author: Smith, Presiding Judge.

text:
    A01A0013.
    PENNY v. THE STATE.
    (547 SE2d 367)
   Smith, Presiding Judge.

Kenneth Penny was found guilty by a jury of robbery by force. His motion for new trial was denied, and he appeals. He contends that his conviction must be reversed because the State failed to provide him with exculpatory evidence in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), and that the trial court erred in denying his motion for a new trial on the ground of ineffective assistance of counsel. We find no merit in these contentions, and we affirm Penny’s conviction.

Construed to support the jury’s verdict, the evidence presented at trial showed that an elderly woman’s purse was snatched on a street corner in Augusta. An eyewitness, who was approaching the intersection in his vehicle, slowed for a red light. He saw a man running around the corner “pretty fast.” The witness testified that he saw the man clutching a small black purse with long handles, “like he was clutching a football,” and the handles were flapping as the man ran. The witness then noticed the victim on the ground. When he pulled over and assisted her, she informed him that her purse had been snatched and asked him to call the police. The witness observed several officers down the street, and he alerted them to the incident. The witness described the man he had seen running as a tall, bald, black man with a light complexion and a mustache, wearing a red and blue plaid shirt.

While he was talking to the officers, he noticed the man he had just described walking back up the street. He was “definitely sure” it was the same man. The officers detained the man, later identified as Penny. When a sheriffs department investigator arrived, Penny was turned over to the investigator and transported to the county jail. When Penny was driven away, the witness could see directly into the squad car. He identified Penny at trial as the man he saw that night. The victim testified she could not identify the purse snatcher.

A Richmond County sheriffs deputy testified that he was doing paperwork when the witness summoned him to the scene. He called for an investigator, and while he and the witness and victim were talking, the witness pointed out Penny, who had returned to the scene. The deputy turned around and observed a bald black male, about six feet tall, wearing blue jeans and a plaid shirt. He approached Penny, placed him against a wall, and patted him down for weapons. Before the officer said anything about the purse snatching, Penny blurted out: “I haven’t done anything to that lady.” According to the officers, Penny was not under arrest at the time.

Two other officers testified to voluntary statements made by Penny. The officers were assigned to watch Penny before he was arrested, and they testified that although they had not asked Penny any questions, Penny kept telling them he had done nothing and asking why he was being held. Penny voluntarily told them, “I haven’t taken nothing from that lady.” The purse was found several blocks down the street.

When Penny was taken into custody at the scene, he was wearing a red, blue, and white plaid shirt with a white t-shirt underneath. When he was processed into the jail, however, documents show that he was wearing only a white t-shirt, blue jeans, and gray shoes. In his book-in picture he was wearing a white t-shirt. Penny testified at the hearing on his motion for new trial that when he was detained on the street, an officer asked for his shirt, and he gave it to the officer. The investigator testified that when he later attempted to retrieve Penny’s clothing from the jail, he was able to obtain other clothing, but he was not able to get the plaid shirt Penny was wearing that night.

Penny testified at trial and denied robbing the victim. His defense was mistaken identity, and he pointed out the discrepancy in the descriptions of the shirt he was wearing. He maintained that his statements to the officers that he had not done anything to the victim had been made after the officers questioned him about the purse snatching. He also insisted that the night of the incident he was wearing a red and white striped shirt. He testified that his clothing was taken at the jail, where he was issued jail attire before his photograph was taken.

1. Penny contends that his shirt must have been confiscated or destroyed by a member of the investigating team and that because the shirt was exculpatory evidence, the State’s failure to turn over the shirt violated its duty under Brady. He argues that had this shirt been entered into evidence, a reasonable probability exists that it would have bolstered his credibility and supported his defense that the eyewitness misidentified him. But here, no evidence exists that the State was in possession of the shirt, and the State had no obligation under Brady to turn over evidence it did not have. A different standard from that discussed in Brady applies. This standard is derived from Arizona v. Youngblood, 488 U. S. 51 (109 SC 333, 102 LE2d 281) (1988) and California v. Trombetta, 467 U. S. 479 (104 SC 2528, 81 LE2d 413) (1984).

Under this standard, the prosecution may be penalized when it loses or destroys evidence that could potentially have been helpful to the defense only if the defense shows that the evidence was material and the State acted in bad faith in failing to preserve it. Milton v. State, 232 Ga. App. 672, 679 (503 SE2d 566) (1998).

Here, neither the materiality of the shirt nor the bad faith of the State was shown. Under Trombetta, supra, evidence is constitutionally material if it has “an exculpatory value that was apparent before the evidence was destroyed” and it is “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 489. The exculpatory value of the shirt in this case was not apparent either before or after it was lost or destroyed. Penny described his shirt at trial by saying, “[t]he dominant color of the shirt is red and it has white lines going down this way about that wide, and it has lines coming across that was a little bit smaller.” Although he denied his shirt was plaid, from Penny’s description it could easily have been described by others as plaid. It is not clear, therefore, that the shirt would have shown that Penny was misidentified. Through direct and cross-examination, the jury was also apprised of Penny’s argument that the State, through either the jail personnel or the officers, had bungled the handling of evidence, which impacted the credibility of the State’s witnesses. This was reinforced by Penny’s trial attorney during his closing argument.

Moreover, “[u]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Citations and punctuation omitted.) Milton, supra. And Penny has shown no such bad faith. No officer was shown to have destroyed the shirt, no officer testified that he had lost or destroyed the shirt, and the fate of the shirt was never established. We find no error here.

2. Penny moved for a new trial on the ground of ineffective assistance of trial counsel, contending that counsel was ineffective in failing to subpoena sheriff’s department records showing Penny’s clothing when he was arrested and in failing to file a motion to suppress statements obtained after an illegal arrest. To prevail on a claim of ineffective assistance of counsel, Penny must prove both prongs of the test in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). He must show both that counsel was deficient and that a reasonable probability exists that but for that deficiency the result of the trial would have been different. Martinez v. State, 241 Ga. App. 863, 864 (2) (528 SE2d 294) (2000). We need not address the second prong of the test, because Penny has failed to satisfy the first.

(a) We have determined that the State did not violate Penny’s rights in failing to disclose that the shirt he was wearing on the night he was arrested had been lost. It follows that the trial court did not err in denying Penny’s motion for new trial on the ground that his trial counsel was ineffective because he did not subpoena sheriffs department records regarding Penny’s clothing when he was arrested.

(b) As best we can understand Penny’s contention, he maintains he was unlawfully seized at the scene because no probable cause existed to arrest him; therefore, the statements he made to the officers should have been suppressed. He claims his trial counsel was ineffective because he failed to file a motion to suppress these statements.

But the arresting officer testified that a witness positively identified Penny as the person who had assaulted and robbed the victim. This constituted more than enough probable cause for arresting Penny:

[when] information is supplied by an identified interested citizen, the citizen’s credibility is not as suspect and the analysis is not as stringent as when information is given by an anonymous tipster; a law-abiding concerned citizen has a built-in credibility and is deemed to be reliable.

(Citation omitted.) Yearwood v. State, 239 Ga. App. 682, 683 (521 SE2d 689) (1999).

Decided March 26, 2001.

Mario A. Pacella, for appellant.

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

Since a motion to suppress based on this ground would not have been granted, it follows that trial counsel was not ineffective in failing to file such a motion. See Shorter v. State, 239 Ga. App. 625, 626 (1) (521 SE2d 684) (1999).

(c) Penny also asserts that his trial counsel should have requested a Jackson-Denno hearing because his statements were made while he was in custody and he had received no Miranda warnings. It is clear, however, that although a dispute may exist as to whether the statements were made before or after the officers mentioned details of the crime, they were not the result of a custodial interrogation. Rather, they were made voluntarily and spontaneously while the officers were waiting for an investigator. Miranda warnings were therefore not required. See Jack v. State, 245 Ga. App. 216, 219 (5) (536 SE2d 235) (2000). Penny’s trial counsel cannot have been ineffective for failing to challenge the admission of these statements.

Judgment affirmed.

Barnes and Phipps, JJ, concur.


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A01A0070.
    GORDON v. THE STATE.
    (546 SE2d 925)
   Andrews, Presiding Judge.

Charles Richard Gordon appeals from the judgment entered after he was found guilty of trafficking in methamphetamine, possession of marijuana, and possession of methamphetamine. Gordon argues on appeal that the trial court erred in denying his motion to suppress evidence seized at his house. Specifically, he claims there was no probable cause for the magistrate to issue the search warrant because there was no evidence from which the magistrate could determine the reliability of the confidential informant. We disagree and affirm.

This case arose after a confidential informant told officers that Judy Wall, Gordon’s co-defendant, was staying at 59 Wade Street and was delivering and storing methamphetamine there. The informant also told them that Wall drove a 1996 or 1997 red Camaro Z28. After receiving this information, Officer Walker testified that he drove by that address several times and saw the red Camaro parked there.

Another officer testified at the suppression hearing about the stop and search of the car. He stated that as he was patrolling one day, he pulled in behind a red Camaro and saw it weave back and forth across the road. Also, he noticed that there were dark taillight covers on the car and he could barely see the brake lights. After he pulled the car over and walked up to the driver’s window, the officer could smell the odor of burnt marijuana coming from the car.

When the officer realized it was Wall driving the car, he called Officer Walker. After Walker arrived, they asked Wall if they could search her car. She said yes, and the officers found a manila envelope containing several smaller bags of methamphetamine, a gun, and a large sum of money. Officer Walker then searched Wall and found another manila envelope containing several smaller bags of methamphetamine in her pocket.

While the officers were searching the car, Wall’s cell phone rang and the officers traced the number to a nearby McDonald’s parking lot pay phone. There, officers arrested another man who said he had been buying methamphetamine from Wall for about a year.

Officer Walker then got a search warrant for the house at 59 Wade Street. When the officers arrived, they found Gordon in one of the bedrooms. They asked him if there were any drugs in the house, and he replied, “Yes. In a box on the dresser.” The officers found marijuana and methamphetamine in the box.

Gordon was arrested and, following a bench trial, was found guilty of trafficking in methamphetamine and possession of marijuana and methamphetamine. He now appeals, claiming there was no probable cause to issue the search warrant.

In determining probable cause for a search warrant, the magistrate is merely to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before the magistrate, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. DeYoung v. State, 268 Ga. 780, 787 (7) (493 SE2d 157) (1997), quoting State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). The trial court will then examine the issue, and its factual findings regarding probable cause for issuance of the warrant will be upheld unless clearly erroneous. Bryant v. State, 268 Ga. 616, 618 (6) (491 SE2d 320) (1997); Williams v. State, 267 Ga. 771 (4) (482 SE2d 288) (1997). Ultimately, this Court’s role on review is to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. DeYoung at 787 (7). See also Grier v. State, 266 Ga. 170, 172 (2) (b) (465 SE2d 655) (1996). And a reviewing court is to give substantial deference to the magistrate’s decision to issue a search warrant after finding probable cause. Id.

(Punctuation and footnote omitted.) Abraha v. State, 271 Ga. 309, 311 (518 SE2d 894) (1999). Moreover, “[t]he factual findings of the trial court regarding probable cause for the issuance of a search warrant are to be upheld unless clearly erroneous.” Bryant, supra at 618 (6).

The affidavit at issue stated that a confidential and reliable informant told police that Wall, driving a 1996 or 1997 red Camaro Z28 was delivering methamphetamine to 59 Wade Street, Winder; that approximately two weeks after receiving this information, police saw the Camaro parked at the above address; and that the car was stopped and searched and “trafficking amounts of methamphetamine were confiscated.”

Officer Walker, the officer who prepared the affidavit, testified that he gave the magistrate additional information when applying for the search warrant. Walker stated that he told the magistrate that the confidential informant told him that Wall was staying at 59 Wade Street and was delivering and storing methamphetamine there. Also, he described the stop of Wall’s car, the methamphetamine found in the car and on Wall, and the arrest of the man who had been buying methamphetamine from Wall.

Gordon claims the affidavit was defective on its face because it provided no information on the reliability of the informant. Gordon acknowledges that other information presented to the magistrate, in addition to the affidavit, may be considered in determining probable cause, but claims that here there was no information in any form showing the reliability of the informant.

We disagree. It was apparent from the face of the affidavit that the veracity and reliability of the informant had already been corroborated. The informant’s tip was that Wall was delivering and selling methamphetamine. The affidavit stated that “trafficking amounts of methamphetamine” had been confiscated from Wall, thus corroborating the informant’s tip.

This, together with the other information presented to the magistrate as discussed above, was enough information from which the magistrate could determine that there was a fair probability that contraband or other evidence would be found at that particular place. Stephens, supra at 182. Accordingly, the trial court correctly determined that there was a substantial basis for the magistrate’s decision to issue the warrant.

Decided March 26, 2001.

Rex J. McClinton, for appellant.

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

Judgment affirmed.

Eldridge and Miller, JJ, concur.

       See, e.g., Gibson v. State, 223 Ga. App. 103-104 (476 SE2d 863) (1996); Delay v. State, 213 Ga. App. 199, 201 (444 SE2d 140) (1994).


author: Ellington, Judge.

text:
    A01A0394.
    GULLATT v. OMEGA PSI PHI FRATERNITY, INC.
    (546 SE2d 927)
   Ellington, Judge.

Nathaniel Gullatt sued Omega Psi Phi Fraternity, Inc., David Mickel and Bernard Moore for personal injury. On Omega Psi Phi’s motion, the trial court dismissed the action “in its entirety” on the basis that Gullatt’s complaint was filed more than two years after the date of injury and was therefore “absolutely barred” by the applicable limitation period. Gullatt appeals, contending he filed his complaint within the time allowed.

1. A motion to dismiss barred claims is properly granted “[w]hen a complaint shows on its face that the statute of limitation has run and there is no further showing by amendment or by affidavit that a tolling of the statute is possible.” (Citations and punctuation omitted.) Cooper v. Commercial Union Ins. Co., 192 Ga. App. 815, 816 (1) (386 SE2d 551) (1989); Bailey v. Kemper Group, 182 Ga. App. 604, 607 (356 SE2d 695) (1987). Gullatt’s complaint alleges that he was injured when he was struck by an automobile on April 1, 1998. Gullatt concedes that Georgia law required him to file his personal injury action “within two years after the right of action accrue [d].” OCGA § 9-3-33. The date two years after April 1, 1998, that is, April 1, 2000, fell on a Saturday. See OCGA § 1-3-1 (d) (3) (“when a period of time measured in . . . years ... is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted”). When “the last day falls on Saturday or Sunday, the party having [any] privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty.” OCGA § 1-3-1 (d) (3). See Loveless v. Grooms, 180 Ga. App. 424, 425 (349 SE2d 281) (1986). Gullatt filed his complaint on April 3, 2000, the Monday following April 1, 2000. As a matter of law, Gullatt’s complaint was timely filed.

Decided March 27, 2001.

Wanda S. Jackson, for appellant.

Carey & Dobson, Emerson Carey, Jr., for appellee.

Citing Uniform Superior Court Rule 6.2, Omega Psi Phi contends Gullatt waived his right to contest the dismissal by failing to file a timely response to its motion to dismiss. USCR 6.2 provides “each party opposing a motion shall serve and file a response . . . not later than 30 days after service of the motion.” By failing to respond to a motion to dismiss for failure to state a claim, however, “a party merely waives his right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted.” (Citation and punctuation omitted.) Lee v. City of Atlanta, 219 Ga. App. 264, 265 (2) (464 SE2d 879) (1995); Kluge v. Renn, 226 Ga. App. 898, 900 (3) (487 SE2d 391) (1997). We emphasize that failing to file a written response to a motion a litigant opposes, even to point out the obvious, is certainly ill-advised. Under these circumstances, however, Gullatt was not required to present evidence to defeat Omega Psi Phi’s motion to dismiss because the fact that April 3, 2000, was the Monday following April 1, 2000, is not susceptible to contrary proof. See Thompson v. Cheatham, 244 Ga. 117, 119 (2) (259 SE2d 62) (1979); Anglin v. Harris, 244 Ga. App. 140 (1) (534 SE2d 874) (2000).

Because the face of Gullatt’s complaint showed that his action was timely filed, and because the defendants were not entitled to dismissal of the action solely because Gullatt failed to file a written response to Omega Psi Phi’s motion to dismiss, the trial court erred in dismissing Gullatt’s action on the basis that it was filed more than two years following the date of injury.

2. Gullatt’s remaining enumeration of error is rendered moot by our holding in Division 1.

Judgment reversed.

Johnson, R J., and Ruffin, J., concur.


author: Blackburn, Chief Judge.

text:
    A00A2055.
    SUMTER REGIONAL HOSPITAL, INC. et al. v. SUMTER FREE PRESS, INC. et al.
    (546 SE2d 831)
   Blackburn, Chief Judge.

On interlocutory grant, Sumter Regional Hospital, Inc. and Jerry Adams, its Chief Executive Officer, appeal the trial court’s denial of their motion for summary judgment against Sumter Free Press, contending that statements made by Adams to four Americus businesses could not, as a matter of law, constitute tortious interference with Sumter Free Press’ business relations. For the reasons set forth below, we reverse the trial court.

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).

Lau’s Corp. v. Haskins.

1. Viewed in the light most favorable to Sumter Free Press, the record contains no support for the newspaper’s claims for tortious interference.

The essential features of a cause of action for tortious interference with business relations are that the defendant, acting improperly, without privilege, and with the malicious intent to injure plaintiff, induces a third party not to enter into or to continue a business relationship with plaintiff, which causes plaintiff financial injury.

Lively v. McDaniel; Janet Ricker Builder v. Gardner.

We note at the outset that Adams’ conversations with three of the four businesses with whom Adams had contact did not result in any financial injury to Sumter Free Press and did not, therefore, constitute tortious interference with its business relations as to those incidents. We therefore focus only on Adams’ fourth communication with Linda McLendon in determining whether or not summary judgment should have been granted.

Beginning in 1996, J. Frank Myers, Jr. was a vociferous critic of the hospital and Adams. Myers voiced his criticisms not only in letters to the editor in the Americus Times-Recorder, but also in paid advertisements with the newspaper. Additionally, Myers mailed flyers to members of the public, which flyers accused Adams, in part, of mismanagement and of being a liar and a thief and encouraged Adams’ removal.

In March 1998, Myers founded Sumter Free Press, which he used as a public vehicle to disseminate his criticisms of Adams and the hospital. Adams, clearly upset by the accusations printed in the Sumter Free Press, decided that he would not patronize businesses that advertised in that paper because, by doing so, he would be “financing [his] own demise.” Myers deposed that McLendon, Adams’ barber, told him that she had to cancel her advertisement with Sumter Free Press because Adams had told her that he would not do business with those who advertized with Sumter Free Press and she did not want to lose Adams’ business.

McLendon was not deposed, and there is no evidence, having probative value, which establishes this fact. During Adams’ deposition, he testified that he had told McLendon that Myers was trying to destroy him personally and that he had a problem spending his money where his money would then be used to finance the efforts to cause him a problem. On cross-examination, he was asked: “Q. Did you request that she not advertise with Sumter Free Press? A. No.”

There is no probative evidence of record that Adams asked McLendon not to advertise in the Sumter Free Press. Neither is there evidence that Sumter Free Press suffered any losses as a result of Adams’ conduct. Myers’ testimony concerning McLendon’s alleged statement is hearsay, which has no probative value, even when admitted without objection. See OCGA § 9-11-56 (e); Sykes v. City of Atlanta (evidentiary rules apply on motion for summary judgment); Davis v. Haupt Bros. Gas Co. (hearsay has no probative value). Thus, even construing the facts in a light most favorable to Sumter Free Press, there is no nexus between Adams’ conduct and any loss of business by Sumter Free Press. See Calhoun v. Cullum’s Lumber Mill' (upholding grant of summary judgment to defendants on tortious interference with contract claim because plaintiff could not show nexus between its unsuccessful attempt to purchase certain property and the defendants’ actions).

2. We need not address the defendants’ enumerations regarding conspiracy and boycott claims because the complaint does not assert such claims and Sumter Free Press acknowledges this fact in its brief. Because we find that the trial court erred by denying appellants’ motion for summary judgment, defendants’ remaining enumerations of error, which relate to damages, are rendered moot.

Judgment reversed.

Eldridge and Barnes, JJ, concur.

Decided March 6, 2001

Reconsideration denied March 28, 2001

Alston & Bird, W. Terence Walsh, Angela T. Burnette, Michael A. Fennessy, for appellants.

Harper & Barnes, John V. Harper, James F Myers III, for appellees.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Lively v. McDaniel, 240 Ga. App. 132, 134 (3) (522 SE2d 711) (1999).

        Janet Ricker Builder v. Gardner, 244 Ga. App. 753, 755 (4) (536 SE2d 777) (2000).

         We note that had McLendon testified to the facts attributed to her by Myers, or had there been admissions of such facts by Adams, or other evidence having probative value, a jury question would have been presented, and the denial of Adams’ motion for summary judgment would have been proper.

        Sykes v. City of Atlanta, 235 Ga. App. 345, 348 (5) (509 SE2d 395) (1998).

        Davis v. Haupt Bros. Gas Co., 131 Ga. App. 628, 629 (2) (206 SE2d 598) (1974).

        Calhoun v. Cullum’s Lumber Mill, 247 Ga. App. 859 (545 SE2d 41) (2001).


author: Miller, Judge.

text:
    A00A2472.
    In the Interest of A. R. et al., children.
    (546 SE2d 915)
   Miller, Judge.

Unless waived, all proceedings in a deprivation action in juvenile court shall be recorded. The juvenile court here failed to record an in-chambers interview with one of the children. Since the parents acquiesced to this procedure, they implicitly waived this recordation, and thus we affirm.

The Murray County Department of Family & Children Services petitioned to have A. R., C. R, M. P., and M. P. found deprived and placed in DFACS’ custody. During the termination hearing there was substantial evidence regarding the children’s deprivation. As recounted in the court’s order, there was evidence from several witnesses that the stepfather had touched A. R. on her chest and made a lewd comment and that in a second incident a family friend grabbed A. R.’s chest and made a similar comment. There was recorded testimony that A. R. told her mother of the incident and her mother laughed.

The record also contained testimony that the stepfather fondled another child, A. R.’s younger brother, who had physical and mental limitations. There was evidence that four deputies were required to assist DFACS in completing its interviews with the family because the stepfather was drinking, would not allow the DFACS worker to speak to the children, and threatened to “blow his . . . head off.” The transcript shows that the stepfather shot at his wife with a pellet gun in front of the children; that he had had numerous encounters with law enforcement involving allegations of battery, aggravated assault, and terroristic threats; and that he shot the neighbors’ dogs when they came into his yard to defecate.

On the record, the stepfather admitted that he drank 18-24 beers every day and that he had, on occasion, hit his wife. Furthermore, there was testimony that A. R. was concerned that her stepfather had hit her younger brother and that A. R. had seen the stepfather using drugs. There was also evidence that there were reports to DFACS that there was inadequate supervision in the home.

After all parties had rested, the court sua sponte stated that with the permission of the parents, the court wanted to speak to the children in chambers and that counsel could be present if desired. An in-chambers interview with A. R. took place in the presence of counsel but was not recorded.

Finding the children were deprived and granting custody to DFACS, the court in its order outlined the evidence reflected in the record and further relied on evidence given by A. R. in the unrecorded interview. The parents appeal, enumerating the failure to record the in-chambers interview and the insufficiency of the evidence.

1. Regarding juvenile court proceedings, OCGA § 15-11-41 (b) mandates that “[u]nless waived by the child and the child’s parent, guardian, or attorney, the proceedings shall be recorded by stenographic notes or by electronic, mechanical, or other appropriate means.” In K. E. S. v. State of Ga. we emphasized that “in the absence [of waiver] the statute simply and plainly mandates a recording of the proceedings.”

In this case, the proceedings were recorded; in fact, the transcript of the deprivation hearing is 164 pages long. The only portion of the entire procedure which was not recorded is an in-chambers interview which the court conducted with one of the children, A. R.

Here the parents acquiesced in and thus implicitly waived a recording of the in-chambers interview. At the conclusion of the evidence, the court said to the attorney for the parents that it wanted to speak to the children in chambers “with your permission.” The court then stated: “[i]f you want to be present, that’s fine.” The attorney stated that he would like to be present. He did not state that the court did not have his permission to speak to the children, nor did he object to the court’s request. The court then spoke with A. R. off the record in the presence of the attorney for the parents. Although the attorney for the parents could observe that the in-chambers interview was not transcribed, he gave the court permission to conduct the interview and raised no objection to the failure to have the interview recorded when the proceedings resumed. Given the factual context of this case, the parents’ attorney implicitly waived the right to have this portion of the proceedings recorded. Thus, the first enumeration is without merit.

Decided March 12, 2001

Reconsideration denied March 28,2001.

Little, Bates & Kelehear, Sam F. Little, for appellants.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, for appellee.

2. The parents’ primary argument regarding the sufficiency of the evidence presumed incorrectly that the court could not rely on the testimony of A. R. The evidence recounted above authorized the juvenile court to find, by clear and convincing evidence, that the criteria set forth in OCGA § 15-11-94 were established.

Judgment affirmed.

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

       See OCGA § 15-11-41 (b). Effective July 1, 2000, the General Assembly redesignated the section numbers of the relevant Code sections. Ga. L. 2000, p. 20, § 1. We cite to the new designations.

       134 Ga. App. 843, 849-850 (4) (216 SE2d 670) (1975).

       See In the Interest of L. G., 230 Ga. App. 153, 154 (495 SE2d 628) (1998) (“[t]he provision for recording such proceedings is mandatory. . . . [Cit.]”).


author: Mikell, Judge.

text:
    A00A2476.
    MORRISON v. THE STATE.
    (546 SE2d 312)
   Mikell, Judge.

David E. Morrison was indicted for two counts of robbery and one count of impersonating an officer. A jury convicted Morrison of robbery, impersonating an officer, and theft by deception, a lesser included offense of the second robbery charge. This appeal followed. We affirm.

On appeal, Morrison no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to support the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). So viewed, the record shows that Janna Michelle Barton was employed as a cashier at a convenience store in Rossville where she was working the 11:00 p.m. to 7:00 a.m. shift on the night of September 10, 1998. Barton testified that Morrison entered the store, showed her a badge, and claimed to be a Georgia Bureau of Investigation officer. Morrison asked Barton if he could examine her cash drawer as part of an investigation. Next, Morrison instructed Barton to ask the other customers to leave the store and to lock the door behind them, and she complied. Morrison took the cash, gave Barton a receipt signed “Agent Kelly,” and left the store. Barton testified that she was scared and nervous during the encounter, and that she was intimidated by Morrison. She further testified that Morrison’s shirt was untucked, so that she could not determine if he had a weapon. Morrison had been a regular customer in the convenience store during the preceding month, and Barton testified that Morrison had asked her about purchasing marijuana on a previous occasion.

Several law enforcement officers reported to the store after Morrison departed with the cash. Upon viewing the store’s surveillance video, one of the officers recognized Morrison. Barton was able to identify Morrison from a photographic lineup that had been prepared for George Cantrell, a victim in a similar case. The officers proceeded to a location on Indian Avenue where they apprehended Morrison pursuant to a warrant for his arrest. At the time of his arrest, Morrison was wearing the same clothes described by Barton and seen on the surveillance video.

Cantrell, the resident manager of an apartment complex in Walker County, testified that he was approached by Morrison on September 7, 1998, three days before the incident at the convenience store. Morrison showed Cantrell a badge and claimed to be employed by a security company. Cantrell testified that Morrison told him that he was investigating a claim that a tenant was passing counterfeit currency and demanded to see the rent that Cantrell had collected. Morrison took the money and fled. Cantrell identified Morrison from a photographic lineup and at the trial. Michael Lynn, a resident of the apartment complex and a friend of Morrison, told law enforcement officers that Morrison had told him about a plan to rob Cantrell.

1. First, Morrison argues that his conviction must be reversed due to the method of case assignment used in the Lookout Mountain Judicial Circuit at the time of his trial. Morrison relies on Cuzzort v. State, 271 Ga. 464 (519 SE2d 687) (1999), in which the Supreme Court held that the circuit’s case assignment system violated Uniform Superior Court Rule 3.1. The Supreme Court determined that because the district attorney assigned cases to the judges and set the trial calendar, the system violated USCR 3.1 and misused the discretion granted by OCGA § 17-8-1.

We applied the Cuzzort decision to reverse a conviction in Wooten v. State, 244 Ga. App. 101 (533 SE2d 441) (2000), cert. granted, Case No. S00C1574 (October 6, 2000), in which we held that “Wooten had a right to a fair trial. We cannot say that his trial, administered under a system so impugned by the Supreme Court, was fair.” Id. at 102. The conviction in Wooten, like the conviction in the case sub judice, took place prior to the decision in Cuzzort.

In multi-judge circuits, unless a majority of the judges in a circuit elect to adopt a different system, all actions, civil and criminal, shall be assigned by the clerk of each superior court according to a plan approved by such judges to the end that each judge is allocated an equal number of cases.

Cuzzort and Wooten are distinguishable from the instant case. In those cases, the appellants had objected in the trial court to the method of case assignment in the circuit. Cuzzort’s application for interlocutory review was granted after the trial court denied “a series of pretrial motions challenging the system of assigning judges and calendaring cases presently employed in the Lookout Mountain Judicial Circuit. . . .” 271 Ga. at 464. Similarly, appellant Wooten claimed that “the trial court erred in denying his motion for legal case assignment.” 244 Ga. App. at 101.

In contrast, Morrison raised no challenge in the trial court to the method of case assignment. Accordingly, there is no ruling for this court to review. “This Court is a court for the correction of legal errors and has no jurisdiction to address issues that are raised for the first time on appeal.” McDaniel v. State, 221 Ga. App. 43, 46 (1) (470 SE2d 719) (1996).

Nor can Morrison claim that he was unaware of the case assignment system used in the circuit at the time of his trial, as he notes in his brief that the district attorney, rather than the court, “sounded” the case for trial. “A party cannot ignore during a trial that which he thinks to be error or an injustice and take his chances on a favorable outcome and then complain later.” (Punctuation omitted.) Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876, 882 (429 SE2d 264) (1993); see also Pullen v. State, 208 Ga. App. 581, 583 (2) (b) (431 SE2d 696) (1993).

Morrison argues that this court is precluded from holding that he has waived his right to challenge the case assignment system on appeal. Under the “plain error” doctrine, we will consider issues not properly raised and ruled upon in the trial court when the alleged error “is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” (Citations and punctuation omitted.) Thorne v. State, 246 Ga. App. 741, 743 (2) (542 SE2d 157) (2000). However, we do not find that this is such a case, especially considering that the defendant did not object to the judge who presided, did not object to the scheduling of the case for trial, and did not move for a continuance. Instead, Morrison presented a spirited defense during the course of the two-day trial. Thus, we hold that this was not a case of plain error.

2. We reject Morrison’s second enumerated error that there was insufficient evidence to support his conviction. The evidence summarized above was amply sufficient to enable a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 21, 2001

Reconsideration denied March 28, 2001.

Bruce & Hentz, William D. Hentz, for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

3. Finally, we find that the trial court did not err by instructing the jury on lesser included offenses. The trial court used the pattern jury charge to inform the jury that it could consider theft by deception as a lesser included offense of each count of robbery.

Under OCGA § 16-8-3 (a), “[a] person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” “The correct rule is that a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990). We conclude that there was evidence to warrant the given charge, and that the trial court adequately instructed the jury.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       USCR 3.1 provides:


author: Barnes, Judge.

text:
    A01A0036.
    In the Interest of D. T. C., a child.
    (548 SE2d 11)
   Barnes, Judge.

The Juvenile Court of Dougherty County terminated the parental rights of the father of D. T. C. The father appeals, arguing that the juvenile court’s decision was not supported by clear and convincing evidence. For the reasons that follow, we affirm.

In reviewing the father’s challenge to the sufficiency of the evidence, we determine whether, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found by clear and convincing evidence that the natural father’s rights to custody have been lost. In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998). We do not weigh the evidence or determine witness credibility, but defer to the juvenile court’s factfinding. In the Interest of L. H., 236 Ga. App. 132, 133 (1) (511 SE2d 253) (1999).

Viewed in this light, the evidence shows that D. T. C. was born on July 16, 1992. On July 3, 1996, when he was only about four years old, he was found wandering in a mall by himself for two hours. A caseworker with the Department of Family & Children Services (“DFACS”) testified that his mother was located several hours later and the child was returned to her. A week later, on July 10, 1996, DFACS responded to a call and found D. T. C. wandering alone in his neighborhood. DFACS took him into custody, discovered that his mother had been arrested and his father was also in jail, and placed him in foster care.

The father testified that he contacted D. T. C.’s caseworker when he was released from prison in January 1997. The caseworker prepared the paperwork to allow the father to get D. T. C. from foster care every Saturday. After two and a half months, the caseworker received information that the father was taking D. T. C. to a “drug-infested area” during his visits and testified that when she asked the father about it, he offered no response. After that time, the father was allowed to visit every Saturday at the foster parent’s home until he was incarcerated again for a probation violation in May 1998. He was incarcerated at the time of the termination hearing in February 2000 and testified that he expected to be released the next month.

While the father’s “old lady,” to whom he was engaged, sent him $50 a week for spending money while he was in jail, he provided no financial support for the child, sent no cards or gifts while he was in prison, and called only once. The caseworker further testified that the father had not completed his case plan to be reunited with his son and, being incarcerated, had no stable home to provide for the child. Further, he never legitimated D. T. C.

The juvenile court took judicial notice of its previous orders in the case and terminated the father’s parental rights in an order dated April 6, 2000. The court noted that the father’s “felony incarceration has had a demonstrable negative effect on the child and is illustrative of his past and present parental unfitness.” The father had not supported the child financially, despite a child support order from superior court; had not parented the child; and had not attempted to legitimate the child until receiving notice of the termination petition. Further, he never sought to “have a meaningful parental presence in the life of the child.” The juvenile court found “clear and convincing evidence of past, present and likely future parental indifference and unfitness” of the father. The court concluded that it would be in D. T. C.’s best interest to terminate the natural father’s parental rights, considering that the child was nearly eight years old, had been in foster care since he was three, and needed to move forward toward a permanent and secure home.

On appeal, the father enumerates three errors, arguing the juvenile court erred in finding that the evidence showed present clear and convincing evidence of his misconduct or inability, in terminating the father’s rights because of his incarceration, and in terminating his rights based on his failure to support the child.

1. Determining whether parental rights should be terminated involves a two-step analysis. In the first step, the court must find parental misconduct or inability. That finding must be supported by clear and convincing evidence that: (i) the child is deprived; (ii) lack of proper parental care or control caused the deprivation; (iii) the cause of the deprivation is likely to continue; and (iv) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. Former OCGA § 15-11-81 (b) (4) (A) (i)-(iv) (now OCGA § 15-11-94 (b) (4) (A) (i)-(iv)); In the Interest of L. H., supra, 236 Ga. App. at 132-133 (1). Further, “[e]vidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in [his] natural child; clear and convincing evidence of present unfitness is required.” (Citations, punctuation and emphasis omitted.) In the Interest of R. A., 226 Ga. App. 18, 20 (486 SE2d 363) (1997); see also In the Interest of D. C. N. K., 232 Ga. App. 85, 90 (501 SE2d 268) (1998).

If these four factors exist, then the court must take the second step and determine whether terminating parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. Former OCGA § 15-11-81 (a) (now OCGA § 15-11-94 (a)).

We review the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found by clear and convincing evidence that the natural father’s right to custody has been lost. In the Interest of A. C., supra, 230 Ga. App. at 396.

2. In this case, ample clear and convincing evidence of the four factors established parental misconduct or inability.

(a) First, the evidence showed that D. T. C. was a “deprived” child. A deprived child is defined as a child who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for [his] physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A).

The definition of a deprived child, as contained in OCGA § 15-11-2 (8), focuses upon the needs of the child regardless of parental fault. The petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.

(Citation, punctuation and emphasis omitted.) In the Interest of J.P., 267 Ga. 492 (480 SE2d 8) (1997). Based on the facts outlined above, sufficient clear and convincing evidence supports the juvenile court’s finding that D. T. C. was deprived.

(b) The second factor to consider is whether the father’s lack of parental care or control caused D. T. C.’s deprivation. The evidence presented at the termination hearing showed that the father’s presence in D. T. C.’s life was minimal at best. Even during the 18 months he was not incarcerated, the only thing the father did was visit with the child. While he was incarcerated, he literally did nothing to stay in contact with the child.

In determining whether the child is without proper parental care and control, the court shall consider . . . [the] [c] onviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship.

OCGA § 15-11-81 (b) (4) (B) (iii).

Although criminal conviction and incarceration do not always compel termination of parental rights, serving time as a convicted felon will support a termination of parental rights when adequate aggravating circumstances are shown to exist — such as failure to comply with goals for family reunification or failure to provide parental care and support.

In the Interest of R. H., 240 Ga. App. 551, 553 (2) (524 SE2d 257) (1999).

These aggravating circumstances may include a criminal history of repetitive incarcerations for the commission of criminal offenses or parole violations, which 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.

(Punctuation, footnote and emphasis omitted.) In the Interest of B. C., 235 Ga. App. 152, 154 (508 SE2d 774) (1998). We conclude that clear and convincing evidence supports the conclusion that the father’s lack of parental care or control caused D. T. C.’s deprivation, that sufficient evidence of present unfitness was shown, and that the trial court did not terminate the father’s parental rights based solely on his incarceration, but properly considered it as a factor.

Decided March 28, 2001.

B. Samuel Engram, Jr., for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Paula T. Hanington, for appellee.

(c) Third, in determining whether the child’s deprivation is likely to continue, the juvenile court may consider the parent’s past conduct. In the Interest of A. C., 234 Ga. App. 717, 719 (507 SE2d 549) (1998). Sufficient clear and convincing evidence supports the juvenile court’s finding that D. T. C.’s deprivation is likely to continue.

(d) Fourth, clear and convincing evidence showed that continued deprivation likely would harm D. T. C. Based on the evidence of the father’s past behavior and his inability to comply with significant requirements of the reunification plan, we find that a rational factfinder could have found by clear and convincing evidence that D. T. C.’s continued deprivation would have a detrimental effect on him.

3. As to the second prong of the termination analysis, the evidence also was sufficient to show that termination of the father’s parental rights was in D. T. C.’s best interest. We have held that “the court may consider the child’s need for a stable home environment and the detrimental effects of prolonged foster care. Children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.” (Citations omitted.) In the Interest of J. O. L., 235 Ga. App. 856, 858 (510 SE2d 613) (1998). Here, the evidence showed that D. T. C. was eight, had been in foster care since he was three, and needed a permanent home. In addition, the same factors that show the father’s inability to care for his child support a finding that termination of parental rights would be in D. T. C.’s best interest. Id. Accordingly, we affirm the order of the juvenile court terminating the parental rights of D. T. C.’s father.

Judgment affirmed.

Smith, P. J, and Phipps, J., concur.

       The juvenile court also terminated the parental rights of D. T. C.’s mother, who is not a party to this appeal.

       The 2000 amendment, Ga. L. 2000, p. 20, § 1, reorganized, redesignated, and renumbered Chapter 11 of Title 15. Former OCGA § 15-11-81 is now OCGA § 15-11-94. The amendment took effect on July 1, 2000, however, and this case was decided April 6, 2000, prior to its effective date.


text:
    A01A0313.
    BUCKLEY v. TURNER HERITAGE HOMES, INC.
    (547 SE2d 373)
   Mikell, Judge.

Alice Buckley appeals the trial court’s grant of summary judgment to Turner Heritage Homes, Inc. (“Turner Heritage”) on her claims for rescission, punitive damages, and attorney fees and costs of litigation. For the reasons set forth below, we affirm the trial court’s grant of summary judgment to Turner Heritage as to Buckley’s rescission and punitive damages claims, but reverse as to Buckley’s claim for attorney fees and costs.

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

The record shows that on April 22, 1996, Buckley executed a Deposit Receipt and Purchase Agreement (the “Agreement”) to purchase a home from Turner Heritage, the builder. The Agreement included a merger clause, which provided:

This Purchase Agreement constitutes Buyer’s and Seller’s entire agreement. Representations or inducements made by salepersons or others, which are not contained in this Purchase Agreement shall not be binding upon Seller. Brochures and advertising representations and illustrations constitute general concepts only, and are subject to change and modifications at Seller’s discretion. Typed or written provisions inserted in this Purchase Agreement control all printed provisions in conflict therewith.

In a separate provision, the contract provided:

Special provisions, if any, are set forth as an Addendum to this Purchase Agreement and shall only be binding upon the parties if set out in writing and signed by both Seller and Purchaser. ORAL REPRESENTATIONS MAY NOT BE RELIED UPON. This purchase agreement shall survive the closing.

Buckley deposed that at the closing on the sale of the house on November 26, 1996, several representations were made to her by Fred Saxon, an agent of Turner Heritage, that induced her to close on the house. In writing, Saxon represented that the new sod would blend with the old sod with proper maintenance and upkeep, and that the pocket door in the master bedroom would be adjusted within six months. In addition to these written representations, Buckley deposed that Saxon orally represented that Turner Heritage would fill in the trench in her backyard, paint the front door, repaint the entertainment center walls, repair a hole in the wall in the master bedroom, replace the dishwasher veneer, replace and install various light fixtures, apply a final coat of paint to the back door, and substitute new sod for grass that died as a result of improper maintenance.

During her first two months in the residence, Buckley noticed several additional problems. Buckley deposed that she notified Turner Heritage of these problems via telephone, but not in writing, and was told, “We’ll get it taken care of.” Further, she informed Turner Heritage that she would ensure that they had access to her home to repair the problems whenever they were able to do so. Buckley deposed that the problems have not been repaired.

On November 19, 1998, Buckley filed a petition to rescind contract and deed, or, in the alternative, complaint for breach of contract, damages, and attorney fees. Turner Heritage timely filed its answer. Turner Heritage filed a motion for partial summary judgment on Buckley’s claims for fraud, rescission, punitive damages, and attorney fees, which the trial court granted. Buckley appeals.

1. In her first enumeration of error, Buckley contends that the trial court erred in granting Turner Heritage summary judgment on her rescission and punitive damages claims based on its conclusion that the record contained no evidence of fraud. At the outset, we reject Turner Heritage’s argument that Buckley failed to specifically preserve as error the trial court’s ruling that there was no evidence of fraud. This argument flies in the face of directives we have received from the legislature in OCGA § 5-6-48 (f) and from the Supreme Court in Felix v. State.

2. Buckley claims that the trial court erred by granting summary judgment to Turner Heritage on her rescission claim. We disagree.

When alleging a claim for fraudulent inducement to enter a sales contract, a purchaser has an election of two remedies: rescission or affirmation of the contract.

An announcement of the intent to rescind the contract must be made in a timely fashion, as soon as the facts supporting the claim for rescission are discovered. Moreover, the aggrieved party must adhere to the intent to rescind and may waive any claim for rescission by failing to do so.

Here, Buckley deposed that she noticed thirty problems within the first two months that she lived in the residence. Yet, she did not notify Turner Heritage of her intent to rescind the contract until ten months later in September 1997. An unreasonable delay in the election of rescission as a remedy results in the waiver of that claim. Accordingly, as to Buckley’s claim for rescission, the trial court did not err in granting summary judgment to Turner Heritage.

3. Buckley argues that she was fraudulently induced into executing the contract by Turner Heritage’s promises to make repairs in the future. Thus, she contends, the trial court’s conclusion that the record did not contain evidence of fraud constitutes error. In response thereto, Turner Heritage argues that there was no evidence of fraud. Furthermore, the merger provision in the Agreement bars Buckley’s fraud claim.

We agree with the trial court that the record does not contain evidence of fraud. Thus, Turner Heritage’s failure to make future repairs does not support an action for fraud unless the promises were made with an intent not to perform them. The record is devoid of any evidence that suggests that Turner Heritage fraudulently induced Buckley to consummate the sale of her home by making promises to her without the present intent to perform those promises. In fact, Buckley repeatedly conceded during her deposition that she had no evidence that Turner Heritage made assurances about repairs without the intent to perform them. Accordingly, Buckley has failed to show that a genuine issue of fact remains for jury resolution as to Turner Heritage’s liability for fraud.

The general rule is that actionable fraud cannot be predicated upon promises to perform some act in the future. Nor does actionable fraud result from a mere failure to perform promises made. Otherwise, any breach of a contract would amount to fraud. An exception to the general rule exists where a promise as to future events is made with a present intent not to perform or where the promisor knows that the future event will not take place.

Since Buckley affirmed the Agreement, “[she] is bound by [the contract’s] terms and is subject to any defenses which may be asserted by the other party based on the terms of the contract.” As stated earlier, the Agreement contains merger provisions, which preclude Buckley’s reliance on Saxon’s alleged oral promises. Conversely, the written warranties, pertaining to the pocket door and the blending of the sod, survive the merger clause. But as discussed above, they provide no basis for a fraud claim because there is no evidence in the record that they were provided with the present intent not to perform them.

4. The only claim remaining for the jury’s consideration is Buckley’s breach of contract claim, which is not at issue on appeal. However, “[i]t is well settled that punitive damages are not available on breach of contract claims.” Accordingly, the trial court did not err in its grant of summary judgment to Turner Heritage on Buckley’s claim for punitive damages.

5. Lastly, Buckley contends that the trial court erred in its grant of summary judgment to Turner Heritage on her claims for attorney fees and costs. In her complaint, she alleges that Turner Heritage acted in bad faith in making the contract and has continued to conduct itself in bad faith throughout its course of dealings with her. Turner Heritage argues that the existence of a bona fide controversy precludes Buckley’s claim. However, “[e]ven when a bona fide controversy exists, a party may be liable for attorney fees under OCGA § 13-6-11 where the party sought to be charged has acted in bad faith.” Thus, we reject Turner Heritage’s argument.

“[(Questions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense, under OCGA § 13-6-11, are generally questions for the jury to decide.” While there is some evidence to support Turner Heritage’s argument that it acted in good faith, if there is also evidence that would support a claim under OCGA § 13-6-11, the issue must be resolved by the jury. As we found in Young v. Turner Heritage Homes, a jury could infer bad faith from evidence, if believed, that Turner Heritage promised to correct deficiencies then failed to do so after closing, failed to comply with minimum building code requirements, and laid the slab on poorly compacted soil. Accordingly, the trial court’s grant of summary judgment on Buckley’s claim for attorney fees and expenses is reversed.

Decided March 28, 2001.

Divine, Dorough & Sizemore, Kermit S. Dorough, Jr., for appellant.

Swift, Currie, McGhee & Hiers, Stephen J. Tyde, Jr., Stephen M. Schatz, Langdale, Vallotton, Linahan & Wetherington, William P. Langdale III, Hodges, Erwin, Hedrick & Coleman, William A. Erwin, for appellee.

Judgment affirmed in part and reversed in part.

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

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

       Turner Heritage also filed a third-party complaint against the concrete company that supplied the concrete for the foundation for Buckley’s home, which was the source of one of Buckley’s problems.

       Since Buckley has identified three errors in this enumeration of error, for purposes of clarity, we have separated the contentions.

       The case upon which Turner Heritage relies is inapposite because in that case, the appellant’s enumeration of error only challenged the grant of summary judgment on his punitive damages claim. Young v. Turner Heritage Homes, 241 Ga. App. 400 (526 SE2d 82) (1999).

       The statute provides that where errors sought to be appealed are apparent from the notice of appeal, record, enumeration of errors, or from any combination of these sources, the appeal shall be considered.

       271 Ga. 534 (523 SE2d 1) (1999).

        Holloman v. D. R. Horton, Inc., 241 Ga. App. 141, 145 (3) (524 SE2d 790) (1999).

       (Citations omitted.) Id. at 146.

        Orion Capital Partners v. Westinghouse Elec. Corp., 223 Ga. App. 539, 543 (2) (b) (478 SE2d 382) (1996).

       (Citation and punctuation omitted.) Bradley v. British Fitting Group, 221 Ga. App. 621, 624 (4) (472 SE2d 146) (1996).

       (Citations omitted.) Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 75 (441 SE2d 421) (1994).

       See Zarett v. Wasserman, 180 Ga. App. 565, 566 (2) (349 SE2d 518) (1986).

        Bradley, supra at 624 (4).

       (Footnote omitted.) Wynn v. Arias, 242 Ga. App. 712, 718 (4) (531 SE2d 126) (2000).

       (Citations omitted.) City of Warner Robins v. Holt, 220 Ga. App. 794, 796 (1) (c) (470 SE2d 238) (1996).

       (Citations and punctuation omitted.) Young, supra at 402 (3).

       Id.

       Id.


text:
    A01A0456.
    EASTSIDE GARDENS OF SNELLVILLE, LLC v. SIMS.
    (547 SE2d 383)
   Mikell, Judge.

James C. Sims entered a Right of First Refusal Agreement (the “Agreement”) with Eastside Gardens of Snellville, LLC (“Eastside”) pertaining to a parcel of land that he owns (the “property”). The property is adjacent to an assisted living center owned by Eastside.* This case arises out of a declaratory action that Sims filed because of Eastside and Racetrac Petroleum, Inc.’s (“Racetrac”) dispute over the appropriate construction of the Agreement. The trial court determined that Racetrac was entitled to consummate its purchase of the property. We affirm.

“In reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the evidence.” To prevail at summary judgment under OCGA § 9-11-56 (c), 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 nonmovant, warrant judgment as a matter of law.

The Agreement provides that Sims cannot sell the property to a third party unless he first tenders the written offer to sell the property to Eastside under terms substantially identical to those offered in the third party’s written offer. Eastside then has 60 days to accept or reject the offer; its failure to respond constitutes a rejection. In February 1999, Racetrac made a written offer to purchase the property. Sims’ real estate agent, Geoffrey Hurdle, conveyed the offer to Eastside. Eastside did not respond within the 60-day response period. Sims and Racetrac did not close the transaction thereafter, however, because of zoning complications that Racetrac encountered. The dispute arose from the events that ensued.

Sims authorized Hurdle to resubmit Racetrac’s offer to Eastside. Hurdle wrote: “Per the contract between Racetrac Petroleum and James C. Sims, I find it necessary to give you notice again of the sale of the property. . . . You have sixty days in which to act upon your right of first refusal.” Racetrac was copied on the letter. On September 28, 1999, Eastside replied: “Our understanding of the Right of First Refusal Agreement is that we shall purchase the property under the same terms and conditions as the Racetrac offer (received August 2, 1999), subject to our securing the necessary financing.”

After Sims informed Hurdle and Paul Bland, Racetrac’s real estate representative, that Eastside had exercised its right to purchase the property, Bland drafted a letter for Sims to type on his letterhead and send to Eastside. The letter provided that Eastside’s notice was deficient because it contained a financing contingency and because Eastside had not provided earnest money; thus, Racetrac had the right to acquire the property.

On the following day, October 1, 1999, Eastside informed Sims that it had removed the financing contingency and was sending the earnest money to Hurdle. Sims provided Hurdle’s fax number to Eastside. Eastside sent a letter to Hurdle’s office removing the financing contingency and delivering the earnest money. Also, Sims called Bland and informed him by voice mail of Eastside’s actions.

On Saturday, October 2, 1999, Bland faxed a letter to Sims maintaining that Racetrac was still entitled to purchase the property because Eastside had not sent the earnest money directly to Sims. On Monday, October 4, 1999, Hurdle wrote a letter to Eastside informing it that the earnest money should be sent to Sims and gave it Sims’ address. On October 6, 1999, Brad Johnson, Eastside’s manager, informed Sims that a separate check for the earnest money would be issued directly to him.

On November 8,1999, Sims filed a declaratory action requesting that the court determine the legal rights and interests of the parties. Eastside filed a motion for partial summary judgment, arguing that it properly exercised its right of first refusal. Racetrac filed a motion for summary judgment, arguing that it has the legal right to consummate its purchase of the property from Sims. The trial court granted Racetrac’s motion and denied Eastside’s motion. Eastside appeals both orders.

1. In Eastside’s first enumeration of error, it argues that the trial court erred in holding that Eastside did not have multiple opportunities to exercise its right of first refusal. We disagree. The trial court correctly ruled that the Agreement provided Eastside one opportunity to exercise its right of first refusal as to Racetrac’s written offer to purchase the property.

“Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. . . . Parol evidence is not admissible to contradict or construe an unambiguous contract.” The portions of the Agreement in dispute provide:

3. If [Eastside] rejects or fails to accept the Refusal Offer within the sixty (60) day period . . . , then [Sims] may proceed to close the transactions contemplated in the Third Party Offer in accordance with its terms within sixty (60) days after expiration of [Eastside’s] sixty (60) day response period or notice to [Sims] of [Eastside’s] rejection thereof. ... 4. Should [Sims] not sell the Property in accordance with the terms of the Third Party Offer, then [Sims] may not thereafter sell any part of the Property without first offering it to [Eastside] pursuant to this Agreement, and the terms hereof shall continue to be effective.

The pertinent question on appeal is whether the contract provides that the transaction must be closed with the third party within 60 days of the expiration of Eastside’s response period. We find that it unambiguously does not. “Where the language of the contract is plain, unambiguous, and capable of only one reasonable interpretation, construction of the contract is not permitted, and the language of the contract is given effect.” Further, “the language used is given its literal meaning, and [common] ordinary words are given their usual significance.” The contract provides that upon Eastside’s failure to accept or reject the offer, Sims “may” proceed to close the transaction. The Agreement does not provide that Sims “shall” or “must” close the transaction within 60 days of the expiration of East-side’s response period. Instead, it provides that Sims “may” proceed to close the transaction “in accordance with” the third-party offer’s terms, which in this case permitted the passage of time necessary to rezone the property.

Even if we applied the rules of construction to the Agreement, which we are not required to do in the face of plain, unambiguous language such as that utilized here,* our decision would be the same. Similar to that discussed above, the rules of construction also provide that words are to be given their usual and common significance. Thus, the terms “may proceed to close” and “in accordance with its terms,” given their common significance, support the finding that there was no contractually imposed time limit within which the transaction had to be closed. Further, “[p]ursuant to the rule of construction set forth at OCGA § 13-2-2 (5), the contract will be construed strictly against the . . . drafter.” Eastside drafted the Agreement. Thus, applying this rule, we construe against Eastside the fact that it did not specifically provide therein what it now argues. Finally, the rules provide that if time is of the essence in a contract, it must be so stated. It was not.

Section four of the Agreement provides that if Sims did not sell the property in accordance with the third-party offer, then any subsequent offer to purchase must first be offered to Eastside pursuant to the Agreement. Thus, when reading the contract as a whole, as we are required to do to interpret it under the rules of construction, it unambiguously provides that Eastside’s right of first refusal is renewed only if the property is not sold to the previous third-party offeror. Accordingly, we find that the contract provided Sims the right to close the transaction in accordance with the terms of the third-party offer.

Decided March 28, 2001.

Holland & Knight, Gregory J. Digel, Rachel C. Boring, Laurie W. Daniel, for appellant.

Russell, Stell, Smith & McLocklin, John E. Stell, Jr., Andersen, Davidson & Tate, Gerald Davidson, Jr., Christopher R. Stovall, for appellee.

2. Based upon our decision in Division 1, we need not consider appellant’s remaining enumeration of error.

Judgment affirmed.

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

       Sims is a member of Eastside Gardens, LLC.

       (Citation and punctuation omitted.) Carter v. Tokai Financial Svcs., 231 Ga. App. 755 (500 SE2d 638) (1998).

       Id.

       For purposes of the commencement of the 60-day response period, the letter was deemed received by Eastside on March 16, 1999.

       Racetrac’s offer was conditioned upon the final rezoning of the property.

       Though the third-party offer provided for the delivery of the earnest money to Sims, Sims did not object to its delivery to Hurdle.

       At the time of his deposition, Sims had not returned the check.

       (Citations omitted.) Eichelkraut v. Camp, 236 Ga. App. 721, 724 (1) (513 SE2d 267) (1999).

       (Citation omitted.) Strozzo v. Sea Island Bank, 240 Ga. App. 183, 187 (1) (521 SE2d 392) (1999).

       (Citation omitted.) Griffin v. Adams, 175 Ga. App. 715, 716 (334 SE2d 42) (1985).

        Strozzo, supra.

       OCGA § 13-2-2 (2).

        Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (4) (470 SE2d 659) (1996).

         See OCGA § 13-2-2 (9).

       OCGA § 13-2-2 (4); Holloway Constr. Co. v. Dept. ofTransp., 218 Ga. App. 243, 245 (2) (461 SE2d 257) (1995).

       Compare Radio Webs v. Tele-Media Corp., 249 Ga. 598, n. 2 (292 SE2d 712) (1982) (the offer of the third party supplies the terms under which the right of first refusal may be exercised).


text:
    A01A0574.
    TONGNAN FA CORPORATION v. WANG et al.
    (547 SE2d 370)
   Mikell, Judge.

This is a personal injury action arising from severe burns plaintiff James Z. Wang sustained while cooking with a covered pot purchased from Tongnan Fa Restaurant Supplies. Tongnan Fa Corporation (“Tongnan”) appeals the trial court’s denial of its motion for summary judgment. Because we find that genuine issues of material fact remain for jury resolution, we affirm.

“A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.”*

So viewed, the evidence shows that Wang began working as the head chef at the Mandarin Garden Restaurant in Atlanta on November 16, 1996. As head chef, he was responsible for purchasing the equipment for the kitchen from Tongnan. Wang testified that about a month after he began working at Mandarin Garden, he purchased a 20-quart pot and lid along with several other items from Tongnan. The invoice introduced into evidence, which was written by a Tongnan employee and signed by Wang, showed that Wang purchased these items on December 13, 1996.

Wang deposed that he picked out the pot from a high shelf and that Takyum Ho, co-owner of the store, placed the pot on the floor for him. Wang recalled that he told Ho that he needed a lid for the pot and that Ho retrieved a lid from a lower shelf and placed it on the pot. Ho testified, however, that it is the store policy to allow customers to choose their supplies with no interference from the store employees.

Wang, who was deposed twice, stated that he used the pot once per week. Wang testified during his first deposition that from his first use of the pot and lid, he noticed that the lid fit tightly. In his second deposition, however, Wang testified that there was nothing unusual about the way the lid fit the pot but he did recall noticing that it was a little tight on one occasion.

On August 2, 1997, Wang used the pot and lid to cook chicken soup. Once he thought the soup was done, Wang tried to open the lid and found that it was very tight. When he removed the lid, there was an explosion of steam and soup, and Wang was burned. As a result of the injuries he sustained, Wang sued Tongnan for negligence and breach of implied warranty, alleging that Tongnan should not have sold him a pot and lid from different manufacturers. Tongnan filed a motion for summary judgment, which the trial court denied. Tongnan appeals.

To state a cause of action for negligence in Georgia, there must be (1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty. The pivotal question here is whether Tongnan breached the duty it owed Wang by selling a pot from one manufacturer with a lid from another or by failing to warn Wang that he should not use the items together. The existence of several disputed issues of fact preclude us from answering this question as a matter of law.

There is a genuine issue of disputed fact as to whether Wang was sold items from different manufacturers. Wang testified that he did not look at the brand names when he purchased the lid and pot nor did he notice whether they were different before the incident occurred. The sales receipt does not specify the brand names of the items. The pot and lid labeled as exhibits during Wang’s deposition were made by different manufacturers. However, Wang testified that they were not the items he was using when the accident occurred.

Decided March 28, 2001.

Wang’s testimony is disputed by that of the manager of the restaurant, Mei Lien Cheng. Cheng testified that she knew that the pot and lid at Wang’s deposition were those involved in Wang’s accident because they were the only ones of that size in the kitchen. Further, she had instructed someone in the kitchen crew to wash the pot and lid and to give it to her the next day, and they complied. Cheng could not recall which employee gave her the items.

There is also a disputed issue of fact about whether Wang chose the lid or Ho chose the lid for him. Wang testified that he picked out the pot at Tongnan and that he asked Ho to give him the lid that fit the pot. Ho, however, has testified that the store employees do not pick items or comment upon items chosen by customers. The record is devoid of any evidence of the course of conduct of Tongnan employees if they are asked to assist in a customer’s choice of items. The resolution of this issue may ultimately rest upon the credibility of the witnesses. This Court cannot resolve the credibility of witnesses on summary judgment.

Tongnan argues that we should construe Wang’s conflicting testimony about whether the lid fit the pot against him under the rule set forth in Prophecy Corp. v. Charles Rossignol, Inc. In so doing, however, before determining whether Wang’s knowledge of the tight fit relieves Tongnan of liability, the disputed issues of fact discussed above must be resolved by a jury. Accordingly, we affirm.

Judgment affirmed.

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

Magill & Atkinson, Thomas E. Magill, Lisa R. Bliss, for appellant.

Cozen & O’Connor, Christopher J R York, Jewett & Clark, C. Lawrence Jewett, Jr., Robin F. Clark, for appellees.

       (Citation and punctuation omitted.) Urban v. Lemley, 232 Ga. App. 259 (501 SE2d 529) (1998).

       Wang has worked as a cook in Chinese restaurants since arriving in the United States in 1966. Wang has been the “head” or “chief’ chef at several restaurants since moving to Atlanta in 1972, some of which he has owned.

       The first deposition was taken in the absence of defense counsel, but was necessary to preserve Wang’s testimony in light of an impending surgery.

         As of July 5, 2000, the total amount of Wang’s medical bills was near $1 million.

       The breach of warranty claim was abandoned during the hearing on the motion for summary judgment.

        Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982).

       OCGA § 9-11-56 (c).

        Jenkins v. Brice, 231 Ga. App. 843, 844 (499 SE2d 734) (1998).

       256 Ga. 27 (343 SE2d 680) (1986). “The testimony of a party who offers himself as a witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal.” (Citations omitted.) Id. at 28 (1).

       See Moore v. ECI Mgmt., 246 Ga. App. 601, 605-607 (2) (542 SE2d 115) (2000) (seller does not have a duty to warn of a danger where the person using the product should know of the danger or should in using the product discover the danger).

       We note that Moore, supra, also provides that “[w]hether a duty to warn exists . . . depends upon the foreseeability of the use in question, the type of danger involved, and the forseeability of the user’s knowledge of the danger [and that these] matters generally are not susceptible of summary adjudication.” (Punctuation omitted.) Id. at 606-607.


text:
    A01A0616.
    PETROSKI v. THE STATE.
    (548 SE2d 14)
   Blackburn, Chief Judge.

Following a jury trial, Fred Ronald Petroski appeals his convictions of kidnapping and theft by taking a motor vehicle. Petroski contends that the evidence was insufficient to support his conviction for kidnapping and that the trial court erred by allowing the introduction of his statement. For the reasons set forth below, Petroski’s convictions are affirmed.

1. In his first enumeration of error, Petroski asserts that the evidence was insufficient to support his conviction of kidnapping because there was no evidence that he intended to kidnap the victim.

On appeal, we view the evidence in a light most favorable to the verdict, and an appellant no longer enjoys a presumption of innocence. We determine whether the evidence is sufficient under the standard of Jackson v. Virginia and do not weigh the evidence or determine witness credibility. Conflicts in the evidence are for the jury to resolve.

(Footnotes omitted.) Scott v. State

In the present case, the evidence reveals that Petroski took William Hockaday’s black extended cab 1997 Dodge Ram truck from in front of a Chevron Food Mart. The truck engine was running and the doors were unlocked when Petroski got into the truck and drove away. In the backseat of the truck’s cab, Hockaday’s 14-month-old son was sleeping in his car seat. The baby’s feet and ankles were two to three inches from the rear of the center console. Hockaday testified that if Petroski looked out the passenger window, he would have seen the baby. After driving approximately five miles from the food mart, Petroski left the baby on the steps of a church. Petroski had passed a Publix shopping center, a McDonald’s restaurant, and a fire station before leaving the baby in a more secluded area.

Pursuant to OCGA § 16-5-40 (a), “[a] person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” “[A]ny unlawful asportation, however slight, is sufficient to support a kidnapping conviction.” Chambley v. State. See also Williams v. State Additionally, the fact that the baby was asleep does not render his abduction voluntary. See Rower v. State.

Petroski’s intent to take the baby need not have been formed prior to taking the truck, but could have been formed upon realizing the baby was present and not stopping immediately. See Raulerson v. State. Under the facts of this case, the jury was authorized to find that Petroski took the baby to a secluded spot after he was aware of his presence in order to further his criminal act of stealing the truck.

2. In Petroski’s second enumeration of error, he contends that the trial court improperly allowed the introduction of his custodial statement.

The burden is on the prosecution to show the voluntariness of a custodial statement by a preponderance of the evidence. Factual and credibility determinations of this sort made after a Jackson-Denno voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous.

(Footnotes omitted.) Hammett v. State

During the Jackson-Denno hearing, the officer testified that he placed Petroski under arrest after a domestic call from someone at Petroski’s ex-wife’s house. Another officer read Petroski his Miranda rights. Petroski stated that he did not want to make a statement at that time and that he wanted to think about it. The officer left Petroski in the patrol car and began interviewing witnesses regarding the domestic dispute. Within ten minutes, the officer who was stationed at the patrol car informed the other officers that Petroski wanted to make a statement.

Upon approaching Petroski, the officers asked if there was something Petroski wanted to tell them. Petroski admitted stealing Hockada/s truck and informed them where it was located. Petroski also stated that he was not aware the baby was in the truck at the time he took it and when he saw the baby he panicked because he did not want to be charged with kidnapping. Petroski asked if the officers could help him out, but the officers did not respond to the request.

Decided March 28, 2001

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Daniel J. Porter, District Attorney, James M. Cavin, Assistant District Attorney, for appellee.

Under these facts, the trial court was not clearly erroneous in determining that Petroski initiated the renewed conversation. See Snoke v. State. Additionally, the officers were not required to remind Petroski of his Miranda rights because of the short time span between the initial giving of the rights and Petroski’s statements. Rhodes v. State And finally, the officer’s testimony that another officer read the Miranda rights to Petroski is not hearsay. “Assuming that the proof is limited to merely showing that the statement was made and not as evidence of the truth of the fact asserted in the statement, the statement is admissible as original evidence and does not concern the hearsay rule.” (Punctuation omitted.) Walker v. State.

The trial court did not err in allowing Petroski’s statement into evidence.

Judgment affirmed.

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

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

        Scott v. State, 242 Ga. App. 553 (530 SE2d 257) (2000).

        Chambley v. State, 163 Ga. App. 502, 504 (1) (295 SE2d 166) (1982).

        Williams v. State, 178 Ga. App. 581, 592 (12) (344 SE2d 247) (1986).

        Rower v. State, 219 Ga. App. 865, 870 (3) (466 SE2d 897) (1996).

        Raulerson v. State, 268 Ga. 623, 632 (12) (491 SE2d 791) (1997).

        Hammett v. State, 246 Ga. App. 287, 288 (1) (539 SE2d 193) (2000).

        Snoke v. State, 237 Ga. App. 686, 689 (4) (516 SE2d 541) (1999).

        Rhodes v. State, 200 Ga. App. 193, 195-196 (3) (407 SE2d 442) (1991).

        Walker v. State, 187 Ga. App. 631, 633 (1) (371 SE2d 199) (1988).


text:
    A01A0715.
    BAGWELL v. THE STATE.
    (547 SE2d 377)
   Mikell, Judge.

A jury convicted Robert Bagwell of driving under the influence of alcohol (“DUI”) to the extent it was less safe for him to drive and driving while his alcohol concentration was more than 0.10 grams (a “per se” violation). On appeal, Bagwell argues that his two prior DUIs and his breath test results were erroneously admitted in evidence. He also challenges the denial of his motion for directed verdict on the per se charge. We affirm.

Sergeant Craig Cannon of the City of Conyers Police Department testified that on March 13, 1998, he observed Bagwell’s vehicle exit a parking lot, cross one lane of traffic, and pull in front of a car in the next lane, nearly causing a wreck. When Cannon stopped Bagwell, the officer noticed a strong odor of alcohol emanating from his person. Bagwell stated that he had consumed one beer. Cannon asked him to perform field sobriety tests, including the one-leg stand and the walk and turn tests. Bagwell’s performance indicated that he was impaired, so Cannon administered the alco-sensor test.

Bagwell tested positive for alcohol. Cannon then placed him under arrest, handcuffed him, put him in the back of his patrol car, and read him the implied consent notice. Bagwell agreed to take a state-administered breath test. Cannon secured Bagwell’s vehicle, transported him to jail, and presented him to Deputy Dexter Harris, who performed the test at 11:03 p.m. The results were 0.108. A second test performed three minutes later measured Bagwell’s blood alcohol concentration as 0.107.

1. Bagwell argues that the trial court should have excluded the results of his Intoxilyzer 5000 test because he was not observed continuously for 20 minutes before the test was administered to ensure that he did not burp or belch, which would have contaminated the breath sample by leaving residual alcohol in his mouth.

A state-administered breath test is admissible in evidence if the state proves that it was conducted in accordance with “methods approved by the Division of Forensic Sciences [DFS] of the Georgia Bureau of Investigation.” The training manual DFS issued in 1997 concerning the Intoxilyzer, which Bagwell introduced into evidence during the hearing on his motion in limine, requires those who operate the machine to “adhere to proper testing methods and procedures.” Those procedures state:

All breath tests will be preceded by a twenty (20) minute waiting period. During this waiting period the subject must be in a controlled environment' and be prohibited from consuming any material that contains or might contain alcohol. Should the subject vomit during the waiting period, this should be noted. Allow the subject to recover . . . and restart the twenty minute waiting period. The twenty minute waiting period will be satisfied when the above conditions are met.

Even if the 20-minute observation requirement constitutes a “method approved” by the DFS, the state proved that the rule was satisfied in this case. Of the twenty minutes preceding the test, Bagwell spent ten minutes handcuffed in the back of the patrol car while Cannon secured the scene and an additional ten minutes en route to the jail with Cannon. Clearly, during the initial ten minutes, Bagwell was in a controlled environment where he could not consume alcohol. There is no evidence that he regurgitated. That is all the procedure requires; it references no other oral emanations. “[T]he failure to continuously watch [Bagwell] for 20 consecutive minutes prior to the breath test does not require exclusion of the test results.” We find that the state substantially complied with the 20-minute rule. It follows that the trial court did not err in denying Bagwell’s motion in limine and in admitting the breath test results.

2. Bagwell next complains that the admission of evidence of his two prior DUIs as similar transactions was an error of constitutional magnitude. He asserts that the trial court allowed the state to establish the similarity of the prior offenses by introducing a certified copy of each disposition. This is incorrect.

The circumstances surrounding the commission of each prior offense were established by the testimony of the respective arresting officer. Accordingly, this case differs from Stephens v. State, in which the state offered no evidence of the commission of the prior crime other than the certified copy of the conviction. Further, as Bagwell had entered a plea of nolo contendere to the first offense, the trial court properly ruled that the state could not introduce evidence concerning the criminal disposition of that offense. Finally, the court correctly determined that the state met its burden of proving the similarity of the offenses. On the first two occasions, Bagwell was stopped late at night in Gwinnett County for failure to maintain lane. In this instance, he was observed driving erratically. On all three occasions, he was arrested based on his performance on field sobriety tests. In any event, The decision to admit prior similar transaction evidence is within the sound discretion of the trial court and will not be disturbed absent abuse.* The trial court did not abuse its discretion in admitting the challenged evidence.

[e]vidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.

Decided March 28, 2001.

Spruell, Taylor & Associates, Billy L. Spruell, Charles T. Magarahan, for appellant.

3. Finally, Bagwell contends that the trial court erred in denying his motion for directed verdict on the per se charge. Bagwell moved for a directed verdict on the grounds that the evidence showed that the Intoxilyzer 5000 had a margin of error of 0.01 grams. Thus, he argued, the evidence was consistent with a finding that his blood alcohol concentration was 0.098. However, we have repeatedly held that an Intoxilyzer’s margin of error relates to the weight given to the test results rather than to their admissibility. We have also held that the results are direct evidence of guilt.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Bagwell] 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 standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.

The properly admitted Intoxilyzer results provided ample evidence of Bagwell’s guilt of the per se charge. It follows that the trial court did not err in refusing to grant his motion for a directed verdict of acquittal.

Judgment affirmed.

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

Richard R. Read, Solicitor, Heather C. Waters, Assistant Solicitor, for appellee.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-391 (a) (5).

       OCGA § 40-6-392 (a) (1) (A).

       Intoxilyzer 5000 Georgia Operator’s Training Manual, p. 22.

       Id. at Appendix C.

       (Punctuation omitted.) Brunson v. State, 248 Ga. App. 402, 404 (1) (544 SE2d 217) (2001), citing Berkow v. State, 243 Ga. App. 698, 701 (534 SE2d 433) (2000) (physical precedent only), cert. denied, 243 Ga. App. 905 (2000). See also Klink v. State, 272 Ga. 605, 607 (2) (533 SE2d 92) (2000) (the state complied with the requirement by showing that the defendant was in custody for over 20 minutes before being tested).

        Brunson, supra; Berkow, supra at 701.

       261 Ga. 467, 468 (6) (405 SE2d 483) (1991).

        Harris v. State, 210 Ga. App. 366, 368 (436 SE2d 231) (1993).

        Smith v. State, 236 Ga. App. 548, 552 (3) (512 SE2d 19) (1999), rev’d on other grounds, 272 Ga. 83 (526 SE2d 59) (2000). See also Lucas v. State, 234 Ga. App. 534, 536 (2) (507 SE2d 253) (1998); Fields v. State, 223 Ga. App. 569, 571 (2) (479 SE2d 393) (1996); Okross v. State, 210 Ga. App. 132, 133-134 (2) (435 SE2d 454) (1993).

        Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998).

        Cawthon v. State, 235 Ga. App. 791 (1) (510 SE2d 586) (1998); Scheipers v. State, 234 Ga. App. 112, 113 (505 SE2d 835) (1998) (physical precedent only); Lattarulo v. State, 261 Ga. 124, 126 (401 SE2d 516) (1991).

        Cawthon, supra at 791 (3).

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

       (Citation omitted.) Horne v. State, 237 Ga. App. 844-845 (1) (517 SE2d 74) (1999).