) (451 SE2d 804) (1994).

In light of the foregoing, the juvenile court, as factfinder, could have found clear and convincing evidence which showed reunification not to be in the best interests of the children for the likelihood that it would only prolong their deprivation. Therefore, the juvenile court did not err in approving the nonreunification plan. In the Interest of R. U., supra; In the Interest of S. A. W., 228 Ga. App. 197, 200 (2) (491 SE2d 441) (1997).

3. Finally, pointing to OCGA § 15-11-58 (h), the father challenges the juvenile court’s order accepting the instant nonreunification plan as fatally defective for want of an express finding that its approval of nonreunification was based upon clear and convincing evidence that reasonable efforts to reunify the family would be detrimental to the children. However, OCGA § 15-11-58 (h), interpreted for its plain meaning as we are required to do, Robinson v. Ray, 254 Ga. 237, 238 (1) (327 SE2d 721) (1985), requires that trial courts approve nonreunification plans upon clear and convincing evidence that reasonable efforts to reunify a child with his or her family would be detrimental to the child alone, not that nonreunification be approved by special words. To interpret it for more would elevate form over substance. This we decline to do. The instant nonreunification plan was here proper. See Division 2. Accordingly, this claim of error is without merit.

Decided October 6, 2000

Lloyd D. Murray & Associates, Carol B. Miller, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Sherri P. McDonald, for appellee.

Judgment affirmed.

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

       The mother divorced the father in 1998. She does not appeal from the juvenile court’s order.

       In this regard, the mother testified, “When he spanks them he leaves red marks on them and it makes me mad.”

       On December 11, 1987, the father was convicted in the Superior Court of Bulloch County of two counts of aggravated assault, two counts of pointing a pistol at another, one count of public drunkenness, two counts of terroristic threats and acts, and one count of possessing a firearm as a felon. He was sentenced to ten years confinement to serve twelve months, and the balance was probated. On February 2, 1989, after serving his sentence to confinement, the father’s sentence to probation was revoked for the machete incident referenced above which arose out of a marital dispute between the mother and the father in 1988. The father subsequently pled guilty to two counts of aggravated assault and was sentenced to four years and eleven months to serve. He was paroled on January 13, 1993. His parole was revoked following an April 18, 1997 arrest upon rape and aggravated sodomy charges made by the mother and charges of terroristic threats and acts and obstruction of an officer made by a female parole officer. Subsequently, the father pled guilty to the charges made by the parole officer and was returned to prison where he remained to the date of his release in late 1997.

       The father told the caseworker, “[Y]ou know people get hit by cars when they go outside.”


author: Miller, Judge.

text:
    A00A1213.
    BROWN v. ESTATE OF BROWN.
    (539 SE2d 824)
   Miller, Judge.

Within two years of Walter Brown, Sr.’s death, his widow Corine Brown petitioned his estate for a year’s support. The estate’s executor and the Browns’ minor children objected, arguing that she had already elected to take two real property bequests under his will in lieu of a year’s support. They urged that (1) her receipt of the will which expressly set forth that the bequests were in lieu of her year’s support, (2) her receipt of a deed from the executor granting her the real property interests so devised, (3) her subsequent payment of property taxes on the real estate parcels, and (4) her receipt since September 1997 of the rental income from the income-producing property established as a matter of law that she had knowingly elected to take the bequests in lieu of her right to a year’s support. The probate court agreed and granted summary judgment in favor of the estate on Mrs. Brown’s petition.

The question on appeal is whether (1) her affidavit that she was unaware of her right to a year’s support, and (2) the absence of any evidence that she knew the condition of the estate precluded the probate court from entering summary judgment against her. We answer in the affirmative and reverse.

1. Former OCGA § 53-5-5 provided that “[a] testator by his will may make provision for his spouse in lieu of year’s support, in which case the surviving spouse must make an election.” Where such a provision has been made and accepted by the wife after the husband’s death, her right to a year’s support is barred.

“It is well settled that a widow is entitled to a full disclosure of her rights and the condition of the estate before any agreement or election on her part as to the division of the estate is binding.” Thus, even though a widow elects to take a bequest in lieu of year’s support, “she is not bound by such election, if made in ignorance of the condition of his estate or of any other fact material to her interest.” Absent undisputed evidence that the widow had the required knowledge at the time of her election, summary adjudication in favor of the estate is unauthorized.

Setting aside whether the evidence unequivocally showed that Mrs. Brown made an election, we note that Mrs. Brown, who had only six years of formal education, was seventy-six when the will was offered for probate in solemn form. She testified that she was unaware of her year’s support rights at the time of the alleged election, and the executor presented no evidence that Mrs. Brown knew the condition of the estate at that time. On this record, the court could not grant summary judgment against Mrs. Brown.

2. The executor then argues that since Mrs. Brown had been separated from Mr. Brown for 21 years at the time of his death, during which time he had provided her no financial support, no year’s support is due. Separation of a legally married couple does not deprive the widow of her right to a year’s support from his estate. Conversely, the widow’s economic dependency on the husband prior to his death is no longer relevant in determining whether she is entitled to a year’s support. Rather, “entitlement to a year’s support award is a matter of status. . . . When one establishes that he or she is the spouse of the deceased, eligibility for year’s support is also established.”

Of course, at that point the amount of the award becomes a separate inquiry, based on the factors set forth in former OCGA § 53-5-2 (c). This is an equitable, fact-based determination that should be done on a full record. Even if after applying these factors the court determines no money is due, the former Code section mandated a minimum payment of $1,600 to the widow. Summary judgment against Mrs. Brown was accordingly unauthorized.

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, the estate argues that Mrs. Brown has not tendered back the rental income or deeds on the properties devised to her and thus is barred from seeking a year’s support. But prior to Mr. Brown’s death, evidence showed that Mrs. Brown for many years owned a one-half interest in the two properties with Mr. Brown owning the other half interest. She resided on one, and the other was rental property. She continued to live on the one and began for the first time receiving the rental income on the other after Mr. Brown’s death. Since she owned an interest in both properties before Mr. Brown’s death, her remaining on the residential property and receiving the current rental income on the other are entirely consistent with her predeath property interests and cannot constitute a clear election of the bequests, even if she has not formally tendered the unsolicited deeds back to the estate. Moreover, the court could well award her the properties as a part of her year’s support.

Decided September 22, 2000

Reconsideration denied October 11, 2000.

Hendrix Law Firm, Robert R. Cook, for appellant.

Hunter, Maclean, Exley & Dunn, Mills L. Morrison, Robert A. Lewallen, Jr., for appellee.

The other points raised in the motion are already addressed in the text of our opinion. The estate’s motion for reconsideration is denied.

Motion for reconsideration denied.

       Pursuant to Ga. L. 1996, p. 504, § 10, a new set of Code sections on year’s support (OCGA § 53-3-1 et seq.) became effective on January 1, 1998, to the extent that no vested rights of title, year’s support, succession, or inheritance were impaired. See Editor’s notes at the beginning of Chapter 3 of Title 53. Mrs. Brown acquired a vested right to a year’s support on her husband’s death. McNair v. Rabun, 159 Ga. 401, 410 (2) (126 SE 9) (1924). Since Mr. Brown died in December 1996, we rely on the previous statute as governing Mrs. Brown’s claim to a year’s support. Davis v. Hawkins, 238 Ga. App. 749, 750, fn. 4 (521 SE2d 10) (1999); see Richards v. Wadsworth, 230 Ga. App. 421, 422 (2) (496 SE2d 535) (1998).

        Bowen v. Bowen, 200 Ga. 572 (1) (37 SE2d 797) (1946).

       (Citations omitted.) Helmly v. Savannah Bank &c. Co., 228 Ga. 548, 550 (186 SE2d 883) (1972); see Hubbard v. Hubbard, 218 Ga. 617, 619 (2) (129 SE2d 862) (1963); Giles v. Giles, 135 Ga. 683 (1) (70 SE 335) (1911).

        McNair, supra, 159 Ga. at 408 (1).

        McLean v. McLean, 51 Ga. App. 751, 752 (181 SE 707) (1935); see Adams v. Adams, 249 Ga. 477, 481 (4) (291 SE2d 518) (1982) (“[w]hether the widow made a knowing waiver of her right to year’s support based upon an adequate consideration is a question of fact. [Cit.]”).

       Cf. Anderson v. Groover, 242 Ga. 50, 51 (247 SE2d 851) (1978) (deed of assent by executor does not alone constitute an election by the widow). And see Adams, supra, 249 Ga. at 480 (3) (“the grant of a life estate to the widow under a will does not preclude an award of year’s support. [Cits.]”).

        Knowles v. Knowles, 125 Ga. App. 642, 648 (5) (188 SE2d 800) (1972); accord Hunnicutt v. Hunnicutt, 180 Ga. App. 798 (1) (350 SE2d 770) (1986). And see Farris v. Battle, 80 Ga. 187 (7 SE 262) (1887) (widow of Georgia decedent entitled to year’s support even though she was never a Georgia resident and even though they lived separate and apart for any length of time).

        Gentry v. Black, 256 Ga. 569, 570 (351 SE2d 188) (1987); see Hunnicutt, supra, 180 Ga. App. at 800 (1).

        Gentry, supra, 256 Ga. at 570.

       Id.

       See former OCGA § 53-5-2 (c).

       Former OCGA § 53-5-2 (b); see Richards, supra, 230 Ga. App. at 422-424 (3).

       See, e.g., Reynolds v. Norvell, 129 Ga. 512 (2) (59 SE 299) (1907).


author: Ruffin, Judge.

text:
    A00A1371.
    HUDSON v. THE STATE.
    (539 SE2d 860)
   Ruffin, Judge.

Arthur Hudson was convicted of armed robbery and kidnapping. He appeals, asserting several enumerations of error. For reasons discussed below, we affirm.

1. In three enumerations, Hudson challenges the sufficiency of the evidence presented at trial. However, Hudson has failed to include a statement of facts in his brief, as required by Court of Appeals Rule 27 (a) (1), and has failed to cite to, or even mention, any facts in the argument section of his brief, as required by Court of Appeals Rule 27 (c) (3). As we have reiterated time and time again, this Court will not cull the record in search of error on behalf of a party. Because Hudson has not supported these enumerations with appropriate citations to the record or to authority, they are deemed abandoned..

2. Hudson contends that the trial court erred in giving a recharge on recent possession. His one-sentence “argument” states that “[t]he repetition of the recent possession charge alone and out of the context of the remainder of the charge served to overemphasize that principle and negate the application of the other legal theories described in the charge.” However, Hudson does not provide any record citations to the objectionable charge, does not discuss the substance of the charge or show that it was given “alone” or “out of context,” does not show that he objected to the charge, does not provide any argument showing how the charge “negated” other legal theories, and does not even mention what those other theories might be. This is not the type “argument” necessary to preserve an issue for appellate review.

3. Finally, Hudson asserts that, while giving an Allen charge to the jury, the trial court violated OCGA § 17-8-57 by using the word “convicted” instead of “convinced.” However, the supplemental transcript indicates that the word was simply misspelled in the original transcript, and that the trial court actually used the word “convinced.” In any event, Hudson failed to object to any alleged violation of OCGA § 17-8-57, and has thus waived this issue for appeal.

4. We take this opportunity to remind all attorneys — including those appointed due to a defendant’s indigence — that our appellate rules are designed to facilitate the consideration of enumerated errors, and that compliance with such rules is not optional. As discussed above, the brief in this case did not contain a statement of facts, which makes it difficult to determine what this case is even about, much less allow this Court to perform any meaningful analysis of the asserted errors. We find it difficult to see how an attorney could file an appeal of a criminal conviction, challenging in part the sufficiency of the evidence, and not provide even a minimal discussion of the facts to acquaint the appellate court with the nature of the case. The absence of any factual context makes it almost impossible to give any thoughtful consideration to the asserted errors, especially where the record includes over 1,000 pages of transcript covering two separate jury trials.

The “argument” section of the brief is no more illuminating than the nonexistent discussion of the facts. Each enumeration is supported by no more than one paragraph of “argument” — for two of the enumerations, it is only one sentence. As discussed above, one of these one-sentence arguments misrepresents the nature of a jury instruction, and fails to cite to that portion of the record where the misrepresentation may be discovered. Two of the enumerations are lumped together, in violation of Court of Appeals Rule 27 (c) (1). There is not a single citation to authority (other than a bare citation, without elaboration, to OCGA § 17-8-57), no discussion of the facts, and certainly nothing that would merit the description “legal argument.” Moreover, there is no statement of the applicable standard of review or of the manner in which errors were preserved, as required by Court of Appeals Rule 27 (a).

Decided September 27, 2000

Reconsideration denied October 11, 2000.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

Although we recognize that criminal defense attorneys are often required to file appeals where there is no reasonable expectation of reversal, this provides no excuse for a disregard of appellate rules designed to facilitate the consideration of enumerated errors.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       See Cobb v. State, 236 Ga. App. 265, 268 (3) (a) (511 SE2d 522) (1999).

       See id.

       Although Hudson did not cite to the disputed charge, we have reviewed the relevant portion of the record, which suggests that Hudson has misrepresented the nature of the recharge. The court did not, as Hudson states, repeat the recent possession charge “alone and out of context.” To the contrary, the court recharged the jury on the presumption of innocence, the burden of proof, the definition of reasonable doubt, the definition of armed robbery, and the definition of kidnapping. The instruction on recent possession was included as part of the instruction on armed robbery, and was not given “alone,” as Hudson asserts.

       See Clark v. Stafford, 239 Ga. App. 69, 74 (4) (522 SE2d 6) (1999).

       Hudson’s entire “argument” on this enumeration is as follows: “The Honorable Trial Court’s use of the word ‘Convicted’ suggests an illegal impression of opinion from the bench that this jury should ‘Convict’ this Defendant. O.C.G.A. 17-8-57.”

       See Crowe v. State, 265 Ga. 582, 594 (19) (458 SE2d 799) (1995) (question of whether OCGA § 17-8-57 has been violated is not reached unless objection or motion for mistrial is made).


author: Barnes, Judge.

text:
    A99A2065.
    BAILEY v. THE STATE.
    (540 SE2d 298)
   Barnes, Judge.

In Bailey v. State, 241 Ga. App. 497 (526 SE2d 865) (1999), we affirmed Bailey’s convictions for driving with no proof of insurance and driving with a suspended license, but remanded for resentencing. In Bailey v. State, Case No. S00C0610 (May 1, 2000), the Supreme Court granted the appellant’s petition for writ of certiorari and remanded the case to consider further Bailey’s enumeration of error regarding a jury charge, in light of the court’s holdings in Lumpkin v. State, 249 Ga. 834, 835 (1) (295 SE2d 86) (1982) and Tolver v. State, 269 Ga. 530, 533 (5) (500 SE2d 563) (1998).

In that enumeration, Bailey asserts the trial court erred in failing to give his requests to charge on impeachment. Bailey waived this issue, however. After the trial court asked whether the parties had any exceptions to the charge, Bailey’s counsel responded, “No exceptions, Judge.” “The right to raise an erroneous charge on appeal may be lost only in certain well-defined instances, as . . . where defense counsel in response to an inquiry by the trial judge plainly states that he has no objections to the charge as given.” (Citation omitted.) Lumpkin v. State, supra, 249 Ga. at 835 (1). Therefore, Bailey waived his right to raise this objection on appeal. See Tolver v. State, supra, 269 Ga. at 533.

If a substantial error in the charge was harmful as a matter of law, we will review it regardless of whether or not an objection was made. OCGA § 5-5-24 (c). However, Bailey has not shown that the allegedly erroneous charge was blatantly apparent and prejudicial to the extent that it raises a question whether he was deprived of a fair trial. Miller v. State, 240 Ga. App. 18, 20 (3) (522 SE2d 519) (1999).

Decided October 11, 2000

Thomas L. Walker, for appellant.

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

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

Blackburn, P. J., and Eldridge, J., concur.


text:
    A00A1550.
    DIX v. THE STATE.
    (540 SE2d 294)
   Ruffin, Judge.

Savin Dix was convicted of aggravated assault, aggravated assault with intent to rob, and aggravated battery. On appeal, he challenges the sufficiency of the evidence; contends that the prosecutor argued facts not in evidence during closing; and contends that the trial court erred in excluding certain evidence and preventing cross-examination of a prosecution witness. For reasons discussed below, we affirm.

As Daniel and Susan Kwon were closing their grocery store between 10:30 and 11:00 p.m. on December 13, 1994, Susan noticed two men in the parking lot. After she told the men to leave, one of the men pulled a gun and fired three shots, hitting Daniel. Daniel pulled his own gun and handed it to Susan, and the two men fled.

Vernon Martin, a store employee who witnessed the shooting, identified Dix as the shooter and Lamar Riley as the other person. Martin said that, although he did not learn the men’s names until after the shooting, he “knew them by face” because he had seen them around the store before.

Susan Kwon testified that the shooter was wearing a dark blue jacket with red and white coloring and a hood. Loverecee Pullins testified that she saw Dix the night of the shooting, and that he was wearing a dark blue hooded jacket with “some white and red in it.” She said Dix was walking toward another individual known as “Bump,” which another witness said was Riley’s nickname.

Detective Walker testified that Antonio Martin gave him a written statement a few days after the shooting. Martin told Walker that, at about 11:00 p.m. on December 14,1994, he saw Dix, Riley, and two others arguing with each other, “saying they had missed the money.” Dix was telling Riley that “he didn’t do his part” and that, “[a]fter I shot, you were supposed to have busted the window and got the money out the car.” Martin told Walker that he heard Dix say he fired three shots.

Antonio Martin testified at trial and admitted giving a statement to Detective Walker. However, although he admitted that he overheard Dix and Riley arguing, he denied telling Walker what they were arguing about. Martin’s statement to Walker was then admitted as substantive evidence.

Twana Williams, who was pregnant with Dix’s child at the time, testified that Dix was with her on the night of the shooting. She testified that Dix had a brother, Desmond, who had “disappeared,” and that the two “look[ed] like twins.”

1. In his first enumeration, Dix challenges the sufficiency of the evidence. However, he makes absolutely no argument that the evidence was insufficient to support the verdict, and indeed admits that “the evidence may have been sufficient to establish his guilt.” Although he suggests that an allegedly improper comment by the prosecutor during closing argument “greatly prejudiced his case,” this does not go to the sufficiency of the evidence. By failing to make any argument, or even any assertion, that the evidence was insufficient, Dix has abandoned this enumeration.

2. Dix contends that the trial court erred in failing to “take remedial measures” when the prosecutor allegedly referred to facts not in evidence during closing argument. Although Dix does not provide any record citations in support of this enumeration, it appears that he is referring to two statements made by the prosecutor. In the first statement, the prosecutor said that Vernon Martin “did identify both defendants prior to coming into court yesterday.” After the prosecutor made this remark, the attorney for Dix’s co-defendant, Riley, said that he had an objection, but did not state the grounds therefor. The trial court overruled the objection. Dix’s attorney did not raise his own objection or adopt the objection made by Riley’s attorney.

The second statement occurred immediately thereafter, when the prosecutor said that the arresting officer, Detective Walker,

knows Desmond Dix [Savin Dix’s brother] and Desmond does look, as Ms. Williams testified to, a lot like Savin. Detective Walker knows Desmond. Yet based on the infornaation that he had, and knowing the two of them, he arrested Savin. It wasn’t like he didn’t know that. . . .

Dix’s attorney at this point objected that the prosecutor was misstating the evidence, stating that “[t]here’s no testimony at all about the investigation or anything turning from Detective Walker to Desmond Dix. No evidence of that.” The court stated that “[t]he jury will remember the evidence.”

OCGA § 17-8-75 provides that, if counsel makes “statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same.” In order to secure appellate review of a violation of this statute, however, it is necessary to object to the prejudicial remark at the time it is made. “[U]nless the court’s attention is called to such improper argument and a ruling invoked upon the trial, it is too late to raise the point for the first time in a motion for new trial.”

With respect to the first allegedly prejudicial comment, Dix’s attorney did not join in the objection raised by Riley’s attorney. We have held that, “where a defendant does not expressly adopt the objection of a co-defendant, he thereby waives that objection and may not utilize it to gain review.” Because Dix did not join in the objection made by Riley’s attorney, and did not state his own objection, he may not raise this issue on appeal.

With respect to the second comment, Dix’s only objection at trial was that there had been no testimony about “the investigation or anything turning from Detective Walker to Desmond Dix.” The prosecutor did not, however, state that there was such evidence, but simply stated that Detective Walker knew Desmond and did not arrest him. Because the prosecutor did not state that the investigation ever focused on Desmond Dix, she did not misstate the evidence on the grounds asserted in Dix’s objection.

3. Dix contends that the trial court erred in preventing him from cross-examining Detective Walker regarding “his failure to investigate Desmond as a suspect in this case.” In his discussion of this enumeration, however, Dix provides no record citations showing where the trial court prevented such cross-examination, and our review of the record shows no such ruling. Indeed, the record does not show that Dix even attempted to question Walker about whether he investigated Desmond as a suspect in the shooting. Accordingly, Dix cannot complain on appeal that the trial court prevented him from such questioning.

Dix also asserts that the trial court erred in refusing to allow him to introduce a photograph of Desmond to show that they resembled each other. In offering the photograph, Dix stated that Desmond was “one potential person who may have committed this crime.” The trial court sustained the State’s relevance objection to the photograph.

A criminal defendant may generally introduce evidence tending to show that another person committed the crime with which he is charged. However,

[t]he evidence, to be admissible, must be such proof as directly connects the other person with the corpus delicti, and tends clearly to point out someone besides [the] accused as the guilty person. Evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible.

The admissibility of such evidence is within the discretion of the trial court.

Dix provided the trial court with no evidence whatsoever that Desmond was involved in the shooting, and he points to no such evidence on appeal. In the absence of any such evidence, the mere fact that Desmond may have resembled Dix can do no more than cast a bare suspicion upon him. Accordingly, the trial court did not abuse its discretion in refusing to allow the photograph. Even if the court did err in excluding the photograph, it is highly probable that such error did not contribute to the verdict. As mentioned above, Williams testified that Dix and his brother Desmond looked like twins, and the prosecutor admitted in closing arguments that the two looked alike. Thus, a photograph would have added little if anything to the undisputed evidence that the two resembled each other.

Decided October 11, 2000.

Elaine T. McGruder, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       See Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982).

       See Gordon v. State, 235 Ga. App. 169 (1) (508 SE2d 782) (1998).

        Johnson v. State, 198 Ga. App. 316, 317 (7) (401 SE2d 331) (1991).

       (Punctuation omitted.) Hudson v. State, 250 Ga. 479, 484 (4) (299 SE2d 531) (1983).

       (Punctuation omitted.) Heard v. State, 204 Ga. App. 757, 759 (4) (420 SE2d 639) (1992).

       See id.

       Although Dix claims on appeal that Detective Walker did not in fact know Desmond, he did not object at trial on the grounds that the prosecutor misstated the evidence in this regard. Because “[a] trial objection on a specific ground waives appellate review of other grounds,” he cannot raise this issue on appeal. Zachery v. State, 238 Ga. App. 191, 192 (2) (517 SE2d 71) (1999).

       The trial court did sustain the State’s relevance objection when Dix asked if Walker was investigating the disappearance of Desmond. Dix did not, however, inform the court at this time that he was contending Desmond might have committed the crime. Thus, the court clearly did not abuse its discretion in preventing questioning regarding the investigation of Desmond’s disappearance. Dix did not seek to resurrect this line of questioning when he later informed the court of his theory that Desmond might have committed the crime.

        Bradford v. State, 204 Ga. App. 568, 569 (420 SE2d 4) (1992).

       (Punctuation omitted.) Id.

       See Hood v. State, 216 Ga. App. 106, 108 (4) (453 SE2d 128) (1995).

       See Dukes v. State, 224 Ga. App. 305, 308 (2) (480 SE2d 340) (1997) (exclusion of evidence “ ‘was wholly harmless where other evidence of the same facts was introduced and admitted.’ ”).


text:
    A00A1693.
    BUCKLEY v. THE STATE.
    (540 SE2d 292)
   Ruffin, Judge.

Following a bench trial, Catrina M. Buckley was found guilty of driving with a suspended license in violation of OCGA § 40-5-121. On appeal, she argues, among other things, that the State failed to prove that her license was suspended. We agree and reverse.

At trial, Trooper B. A. Brewton of the Georgia State Patrol stated that she stopped Buckley for speeding on July 20, 1999. Brewton ran a computer check on Buckley, which apparently showed that Buckley’s license had been suspended on September 8, 1997, for driving with no proof of insurance. Brewton then ticketed Buckley for driving with a suspended license in violation of OCGA § 40-5-121. In the “Remarks” section of the Uniform Traffic Citation, Brewton wrote, “No Proof of Insurance Suspension on 9/08/97.”

Buckley denied that she was aware of any suspension, and she claimed that the Department of Public Safety issued her a renewal license after the alleged suspension date. The State apparently gave the trial court a copy of Buckley’s Driver’s License History Report showing that her license had, in fact, been suspended, but that report was not admitted into evidence. The court engaged in an extended colloquy with the attorneys, Trooper Brewton, and Buckley as to the reason for the alleged suspension, which apparently was not clear from the history report. Ultimately, the court stated: “[B]ased on the evidence, Ms. Buckley, I’m going to have to determine that technically you were driving with a suspended license at that time, although there was a great deal of confusion about it.”

Decided October 11, 2000.

Barbara J. Nelson, for appellant.

Wensley Hobby, Solicitor, for appellee.

In order to establish the offense of driving with a suspended license, “the State must show that the accused was driving, that [her] license was suspended, and that the accused had received actual or legal notice of the suspension.” Here, the State failed to prove that Buckley’s license was suspended.

The State notes that “[a Georgia Crime Information Center] driver’s license history was provided for the presiding judge.” Such history is admissible to show the fact of suspension, but only if the State tenders a certified copy of a Department of Public Safety record or proves that the driving record was obtained from a computer terminal lawfully connected to the GCIC computer. The record does not show that the State satisfied this foundational requirement, or that it even offered Buckley’s driving history into evidence.

Trooper Brewton’s statement at trial that her computer check of Buckley revealed a suspended license also fails to establish the fact of suspension. This unsworn representation as to the contents of Buckley’s driving record does not qualify as “evidence.” To hold otherwise would eviscerate the foundational requirement outlined above for properly admitting a driving record into evidence. Finally, the Uniform Traffic Citation, on which Brewton wrote that Buckley’s license was suspended, cannot be used as evidence of her guilt.

In the absence of any evidence that Buckley’s license was suspended, we reverse her conviction for driving with a suspended license. In light of this result, we need not address Buckley’s remaining claims of error.

Judgment reversed.

Andrews, P. J, and Ellington, J., concur.

       She was also found guilty of driving with no proof of insurance and driving without a seat belt, but she does not appeal those convictions.

       It appears from the transcript that Trooper Brewton was never sworn as a witness.

       (Punctuation omitted.) Farmer v. State, 222 Ga. App. 591 (474 SE2d 760) (1996).

       See Tolbert v. State, 227 Ga. App. 647, 648 (490 SE2d 183) (1997).

       The State attaches a copy of Buckley’s driving history to its appellate brief, but that history is not part of the record and we cannot consider it. “[P]arties cannot supplement the record merely by attaching matters to or reciting matters in their briefs.” (Punctuation omitted.) Smalls v. State, 242 Ga. App. 39 (1) (528 SE2d 560) (2000).

       See State v. Bartel, 223 Ga. App. 696, 697 (479 SE2d 4) (1996) (unsworn statements not evidence in criminal cases); Tipton v. State, 213 Ga. App. 764, 765 (2) (445 SE2d 860) (1994) (unauthenticated driving record inadmissible).

       See Graves v. State, 269 Ga. 772, 774 (3) (504 SE2d 679) (1998).

       See Tolbert, supra.


author: Phipps, Judge.

text:
    A00A1086.
    CRAWFORD v. THE STATE.
    (540 SE2d 300)
   Phipps, Judge.

Amie Crawford was found guilty of one count of driving with an unlawful alcohol concentration and one count of driving with an expired tag. She appeals her conviction of driving under the influence of alcohol, claiming that the trial court erred by denying her motion to exclude the results of the state-administered breath test. We conclude that Crawford’s claim is without merit and affirm her conviction.

On December 3, 1998, at approximately 10:12 a.m., Clarkston Police Officer Jeff Manley stopped Crawford because her car had an expired tag. He asked to see her license and proof of insurance, but she did not have either item. While talking with Crawford, Manley detected an odor of alcohol coming from her car. He asked her if she had been drinking, and she admitted that she had consumed two drinks at 4:30 a.m. Manley then ordered Crawford to get out of her car and sit in his patrol car.

While in the patrol car, Manley smelled a strong odor of alcohol coming from underneath the divider between him and Crawford. He verified her license information and discovered that she was 19 years old. Manley then read Crawford the Georgia Implied Consent Notice for Suspects Under Age 21 verbatim; however, he did not formally place her under arrest. After the rights were read to Crawford, she agreed to submit to the alco-sensor evaluation. The test was positive for alcohol. Manley placed Crawford under arrest and transported her to the DeKalb County Jail where she agreed to take the state-administered breath test. The results of the breath test showed that Crawford’s blood alcohol level was 0.069 grams.

Crawford contends that the trial court erred twice by denying her motion to exclude the results of the state-administered breath test. First, she argues that the test results were wrongly admitted because the arresting officer did not advise her of her implied consent rights at the time of her arrest. Second, she argues that because the arresting officer read the implied consent rights just before asking her to take the alco-sensor field test, she was confused and deprived of the right to make an intelligent decision whether she should take the state-administered chemical test.

1. For a state-administered breath test to be admissible at trial on a charge of driving under the influence of alcohol, OCGA § 40-6-392 (a) (4) requires that “[t]he arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests. . . .” Crawford argues that the implied consent warnings should have been given after she was arrested. Because she was given the warnings before she was formally arrested, she urges that the test results should have been suppressed.

The Supreme Court of Georgia has interpreted “at the time of the arrest” not to mean sometime in the future. Rather, under ordinary circumstances, the implied consent warning must be given at the time of the arrest, “or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.” Here, the arresting officer gave Crawford the implied consent warning before he administered the alco-sensor field test. After a positive test result, he placed Crawford under arrest.

After hearing testimony from Manley at the hearing on Crawford’s motion to exclude the results of the state-administered test, the trial court found that the notice was read at or at least reasonably close to the time of arrest. When we review a trial court’s decision on a motion to suppress, we must ensure that there was a substantial basis for the decision. “We construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility must be adopted unless they are clearly erroneous.” But where the evidence is undisputed and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. We review the trial court’s decision under that standard.

After Manley determined that Crawford had been drinking, he placed her in the backseat of the patrol car, read the implied consent warnings, and then conducted the alco-sensor test. After a positive test, she was arrested and transported to jail. Because Crawford was not free to leave even before the administration of the alco-sensor test, the reading of the notice was done at the “time of the arrest” as required by OCGA §§ 40-5-55, 40-5-67.1 (a), and 40-6-392 (a) (4).

2. Crawford claims that because Manley read the implied consent warnings just before she was given the alco-sensor test and not when she consented to the state-administered test, she was deprived of the right to make a meaningful and intelligent choice whether she should take the state-administered test. She claims that the officer misled her into believing that the alco-sensor test was the state-administered test.

Decided October 12, 2000

King & King, Bernard S. Brody, David H. Jones, for appellant.

Gwendolyn R. Keyes, Solicitor, Mary E. Leonard, Thomas E. Csider, Assistant Solicitors, for appellee.

Crawford argues that this case is controlled by Deckard v. State. We disagree. The arresting officer in Deckard misread the implied consent notice by omitting the amended portion which states: “If you are a nonresident, Georgia is only authorized to suspend your privilege to operate a motor vehicle in the State of Georgia.” Thus, the nonresident driver in Deckard was misinformed and, therefore, unable to make an intelligent decision. Here, the arresting officer read the implied consent notice verbatim.

We agree with Crawford that the implied consent notice should not be read before the administration of the alco-sensor test because that may mislead the driver into believing that he or she is required to submit to that test. We are not, however, persuaded by Crawford’s argument that the timing of the reading of the notice was so confusing that she was unable to make an intelligent decision about whether to submit to the state-administered test.

The implied consent notice advises a driver that submission to the state-administered test is required, of the consequences associated with refusing to submit to the state-administered test, and of his or her right to an independent test. While Crawford may have been confused about whether to submit to the alco-sensor test, which was not required, she does not appeal the admission of those test results. If she had refused to take the state-administered breath test, thereby suffering adverse consequences, she would have a better argument that she was confused about whether to submit to that test.

Under the circumstances, we find that Crawford was not deprived of the right to make a meaningful and intelligent choice whether she should submit to the state-administered test.

Judgment affirmed.

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

       OCGA § 40-5-67.1 (b) (1).

        Garrett v. Dept. of Public Safety, 237 Ga. 413, 415 (2) (228 SE2d 812) (1976).

        Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983).

        Howard v. State, 233 Ga. App. 861 (505 SE2d 270) (1998).

       (Citation and punctuation omitted.) Id.

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

       See Bass v. State, 238 Ga. App. 503, 505-506 (3) (b) (519 SE2d 294) (1999).

       210 Ga. App. 421 (436 SE2d 536) (1993).

       Id. at 422.


author: Blackburn, Presiding Judge.

text:
    A00A1410.
    WILLIAMS v. THE STATE.
    (540 SE2d 305)
   Blackburn, Presiding Judge.

Following a jury trial, Zester Williams appeals his conviction of theft by receiving an electronic sound system stolen in a burglary at St. Paul’s Missionary Baptist Church in Thomasville, Thomas Comity, Georgia, in January 1999. We affirm. Williams was also charged and acquitted of the offense of burglary in this incident.

Williams contends that: (1) the trial court erred in refusing to grant a directed verdict as to the theft by receiving count, as the State failed to corroborate defendant’s statement to police that he possessed the stolen property in Thomas County; (2) the trial court erred in refusing to grant a directed verdict because the State failed to prove the value of the stolen property was in excess of $500; and (3) the trial court erred in ruling that Williams placed his character in issue and allowing the introduction into evidence of a certified copy of the indictment, plea, and sentence of the previous conviction that placed Williams on probation.

As to the applicable standard of review:

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 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). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter for the jury to resolve.

(Citation, punctuation and footnote omitted.) Yarbrough v. State. See Wilson v. State.

In reviewing cases on appeal, this Court is limited to considering those grounds presented to and ruled upon by the trial court. See Workman v. State; State v. Mayo; Godfrey v. State.

Williams was indicted by the grand jury in Thomas County in Count 1 for the burglary of St. Paul’s Missionary Church in said county on or about January 21, 1999. The crime of burglary is codified as OCGA § 16-7-1. He was also charged in Count 2 of said indictment with theft by receiving the subject property in Thomas County on or about January 21, 1999. The crime of theft by receiving is codified as OCGA § 16-8-7.

Under OCGA § 16-8-7, “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen.” Pursuant to OCGA § 16-8-11, when prosecuting charges under OCGA § 16-8-7, “the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.”

Williams entered a not guilty plea to each of the charges. By pleading not guilty, Williams challenged all allegations contained in the indictment. A not guilty plea requires the State to prove every essential element of the crime with which the defendant is charged. The Georgia Constitution, Art. VI, Sec. II, Par. VI, provides, inter alia, that “all criminal cases shall be tried in the county where the crime was committed.”

[V]enue is an essential element of a criminal charge. When a charging document alleges that venue is proper in a certain county, and a defendant pleads not guilty in response to that charging document, he has irrefutably challenged all allegations contained therein, including those pertaining to venue.

Graves v. State.

The record does not reflect that the court took judicial notice that Coolidge is a city in Thomas County or gave any notice that it intended to do so. As concerns judicial notice, however, our Supreme Court has declared that: “ [I]f a trial court intends to take judicial notice of any fact, it must first announce its intention to do so on the record, and afford the parties an opportunity to be heard regarding whether judicial notice should be taken.” Graves v. State, supra at 775 (4) (a).

Our Supreme Court has further held in Graves, supra at 776, that Petkas v. Grizzard “does not authorize the judicial notice of essential elements of a criminal charge, as they are alleged in prosecutorial pleadings.” We note that “[vjenue is a jurisdictional fact that must be proved by the prosecution beyond a reasonable doubt.” Graves, supra at 773. The State may prove venue through the introduction of evidence, legally sufficient to establish that fact. The State could not, however, establish venue in Thomas County solely by the introduction of evidence that Williams received, possessed, or controlled the stolen property in Coolidge. The trial court would have been authorized to take judicial notice of the fact that Coolidge is located wholly within Thomas County, if it had chosen to do so and had adhered to the procedural requirements of Graves. Thus, venue may be established by the State if the trial court properly takes judicial notice of the relevant facts.

The case proceeded to trial September 27-29, 1999, where the jury acquitted Williams of the burglary charge but convicted him of the charge of theft by receiving stolen property.

Reverend Anderson’s testimony authorized the jury to believe that certain electronic sound equipment belonging to the church was stolen during a burglary at St. Paul’s Missionary Baptist Church, Highway 319 North, in Thomas County, during the period of January 19-24, 1999. After reporting the matter to the police, Rev. Anderson decided to canvas local pawnshops to see if he could locate the stolen equipment. He located the stolen equipment in nearby Tallahassee, Florida, where Johnny Gelabert, an employee of Folmar Gun & Pawn, matched the serial numbers provided by Rev. Anderson to equipment he had purchased on January 21, 1999. The investigation was turned over to the police, who, based on information provided by Gelabert, determined that Williams had been the individual who had sold the stolen equipment to Folmar Gun & Pawn in Tallahassee on January 21, 1999. Gelabert told police, and testified at trial, that Williams had shown him a picture ID at the time of the sale and that he had a present recollection of the transaction. He showed police the videotape of the transaction. At trial, the videotape was admitted into evidence without objection and played for the jury.

1. We review first Williams’ contention that the evidence was insufficient to support his conviction on the theft by receiving charge as the State failed to corroborate defendant’s statement to police that he possessed the stolen property in Thomas County.

Williams’ argument that the only evidence presented by the State of possession of the stolen equipment by him in Thomas County was his “confession,” given to Deputy Walker, is without merit. Williams’ written statement was not a confession. He implicitly denied having committed the burglary itself and offered an explanation of his possession of the stolen property which excluded any guilty knowledge of the property having been stolen, if believed. Such a statement is merely an admission of the facts contained therein. “ A statement which includes facts or circumstances which show excuse or justification is not a confession of guilt even if it admits the main fact.’” Robinson v. State. Williams has never contended that his statement was not voluntary or that it was improperly induced. The State introduced Williams’ statement without objection at trial.

Williams’ statement was not a confession, but rather, an admission, as it was not so comprehensive as to include every essential element of the offense. See Johnson v. State. An admission is the avowal of a fact or of circumstances from which guilt may be inferred, but only tending to prove the offense charged and not amounting to a confession of guilt. While admissions are scanned with care, for what they are worth, along with other evidence, unlike confessions, it is not required that they be corroborated. See OCGA § 24-3-53; Brown v. State; Sheffield v. State.

However, in addition to his written statement, Williams testified at trial that “[I]’m from Thomas County.” Williams and Freddie Johnson, Jr. both lived within walking distance of each other in Coolidge. Several other defense witnesses also lived in Coolidge. Williams’ statement and the testimony of Johnson establish that Williams received the stolen property on the morning of January 21, 1999, at Johnson’s house. Williams’ statement outlines how he went to Johnson’s house on the morning of January 21, 1999, to go job hunting. While there, Jose Martinez stopped by and left the stolen equipment in payment of a debt he owed to Derek Davis. Davis, who was in jail, owed Williams some money, and so Williams decided to take the equipment and sell it in satisfaction of Davis’ debt. Williams also testified that following the sale of the stolen property, he returned to Thomas County and went home, which he had already testified was in Coolidge. Viewing this evidence in a light favorable to the verdict, the evidence was sufficient to establish venue in the theft by receiving case in Thomas County.

Williams also contends that the State failed to prove the corpus delicti. The State introduced the testimony of Rev. Anderson and Gelabert, as outlined above, to establish the fact that the subject property had been stolen, the value of the stolen property, and possession and control at the time of the sale thereof in Williams. The testimony of Williams and Johnson established that Williams obtained possession of the property in Thomas County. The State was unable to locate Martinez, and there were statements made by Williams to Deputy Walker and to Gelabert which might have caused the jury to reject his story. Contradictory statements by the defendant, coupled with the apparent nonexistence of the person from whom he contended he received the stolen property, authorize the jury to find that the defendant received the stolen property with knowledge that it had been stolen. Austin v. State. Questions of the credibility of witnesses are reserved for the jury. OCGA § 24-9-80. Knowledge that goods are stolen may well be deduced by the jury from the defendant’s conduct and behavior, the character of the person from whom the goods were received, and the nature of the stolen property. In this case, the stolen property was a commercial sound system. Prather v. State.

We note that the State incorrectly contends that proof that the burglary occurred in Thomas County establishes venue in that county as to the charge of theft by receiving stolen property. Theft by receiving, however, is not a lesser included offense of the crime of burglary, as the crimes have different elements. See Nebbitt v. State, overruled on other grounds, Coleman v. State. While theft by taking may be a lesser included offense of the crime of burglary, theft by receiving cannot be as a matter of law. See Breland v. Smith. Unlike theft by receiving, burglary involves the unauthorized breaking and entering into a protected structure, with the intent to commit a felony therein. See OCGA § 16-7-1. Therefore, proof that a burglary occurred in Thomas County, standing alone, does not support a finding that the defendant received, possessed, or retained control over the subject property in that county.

The crime of theft by receiving addresses those who buy or receive stolen property, as distinct from the principal thief. See Sosbee v. State. As the crime of theft by receiving could have been committed in any county described in OCGA § 16-8-7, the fact that the burglary occurred in Thomas County, standing alone, is not sufficient to prove venue in the theft by receiving case.

The videotape evidence and the testimony of Gelabert demonstrate that Williams possessed and disposed of the stolen stereo equipment in Tallahassee, Florida. The testimony of Rev. Anderson supported the fact that the burglary of St. Paul’s Missionary Baptist Church occurred in Thomas County, Georgia, during the period January 19-24,1999, and that certain church property, having a value in excess of $500, was stolen at that time. This evidence was clearly sufficient to prove venue in Thomas County on the burglary charge. However, because the jury acquitted Williams of the burglary charge, that point is moot.

Williams contends that the trial court erred in denying his motion for directed verdict at the close of the State’s case, as there was no evidence of venue at that time, other than his written statement to police. He contends the State cannot rely upon evidence put up by the defense or the cross-examination of defense witnesses to overcome a failure in the State’s case-in-chief. This argument is without merit. In its review, this court must rely on the record of the entire proceeding, including evidence offered by Williams.

As to the evidence reviewed on appeal from an overruled motion for directed verdict made at the close of the State’s case, our Supreme Court has held: “[0]n appeal of the overruling of a motion for directed verdict of acquittal made at the close of the state’s case in chief, the reviewing court can consider all the evidence in the case in determining whether the trial court erred in overruling the motion.” Bethay v. State. See Causey v. State.

The trial court did not err in denying Williams’ motion for directed verdict for failure to prove venue.

2. We next address Williams’ contention that the State failed to prove the value of the stolen property was in excess of $500.

Rev. Anderson testified that the value of the stolen sound system was $699 for the mixer, $295 for the amplifier, and $540 for the wireless and that the equipment was approximately four years old. While he testified on cross-examination that those were the original cost figures, he also testified that he had checked prices and that the replacement costs were much higher now. He then testified, on redirect, that it was his opinion that the present value of the equipment was as stated. Gelabert testified that the pawnshop could not purchase the wireless unit because it was missing the power adapter, but that he paid $200 for the remaining two items. Given the nature of the pawn business and the traditionally low sums paid for purchased equipment, and the fact that the wireless, valued by Rev. Anderson at $540, was not part of the purchase, we cannot say that the trial court erred in denying Williams’ motion for directed verdict.

Proof of market value is governed by OCGA § 24-9-66. An owner does not have to be an expert to testify as to the value of his property (or that property under his control), provided he has experience or familiarity with such values.

The fact that Rev. Anderson utilizes the equipment routinely, maintains records on the expenses of the church, has checked out the cost of new equipment, and was familiar with the cost and age of the existing equipment, when coupled with the pawnbroker’s testimony, while weak, is sufficient to allow the question to go to the jury. The weight to be given opinion evidence of market value is a matter for the jury. Gibbs v. Clay. We cannot say that the trial court erred in its ruling as to proof of value of the stolen equipment.

3. We review Williams’ contention that the trial court erred in allowing the State to introduce into evidence a certified copy of the indictment, plea, and sentence of the previous conviction that placed Williams on probation.

Williams elected to testify at trial, and the fact that he was on probation was brought out on direct examination by his own attorney, to show that he had to have permission to go to Florida. In Jones v. State, our Supreme Court held that: “Where the defendant testifies and admits prior criminal conduct, he has not placed his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b). Rather, he has raised an issue which may be fully explored by the State on cross-examination.”

The trial court originally limited the State to asking why Williams was on probation, after he had stated that fact to the jury. When the defense informed the court that they would call the probation officer to ask if Williams had permission to go to Florida, the court permitted the State to introduce the complained-of material on cross-examination.

The trial court has broad discretion over cross-examination which will not be interfered with by the appellate court absent an abuse of discretion. Where the defendant initially raises the issue of prior criminal conduct, the State, on cross-examination, is entitled to fully explore such issue. This is especially true under the circumstances herein involved, where the State went no further than to explore the specific conviction which resulted in Williams’ present probation. The State provided little information to the jury that had not already been provided by Williams. Under similar circumstances, this Court found that the State was within the scope of a thorough and sifting cross-examination, even as limited by OCGA § 24-9-20 (b). See Richardson v. State. We cannot say that the trial court erred in allowing evidence of the prior conviction into evidence under the facts of this case.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

Decided October 12, 2000

James R. Newton, for appellant.

J. David Miller, District Attorney, Robert R. Auman, Melanie J. Brogden, Andrew W. Pope, Assistant District Attorneys, for appellee.

        Yarbrough v. State, 241 Ga. App. 777, 780-781 (4) (527 SE2d 628) (2000).

        Wilson v. State, 233 Ga. App. 327 (503 SE2d 924) (1998).

        Workman v. State, 235 Ga. App. 800, 801 (510 SE2d 109) (1998).

        State v. Mayo, 235 Ga. App. 107 (508 SE2d 475) (1998).

        Godfrey v. State, 227 Ga. App. 576, 577 (489 SE2d 364) (1997).

        Graves v. State, 269 Ga. 772, 773-774 (1) (504 SE2d 679) (1998).

        Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984).

        Robinson v. State, 232 Ga. 123, 126 (2) (205 SE2d 210) (1974).

        Johnson v. State, 204 Ga. 528 (50 SE2d 334) (1948).

        Brown v. State, 167 Ga. App. 851 (307 SE2d 737) (1983).

        Sheffield v. State, 188 Ga. 1 (2 SE2d 657) (1939).

        Austin a State, 89 Ga. App. 866 (81 SE2d 508) (1954).

        Prather v. State, 116 Ga. App. 696 (158 SE2d 291) (1967).

        Nebbitt v. State, 187 Ga. App. 265 (370 SE2d 1) (1988).

        Coleman v. State, 271 Ga. 800, 805 (7) (523 SE2d 852) (1999).

        Breland v. Smith, 247 Ga. 690 (279 SE2d 204) (1981).

        Sosbee v. State, 155 Ga. App. 196 (270 SE2d 367) (1980).

        Bethay v. State, 235 Ga. 371, 374-375 (219 SE2d 743) (1975).

        Causey v. State, 154 Ga. App. 525 (267 SE2d 475) (1980).

        Gibbs v. Clay, 137 Ga. App. 381 (224 SE2d 46) (1976).

        Jones v. State, 257 Ga. 753, 759 (1) (b) (363 SE2d 529) (1988).

        Richardson v. State, 173 Ga. App. 695, 696 (327 SE2d 813) (1985).


text:
    A00A0899.
    HEGGS v. THE STATE.
    (540 SE2d 643)
   Phipps, Judge.

Johnny Heggs was indicted for rape and convicted of child molestation. He appeals, claiming three errors. First, he asserts that the trial court incorrectly instructed the jury on child molestation as a lesser included offense of rape. Next, he complains that the trial court refused to give a requested charge on sexual battery. Finally, he claims the evidence was insufficient to support the verdict. Because we find that child molestation should not have been submitted to the jury as a lesser included offense in this case, we reverse Heggs’s conviction. Because we reverse on the child molestation issue, we need not address the sexual battery issue. We reject Heggs’s insufficiency of the evidence claim.

The indictment charged Heggs “with the offense of RAPE (§ 16-6-1) for that the said accused in the County of Richmond and State of Georgia, on the 6th day of April, 1997, did have carnal knowledge of [A. K.], a female, forcibly and against her will, contrary to the laws of said State, the good order, peace and dignity thereof.” Heggs was not indicted for any other offense.

At trial, A. K. testified that in the early morning of April 6,1997, Heggs drove her to a secluded area and forcibly had sexual intercourse with her despite her pleas for him to stop. She further testified that she was 14 years of age when this event occurred. In his defense, Heggs testified that he and A. K. had consensual intercourse — that she propositioned him to have sex for money.

During the charge conference after the close of the evidence, the court stated that it intended to instruct the jury on child molestation as a lesser included offense of rape. Heggs immediately objected, asserting that child molestation could not be charged as a lesser included offense in this case “because the indictment [made] no mention of [A. K.] being a child under the age of legal consent, in this instance 16.” He argued that he had not been properly placed on notice that he could be charged with child molestation. Over Heggs’s objection, the court instructed the jury:

Now, Members of the Jury, embraced within the charge of rape is a lesser included offense of child molestation. And I will give you the definition of child molestation. A person commits child molestation when that person does any immoral or indecent act to, or in the presence of, or with, any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.

Further, the court instructed the jury that: “[T]he form of your verdict would be either, We the Jury, find the defendant’ — it would be either ‘guilty,’ or, ‘not guilty,’ or, ‘guilty of child molestation.’ ” The jury found Heggs “Guilty of Child Molestation.”

1. The trial court may, of its own volition and in its discretion, charge on a lesser crime of that included in the indictment. But “ ‘[i]t is an elementary principle of criminal procedure that no person can be convicted of any offense not charged in the indictment.’ ” “Due process of law requires that the indictment. . . put the defendant on notice of the crimes with which he is charged and against which he must defend.”

“[I]n order for a conviction of a lesser crime to be warranted, the greater must either necessarily include within itself all of the essential ingredients of the lesser, or, if not necessarily included, but may or may not be involved according to the circumstances of the particular case, the indictment must itself, in describing the manner in which the higher offense was committed, contain all of the averments necessary to constitute the lower.”

Child molestation is not included within rape as a matter of law because, unlike rape, child molestation requires proof that the victim is under the age of 16. However, child molestation becomes included as a matter of fact if the victim is under the age of 16 (previously 14). But here, the rape indictment did not allege that the victim was under the age of 16, which is an essential element of the offense of child molestation. Therefore, we find that Heggs was not placed on notice that he should be prepared to defend himself against the charges of rape and child molestation. Had he been on such notice, he may not have chosen to take the witness stand and testify that he had consensual intercourse with A. K. Thus we find that due process will not allow the conviction for child molestation to stand.

Contrary to the State’s argument, Parker v. State does not demand a different result. Its comparison to this case merely highlights the fact that the defendant may waive constitutional notice objections by requesting a lesser included instruction. Where a case contains some evidence, no matter how slight, that the defendant committed a lesser offense than that for which he was indicted, the court should grant the defendant’s request to charge on the lesser offense. Unlike the defendant in Parker, Heggs did not request a lesser included instruction on child molestation.

We also reject the State’s argument that Heggs may not contest the appropriateness of the instruction on child molestation because he did not restate his objection after the instruction was given or reserve objections to the court’s charge. It is debatable whether a criminal defendant must restate an objection to a jury instruction that he made at a charge conference to preserve error for appellate review. That notwithstanding, the Georgia Code directs, “[T]he appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made ... or not.” Here, the erroneous lesser included instruction allowed Heggs to be convicted of an offense which was not properly before the jury. Even assuming that counsel’s objection at the charge conference did not otherwise preserve the matter for appellate review, we find the error in the charge to be substantial and harmful as a matter of law.

2. Next, Heggs argues that the trial court erred in refusing to give a requested charge on sexual battery. We need not address this issue because we have determined on other grounds that Heggs’s conviction must be reversed.

3. Finally, we reject Heggs’s contention that the evidence was insufficient to support the jury’s verdict.

Judgment reversed.

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

Decided October 13, 2000.

Paul W. David, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

        State v. Stonaker, 236 Ga. 1, 2 (3) (222 SE2d 354) (1976).

       (Emphasis supplied.) McCrary v. State, 252 Ga. 521, 523 (314 SE2d 662) (1984), quoting Goldin v. State, 104 Ga. 549, 550 (30 SE 749) (1898).

        McCrary, supra, 252 Ga. at 524.

       Id., quoting Watson v. State, 116 Ga. 607, 612 (43 SE 32) (1902); accord Strickland v. State, 223 Ga. App. 772, 773-774 (1) (a) (479 SE2d 125) (1996).

       Compare OCGA §§ 16-6-1 (a) (rape) and 16-6-4 (a) (child molestation).

       See Pruitt v. State, 258 Ga. 583, 589 (13) (e) (373 SE2d 192) (1988), citing Parker v. State, 256 Ga. 543, 548-549 (2) (350 SE2d 570) (1986); see also generally OCGA § 16-6-4 (age 16).

       Supra, 256 Ga. at 548-549.

       Id. at n. 4.

       See Smith v. State, 244 Ga. App. 667 (1) (536 SE2d 561) (2000).

       Compare Wilson v. State, 259 Ga. 55, 58 (6) (376 SE2d 676) (1989); Dooley v. State, 221 Ga. App. 245, 246 (3) (470 SE2d 803) (1996).

       OCGA § 5-5-24 (c).

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