text:
    A01A1166.
    KMART CORPORATION v. MORRIS et al.
    (555 SE2d 106)
   Ruffin, Judge.

Cleo and David Morris sued Kmart Corporation (“Kmart”) for damages allegedly caused when Mrs. Morris fell at a Kmart store. A jury found in favor of the Morrises, and Kmart appeals. For reasons that follow, we affirm.

On October 21,1996, Mr. and Mrs. Morris went shopping at their local Kmart. To enter the store, the Morrises had to pass through two automatic doors. Mrs. Morris walked without incident through the first door, which opened inward toward the store. As she approached the second door, however, it swung outward into her path, knocking her to the ground. According to Mr. Morris: “The second door, which leads to the inner part of the store, as Mrs. Morris stepped on the activator or whatever it is the door swung abruptly, swinging back and hitting her and knocking her down.” Mrs. Morris testified that, although she had passed through the Kmart entrance numerous times, she “had never known [the door] to open back like it did.”

The Morrises subsequently brought suit, alleging that Kmart failed to keep the store’s premises and approaches safe. Kmart admitted prior to trial that the automatic door should have opened inward instead of outward. In its portion of the consolidated pretrial order, Kmart further explained:

The door in question has a feature where, in emergencies, someone can push the doors outward to exit through them. After having been so employed, however, the doors open outward instead of inward until manually reset. Mrs. Morris arrived after someone, without the knowledge of Kmart personnel, had exited through the entrance doors and their unexpected outward motion caused them to strike her.

Kmart presented no evidence at trial. After the Morrises rested their case, Kmart moved for a directed verdict, which the trial court denied, and the jury found in favor of the Morrises.

1. In its first enumeration of error, Kmart argues that the trial court erred in admitting at trial an out-of-court statement made by an unidentified Kmart employee. We find no error.

After Mrs. Morris fell, Mr. Morris helped her into the store to the service desk, where they reported the incident. He then drove his wife to the hospital. Before they left for the hospital, however, Mr. Morris asked a Kmart employee, “[w]hat happened? The doors swung the wrong way. Isn’t anybody maintaining these things?” Although he could not identify the employee, Mr. Morris described the employee’s gender, race, height, and weight. Over Kmart’s hearsay objection, Mr. Morris was allowed to testify that the employee responded to his questions as follows: “Accidents will happen. Someone has pushed the door the wrong way going out and until it’s reset it will continue to operate that way and the reset was never made prior to her entering the door.” The trial court explained that it admitted this testimony because the employee’s statement fell within the res gestae exception to the hearsay rule.

Under OCGA § 24-3-3, “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” Application of the res gestae exception is fact specific, turning on the particular facts of each case. Thus, “[a] trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous.”

Kmart contends that statements by unidentified employees in premises liability cases never fall within the res gestae. We disagree. Such a bright-line approach is neither mandated by Georgia law nor appropriate for the factually intensive inquiry governing res gestae. Although we have affirmed the exclusion of unidentified employee statements in various cases, we have recognized that the res gestae exception turns on the facts of the case.

To fall within the res gestae, a statement “must be contemporaneous with the main fact, but need not be precisely concurrent in point of time; it is sufficient if such declarations spring out of the transaction, if they elucidate it, if voluntary and if made at such time as reasonably to exclude the idea of design.” In this case, the unidentified employee’s statement was made after Mrs. Morris fell, but before Mr. Morris transported her from the store to the hospital. The trial judge could have reasonably found that the statement was voluntary, sprang out of the incident, and elucidated the cause of Mrs. Morris’ fall.

Furthermore, the statement’s reliability appears unquestioned. Despite Kmart’s arguments, we do not view the statement as “mere speculation” about whether someone actually pushed the door outward before Mrs. Morris entered the store. Instead, the employee described how the door worked, explaining that when opened the wrong way, the door would swing outward until reset. Kmart never disputed this fact. Indeed, it provided a similar explanation in the pretrial order and told the jury during opening statements that the door operated in this manner. This case is thus distinguishable from cases cited by Kmart, such as Barich v. Cracker Barrel &c., in which unidentified employee statements were deemed to be unreliable or conjecture.

Given the circumstances surrounding the employee’s statement, as well as Kmart’s pretrial concession that the door worked as the employee described, we find no error in the trial judge’s conclusion that the statement was sufficiently informative and reliable to be admitted as part of the res gestae. Accordingly, we will hot disturb this evidentiary ruling on appeal.

2. Kmart also argues that the trial court erred in denying its motion for directed verdict. Specifically, it claims the Morrises failed to prove that it had superior knowledge of the danger posed by the door.

A jury’s verdict must be affirmed if there is any evidence to support it, and we construe the evidence on appeal “with every inference and presumption in favor of upholding the verdict.” To successfully challenge the trial court’s denial of its directed verdict motion, Kmart must “show that there was no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought.”* Kmart has not made the requisite showing here.

Under OCGA § 51-3-1, “[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” The owner/occupier thus owes invitees “a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk or to lead them into a dangerous trap.” The true basis for liability “is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.”

Analogizing to cases involving a slip and fall on a foreign substance, Kmart argues that it was entitled to a directed verdict because the Morrises failed to show it had actual or constructive knowledge that the door had been pushed outward at some point before Mrs. Morris entered the store. This case, however, does not involve a foreign substance. Rather, the manner in which the door actually operated presented a potential hazard. We find that the Morrises’ recovery did not depend on Kmart’s knowledge that the door, in fact, had been pushed the wrong way. They were required instead to prove that Kmart knew the door would open toward incoming patrons under certain circumstances.

A Kmart employee informed Mr. Morris that, when used as an exit and pushed outward, the entrance door that hit Mrs. Morris would automatically swing toward incoming patrons until reset. This employee’s statement evidenced Kmart’s knowledge that the automatic door would open the wrong way — and continue to open the wrong way — under specific circumstances. Moreover, under Georgia law, a proprietor is presumed to have knowledge of a condition it authorizes, such as an automatic door. The evidence further showed that Kmart’s knowledge exceeded Mrs. Morris’ knowledge about the door’s operation. Finally, the trial testimony established without dispute that Mrs. Morris was injured when the door swung toward her without warning, knocking her down.

Decided October 5, 2001

Alston & Bird, James C. Grant, Nowell D. Berreth, for appellant.

Love, Willingham, Peters, Gilleland & Monyak, Allen S. Willing-ham, Jonathan C. Peters, Michael T. Carithers, for appellees.

Kmart knew a potentially hazardous condition existed on its property, and it was the jury’s task to determine whether the door’s operating mechanism posed an unreasonable risk to invitees. Kmart cannot avoid liability simply because it was unaware that the condition would manifest itself and cause injury when Mrs. Morris entered the store. Based on the evidence, a jury could reasonably conclude that Kmart failed to exercise ordinary care in keeping its premises and approaches safe from foreseeable dangers posed by its automatic door. Accordingly, the trial court properly denied Kmart’s motion for directed verdict.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       We note that the Morrises did not try to introduce at trial any portion of the pretrial order or Kmart’s responses to their requests for admission.

       See Seed v. Smith &c. Mgmt. Corp., 242 Ga. App. 395, 396 (1) (530 SE2d 29) (2000).

       (Punctuation and emphasis omitted.) Stouffer Corp. v. Henkel, 170 Ga. App. 383, 385 (1) (317 SE2d 222) (1984). See also Moore v. State, 217 Ga. App. 207, 210 (5) (456 SE2d 708) (1995).

       See Sutton v. Winn Dixie Stores, 233 Ga. App. 424, 426 (504 SE2d 245) (1998) (statement made by unidentified employee to plaintiff after plaintiff fell in store came within res gestae exception to hearsay rule); Stouffer Corp., supra at 385 (trial court did not clearly err in concluding that statements made by unidentified employee fell within res gestae).

       See Hagan v. Goody’s Family Clothing, 227 Ga. App. 585, 587 (490 SE2d 107) (1997); Johnston v. Grand Union Co., 189 Ga. App. 270, 271 (1) (375 SE2d 249) (1988) (physical precedent only).

       (Punctuation omitted.) Quiktrip Corp. v. Childs, 220 Ga. App. 463, 466 (3) (469 SE2d 763) (1996). See also Thomas v. State, 242 Ga. 712, 714 (1) (251 SE2d 294) (1978) (statement does not fall outside of the res gestae simply because it was made in answer to a question).

       244 Ga. App. 550, 552 (1) (536 SE2d 221) (2000). See also Hagan, supra at 587 (remark of unidentified “employee” was “not enough to raise a genuine issue of material fact controverting the defendant’s positive testimony that there was no defect of which it had actual or constructive superior knowledge”) (punctuation omitted); Hardee’s Food Systems v. Green, 232 Ga. App. 864, 866 (1) (502 SE2d 738) (1998) (same); Johnston, supra at 271 (1) (“Certainly the sayings of the unknown red-haired person were not part of the res gestae, since the alleged utterer is unknown, it cannot be shown that they qualify as being ‘free from all suspicion of device or afterthought.’ ”).

       See Stouffer Corp., supra at 385.

       See id.

        Butts v. Williams, 247 Ga. App. 253-254 (543 SE2d 779) (2000).

       Id. at 254.

        Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997).

       (Punctuation omitted.) Zellers v. Theater of the Stars, 171 Ga. App. 406, 407 (1) (319 SE2d 553) (1984).

       See Alterman Foods v. Ligon, 246 Ga. 620, 623-624 (272 SE2d 327) (1980) (distinguishing cases involving slips on foreign substances from those alleging that a condition authorized by the proprietor, such as slippery floor wax, caused a fall).

       Id. at 624; Kroger Co. v. Strickland, 248 Ga. App. 613, 615 (1) (b) (548 SE2d 375) (2001).

       See Scarbrough v. Dover Elevator Co., 232 Ga. App. 149, 151 (500 SE2d 616) (1998) (claimant fell entering hospital elevator that failed to stop level with the floor; hospital knew about the hazard because it had prior knowledge of the elevator’s “faulty leveling procedures”). See also Robinson, supra (owner/occupier owes duty of care to avoid leading invitee into trap).

       See Robinson, supra (in making the premises safe, owner/occupier must take “reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises”).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A01A1296.
    FINCHER v. FLEET MORTGAGE GROUP, INC. et al.
    (555 SE2d 120)
   Pope, Presiding Judge.

Tangie Fincher a/k/a Tangie Wiggley appeals the denial of her application for an interlocutory injunction. But she failed to obtain a supersedeas:, and therefore her appeal is moot.

Ms. Fincher and her husband purchased a home and jointly borrowed money from Homebanc. The loan was secured by a deed to secure debt in favor of Homebanc and a promissory note executed by both Mr. and Ms. Fincher. The couple failed to make payments due under the note, and Fleet Mortgage Group, Inc. and/or Fleet Mortgage Corporation (“Fleet”), the successor in interest to Homebanc, proceeded with foreclosure proceedings pursuant to the power of sale contained in the deed to secure debt. At some point, Ms. Fincher moved out of the property but failed to inform Fleet of her change of address.

Fleet eventually foreclosed and purchased the property at the foreclosure sale. Fleet then sought a writ of dispossession on the property. Ms. Fincher responded by bringing this action for wrongful foreclosure and injunctive relief to prevent the dispossession. The trial court granted a temporary restraining order preventing dispossession, but denied the subsequent motion for a preliminary injunction to replace the temporary restraining order on the grounds that Fincher was not likely to prevail on the merits at trial. Fincher moved for a stay pending appeal, but did not post the security bond required to obtain the stay. Fincher appeals the denial of the injunctive relief to prevent dispossession, and no other issue is before us.

It is a rather fundamental rule of both equitable jurisprudence and appellate procedure, that if the thing sought to be enjoined in fact takes place, the grant or denial of the injunction becomes moot. To prevent such an appeal from becoming moot the appealing party must obtain a supersedeas. Board of Commrs. of Richmond County v. Cooper, 259 Ga. 785 (387 SE2d 138) (1990).

Jackson v. Bibb County School Dist., 271 Ga. 18, 19 (515 SE2d 151) (1999). See also Cotton v. First Nat. Bank &c., 235 Ga. 511 (220 SE2d 132) (1975). The dispossession has now taken place. Because Fincher did not obtain a supersedeas, this appeal is dismissed as moot. We note, however, that this decision does not address the legality of the foreclosure sale. See Cotton, 235 Ga. at 512.

Appeal dismissed.

Blackburn, C. J., and Mikell, J., concur.

Decided October 5, 2001.

Marilyn S. Bright, for appellant.

Wood & Meredith, Hugh C. Wood, Dwight A. Meredith, Shapiro & Swertfeger, L. Jack Swertfeger, Jr., for appellees.

       In her amended complaint, Fincher seeks either damages or equitable relief from the wrongful foreclosure. See Calhoun First Nat. Bank v. Dickens, 264 Ga. 285-286 (1) (443 SE2d 837) (1994) (“Where a grantee does not comply with the statutory duty to exercise fairly the power of sale in a deed to secure debt, OCGA § 23-2-114, the debtor may either seek to set aside the foreclosure or sue for damages for the tort of wrongful foreclosure.”).

       “An appellate court may hear and consider evidence outside the record as transmitted from the court below that an appeal has become moot.” Poetter v. State, 244 Ga. App. 675, 676 (536 SE2d 576) (2000).


author: Johnson, Presiding Judge.

text:
    A01A1298.
    BENTON et al. v. SAVANNAH AIRPORT COMMISSION.
    (555 SE2d 110)
   Johnson, Presiding Judge.

Mary Benton and her daughter Rebecca Benton own real estate located next to the Savannah International Airport. They sued the Savannah Airport Commission, alleging that increased air traffic and noise at the airport had damaged the value of their property. In their lawsuit, the Bentons asserted several claims, including an inverse condemnation claim under state law and a claim for the taking of property without just compensation under 42 USC § 1983.

The trial court dismissed the § 1983 claim as not ripe for adjudication and later entered summary judgment against the Bentons on their inverse condemnation claim because it is barred by the statute of limitation. The trial court also entered summary judgment against the Bentons on all of their other claims. The Bentons appealed the rulings, and this Court affirmed all of the grants of summary judgment, but reversed the dismissal of the § 1983 claim on the ground that the trial court should have deferred ruling on that dismissal until the state inverse condemnation claim was adjudicated.

On remand, the Airport Commission moved for summary judgment on the § 1983 claim. The trial court granted the motion, finding that the Bentons’ failure to pursue their state inverse condemnation claim in a timely fashion is fatal to their § 1983 claim. The Bentons appeal from that ruling. Because we agree with the reasoning of the trial court, we affirm the grant of summary judgment.

1. Under 42 USC § 1983, a person who under color of state law deprives another person of any right secured by the United States Constitution shall be liable to the injured person. The crux of the Bentons’ § 1983 claim is that the Airport Commission deprived them of their rights under the Fifth Amendment to the Constitution, which prohibits the taking of private property for public use without just compensation.

Decided October 5, 2001

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellants.

As noted in the Bentons’ prior appeal, the Supreme Court has held that “[i]f a state provides an adequate procedure for seeking just compensation, a property owner cannot assert a claim under the [Fifth Amendment’s] Just Compensation Clause until it has used the state procedure and has been denied just compensation.” The State of Georgia provides property owners an adequate procedure for seeking just compensation in the form of an inverse condemnation action.

As this Court previously held, the Bentons’ untimely inverse condemnation action is barred by the applicable four-year statute of limitation. In effect, the Bentons forfeited their right to pursue an inverse condemnation claim under state law. That forfeiture resulted solely from the Bentons’ own inaction, not from any action by the Airport Commission. Because they failed to properly use the state’s adequate inverse condemnation procedure, the Bentons cannot now complain that the Airport Commission denied them just compensation.

And because the Airport Commission has not denied the Bentons just compensation, the § 1983 claim, which is premised on an allegation of a taking without just compensation, is insupportable as a matter of law and fact. The trial court correctly found that the Bentons cannot prove an essential element of their § 1983 claim, and therefore the trial court did not err in granting summary judgment to the Airport Commission on the § 1983 claim.

2. The Bentons argue that the trial court’s summary judgment ruling does not address the merits of their § 1983 claim, and it therefore violates this Court’s prior decision remanding that claim for the trial court to consider its merits. The argument misconstrues the trial court’s summary judgment ruling. As discussed in Division 1, the trial court correctly ruled that the Bentons cannot prove an essential element of their § 1983 claim. Thus, the trial court did consider the merits of the Bentons’ claim, and the entry of summary judgment in no way violates this Court’s previous opinion.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

Rebecca C. Benton, pro se.

Fincher & Hecht, Steven M. Fincher, Brennan & Wasden, Joseph P. Brennan, Wiseman, Blackburn & Futrell, James B. Blackburn, for appellee.

        Benton v. Savannah Airport Comm., 241 Ga. App. 536 (525 SE2d 383) (1999).

       Id. at 538 (1), citing Williamson County Regional Planning Comm. v. Hamilton Bank, 473 U. S. 172, 195 (105 SC 3108, 87 LE2d 126) (1985).

       Id., citing Ga. Const. of 1983, Art. I, Sec. III, Par. I; Adams v. City of Atlanta, 253 Ga. 581, 582 (2) (322 SE2d 730) (1984).

        Benton, supra at 539-540 (3).

       See OCGA § 9-11-56.

       Id. at 538 (1).


author: Blackburn, Chief Judge.

text:
    A01A1445.
    COALSON v. THE STATE.
    (555 SE2d 128)
   Blackburn, Chief Judge.

Byron Herbert Coalson III appeals the judgment of conviction and sentence entered following his jury trial. He contends that the trial court erred in denying his motion for new trial and in overruling his special demurrer to the indictment, and that the evidence did not support the verdict. On August 8, 2000, Coalson was convicted of one count of child molestation (Count 1), one count of enticing a child (Count 2), two counts of sexual exploitation of children (Counts 3 and 4), and one count of sexual exploitation (Count 5). On August 30, 2000, Coalson was sentenced to serve a total of 12 years in prison followed by 48 years on probation, with special conditions.

Coalson’s indictment was based on the following: Count 1 was for child molestation, in that he fondled the genitals of J. S., a male child under the age of 16 years, in violation of OCGA § 16-6-4; Count 2 was for enticing said J. S. into accused’s car for the purpose of child molestation, in violation of OCGA § 16-6-5; Count 3 was for the sexual exploitation of children, in that he knowingly reproduced photographs located on the Internet depicting minors under the age of 16 engaged in sexually explicit conduct, to wit: sexual intercourse, masturbation, and the lewd exhibition of genitals, in violation of OCGA § 16-12-100 (b) (5); Count 4 was for sexual exploitation of children, in that he knowingly reproduced a video located on the Internet depicting a minor under the age of 16 engaged in sexually explicit conduct, to wit: sexual intercourse and masturbation, in violation of OCGA § 16-12-100 (b) (5); and Count 5 was for sexual exploitation, in that he did intentionally utilize an Internet service to entice J. S., a child under 16 years of age, for the purpose of committing the offense of child molestation, in violation of OCGA § 16-12-100.2.

On appeal, Coalson contends that the evidence did not support the verdict, and that the trial court erred in denying his motion for funds to hire an expert witness and in overruling his special demurrer regarding the sexual exploitation of children charges contained in Counts 3 and 4 of the indictment, neither of which specified the name of the victim.

Although the outcome of the underlying trial depended largely on the credibility of the 11-year-old victim, the credibility of witnesses and the resolution of such conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to support that verdict. See Hall v. State See also Coleman v. State

So viewing the evidence, the record reveals that during the first few weeks of January 2000, Coalson established an Internet and telephone relationship with J. S., an 11-year-old boy. When he contacted J. S. on the Internet, Coalson initially pretended to be a female who attended J. S.’s school. When J. S. caught him in this lie, Coalson then admitted that he was a gay man. J. S. continued to visit with Coalson on the Internet and to talk to him on the telephone, because he thought it was cool to have a friend that was 18 and who drove a Mustang automobile. Coalson began sending sexual messages to J. S. and sent him a photograph of two young boys engaged in oral sex. While talking to J. S., Coalson “jacked off” and engaged in sexual conversations. On the evening of January 26, 2000, Coalson appeared at the victim’s house and pretended to be the older brother of J. S.’s girlfriend, and that he was there to take J. S. to a basketball game. While J. S. went along with the story, he did believe that Coalson was taking him to a basketball game.

Instead of taking J. S. to a basketball game, however, Coalson took the victim to McDonald’s and then took him to see Chipper Jones’s house. Coalson drove J. S. to a home in Bremen where the mailbox read “C. Jones.” Afterward, as he was driving down the road, Coalson began rubbing the victim’s leg, unzipped J. S.’s pants, and rubbed the victim’s penis. J. S. told Coalson to stop, because it just did not feel right. Coalson told J. S. that he loved him and had previously tried to kiss him. J. S. testified that he had no idea that any of this was going to happen when he left with Coalson for the basketball game.

Coalson admitted during direct examination that he had e-mailed the victim, written that he loved him, and talked to the victim on the telephone. Coalson also admitted that he lied to the victim’s parents about his name and a basketball game in order for the victim to be allowed to leave home with him, and that he took the victim to McDonald’s and took him to the house with “C. Jones” on the mailbox. He also admitted that he was alone in the car with the victim in the dark the entire time they drove around that evening.

During cross-examination, Coalson admitted that he had e-mailed many young boys, including J. S., asking for their physical descriptions and photographs, that he called the victim “baby,” and told him that he loved him. Coalson also admitted that he liked to watch young boys on the Internet and masturbate while watching them, as he is sexually excited by young boys. He admitted that he had had Internet relationships with other young boys.

J. S. provided police with pornographic e-mail which he had received from Coalson. Also, during a search of Coalson’s residence, the authorities found computer disks, pictures, and a videotape containing images of young boys, ages 11 through 15, engaging in sexually explicit conduct (State’s Exhibits 2-13 and 15A-22). Also placed into evidence was a videotape which showed Coalson masturbating while watching young boys in sex acts on the computer (State’s Exhibit 14).

1. We first address Coalson’s contention that the evidence was insufficient to support the verdict under the standard of Jackson v. Virginia. While Coalson enumerates this alleged error, he provides no argument, citation of authority or citations to the record to support his position. While Coalson has abandoned this enumeration of error under Court of Appeals Rule 27 (c) (2), we have nonetheless reviewed the record and find that the evidence in this case clearly supports the verdict and satisfies the standard set forth in Jackson v. Virginia, supra. This enumeration of error is without merit.

2. We next address Coalson’s contention that the trial court erred in overruling his special demurrer as to Counts 3 and 4 of the indictment. Coalson argues that the indictment was fatally flawed as to Counts 3 and 4, because each was a charge of sexual exploitation of children, and neither specified the name of the victim. Coalson relies upon Dennard v. State, a sexual exploitation of children case where this court reversed the trial court’s overruling of defendant’s special demurrer on interlocutory appeal, because the indictment did not specify the name of the victim. See Broski v. State; Irwin v. State; State v. Kenney. Coalson also relies upon our Supreme Court’s holding in Aman v. State that OCGA § 16-12-100 must be strictly and narrowly construed. Of course, under Georgia law, all criminal statutes must be strictly construed.

Dennard, supra, involved the overruling of both general and special demurrers. A general demurrer challenges the sufficiency of the substance of an indictment, while a special demurrer attacks the form of an indictment. The subject case involves only the overruling of a special demurrer. The true test of the sufficiency of an indictment to withstand a special demurrer

is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. It is useful to remember that the purpose of the indictment is to allow defendant to prepare his defense intelligently and to protect him from double jeopardy.

(Citations, punctuation and emphasis omitted.) Snider v. State. See also Dennard, supra.

The subject case is distinguishable from Dennard on several grounds. In Dennard, the defendant was charged with attempted sexual exploitation of children for soliciting a particular person over the Internet to engage in sexually explicit conduct and be videotaped. There was, in fact, no child involved, as the defendant was communicating with an undercover police officer via the Internet. For that reason, there was no victim’s name listed in the indictment. Our Supreme Court has held that in an indictment for an offense against the person of another, the person injured should be referred to by his correct name, if it is known, or by some name by which the victim is known. Irwin, supra. If, however, the gist of the crime is an offense against the public rather than a particular person, it is not necessary to name the victim of such charges in the indictment. Thus, in a prosecution for soliciting a prostitute, we have held that it is not necessary to name the person solicited, as the gist of the offense is the harm done society by such act. Day v. State. See also Kenney, supra. In Dennard, this court reversed the trial court’s overruling of Dennard’s special demurrer as to the failure to name the victim in the indictment and concluded that “each of the crimes with which Dennard is charged is a crime against a particular person.” Dennard, supra at 877 (2).

We note that the type of Internet sting which occurred in Dennard could now be prosecuted under OCGA § 16-12-100.2, computer pornography and child exploitation, which was effective July 1, 1999. This statute was not applied in Dennard as the criminal acts in that case occurred prior to July 1, 1999. See Dennard, supra at 875-876.

Dennard was charged under OCGA § 16-12-100 (b) (1), which reads as follows: “It is unlawful for any person knowingly to employ, use, persuade, induce, entice, or coerce any minor to engage in or assist any other person to engage in any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.” Clearly, this statute contemplates offensive conduct directed toward a particular individual, rather than the public in general, and the victim’s name was required to be included in the indictment under the facts of Dennard.

On Counts 3 and 4 in the subject case, however, Coalson was charged under OCGA § 16-12-100 (b) (5), which reads as follows: “It is unlawful for any person knowingly to create, reproduce, publish, promote, sell, distribute, give, exhibit, or possess with intent to sell or distribute any visual medium which depicts a minor engaged in any sexually explicit conduct.”

Clearly OCGA § 16-12-100 (b) (5) was intended to address the problem of child pornography, its creation, reproduction, and distribution, rather than the victimization of the children who appear in such material. The offense against the children who appear in pornographic material is separately punishable under OCGA § 16-12-100 (b) (1) and other statutes. It is thus the offense to the public at large which is addressed by OCGA § 16-12-100 (b) (5), and it is not necessary to name the children who appear in the pornographic material in a prosecution under this statute. While those who create the child pornography might well know who the victims depicted in such material are, it is highly unlikely that those who reproduce or distribute the material would know the names of those children. For the purposes of indictment under OCGA § 16-12-100 (b) (5), the victim contemplated therein is the public at large. Dennard, supra, is thus distinguishable from the subject case.

We note also that Coalson is provided no support by the very language of Dennard. Dennard involved the grant of an interlocutory application and, unlike the present case, had not been tried at the time this court acted on the appeal. This court stated the following in Dennard:

If the trial has already occurred before we review the merits of a special demurrer, we will not reverse a conviction in the absence of prejudice to the defendant, since that would amount to a mere windfall to defendant and contribute nothing to the administration of justice. Had this case proceeded to trial and verdict under the current indictments, we do not believe that reversal would be necessary due to the failure to name the intended victim, since it is apparent that Dennard understands the nature of the charges against him based on information gleaned from sources other than the indictment itself. However, because we are reviewing the indictment on interlocutory appeal, before any trial, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and in substance. An indictment alleging a crime against another is not perfect in form if it contains no information as to the alleged victim.

(Punctuation and footnotes omitted.) Id. at 877 (2).

This court, reviewing Dennard on interlocutory appeal and having determined that it involved the allegation of an offense against a particular person, rather than against the public in general, reversed the trial court on the issue of the special demurrer. The present case, of course, involves a direct appeal following a jury trial, and Dennard provides no authority for Coalson.

We also note that the subject special demurrers were not filed until well after arraignment and were thus not timely. This fact was discussed at a hearing, but the trial court never ruled on the issue or authorized the late filing of said demurrers. While the trial court did overrule the demurrers at the same time it denied the motion for funds, the order does not indicate a basis therefor or indicate the grant of permission for the late filing.

For the above reasons, we cannot say that the trial court erred as a matter of law in overruling Coalson’s special demurrers to Counts 3 and 4, and defendant’s contentions are without merit.

3. Coalson contends that the trial court erred by denying his motion for funds to hire an expert witness to review the evidence and ascertain whether the investigation was proper and whether the victim acted like a typical molested child. This court applies an “abuse of discretion” standard in reviewing the trial court’s ruling on a motion for funds to obtain an expert witness. The trial court’s ruling will not be disturbed by this court absent an abuse of discretion. Davis v. State.

A motion for funds to obtain an expert witness requires a reasonable showing to the court, by the defendant, why the expert’s services are required, what services are to be performed by such expert, the identity of the expert, and the cost to provide the needed services. The defendant must also demonstrate that without the assistance of the expert, the defendant’s trial would be rendered fundamentally unfair. The trial court has discretion to grant or deny a motion for funds for an expert witness. Tatum v. State; Thomason v. State; Roseboro v. Stated; Brown v. State. Coalson filed a brief at the court’s request, in which he simply stated the name of the proposed expert, his hourly rate of $100, and the maximum fee of $1,200. He further stated in his brief filed with the trial court only that

[t]he services of this expert [are] needed to determine whether proper interviewing techniques were performed in the above referenced case, as the State intends to use the child hearsay statute to convict the defendant. Moreover, the expert will address the issue of whether the alleged victim’s behavior is consistent with someone who was molested.

Coalson’s motion and brief to the trial court are devoid of any explanation of what evidence was to be reviewed by the expert, why such evidence was required by the defendant, how the expert planned to review the evidence, and how his trial would be rendered fundamentally unfair without the expert’s testimony. While Coalson argues that J. S. could have been influenced by improper questions, he does not support his conjecture with any facts. There were no recordings made of any of the interviews conducted of J. S., and so there was nothing for the expert to review. Coalson does not point to a single question or item of testimony at the trial to support his conjecture. Coalson made no proffer to demonstrate what the proposed expert would have been able to show had he been authorized by the court.

We note that the State did not utilize an expert in the trial of this case, so there was no expert opinion to be refuted. The tenor of Coalson’s argument seems to be that J. S. was a consenting party to the interaction between himself and Coalson. For example, in his brief Coalson states:

The child’s statements in the incident reports show or imply that he was a helpless victim. The evidence, however, shows that this alleged victim voluntarily placed the appellant’s name and email address on his “buddy list”; repeatedly initiated telephone calls to the appellant; and was the only person who knew about any basketball game at his school.

While, without question, there are many indications that J. S. might well have been a willing participant in much of his interaction with Coalson, this fact in no way excuses Coalson’s criminal conduct. Like statutory rape, consent is not a defense to child molestation. If indeed J. S. is a troubled youth who willingly engages in criminal sexual acts, one might well ask whether such condition results from prior acts of molestation initiated by pedophiles like Coalson.

Coalson argues that he was entitled to introduce evidence as to whether the victim’s behavior was typical of that displayed by a child who had been molested, citing Hall, supra. In Hall, the trial court refused to allow defendant’s expert witnesses to testify that the victim in that case had not exhibited the unusual and inappropriate behavior typical of a sexually abused child. On appeal, this court held in Hall that

[a]ppellant was simply attempting to elicit testimony as to whether the victim had exhibited that behavior which, in the opinions of the witnesses, was typically displayed by a sexually abused child, not an opinion, based upon the victim’s behavior, as to whether she had actually been molested. The “typical” behavior of sexually abused children is not within the ken of the average juror and is, therefore, a proper matter for expert testimony. ... In the instant case, however, the State raised no objection to the expertise of appellant’s witnesses and the trial court erred in sustaining the State’s objection to the relevancy of their proffered testimony.

(Emphasis in original.) Hall, supra at 627 (2).

While the issue in Hall was correctly decided, it is not the issue before us in the present case. The issue in Hall was: did the trial court err in excluding expert testimony as to the typical behavior of molested children, based upon the relevancy of that information? Here, the issue is: did the trial court abuse its discretion in not providing funding for an expert for this indigent defendant?

Coalson does not address a part of the holding in Hall, which would preclude this court from applying Hall in this case as Coalson had made no proffer as to the expert’s testimony. In Hall, this court held inter alia: “The trial court sustained the State’s objections to certain questions propounded by appellant to several defense witnesses and these evidentiary rulings are enumerated as error. Our consideration is necessarily limited to those instances wherein appellant made a proffer of the answers that he expected to elicit.” Hall, supra at 626 (2). See also Lee v. State.

Coalson also argues that he was precluded by the court’s ruling on the expert issue from introducing J. S.’s school records which he had subpoenaed. He states in his brief filed in this court that, “[u]nfortunately, without an expert witness, such [school] records were not admissible.” A review of the record indicates that the trial court authorized the admission of the school records for the purpose of determining the impact J. S.’s experiences with Coalson might have had on his school grades. Coalson elected not to tender such records.

Decided October 5, 2001.

Meng H. Lim, for appellant.

James R. Osborne, District Attorney, Laura L. Herrin, Assistant District Attorney, for appellee.

We cannot say as a matter of law that, under the facts of this case, the trial court abused its authority in denying Coalson’s motion for funds for an expert. The ruling of the trial court on this issue is affirmed.

Judgment affirmed.

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

        Hall v. State, 201 Ga. App. 626 (411 SE2d 777) (1991).

        Coleman v. State, 194 Ga. App. 404 (1) (391 SE2d 15) (1990).

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

        Dennard. v. State, 243 Ga. App. 868 (534 SE2d 182) (2000).

        Broski v. State, 196 Ga. App. 116, 118 (1) (395 SE2d 317) (1990).

        Irwin v. State, 117 Ga. 722 (2) (45 SE 59) (1903).

        State v. Kenney, 233 Ga. App. 298, 299 (1) (a) (503 SE2d 585) (1998).

        Aman v. State, 261 Ga. 669 (409 SE2d 645) (1991).

        Snider v. State, 238 Ga. App. 55, 58 (2) (516 SE2d 569) (1999).

        Day v. State, 70 Ga. App. 819, 820 (29 SE2d 659) (1944).

        Davis v. State, 244 Ga. App. 345, 348-349 (6) (535 SE2d 528) (2000).

        Tatum v. State, 259 Ga. 284, 286 (2) (380 SE2d 253) (1989).

        Thomason v. State, 268 Ga. 298, 310 (7) (486 SE2d 861) (1997).

        Roseboro v. State, 258 Ga. 39, 41 (3) (d) (365 SE2d 115) (1988).

        Brown v. State, 242 Ga. App. 106, 108 (2) (528 SE2d 868) (2000).

        Lee v. State, 237 Ga. 179, 180 (3) (227 SE2d 62) (1976).


text:
    A01A1584.
    TAYLOR v. THE STATE.
    (555 SE2d 135)
   Blackburn, Chief Judge.

Kevin Lee Taylor appeals the denial of his motion for an out-of-time appeal, contending that his trial counsel neglected to file a notice of appeal on his behalf following his original trial. For the reasons set forth below, we affirm.

The record shows that on June 29, 1989, Taylor was convicted of kidnapping with bodily injury, having raped and sodomized the victim. He was sentenced to 20 years as a repeat offender pursuant to OCGA § 17-10-7. Taylor subsequently filed motions for out-of-time appeal on May 13,1991, September 23, 1991, and November 6, 2000. In each of these motions, Taylor contended that his trial counsel rendered ineffective assistance by failing to pursue an appeal on his behalf.

Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights. The right to appeal is violated when the appointed lawyer deliberately forgoes the direct appeal without first obtaining his client’s consent. Such action constitutes ineffectiveness. A criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal. However, a convicted party may, by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights. The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal.

Decided October 5, 2001.

Kevin L. Taylor, pro se.

Patrick H. Head, District Attorney, Amy H. McChesney, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Haynes v. State.

In this case, the record supports a finding that Taylor slept on his rights in pursuit of his motion for an out-of-time appeal. The record reflects that Taylor did not file his first two motions for out-of-time appeal for approximately two years following his conviction. There is no evidence that Taylor took further action on these motions. He did not request a hearing or take any other action to get the trial court to act on his motions. Instead, Taylor waited nine years and then filed his third motion for out-of-time appeal. Once again, there is no evidence that Taylor requested a hearing on the matter or took other action. As Taylor waited over a decade to pursue a ruling on his motions, we cannot say that the trial court abused its discretion by refusing to allow Taylor to file an out-of-time appeal. See generally Burroughs v. State. And, although Taylor propounds a number of other misplaced or waived arguments in his disjointed brief, none of these arguments alter the outcome here, as Taylor slept on his rights to raise the issues he now enumerates as error.

Judgment affirmed.

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

        Haynes v. State, 227 Ga. App. 64, 65 (488 SE2d 119) (1997).

        Burroughs v. State, 239 Ga. App. 600 (521 SE2d 652) (1999).


author: Eldridge, Judge.

text:
    A01A2079.
    BOHANNON v. THE STATE.
    (555 SE2d 112)
   Eldridge, Judge.

A Bartow County jury found Robert Lee Bohannon guilty of trafficking in amphetamine, felony possession of marijuana, and possession of articles with an altered identification mark. On appeal, he does not challenge the sufficiency of the evidence introduced against him, but claims on two grounds that the trial court erred in denying his motion to suppress. Reviewing the errors as enumerated, we affirm Bohannon’s conviction.

When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court. The trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous, and these findings will not be disturbed if there is any evidence to support them.

At the hearing on the motion to suppress, Bohannon did not testify or offer any evidence. Viewed to uphold the trial court’s findings, the State’s evidence shows that Bartow County Sheriff’s Investigator Mike Shinall received an anonymous tip that stolen jewelry and tools, as well as a quantity of drugs, could be immediately found in Bohannon’s workshop located in an outbuilding behind his residence. Shinall enlisted the aid of two other officers: “Mike came around while we were at the office and just said that he needed some assistance; that he had some information that Mr. Bohannon had some stolen items and some drugs possibly at his place, and he was going to go see about doing a consent search.”

The officers drove to Bohannon’s workshop, a wooden outbuilding which apparently consists of two rooms: one a garage with multiple tools for working on cars and the other a pool table room. As they drove up, Bohannon came out of the workshop. Investigator Shinall testified that

we told him that we had received a call from a female stating that there was stolen property such as jewelry and tools and also drugs inside the outbuilding, and we would like to check it if it was all right [sic] with him. He said it was. And I told him that he did not have to give me consent; that he had a right to refuse that if he didn’t. He said to go ahead and look.

Acting upon Bohannon’s consent, the officers searched the two rooms of the outbuilding. In the garage side, an upright, double-stacked tool chest on wheels was locked. “Sgt. Evans asked Mr. Bohannon if he had a key to the toolbox. That’s when he stated that, no, he didn’t that it was a friend of his. ... He stated it was a friend of his, and he did not have a key to it. Sgt. Evans asked him if he could get a hold of him. He [Bohannon] said he didn’t know how to get a hold of him.”

Bohannon did not claim ownership of the toolbox, and he watched without protest as the officers pried open the lock with a screwdriver. A search of the toolbox revealed the contraband for which Bohannon was indicted. When Shinall turned to ask Bohannon about the discovered contraband, he was no longer in the garage. A search of the residence showed that Bohannon had fled. Held:

1. In his first enumeration of error, Bohannon contends that he had a possessory interest in the toolbox belonging to his friend based on a bailment theory and, thus, the trial court erred in finding that he did not have standing to contest the search of the toolbox. We disagree.

“A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search o a third person’s premises or property has not had any of his FourtlAmendment rights infringed.” In that regard, “[a] bailment is t delivery of goods or property upon a contract, express or implied, to-carry out the execution of a special object beneficial either to tb bailor or bailee or both and to dispose of the property in conformi with the purpose of the trust.” A bailment involves either an expre . . ' or implied mutual agreement to safe keep property between t owner and its custodian either gratuitously or for some consider tion. “That is, a bailment relationship is created when one party* involved in an undertaking... to safeguard the personal property another and exercises complete dominion at all times over the pro; erty.” Further, when a bailment is created, the bailee becomes liabl for damage to the property for failure to exercise the requisite care t safeguard it. Under the law, then, whether a bailment existí depends upon the relationship between the owner of the property and the possessor of the property as to the disposition of the propertyi-

In this case, there is no evidence establishing a bailment relationship between Bohannon and his unavailable friend. Bohannon did not testify either at the hearing on the motion to suppress or at trial. There is no evidence of an agreement either express or implied between Bohannon and his friend for Bohannon to hold the toolbox for his friend. There is no evidence that the toolbox was not simply abandoned or accidentally left behind. The only evidence about the disposition of the toolbox was Bohannon’s representation to the officers that it “was a friend of his.” This is simply insufficient to establish the “mutual agreement” necessary for a bailment relationship.

The burden is on the one claiming a violation of Fourth Amendment rights to demonstrate that he has standing to contest such violation. The evidence in this case does not establish “a contract, express or implied, to carry out the execution of a special object beneficial either to the bailor or bailee or both and to dispose of the property in conformity with the purpose of the trust.” Thus, Bohannon has failed to establish standing to challenge the search of the toolbox )>ased on a bailment theory. Indeed, if, arguendo, Bohannon was a gratuitous bailee charged with the safekeeping of the toolbox, he had i duty to protest the forceful entry therein. He did not do so, but acquiesced by his silence in its search by the officers. Consequently, the error as enumerated is without merit.

'v 2. Bohannon next contends that the search of the toolbox xceeded the scope of the consent given because it was locked and /ithout a key. The standing issue addressed in Division 1 of this pinion is dispositive of the instant enumeration of error.

Moreover, Bohannon gave the officers consent to search the rage specifically for stolen tools, as well as jewelry and drugs. We not find that a search of a toolbox exceeds the scope of consent en to search for stolen tools. Since the toolbox was well within the pe of places to look for stolen tools, the fact that the box was 'sed and without a key does not exempt it from a consensual rrch absent a withdrawal of consent. “Once consent is legally jtained, it continues until it is either revoked or withdrawn.” It is ldisputed that the consent to the search for stolen tools was legally Atained from Bohannon. He was present and watching as the fficers pried the lock on the toolbox. Bohannon disclaimed owner-hip of the box and did not register any objection to the officers’ jearch thereof. “The evidence in the case sub judice authorizes the trial court’s finding that defendant’s consent was free and voluntary and that the law enforcement officers did not exceed the scope of defendant’s consent.”

Decided October 5, 2001

King, King & Jones, David H. Jones, for appellant.

T. Joseph Campbell, District Attorney, Donald S. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

        State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996).

        Rakas v. Illinois, 439 U. S. 128, 134 (99 SC 421, 58 LE2d 387) (1978).

       OCGA § 44-12-40.

        Park ’N Go &c. v. U. S. Fidelity &c. Co., 266 Ga. 787, 790 (471 SE2d 500) (1996).

       OCGA § 44-12-43.

        Atwater v. State, 233 Ga. App. 339, 340 (2) (503 SE2d 919) (1998).

       OCGA § 44-12-40.

       OCGA § 44-12-43. See Engram v. Sonny Campbell’s Gulf, 200 Ga. App. 40, 41 (406 SE2d 551) (1991).

        Mixon v. State, 184 Ga. App. 623, 624 (362 SE2d 111) (1987); Miller v. State, 183 Ga. App. 55, 56 (357 SE2d 876) (1987).

        Allen v. State, 200 Ga. App. 326, 328 (1) (408 SE2d 127) (1991).


author: Phipps, Judge.

text:
    A01A2327.
    WORSHAM v. THE STATE.
    (554 SE2d 805)
   Phipps, Judge.

Danny Worsham was convicted at a bench trial of possession of methamphetamine with intent to distribute, after the drugs were seized from him during a traffic stop. He filed a motion to suppress, claiming, among other things, that the stop was illegal. The trial court denied the motion, finding that the officer who made the stop acted properly based on his reasonable, albeit erroneous, belief that the law had been violated. In reviewing a motion to suppress, we conduct a de novo review of the trial court’s application of law to the undisputed facts. A trial court’s ruling on a motion to suppress will be upheld if it is right for any reason. Applying these rules, we affirm.

City of McDonough Police Officer Thomas testified that, on the evening of October 19, 1999, his attention was drawn to a truck driven by Worsham because the license tag bore an October 1999 decal, and he believed that Georgia law required registration of the vehicle by the first day of the owner’s birth month. Thomas was mistaken in this belief, however, as the period for registration of vehicles in Georgia ends on the date of the owner’s birthday. Nonetheless, Thomas followed Worsham in his patrol car and initiated a traffic stop after observing Worsham weaving over the centerline of the roadway approximately three times.

Thomas’s testimony and an audio-videotape of the transaction that was played to the court showed that Thomas approached the driver’s side of the truck and asked Worsham for his driver’s license and proof of insurance. According to Thomas, a strong odor of burnt marijuana emanated from the driver’s compartment. Thomas informed Worsham that he was being stopped because his tag had expired and asked Worsham to accompany him to the rear of the truck while he ran a check of the license. There he detected a strong odor of marijuana on Worsham’s breath and person. Worsham, however, did not appear to be under the influence of drugs to the extent he was less safe to drive. In order to maintain calm, Thomas did not accuse Worsham of being under the influence of intoxicants but rather asked him if he was in possession of any weapons or illegal narcotics. While this questioning was under way, another officer appeared on the scene. Thomas asked for permission to search Worsham’s pants pockets, but Worsham refused and began to protest. After further discussion, Thomas asked if Worsham minded if he searched the truck, and Worsham responded, “No.” During the search of the truck, Thomas discovered a scale with suspected methamphetamine residue. Confronted with the officer’s find, Worsham attempted to flee the scene. He was quickly apprehended by the two officers, and approximately eleven grams of methamphetamine were found in a canister clutched in his hand. He was arrested for illegal drug possession, but not cited for any traffic violation.

Worsham moved to suppress evidence seized during the traffic stop, arguing that he had not committed any traffic violation, as his birthday is October 31 and, therefore, his car had been properly registered and displayed a proper decal; that, even if the stop was valid, it should have ended when the officer determined that his temporary driver’s permit and tag were valid; that any consent by him to search the truck was thus invalid because it was the product of an illegal detention, as well as coercive questioning; and that, even if the consent was valid, the search of his person exceeded the scope of his consent.

“Although an officer’s honest belief that a traffic violation has actually been committed in his presence may ultimately prove to be incorrect, such a mistaken-but-honest belief may nevertheless demonstrate the existence of ‘at least an articulable suspicion and reasonable grounds for the stop.’ [Cit.]” “The question to be decided is whether the officer’s motives and actions at the time and under all the circumstances, including the nature of the officer’s mistake, if any, were reasonable and not arbitrary or harassing.” Even assuming that Thomas’s mistaken belief that Georgia’s motor vehicle registration law had been violated was not reasonable, he was nonetheless authorized to initiate the traffic stop after observing Worsham violate another traffic law by failing to maintain his lane. Thomas’s detection of the odor of marijuana provided sufficient suspicion of criminal activity to justify Worsham’s continued detention. The evidence thus supports findings that Worsham’s consent to search his truck was not the product of an illegal detention but rather was freely and voluntarily given. Under the circumstances, Worsham’s flight from the scene constituted sufficient probable cause for the arrest and incidental search.

Decided October 5, 2001

Lee Sexton, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Sandra A. Graves, Assistant District Attorneys, for appellee.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        State v. Burnett, 249 Ga. App. 334 (548 SE2d 443) (2001).

        Benton v. State, 240 Ga. App. 243, 245 (1) (522 SE2d 726) (1999).

       OCGA § 40-2-21 (a) (1) (A) (i).

        State v. Webb, 193 Ga. App. 2, 4 (1) (386 SE2d 891) (1989); compare Berry v. State, 248 Ga. App. 874, 879-880 (3) (547 SE2d 664) (2001) (where the police indisputably observed no traffic violations); State v. Goodman, 220 Ga. App. 169, 170 (2) (469 SE2d 327) (1996) (same); Oboh a State, 217 Ga. App. 553 (458 SE2d 177) (1995) (same).

       (Citations and punctuation omitted.) State v. Webb, supra at 3-4 (1).

       See Davis v. State, 236 Ga. App. 32, 33 (1) (510 SE2d 889) (1999); Larochelle v. State, 219 Ga. App. 792, 796 (4) (466 SE2d 672) (1996).

       See Taylor v. State, 230 Ga. App. 749, 751 (1) (c) (498 SE2d 113) (1998); compare State v. Gibbons, 248 Ga. App. 859 (547 SE2d 679) (2001), and cits.

        Taylor v. State, supra.

       See Freeman v. State, 248 Ga. App. 363, 365 (1) (548 SE2d 616) (2001).


author: Ruffin, Judge.

text:
    A01A0838.
    EDMONDSON et al. v. GILMORE.
    (554 SE2d 742)
   Ruffin, Judge.

Scott and Traci Edmondson filed a petition in Brooks County Superior Court to adopt T. M. G. The trial court dismissed the Edmondsons’ action, and the Edmondsons filed this appeal. For reasons that follow, we affirm.

The facts underlying this appeal were thoroughly detailed both by this Court and the Supreme Court in In re Stroh. The relevant facts follow. In January 1996, Christina Gilmore gave birth to T. M. G. Approximately two months later, the Georgia Department of Human Resources (DHR) obtained custody of the child and placed him in foster care with the Edmondsons.

In July 1996, Alabama residents Allen and Brenda Stroh learned of T. M. G.’s existence and filed an adoption petition in Echols County, Georgia. The Strohs, who had adopted T. M. G.’s half-sister in 1993, wanted to raise the siblings together. In June 1997, DHR moved to intervene in the adoption, purportedly to protect the interest of T. M. G. The trial court permitted DHR to intervene. The Edmondsons, who decided that they wanted to adopt T. M. G., requested permission to intervene in the Strohs’ petition or to file a separate petition, and the trial court agreed.

The Edmondsons chose not to intervene, and instead, on May 12, 1998, they filed a separate petition in Echols County to adopt T. M. G. The trial court heard both the Edmondson and Stroh petitions on July 16, 1998. During the hearing, the Edmondsons’ attorney cross-examined the Strohs, and several witnesses testified on behalf of the Edmondsons.

Following the hearing, the trial court concluded that both adoption petitions were flawed, and it dismissed the petitions. The Strohs filed a motion for reconsideration and requested that the trial court address their petition for temporary custody of T. M. G., which the trial court subsequently denied. Upon learning that the Strohs had filed a motion for reconsideration, the Edmondsons moved to intervene. But the trial court ruled on the Strohs’ motion prior to receiving the Edmondsons’ request and thus dismissed the Edmond-sons’ motion.

The Strohs appealed the trial court’s order to this Court. Although the Edmondsons were not technically parties to the appeal, they responded and submitted amicus briefs. In a lengthy opinion, another panel of this Court concluded that the trial court properly dismissed the Strohs’ adoption petition. Nevertheless, this Court found that the trial court abused its discretion in denying the Strohs’ request for temporary custody. This Court concluded that T. M. G.’s birth mother had executed a valid surrender of parental rights in favor of the Strohs. As the Strohs were not able to proceed with adoption in this State, this Court found that “the trial court should have transferred custody to them in order to assist in their pursuit of an Alabama adoption.”

The Edmondsons petitioned the Supreme Court for certiorari, which that Court initially granted. Over sharp dissent, however, that Court vacated its grant of certiorari on the basis that the Edmondsons were never actually parties to the Stroh adoption petition. Accordingly, the opinion of this Court remains the final judgment with regard to the Stroh petition.

Meanwhile, in October 1998 — before the Strohs filed their appeal to this Court — the Edmondsons filed a new petition to adopt T. M. G. in Brooks County, Georgia. On October 19, 2000, the Strohs moved to dismiss that petition, asserting that this Court’s opinion with regard to the Stroh adoption petition “precludes any further proceedings with regard to the Edmondsons’ petition.” The Brooks County court agreed and dismissed the Edmondsons’ petition with prejudice, concluding that the Edmondsons, who are in privity with DHR, are bound by this Court’s decision in In re Stroh. Asserting multiple enumerations of error, the Edmondsons challenge this ruling. As we find that collateral estoppel bars the Edmondsons’ current adoption petition in Georgia, we affirm.

1. “The doctrine of collateral estoppel precludes the readjudication of an issue of law or fact already adjudicated between the parties or their privies, where that issue is essential to the judgment.” In In re Stroh, this Court decided that the Strohs had obtained a valid surrender of Gilmore’s parental rights and were entitled to pursue adoption of T. M. G. in Alabama. If the Edmondsons are permitted to petition a Georgia court for the adoption of T. M. G., that suit would necessarily require relitigation of the Strohs’ right to adopt the child. Here, however, collateral estoppel bars the Edmondsons’ petition.

“Res judicata and collateral estoppel are related and similar, but separate, doctrines.” As with res judicata, “collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim.”

According to the Edmondsons, collateral estoppel does not apply because there is no identity of parties. We disagree.

As the Supreme Court has noted, “[t]he term ‘party to an action includes all who are directly interested in the subject matter, and who have a right to make defense, control the pleadings, examine and cross-examine witnesses, and appeal from the judgment.” We ascertain whether a person is a party “exclusively by inspection of the record.”* In so doing, we look for the existence of an adversarial relationship.

Here, the record demonstrates that the Edmondsons had a direct interest in the subject matter — the adoption of T. M. G. For this reason, the trial court permitted them to file their own adoption petition, which was addressed during the same hearing as the Strohs’ petition. At the hearing, the Edmondsons’ attorney cross-examined the Strohs and presented evidence to establish that the Edmondsons should serve as the adoptive parents. When the trial court dismissed both adoption petitions and the Strohs appealed to this Court, the Edmondsons responded.

Where a party is represented by counsel, appears at a hearing, and presents testimony from multiple witnesses in opposition to and/ or in support of adoption, “[t]here is no question that a ‘full hearing’ on the petition took place.” As the Edmondsons acted and were treated as parties, they should be considered as parties for collateral estoppel purposes.

We note that the Edmondsons were not permitted to appeal this Court’s decision to the Supreme Court because they were not technically parties to the Strohs’ petition. It could therefore be said that the Edmondsons did not have a full and fair opportunity to litigate their claim. On balance, however, the Edmondsons had such opportunity. Here, the Edmondsons could have intervened in the earlier suit, thus protecting their right to appeal. Indeed, the Edmondsons attempted this very action, albeit belatedly. Thus, it was not that the Edmond-sons were barred from appealing, merely that they failed to take the necessary steps to be included as a party on appeal, and such procedural default still carries the sanction of collateral estoppel. It follows that the trial court properly dismissed the Edmondsons’ petition to adopt T. M. G.

We further note that, in the prior ruling in this case, we reasoned that the Strohs should have temporary custody of T. M. G. to assist with their pursuit of an Alabama adoption. If the Edmond-sons are permitted to maintain a separate adoption petition in Georgia at the same time the Strohs have temporary custody and are attempting to adopt T. M. G. in Alabama, we would have two courts from two states addressing the adoption of the same child. And, if those courts enter conflicting orders, the Edmondsons and Strohs will have to litigate which order should take precedence. The litigation could drag on for years, leaving T. M. G.’s fate undecided. Such a situation contravenes the Uniform Child Custody Jurisdiction and Enforcement Act, which includes detailed jurisdictional requirements to avoid competing jurisdictions and to promote comity in child custody disputes.

Decided September 13, 2001

Reconsideration denied October 9, 2001

Griner & Mirate, Galen A. Mirate, Melinda M. Katz, for appellants.

Saliba & Moore, George M. Saliba II, Gregory A. Voyles, Charles R. Reddick, for appellee.

We are aware of the irony of resolving so emotional a dispute on such a technical basis. And we are equally aware of the pain this decision will bring to the Edmondson family. It is evident that the trial court that heard both adoption petitions found both the Edmondsons and Strohs to be fine people and capable parents. Regrettably, only one family can fill this role. As an appellate court, we must focus on the correction of legal error. In so doing, we lay claim not to the wisdom of Solomon, but to the rule of law. Here, the rule of law mandates that we give finality to our judgments. Accordingly, we affirm.

2. In view of our holding in Division 1, we need not address the Edmondsons’ remaining enumerations of error.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       240 Ga. App. 835 (523 SE2d 887) (1999), writ of certiorari vacated, 272 Ga. 894, 896-898 (534 SE2d 790) (2000) (Hunstein, J., dissenting).

       240 Ga. App. at 839 (Specifically, the trial court concluded that the Strohs were unable to proceed with the adoption because they had not lived in Georgia for six months prior to the adoption as required by OCGA § 19-8-3 (a) (3). With regard to the Edmondsons, the trial court found that their petition failed to comply with statutory requirements under OCGA § 19-8-4, § 19-8-5, or § 19-8-13.).

       See id. at 841 (1) (b) (ii).

       See id. at 842 (1) (c).

       See 272 Ga. at 894-895.

       Id.

        Atlanta Cas. Ins. Co. v. Gardenhire, 248 Ga. App. 42, 43 (1) (545 SE2d 182) (2001).

        Phinazee v. Interstate Nationalease, 237 Ga. App. 39, 40 (514 SE2d 843) (1999).

        Gwinnett County Bd. of Tax Assessors v. Gen. Elec. Capital Computer Svcs., 273 Ga. 175, 178 (1) (538 SE2d 175) (2000).

        State Bar of Ga. v. Beazley, 256 Ga. 561, 563 (1) (b) (350 SE2d 422) (1986).

       Id.

       See Fedeli v. UAP/Ga. Ag. Chem., 237 Ga. App. 337, 340 (2) (514 SE2d 684) (1999) (addressing whether sufficient adversarial relationship existed to invoke the doctrine of res judicata).

       See Motherly v. Kinney, 227 Ga. App. 302, 304 (3) (489 SE2d 89) (1997).

       See Beazley, supra at 564 (State Bar considered party for res judicata purposes).

       See Fowler v. Vineyard, 261 Ga. 454, 458-459 (4) (405 SE2d 678) (1991) (balancing factors in determining whether party had full and fair opportunity to litigate).

       OCGA § 9-11-24 (a) (2) provides that, upon a timely application, a person may intervene as a matter of right if he “claims an interest relating to the . . . subject matter of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

       See Spooner v. Deere Credit, 244 Ga. App. 681, 682 (536 SE2d 581) (2000) (failure to timely file answer in one suit precludes litigation of issues in subsequent suit). See also Intl. Indem. Co. v. Robinson, 231 Ga. App. 236, 237 (1) (498 SE2d 795) (1998) (discussing procedural default and res judicata).

       We make no ruling on whether the Edmondsons can participate in any proceedings in Alabama.

       See OCGA § 19-9-40 et seq.

       See OCGA §§ 19-9-61; 19-9-62; 19-9-63; 19-9-64.

       See Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).


text:
    A01A0878.
    JACKSON v. THE STATE.
    (555 SE2d 136)
   Ruffin, Judge.

A jury found Jimmy Jackson guilty of possession of marijuana with intent to distribute, possession of marijuana, possession of diphenhydramine, and possession of doxylamine. For sentencing purposes, the trial court merged the possession of marijuana charge with the charge for possession of marijuana with intent to distribute, and it sentenced Jackson to 12 years. On appeal, Jackson challenges the sufficiency of the evidence. He also contends that the trial court erred in admitting evidence of a similar transaction and in failing to dismiss his conviction for possession of marijuana. For reasons that follow, we affirm in part and reverse in part.

The evidence shows that, on March 12, 1998, Detective James Carden from Chattanooga, Tennessee, received information from the post office that a package shipped through the mail contained a large amount of marijuana. Carden arranged for a controlled delivery of the package, which was picked up by Jose Salazar. Salazar agreed to cooperate with the police, and he called Jackson, the purchaser of the marijuana, and arranged for him to pick up the package.

Jackson arrived, as scheduled, to pick up the marijuana. Unbeknownst to Jackson, his conversation with Salazar was monitored and recorded by Tennessee law enforcement officers. According to Detective Jeff Parton, an undercover officer present during the transaction, Jackson negotiated with Salazar over the price of the marijuana. Jackson also discussed the steps that he would take to avoid being caught selling drugs, explaining that he planned to stay and visit when he picked up the marijuana to “make it look more natural” and that he never allowed purchasers to come to his house. Jackson also said that he still had approximately five ounces of marijuana left at his house.

That same day, Tennessee law enforcement notified Brad Palmer, an investigator with the Catoosa County Sheriffs Department, that Jackson had just been arrested for possessing over ten pounds of marijuana. Palmer and Deputy Travis Head then executed a search warrant at Jackson’s Georgia home and discovered a wooden tray, a set of scales, a box of plastic baggies, and ten baggies of marijuana, totaling 2.1 ounces. Palmer testified that the wooden tray is used for cutting the marijuana, the scales are used to weigh the marijuana, and the baggies are used to package the marijuana. Palmer also found two bags of blue pills, which he could not identify. According to a forensic chemist, one bag contained doxylamine pills and the other contained diphenhydramine pills, both of which are classified as dangerous drugs.

1. In his first enumeration of error, Jackson asserts that the trial court erred in admitting evidence of his arrest in Tennessee. According to Jackson, the evidence showed that the crime in Georgia was mere possession, whereas the crime in “Tennessee was one for distribution to others.” Thus, Jackson maintains that evidence of the Tennessee arrest was inadmissible as a similar transaction. We find this argument unavailing.

We will uphold a trial court’s decision to admit evidence unless clearly erroneous. Here, the trial court found that evidence of the Tennessee transaction was admissible as it related to Jackson’s bent of mind, course of conduct, intent, and identity. Thus, the trial court admitted the evidence of the similar transaction for proper purposes. As for the degree of similarity, we note that “[t]he similar transaction need not be identical to the charged offense to be admissible.” And, although the amount of marijuana found in Jackson’s home was substantially less than the ten pounds he had in Tennessee, it does not follow that the two transactions were dissimilar because of the difference in amount. In addition to the marijuana, which was packaged in individual baggies as though for resale, law enforcement officers found scales and additional baggies. Such evidence supports an inference that the marijuana was for sale rather than for personal use. Under these circumstances, the trial court’s decision to admit evidence of the prior transaction cannot be deemed clearly erroneous.

Moreover, even if the evidence was improperly admitted as a similar transaction, it would have nonetheless been admissible as part of the circumstances surrounding Jackson’s arrest in Georgia. As a general rule, “[a] 11 circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them.” This is true even if the evidence implicates the defendant in another crime. Here, the sole reason the Georgia officers were able to obtain a warrant to search Jackson’s Georgia home was because Jackson had been arrested that same day in Tennesseé and had made incrimmating statements in which he claimed to have marijuana at home. Thus, the evidence of the Tennessee transaction was both admissible and relevant to explain the conduct of the law enforcement officers in Georgia.

2. In two enumerations of error, Jackson challenges the sufficiency of the evidence. Having been convicted, Jackson no longer enjoys a presumption of innocence, and we view the evidence in the light most favorable to support the jury’s verdict. In so doing, we neither weigh the evidence nor determine witness credibility, but merely ascertain whether the evidence was sufficient to establish Jackson’s guilt beyond a reasonable doubt.

(a.) With respect to his conviction for possession of marijuana with intent to distribute, Jackson argues that the evidence was insufficient to establish intent to distribute. We disagree.

“To support a conviction of possession of a controlled substance with intent to distribute, the State must prove possession and link that possession to the enterprise of the sale.” Such link may be established through circumstantial evidence. As noted above, in addition to finding marijuana at Jackson’s residence, law enforcement officers found scales and baggies, which serve to link Jackson’s possession of the drugs to the enterprise of sale. Moreover, Jackson testified and admitted that he had been a drug dealer for several years. Under these circumstances, the jury was authorized to conclude beyond a reasonable doubt that Jackson was guilty of possessing marijuana with intent to distribute.

(b) With respect to Jackson’s convictions for possessing marijuana and doxylamine, he argues that the evidence was insufficient to establish that the drugs were, in fact, his. In support of this argument, Jackson points to the testimony of various family members. Jackson’s wife, Lisa, testified that, several days before March 12, her husband moved out of the house after an argument and that he was not living there at the time the search warrant was executed. According to Lisa Jackson, who pled guilty to possessing marijuana, she bought the drugs on March 11, using $400 from an income tax check. On cross-examination, however, she admitted that she had never worked. When asked how she had received an income tax check, she claimed that, notwithstanding their separation, her husband returned on March 11 to cash his income tax check, which he shared with his estranged wife. As for the doxylamine pills, Lisa testified that she purchased the pills, which she identified as Unisom, at Walgreens in individually wrapped blister packs. She then opened each blister pack, removed the pills, put them in a bag, and hid the bag in the kitchen. Jackson essentially argues that this testimony mandates his acquittal. Again, we disagree.

Implicit in Jackson’s sufficiency argument is his belief that his wife’s guilt exonerates him. This is untrue. “Since two or more persons may be convicted of possession of the same contraband, there is nothing about [Lisa Jackson’s] guilt which is on its face inconsistent with the case against [Jackson] .” And, to the extent that Lisa Jackson testified that the drugs belonged solely to her and that her husband had no knowledge that she possessed the contraband, the jury was not required to believe her. “[I]t is axiomatic that the credibility of the witnesses is solely a jury question.” Here, the jury certainly could have found Lisa Jackson’s testimony implausible.

(c) Nonetheless, we agree with Jackson that the State failed to prove that he was guilty of possession of diphenhydramine. Under OCGA § 16-13-72, “[e]xcept as provided for in this article, it shall be unlawful for any person . . . to . . . possess in this state any dangerous drug.” Both diphenhydramine and doxylamine are classified as dangerous drugs. For diphenhydramine, however, there is an exception for “up to 12.5 mg. in each 5 cc’s when used in cough preparations and up to 50 mg. per single dose when used as a nighttime sleep aid or used as an antihistamine and labeled in compliance with [federal Food & Drug Administration] requirements.” Here, the forensic chemist testified that the pills were diphenhydramine, but she did not testify as to the amount, in milligrams, contained in the pills, nor did she testify that the pills failed to comply with FDA labeling requirements. Indeed, the chemist testified that she did not know whether the pills could have been purchased over the counter. Thus, the State failed to prove that the diphenhydramine pills were dangerous drugs, and Jackson was entitled to an acquittal on this charge.

3. In his final enumeration of error, Jackson contends that the trial court erred in failing to dismiss his conviction for possession of marijuana, asserting that it merged with his conviction for possession with intent to distribute. Jackson maintains that his conviction for both offenses violates OCGA § 16-1-7, which precludes multiple convictions and punishment for the same conduct.

Decided October 9, 2001

Brian M. House, for appellant.

Herbert E. Franklin, Jr., District Attorney, Jennifer E. Hildebrand, Assistant District Attorney, for appellee.

Initially, we note that Jackson failed to preserve this issue for appeal. “It was incumbent upon [Jackson] to make objection at sentencing or to make a proper motion at sentencing if sentenced in violation of OCGA § 16-1-7.” Our review of the record shows no such objection or motion was made, and Jackson’s failure to preserve the issue precludes appellate review.

Even assuming Jackson preserved the issue, this claim of error presents no basis for reversal. As noted above, the trial court merged the two offenses and entered a judgment of conviction and sentence only on the possession with intent to distribute count. It follows that the trial court did not violate OCGA § 16-1-7.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Ellington, J., concur.

       Specifically, the trial court sentenced Jackson to ten years for possession of marijuana with intent to distribute and two, consecutive sentences of twelve months each for the remaining possession charges.

       See Rehberger v. State, 235 Ga. App. 827, 829 (2) (510 SE2d 594) (1998).

       See Jones v. State, 243 Ga. App. 374, 377 (2) (533 SE2d 437) (2000).

       (Punctuation omitted.) Jackson v. State, 246 Ga. App. 133, 135 (2) (539 SE2d 849) (2000).

       See Gillman v. State, 239 Ga. App. 880-881 (1) (522 SE2d 284) (1999) (scales and marijuana packaged for resale constitute evidence that defendant was guilty of possession with intent to distribute).

       (Punctuation omitted.) Simmons v. State, 236 Ga. App. 83, 86 (2) (510 SE2d 925) (1999).

       See id.

       See id.

       See Bluain v. State, 242 Ga. App. 125 (1) (529 SE2d 155) (2000).

       See id.

        Buckholts v. State, 247 Ga. App. 697, 699 (1) (545 SE2d 99) (2001).

       See id.

       See id.; Gillman, supra.

       Jackson’s mother and daughter also testified that Jackson had stayed with them during the month of March. The daughter could not pinpoint the days that Jackson stayed with her, and the mother testified that she “assum[ed]” he stayed with her the night of March 11, because he was arrested the next day.

       (Punctuation omitted.) Wells v. State, 237 Ga. App. 109, 111 (1) (514 SE2d 245) (1999).

       (Punctuation omitted.) Legg v. State, 204 Ga. App. 356, 357 (1) (419 SE2d 151) (1992).

       See OCGA § 16-13-71 (b) (299), (322).

       OCGA § 16-13-71 (c) (8).

        See Hildebrand v. State, 209 Ga. App. 507, 508 (1) (433 SE2d 443) (1993) (State’s failure to prove essential element of crime warranted directed verdict of acquittal).

        Williams v. State, 233 Ga. App. 217, 220 (4) (504 SE2d 53) (1998).

       See id. at 221.

       See Mackey v. State, 235 Ga. App. 209, 210 (1) (509 SE2d 68) (1998).


text:
    A01A1117.
    ANDERSON v. THE STATE.
    (554 SE2d 811)
   Phipps, Judge.

Tony Curtis Anderson, pro se, appeals the trial court’s order dismissing his motion to have his life sentence vacated and to be resentenced on the ground that the sentence was imposed without a presentence hearing. Because the term of court had expired and Anderson failed to present a ground to the trial court that his sentence was void, the trial court’s refusal to entertain Anderson’s motion was proper. Additional claims of error in Anderson’s appellate reply and supplemental briefs are not properly before us. We therefore affirm.

In September 1980, Anderson was convicted of rape, kidnapping, and armed robbery. He received sentences of imprisonment for life, ten years, and twenty years, respectively. After his motion for new trial was denied, this court affirmed his conviction on February 2, 1984. In June 1990, Anderson filed a pro se motion to have his life sentence declared void, which the trial court denied in July 1990. On October 24, 2000, Anderson filed a pro se “motion to conduct a presentence hearing as required under O.C.G.A. § 17-10-2 (a),” wherein he alleged that the sentencing court had failed to conduct a presentence hearing. He also claimed his trial lawyer had rendered ineffective assistance of counsel by not seeking a hearing. The trial court dismissed the motion, determining that it did not have jurisdiction to modify a sentence after the expiration of the term of court during which the sentence was entered unless the sentence was void and that any alleged failure to conduct a presentence hearing would not have voided Anderson’s life sentence, citing Williams v. .State. This ruling, which Anderson appeals here, was correct. Moreover, the record shows that a presentence hearing was conducted.

Decided October 9, 2001.

Tony C. Anderson, pro se.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Shawn D. McAllister, Assistant District Attorneys, for appellee.

Finally, in reply and supplemental briefs to this court, Anderson attempts to expand his enumeration of errors by making claims not involving entitlement to a presentence hearing. An appealing party may not use his brief to expand his enumeration of errors by arguing the incorrectness of a trial court’s ruling not mentioned in the enumeration. “[A]ppellate review cannot be enlarged or transformed through switching, shifting, or mending one’s hold.” “This court’s function is to review errors of the lower courts, not to review assertions made by appellant and brought directly to this court.”

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Anderson v. State, 169 Ga. App. 729 (314 SE2d 735) (1984).

       271 Ga. 686, 689-691 (2) (523 SE2d 857) (1999).

        Felix v. State, 271 Ga. 534, 539, in. 6 (523 SE2d 1) (1999); Gunsby v. State, 248 Ga. App. 18, 22 (3) (545 SE2d 56) (2001).

        Williams v. State, 208 Ga. App. 153, 154 (1) (430 SE2d 42) (1993).

       (Punctuation and footnote omitted.) Daniels v. State, 244 Ga. App. 522, 523-524 (536 SE2d 206) (2000).


author: Smith, Presiding Judge.

text:
    A01A1310.
    FOWLER v. THE STATE.
    (554 SE2d 808)
   Smith, Presiding Judge.

Jack Fowler was indicted by a Clarke County grand jury on one count of child molestation and one count of aggravated sexual battery. He was acquitted of the latter charge but found guilty of child molestation. After denial of his motion for new trial, Fowler filed an appeal with this court that was dismissed as untimely. After the trial court’s grant of leave to file an out-of-time appeal, Fowler again appeals, asserting two enumerations of error. Finding no error, we affirm.

1. Fowler first complains that the trial court erred in denying his motion for a mistrial after the victim began to cry during closing argument by the defense. In response to Fowler’s objection, the trial court made inquiries, instructed the prosecutor to tell the family not to show any emotion, and stated its intention “to find out from the jury if it had any effect on them.” Fowler also asked for a curative instruction, which the trial court gave. After its instruction, the trial court inquired of the jurors whether they would be able to follow its instructions and disregard any display of emotion. The jurors responded unanimously that they would do so. Fowler did not renew his motion for mistrial or interpose further objection. Because Fowler “failed to object or renew his motion for a mistrial after these curative instructions, he failed to preserve the issue for appeal. [Cit.] Consequently, this enumeration of error presents nothing for review.” Hodges v. State, 249 Ga. App. 268, 271 (3) (547 SE2d 386) (2001).

2. Fowler also complains that the evidence was insufficient to support his conviction because the victim did not testify in person, but only by taped interview. He does not challenge the admission of testimony by witnesses admitted under the Child Hearsay Statute, OCGA § 24-3-16, or the trial court’s determination of the indicia of reliability under that statute. But he contends that without the testimony of the victim, the evidence against him is insufficient.

There is no legal requirement that a child victim testify in person; in fact, the purposes of the Child Hearsay Statute, OCGA § 24-3-16, include the presentation of evidence without the in-person testimony of the child victim:

There are several compelling reasons for allowing a child victim’s hearsay statements to come into evidence, including (1) society’s desire to spare children who are subjected to abuse from further unnecessary trauma in the courtroom; (2) ensuring that the jury hears the statement of a child who has been traumatized by abusé and is psychologically unable to recount that incident while testifying; and (3) to protect the rights of victimized children who cannot defend those rights for themselves.

Decided October 9, 2001.

Elizabeth M. Grant, for appellant.

Kenneth W. Mauldin, District Attorney, Phillip C. Griffeth, Assistant District Attorney, for appellee.

Woodard v. State, 269 Ga. 317, 323 (3) (496 SE2d 896) (1998). Fowler in essence argues that this court should reweigh the evidence presented at trial because it was submitted under the Child Hearsay Statute, but “[i]t is not the function of this Court to reweigh the evidence or to determine the credibility of witnesses.” (Footnote omitted.) Robbins v. State, 243 Ga. App. 21, 22 (1) (532 SE2d 127) (2000). This enumeration of error is without merit.

Judgment affirmed.

Barnes and Phipps, JJ., concur.


text:
    A01A1361.
    THE STATE v. DORSEY.
    (555 SE2d 141)
   Smith, Presiding Judge.

This is the State’s second appeal regarding the third bill of indictment against Jarius Dorsey for vehicular homicide by driving under the influence. The State appeals the trial court’s order quashing Count 2 of the indictment. Because OCGA § 17-7-53.1 bars further prosecution for this charge, we affirm.

The underlying procedural facts are not disputed by the parties. On September 17, 1998, the Fulton County grand jury returned indictment Y-11325, charging Dorsey with one count of vehicular homicide by violating OCGA § 40-6-391, two counts of driving under the influence, driving with a suspended license, and no proof of insurance. Dorsey filed a motion to quash the vehicular homicide count on the ground that it did not identify the subsection of OCGA § 40-6-391 relied upon by the State. With the consent of the State, the trial court quashed this count of the indictment. A second indictment, 00SC03072, was returned on March 17, 2000, charging Dorsey with homicide by vehicle in the first degree “through the violation of OCGA § 40-6-391 (A) (1) [sic], driving under the influence of alcohol (less safe),” homicide by vehicle in the first degree “through the violation of OCGA § 40-6-391 (A) (4) [sic], driving while under the influence,” two counts of driving under the influence, no proof of insurance, and driving with a suspended license.

Dorsey filed two pleas of former jeopardy and motions to quash Count 1 of indictment 00SC03072 for defects in language. On March 27, 2000, the trial court granted Dorsey’s motion to quash Count 1 and also quashed Count 2, the second count of vehicular homicide; with the consent of the parties because it cited the wrong Code subsection. On April 19, the trial court vacated its order with respect to Count 1. In this order, the trial court noted that “Count Two of the second Bill of Indictment has been quashed twice and, therefore, cannot be reindicted. OCGA § 17-7-53.1 (quashing of second grand jury indictment bars further prosecution).” The State attempted to appeal this portion of the trial court’s order, but the appeal was dismissed as premature.

On January 9, 2001, Dorsey was indicted for a third time on two counts of vehicular homicide, two counts of driving under the influence, no proof of insurance, and driving with a suspended license. Dorsey again filed a plea of former jeopardy based on OCGA § 17-7-53.1, and the trial court quashed Count 2 of indictment 01SC00251, alleging vehicular homicide “through the violation of OCGA § 40-6-391 (a) (5) (driving with an unlawful alcohol concentration).” From this order, the State appeals.

OCGA § 17-7-53.1 provides:

If, upon the return of two “true bills” of indictments or presentments by a grand jury on the same offense, charge, or allegation, the indictments or presentments are quashed for the second time, whether by ruling on a motion, demurrer, special plea or exception, or other pleading of the defendant or by the court’s own motion, such actions shall be a bar to any future prosecution of such defendant for the offense, charge, or allegation.

“OCGA § 17-7-53.1 operates as a statutory bar to a prosecution on a third indictment for the same offense, where, as here, the trial court has quashed two prior indictments thereon. [Cit.]” Evans v. State, 217 Ga. App. 548, 550 (458 SE2d 357) (1995).

The State contends that the three counts in question are not “ ‘true bills’ ... on the same offense, charge, or allegation,” because the offense of vehicular homicide is supported in each case by reference to a different subsection of OCGA § 40-6-391. But this proposed interpretation ignores the plain language of OCGA § 17-7-53.1, which refers to an “offense,” a “charge,” or an “allegation” in the disjunctive. While the allegations in each indictment varied, all referred to the same offense of homicide by vehicle through violation of OCGA § 40-6-391, as defined by the precise language of OCGA § 40-6-393 (a). The State also argues that the indictments are not “the same offense, charge, or allegation” because of the defective language in the first two indictments, relying on the law demanding precision in an indictment. This argument is without merit; whether the prior indictments were sufficient to withstand demurrer is irrelevant to the application of OCGA § 17-7-53.1. Moreover, if either of the earlier indictments had been precise in its language, no motion to quash would have been necessary or granted, and the statutory bar to prosecution would not have been at issue in this case.

Decided October 9, 2001.

Paul L. Howard, Jr., District Attorney, Maura F. Krause, Anna E. Green, Assistant District Attorneys, for appellant.

Brian Steel, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       As Dorsey points out, the State has failed to ensure that the record in either of its appeals contains a copy of the first indictment, Y-11325. But the parties do not dispute that the first indictment simply alleged that vehicular homicide was committed “through the violation of OCGA § 40-6-391, driving while under the influence.” Dorsey is incorrect in his assertion that the record does not contain a copy of the second indictment, 00SC03072.

       This Code section does not apply to a prior accusation, State v. Roca, 203 Ga. App. 267, 268 (416 SE2d 836) (1992), or to a prior nolle prosequi on the motion of the State. Gourley v. State, 268 Ga. 235, 236 (1) (486 SE2d 342) (1997).