text:
    A96A0010.
    In the Interest of M. N. L., a child.
    (470 SE2d 753)
   Pope, Presiding Judge.

The mother of M. N. L. appeals from an order of the juvenile court terminating her parental rights. The two-part question presented is whether (1) there is clear and convincing evidence of parental misconduct or inability, and (2) termination of parental rights is in the best interest of the child. See In the Interest of G. L. H., 209 Ga. App. 146, 149 (2) (433 SE2d 357) (1993). Concluding that the evidence supports the juvenile court’s affirmative answer to both parts of the question, we affirm its decision to terminate the mother’s parental rights.

Viewed in a light to support the juvenile court’s determination, see G. L. H., 209 Ga. App. at 149 (1), the evidence shows that M. N. L. was born prematurely in July 1993. M. N. L.’s mother, who was 27 years old when he was born, used alcohol and drugs throughout her pregnancy and tested positive for cocaine when she was admitted to the hospital to give birth. Concerned about the results of the drug test and other behavioral indicators of drug and alcohol abuse, the hospital recommended that the mother spend a couple of days with M. N. L. in the "parenting room” at the hospital, where she could learn to take care of her baby, first with the help of nurses and then on her own. The second night the mother was to spend the entire night with the baby on her own, but instead she left the baby and went off with her boyfriend.

At that point the Department of Family & Children Services (“DFCS”) obtained an adjudication that M. N. L. was deprived and took temporary custody of him, with the hope of eventually reuniting the child with his mother. DFCS and the mother agreed to a multigoal reunification plan, the first step of which was to complete an inpatient treatment program at the Alcohol & Drug Abuse Treatment Center (“ADAC”). When the mother was arrested and posted bail with the "Aid to Families With Dependent Children” funds that she originally intended to use for the ADAC program, DFCS paid for the ADAC program for her. Nonetheless, the mother left before the program was over, and ADAC refused DFCS’s request to take her back, saying she was uncooperative and uncommitted. DFCS’s efforts to get the mother into out-patient treatment were also unsuccessful, as the mother failed to even show up for an initial interview. To the mother’s credit, she was visiting M. N. L. as regularly as possible through the end of 1993, and sent him cards and presents. In January 1994, however, the mother was again arrested, and she has been incarcerated since that time.

The mother’s criminal history goes back to her arrest and conviction for burglary when she was 18. Prior to M. N. L.’s birth, she was also convicted of criminal trespass, theft by taking of a truck, and theft by taking of a purse. Then, within a month after M. N. L.’s birth, the mother was arrested for stabbing a male friend. Out on bail, she stabbed another man in January 1994. She was convicted of both aggravated assaults and sentenced to ten years in prison. At first the mother testified that she had no parole date, but she later testified that she might come up for parole after 52 months. Thus, the mother will be incarcerated at least until the latter part of 1998, and possibly a lot longer.

At the time of the hearing on the motion to terminate her parental rights, the mother had been in prison on the latest charges for approximately ten months. She testified that she had been alcohol and drug free during that time, and that for the last six months she had participated in various therapy groups for substance abuse. The mother has no family who can care for the child, but she testified she knew of an agency that takes care of children of inmates and allows them to maintain contact with their incarcerated mothers.

1. The juvenile court’s finding of parental misconduct or inability is supported by clear and convincing evidence that the child is deprived and the deprivation is likely to continue. See OCGA § 15-11-81 (b) (4) (A). Although it appears the mother cares for her child, she is unable to take care of him due to her substance abuse as well as her long-term incarceration for her criminal activities. See OCGA § 15-11-81 (b) (4) (B) (ii & iii). The mother’s efforts to improve herself during her imprisonment are good. However, “[t]he trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court. [Cit.]” In the Interest of J. R., 201 Ga. App. 199 (1), 200 (410 SE2d 458) (1991). In light of the mother’s lengthy history of alcohol and drug abuse and her repetitive incarcerations, her testimony regarding her recent progress does not negate the clear and convincing evidence supporting the juvenile court’s finding that the child’s deprivation is likely to continue. Id.; see also In the Interest of M. R., 213 Ga. App. 460, 467 (4) (444 SE2d 866) (1994); In the Interest of J. M. C., 201 Ga. App. 173 (410 SE2d 368) (1991).

Decided April 8, 1996.

Jerry W. Moncus, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, David T. Blackburn, for appellee.

2. Nor did the court err in concluding that termination would serve the best interests of M. N. L. The child has been in foster care since soon after his birth, so no bond between the mother and child has formed. The mother will be in prison for at least two and a half more years (possibly as long as eight more years), and the child would have to be in the care of a foster family or agency until that time if he cannot be adopted. DFCS representatives testified at the hearing that M. N. L.’s prospects for adoption were good at that time — but the older the child gets, the poorer his prospects for adoption become. See In the Matter of M. R., 213 Ga. App. at 464-465 (1) (b).

3. The mother also enumerates as error the juvenile court’s refusal to reconsider its decision in light of “new evidence” that an agency called Tender Mercy Ministries could care for M. N. L. and allow him to visit her. First of all, this is not really new evidence since the mother described such an agency (though without mentioning the name) in her testimony at the termination hearing. Secondly, the existence of such a possibility simply does not outweigh the factors discussed in Division 2 which clearly establish that termination is in the best interest of the child. DFCS is obligated to pursue alternatives to termination, which it did in this case, but it is not obligated to gamble the child’s prospects for a good life on the possibility that the mother will emerge from prison in two and a half to eight years reformed to the point that she can take care of M. N. L. and provide him with a stable home.

Judgment affirmed.

Andrews and Smith, JJ, concur.

       The father’s parental rights were also terminated, but he does not appeal.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A96A0029.
    PETTY v. THE STATE.
    (470 SE2d 517)
   Pope, Presiding Judge.

Defendant Darryl Scott Petty was convicted of possessing cocaine. On appeal, he challenges the sufficiency of the evidence against him.

Defendant was driving a car when two officers stopped him because he had a broken windshield. There were two other passengers in the car — one in the front passenger seat, and one in the middle of the back seat. The passengers had been watching television at the rooming house where defendant had been living, and defendant had invited them to take a ride and see the new apartment he had just rented. On the way over, the stop occurred.

When the officers stopped him, defendant emerged from his car, met the officers before they reached his vehicle, and admitted that he had no driver’s license. The officers arrested defendant for driving without a license at that point, and when defendant could not contact friends to have them retrieve his vehicle, the officers impounded the car. As the officers began their impound inventory, they immediately discovered a yellow baggie containing crack cocaine which was sitting in plain view on the console between the front bucket seats. The baggie was closer to the driver’s side, but all witnesses agreed it was accessible to the passengers as well as defendant.

Although it is unclear who owned the car, defendant had enjoyed control and possession of it for at least a month prior to his arrest. Defendant testified that he sometimes let a friend use the car, however, and that he may have done so about 24 hours before this incident.

Defendant and his passengers were all indicted and tried for possession of cocaine. The jury found defendant guilty and acquitted his two co-defendants.

Defendant argues that the evidence was insufficient based on the equal access rule, which entitles a defendant to acquittal where (1) the sole evidence of his possession of contraband is his possession of a vehicle in which the contraband is found and (2) others had equal access to the part of the vehicle where the contraband was found or the vehicle had been in the possession of others in the recent past. See Fears v. State, 169 Ga. App. 172 (1) (312 SE2d 174) (1983). In this case, however, defendant’s possession of the vehicle was not the sole evidence of his possession of the cocaine. First, both of the passengers with equal access testified that the cocaine was not theirs. Although they did not know whether the cocaine belonged to defendant, their testimony was circumstantial evidence from which the jury could infer that the cocaine must have belonged to defendant. And second, unlike other cases in which the equal access argument has been raised, there was evidence that the contraband here was in plain view, right next to the driver — from which the jury could have concluded that the driver had to be aware of its presence. Compare Whipple v. State, 207 Ga. App. 131 (427 SE2d 101) (1993) (contraband hidden in headrest); In the Interest of C. A. A., 187 Ga. App. 691 (371 SE2d 247) (1988) (contraband hidden in envelope under seat). With respect to the friend who might have had recent possession, defendant’s testimony was uncertain and equivocal, and the jury, which was properly charged on the equal access rule, could have discounted his testimony and decided the rule did not apply.

Decided April 8, 1996.

John G. Walrath, for appellant.

Robert E. Keller, District Attorney, M. Thomas Woodward, Assistant District Attorney, for appellee.

Viewed in a light favorable to the jury’s verdict, the evidence was sufficient to enable rational jurors to conclude that defendant was guilty of possession of cocaine beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Andrews and Smith, JJ, concur.

       Defendant also testified that the cocaine was not his, but the jury evidently believed the passengers and did not believe him.


text:
    A96A0208.
    SIRMONS v. DERST BAKING COMPANY et al.
    (470 SE2d 515)
   Pope, Presiding Judge.

Plaintiff Evelyn Sirmons filed a complaint on October 24, 1994, against Carolina Foods, Inc.; Derst Baking Company; and DeWitt Hires d/b/a Pogo Food Stores, for injuries she claimed she incurred when she bit into a honeybun which contained a dime. In her complaint, Sirmons claimed that defendants were negligent and wantonly disregarded her safety in selling her the defective honeybun. She claimed that Carolina Foods had manufactured the bun; that the bun was then sold to Derst Baking Company; that Derst then sold the bun to Hires d/b/a Pogo Food Stores; and that she bought the bun from Pogo Food Stores.

Hires filed a motion for summary judgment, arguing that as the retail seller of the bun, it had no liability to Sirmons. In support of its motion, Hires argued that Sirmons had admitted that when she purchased the bun it was in a sealed cellophane package which had not been pierced or opened in any manner. Derst also filed a motion for summary judgment contending that it bought the honeybuns from Carolina Foods and that they had already been packaged and labeled. Derst presented evidence and argued that it was only the distributor of the product, that it did nothing to alter the condition or packaging of the honeybun, and that in the absence of evidence that it knew or should have known of the defective product, there could be no liability.

The court granted both motions, and Sirmons appeals. Citing OCGA § 51-1-23, and numerous cases including Ray v. Deas, 112 Ga. App. 191 (144 SE2d 468) (1965), and Crosby v. Calaway, 65 Ga. App. 266 (16 SE2d 155) (1941), Sirmons argues that a jury question was presented since Hires and Derst ought to have known of the presence of the dime in the honeybun.

The undisputed evidence was that the bun was in a sealed cellophane package which had not been pierced or opened in any way until Sirmons opened it. Sirmons testified that the package appeared airtight and that there was nothing unusual about the packaging. Sirmons stated that before buying it, she felt the bun to make sure it was fresh. She testified that she heated the bun in the store’s microwave oven before eating it and that the dime was in the last bite of the bun.

“It is the general rule that a vendor or dealer who is not the manufacturer is under no obligation to test an article purchased and sold by him for the purpose of discovering latent or concealed defects, but that when he purchases and sells an article in common and general use, in the usual course of trade, without knowledge of its dangerous quality, and with nothing tending reasonably to call his attention thereto, he is not negligent in failing to exercise care to determine whether it is dangerous or not. In such a case he may assume that the manufacturer has done his duty in properly constructing the article and in not placing upon the market a commodity which is defective and likely to inflict injury.” (Citations and punctuation omitted.) Lowe v. American Machine & Foundry Co., 132 Ga. App. 572, 576 (1) (a) (208 SE2d 585) (1974).

In the context of food products, “[i]f the goods sold are in the original package sealed and unbroken, and it is a perfect appearing package, and it is impossible, in the practical use of the package in the retail trade, to discover the hidden unwholesomeness or imperfection without breaking the package, and the dealer has no positive knowledge, or notice amounting to imputed knowledge, of the hidden imperfection, ordinary care does not require the dealer to open the same, and as a matter of law he would not be negligent under these circumstances.” (Citation and punctuation omitted.) Brock v. Simpson, 103 Ga. App. 800, 801 (120 SE2d 885) (1961); see also Davis v. Williams, 58 Ga. App. 274 (2) (198 SE 357) (1938).

Unlike the cases upon which Sirmons relies, the situation here does not involve retailers or restaurateurs, who dispense food, like ice cream, by removing it from a container and delivering it to a customer. See, e.g. Crowley v. Lane Drug Stores, 54 Ga. App. 859 (189 SE 380) (1936). Nor is this a situation in which the dime in the honeybun ought to have been apparent to Derst or Hires through the packaging. Cf. Albany Coca-Cola Bottling Co. v. Shiver, 67 Ga. App. 359 (20 SE2d 181) (1942). In the instant case, there is no evidence to support Sirmons’ contention that the presence of the dime should have been known to Derst and Hires.

Decided April 8, 1996.

E. Kontz Bennett, Jr., for appellant.

Barrow, Sims, Morrow & Lee, Jordan D. Morrow, Brennan & Wasden, Wiley A. Wasden III, Whelchel, Brown, Readdick & Bumgartner, John E. Bumgartner, Joseph R. Odachowski, for appellees.

Similarly, Sirmons’ argument that a theory of res ipsa loquitur applies is without merit since there “is a failure of proof of an essential element of res ipsa loquitur — the requirement that the injury result from an agency or instrumentality within exclusive control of the defendant.” (Citation and punctuation omitted; emphasis in original.) Tyler v. Pepsico, Inc., 198 Ga. App. 223, 227 (2) (c) (400 SE2d 673) (1990). The motion for summary judgment was properly granted.

Judgment affirmed.

Andrews and Smith, JJ, concur.

       Sirmons does not raise breach of warranty arguments. See generally Ellis v. Rich’s, Inc., 233 Ga. 573 (212 SE2d 373) (1975).


author: Blackburn, Judge.

text:
    A96A0329.
    MATTHEWS v. THE STATE.
    (470 SE2d 518)
   Blackburn, Judge.

Kenneth Michael Matthews appeals his conviction of aggravated child molestation.

1. Matthews contends that the trial court erred in permitting the testimony of a teacher bolstering the credibility of one of the victims. Matthews did not object to the teacher’s testimony, however, until after several questions intending to bolster the victim’s credibility were asked and answered, and the State had already finished its redirect examination of the witness and Matthews had begun his recross-examination.

If an objection is not raised until after evidence has already been admitted without objection, the objection will be deemed waived. Brown v. State, 191 Ga. App. 357, 358 (381 SE2d 543) (1989). Although an exception to this general rule may apply under Cross v. State, 196 Ga. App. 714, 716 (397 SE2d 125) (1990), when questions and answers are made in a very fast exchange and the attorney objects as soon as possible, the instant case did not involve such an exchange. Therefore, Matthews’ failure to make a timely objection precludes our review of this alleged error.

2. Matthews contends that the trial court erred in permitting a witness to testify about an alleged statement Matthews made while in custody because the State failed to comply with former OCGA § 17-7-210 by furnishing him with a copy of the custodial statement at least ten days prior to trial. Although former OCGA § 17-7-210 was repealed effective January 1, 1995, it is still applicable to the instant case because Matthews was indicted prior to such date.

Former OCGA § 17-7-210 (a) provided that a “defendant shall be entitled to have a copy of any statement given by him while in police custody” upon written request. To have constituted a valid demand for discovery under OCGA § 17-7-210 a specific written request must have been made. Carter v. State, 181 Ga. App. 117 (351 SE2d 516) (1986). The request must either make specific reference to the Code section or make it clear that written copies of the defendant’s own statements are to be furnished to the defense at least ten days prior to trial. McCarty v. State, 249 Ga. 618, 620 (292 SE2d 700) (1982). No such written request was made in the instant case. Therefore, the State was under no obligation to comply with former OCGA § 17-7-210.

3. Matthews contends that the trial court erred in allowing certain impeachment testimony without instructing the jury that the testimony could not be used as evidence of a confession.

Matthews’ wife testified that she did not remember ever telling her mother that Matthews hoped their children, the alleged victims, would forgive him. To impeach this testimony, the State had Matthews’ mother-in-law testify that her daughter told her that Matthews thought his children had forgiven him. Even though Matthews made no request that a limiting instruction be given, he contends that the judge erred in failing to instruct the jury that the impeachment testimony of Matthews’ mother-in-law could not be used as evidence of a confession because it would be hearsay when considered for that purpose. In support of his argument, Matthews cites Colbert v. State, 124 Ga. App. 283, 285 (183 SE2d 476) (1971), which states “where inadmissible evidence as to a confession is offered and admitted, its admission constitutes reversible error, unless the jury is expressly instructed that the evidence is admitted for the purpose of impeachment only, whether or not a request to so charge be made, and whether or not any exceptions are made to the charge as given. [Cit.]” (Emphasis supplied.)

Matthews failed to point out, however, that Colbert involved a situation in which the failure of the trial court to give a limiting instruction would have contravened the defendant’s Fifth Amendment rights concerning self-incrimination because the prior inconsistent statements sought to be admitted were obtained in violation of Miranda. Therefore, “it is not unreasonable to require a trial judge to instruct the jury on the limitation placed upon the use of the evidence, even where no request for such instructions is made.” State v. Byrd, 255 Ga. 665, 668 (341 SE2d 455) (1986). As noted in Byrd, a different standard applies when, as in the instant case, only evidentiary considerations are involved. Because evidentiary considerations “carry less weight than rights under the Fifth Amendment,” it is “reasonable and proper to insist upon a request by a defendant who wishes to have the trial judge give limiting instructions for impeachment evidence.” Id. Therefore, because Matthews failed to request that a limiting instruction be given, he cannot complain about its absence for the first time on appeal.

Decided April 9, 1996.

J. Calhoun Barrs, for appellant.

Lydia J. Sartain, District Attorney, Jessica K. Moss, Assistant District Attorney, for appellee.

4. Matthews contends that, under the facts and circumstances of his case, we should carve out an exception to the rule that the polygraph test results are inadmissible absent an express stipulation to the contrary between the parties. See Collar v. State, 206 Ga. App. 448, 449 (426 SE2d 43) (1992).

Matthews relies heavily upon the argument that, because he did not have counsel at the time he was enticed to take the polygraph test, and thus was unaware that the results would not be admissible in court absent an express stipulation to the contrary between the parties, it is unfair to not let him introduce his favorable results. This Court has previously rejected this line of reasoning. See McGraw v. State, 199 Ga. App. 389, 393 (405 SE2d 53) (1991) (refusing to recognize a theory of an implied stipulation). Upon reflection, we decline Matthews’ invitation to change existing law.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.


author: Smith, Judge.

text:
    A96A0372.
    DAVIS v. THE STATE.
    (470 SE2d 520)
   Smith, Judge.

Charles Davis was found guilty by a jury of the offenses of statutory rape and child molestation. His extraordinary motion for new trial was denied, and the trial court granted his motion for this out-of-time appeal.

1. Davis enumerates the general grounds. The evidence presented at trial showed that Davis’s wife asked the victim, a 13-year-old friend, to accompany her and the Davises’ baby daughter to a doctor’s appointment in order to babysit with the child. The victim’s mother allowed the victim to spend the night at the Davises’ apartment because the appointment was early the next morning. It was difficult for the 13-year-old to get up the next morning, however, and Davis’s wife permitted her to choose to stay at the Davises’ apartment with their daughter instead of accompanying her to the doctor.

Davis and his wife left their home at about 6:05 a.m. Davis drove his wife to her doctor’s appointment before going on to work. Davis was due at work at 7:00 a.m. He left his wife at approximately 6:40. Davis’s wife returned home after her doctor’s appointment, at about 10:30 a.m. When she returned home, she found the victim on the telephone; she appeared relaxed, normal, and happy. The victim remained at the Davis home until evening, when Davis’s wife took her home, and never mentioned having been raped. Almost a week later, the Davises learned that the victim had accused Davis of returning home that morning and raping her before his wife returned.

The victim testified that Davis returned to the apartment at about 7:00 a.m. that day. She testified that he entered the apartment through the back door, began fondling her in the living room, then pulled her into the bedroom and raped her. Before leaving he told her: ‘You haven’t seen me; I haven’t been here.” A friend of the victim’s testified that the victim called her that day or the next and told her that Davis had raped her. The victim was examined by a physician approximately a week after the alleged rape, and no physical findings were found either to support or to contradict the allegations.

Davis testified and denied any sexual contact with the victim. He testified that he arrived at work at 6:55 a.m. and was at work, attending to his regular duties, at the time the victim alleged the rape took place. Co-workers testified they recalled seeing Davis at work that day, but they could not specifically recall his presence at the exact time in issue.

Although this evidence of guilt is certainly not overwhelming, the weight of the evidence is for the jury; this Court reviews only the sufficiency of the evidence. Foster v. State, 203 Ga. App. 328, 330 (416 SE2d 855) (1992). Here, the testimony of the victim alone was sufficient to authorize the jury to find Davis guilty of the charged crimes under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In two enumerations, Davis contends the State improperly commented regarding his presence at trial. The prosecutor began her cross-examination of Davis by asking him repeatedly about the fact that Davis was present throughout the trial and was the only witness who heard all the other testimony. The defense objected on the ground that Davis had a constitutional right to be present during all testimony and that the questions were not relevant to any issue in the case. The court overruled the objection.

Davis contends this questioning was analogous to prohibited comment regarding a defendant’s silence, see Mallory v. State, 261 Ga. 625, 629 (5), 630 (409 SE2d 839) (1991), or his representation by counsel. Ellis v. State, 181 Ga. App. 630, 633 (4) (353 SE2d 822) (1987). We have found no Georgia case supporting this contention, and Davis cites none. In support of this argument he relies only upon State v. Robinson, 366 A2d 1371 (N.J. Super. Ct. 1976), in which a New Jersey superior court held that similar comment was ground for granting a new trial.

That determination, however, was reversed by a New Jersey appellate court. State v. Robinson, 384 A2d 569 (N.J. App. Div. 1978). The appellate court concluded that the comments in issue were simply an attempt to show that the defendant’s testimony had been “tailored to that of the testimony of other witnesses, a perfectly proper inquiry,” and they were fair comment about the credibility of the defendant’s testimony. Id. at 570. Here, too, the prosecutor’s questioning was designed to reflect upon the defendant’s credibility and allow the jury to infer that his testimony was “tailored.” When a defendant chooses to testify, he must be prepared to withstand cross-examination as to his credibility. Fugate v. State, 263 Ga. 260, 265 (10) (431 SE2d 104) (1993). We find no error.

3. Davis maintains he was denied effective assistance of counsel on his motion for new trial because counsel on the motion did no investigation and failed to raise meritorious issues. In order to establish a claim of ineffective assistance of counsel, the appellant must show both that counsel’s performance was deficient and that a reasonable probability exists that but for counsel’s deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984). Here, because we conclude that none of the issues pointed to by Davis has merit, we need not address either counsel’s alleged failure to investigate or the issue of whether Davis’s claim of ineffectiveness should have been raised by way of another motion for new trial. Even if counsel had raised those issues on motion for new trial, the result would not have been affected.

(a) None of Davis’s contentions regarding the charge of the court is meritorious. Neither the charge as a whole nor the charge on reasonable doubt trivialized the trial or lessened the State’s burden of proof. The court’s charge on reasonable doubt has been held numerous times not to be reversible error. See, e.g., Burgess v. State, 264 Ga. 777, 787 (28) (450 SE2d 680) (1994).

Decided April 10, 1996.

Jeffery L. Ertel, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Assistant District Attorney, for appellee.

The alibi charge given by the court was also proper. The court charged the jury that Davis’s presence at the scene of the crime was an essential element, that the State had the burden of proving that presence beyond a reasonable doubt, and that if, after considering all the evidence presented at trial, including the alibi evidence, the jury had a reasonable doubt of the defendant’s guilt, its duty was to acquit. Contrary to Davis’s contention, the court did not charge the jury that Davis had the burden of establishing his alibi. The charge given is not burden-shifting; an almost identical charge was approved in Ross v. State, 192 Ga. App. 65, 68 (383 SE2d 627) (1989).

(b) The trial court’s insistence upon promptness and firm control of the progress of the trial does not equate to a “rush to judgment,” as urged by Davis. The cases Davis cites in support of his contention that the trial court caused jurors to surrender their honest convictions in the interest of time all pertain to curtailment of the deliberation process. That was not the case here.

(c) Davis’s contention that the trial court “bullied” him into waiving complete recordation is unsupported by the record and cannot be considered.

(d) Davis argues that the combination of alleged errors and their cumulative effect must be considered. As a general rule, however, “any error shown upon the record must stand or fall on its own merits and is not aided by the accumulative effect of other claims of error.” (Citations and punctuation omitted.) Fuqua v. State, 183 Ga. App. 414, 420 (2) (359 SE2d 165) (1987).

Because we conclude that none of the issues Davis claims counsel should have raised is meritorious, it is apparent that Davis cannot satisfy the second element of the Strickland test, and a remand for a hearing in the trial court is unnecessary. Wright v. State, 211 Ga. App. 474, 477-478 (5) (440 SE2d 27) (1993).

4. We have reviewed Davis’s remaining enumerations of error and find them completely without merit.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

       See Glover v. State, 266 Ga. 183 (2), 184-185 (465 SE2d 659) (1996); Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991).


author: Ruffin, Judge.

text:
    A94A2108.
    METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY v. WHITE.
    (470 SE2d 524)
    Decided April 11, 1996.

      Swift, Currie, McGhee & Hiers,, Jonathan M. Engram, Eric D. Miller, for appellant.

      Van C. Wilks, for appellee.
   Ruffin, Judge.

In Metropolitan &c. Ins. Co. v. White, 217 Ga. App. 108 (456 SE2d 511) (1995), we reversed the trial court’s denial of Metropolitan Property & Casualty Insurance Company’s motion for summary judgment. The Supreme Court granted certiorari and reversed our decision in White v. Metropolitan &c. Ins. Co., 266 Ga. 371 (467 SE2d 332) (1996). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is hereby made the judgment of this Court.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Beasley, Chief Judge.

text:
    A96A0006.
    CAMPBELL v. THE STATE.
    (470 SE2d 524)
   Beasley, Chief Judge.

Campbell was convicted on two counts of committing aggravated child molestation upon his daughter, OCGA § 16-6-4 (c).

Before trial, Campbell issued subpoenas that sought the production of all records of the Newton County Department of Family & Children Services (“DFACS”) concerning “complaints of child abuse, neglect, and/or molestation regarding” the victim, and the testimony of DFACS caseworker Allison. The State moved to quash the subpoenas because they asked for confidential information protected by OCGA § 49-5-40 (b).

Campbell subsequently petitioned the court, pursuant to OCGA § 49-5-41 (a) (2), to subpoena DFACS records of both Newton County and DeKalb County, where the child had formerly resided, relating to earlier allegations of molestation she had made against Campbell and, in a separate instance, another man. The petition alleged the victim had a pattern of making false accusations and requested the court to conduct an in camera inspection to determine if the files showed this. See Davidson v. State, 183 Ga. App. 557, 559 (4) (b) (359 SE2d 372) (1987). The State filed a motion in limine to exclude from trial any opinion testimony regarding the credibility of the earlier allegations.

A hearing was held to address the petition and motions to quash. Previously, the DeKalb DFACS had inadvertently sent its confidential file to Campbell’s counsel, apparently in response to an earlier subpoena. Counsel had examined the file and found information he believed exculpatory, specifically that Groves, a DFACS caseworker, had concluded the prior allegations were false. At the hearing, counsel tendered the file to the court for inspection, and defendant’s counsel was allowed no further access to it. The court concluded the file did not contain exculpatory information and determined that any testimony about Groves’ conclusions that the prior allegations were false would be inadmissible.

Two days later, another hearing was held on the State’s motion during which similar issues were discussed concerning the information in the Newton and Rockdale DFACS files, both of which held much the same information as the DeKalb file. The court again indicated that any testimony that Groves believed the prior allegations were false would be inadmissible. The State announced it would not, and it did not, seek to introduce any similar transaction at trial.

In his sole enumeration, Campbell contends the court erred in forbidding him to call and question Groves. However, the court did not prevent this. To the contrary, the court specifically stated Groves could testify as to his observations, but not as to the conclusions he drew about the truth or falsity of the prior accusations. At several points during the first hearing, and in summarizing its rulings at the end, the court stated that no caseworker would be allowed to testify that he held the opinion that the victim’s earlier accusations were false.

During the second hearing, the court made similar rulings as to suggested testimony that Groves had concluded the victim’s mother had made false statements concerning the earlier allegations. The court specifically allowed proper impeachment of the State’s witnesses after their testimony was presented, pursuant to statutory methods. See OCGA §§ 24-9-80 through 24-9-85.

The court correctly ruled that neither Groves nor any other witness could give his opinion that the victim had made false allegations of molestation, because such evidence addresses the credibility of the witness. OCGA § 24-9-80; see Eason v. State, 215 Ga. App. 614 (1), 615 (451 SE2d 820) (1994); Guest v. State, 201 Ga. App. 506, 507-508 (1) (411 SE2d 364) (1991). “ ‘Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury. OCGA § 24-9-80. An expert witness may not testify as to his opinion of the victim’s truthfulness. (Cits.)’ [Cits.]” Lamb v. State, 196 Ga. App. 665, 666 (2), 667 (396 SE2d 497) (1990). Compare State v. Oliver, 188 Ga. App. 47, 53-54 (1) (372 SE2d 256) (1988) (Beasley, J., concurring specially).

Reasons advanced as bases for Groves’ conclusion that earlier allegations may have been false were inconsistencies between the victim’s and mother’s versions of the incident; the possibility that the victim had been coached because of her use of phrases such as “we know he would lie” and “mom told me to say . . .”; the victim’s inability to provide detail; and factual similarities between the allegations concerning Campbell and the other man. The file also contained statements that the allegations were false, without any bases for those conclusions being stated. These factors are such that a jury would not need “‘specialized knowledge, skill, or experience’” to draw an inference concerning credibility. See Guest, supra at 508 (1). The caseworker could have given his observations about the earlier allegations, conveying information to the jury upon which it could draw its own conclusion as to credibility. Campbell could then have argued to the jury that those observations suggested the victim spoke falsely about the earlier instances and, by implication, was testifying falsely at trial.

Both the victim and the mother testified. Campbell did not challenge their credibility with any inconsistencies between their versions of the earlier allegations or between these versions at trial and those given to the caseworker. He did not cross-examine his daughter at all and did not address the prior allegations while cross-examining his wife. He did not call Groves and in fact presented no testimony but his own, in which he did not raise the issue. Of course, doing so would have informed the jury of the previous accusations of molesting his daughter. Campbell’s failure to probe was not a result of the court’s ruling but rather an inadvertency, a neglect, or a strategic decision of which he cannot complain. See generally Ellerbee v. State, 215 Ga. App. 312, 313 (2) (450 SE2d 443) (1994).

Decided April 11, 1996.

J. Ellis Millsaps, for appellant.

Alan A. Cook, District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.

       The court expressed its displeasure at counsel’s conduct in examining the file and not immediately giving it to the court, but it does not appear any further action was taken or requested.

       The record does not reveal how the content of the DFACS file from Rockdale County was made an issue before the court.

       As argued by defendant, such impeachment is not barred by the Rape Shield Statute, OCGA § 24-2-3 (b), because it does not address the victim’s prior sexual behavior but rather her propensity to make false statements about the sexual misconduct of others. Smith v. State, 259 Ga. 135, 136 (1), 137 (377 SE2d 158) (1989).


author: Birdsong, Presiding Judge.

text:
    A96A0292.
    GRIFFIN v. THE STATE.
    (470 SE2d 744)
   Birdsong, Presiding Judge.

Joseph Martin Griffin appeals his conviction of two counts of aggravated sodomy and rape. The six-year-old victim was the seventeen-year-old appellant’s cousin; at the time the incidents occurred, the victim and appellant lived in an extended family setting in the same house. A colposcope examination, conducted at the Scottish Rite Children’s Medical Center (Scottish Rite Hospital), of the victim showed evidence of multiple forcible penetrations of the victim’s vagina. The victim made an in-court identification of appellant and testified he had placed his penis “inside” her and that it hurt when she was touched in a bad way; she also testified appellant had touched her “private” with his mouth, had required her to take his penis inside her mouth and had threatened her that something would happen to her as “Freddy Kruger” would get inside his body. Other witnesses testified as to the statements the child victim made against her assailant, including the victim’s mother who confronted appellant and obtained his admission “to doing” what the victim claimed, that is, to having “messed” with her. Appellant enumerates three errors. Held:

1. Appellant contends the trial court erred in denying his motion for directed verdict as the evidence was insufficient to sustain his conviction. We disagree. As a general rule, “a motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125, 126 (1), 127 (312 SE2d 311). However, the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436). On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was found guilty. Jackson v. Virginia, supra.

2. Appellant contends the trial court erred in failing to grant his mistrial motion after a member of the Department of Family & Children Services (“DFCS”) testified “that she had confirmed the allegations of sexual molestation” of the victim by appellant. The record reveals the following colloquy: “[PROSECUTOR] Q. Did DFCS along with you . . . confirm this allegation? [DFCS WITNESS] A. Yes. Q. Now, what does it mean for the Department of Family and Children Services to confirm an allegation? A. That the evidence that we have — we have evidence to support, to confirm, the allegations that have been made.” At this point, defense counsel obtained an out-of-court hearing and moved for a mistrial. After hearing argument, the trial court elected to allow the witness to proceed with describing what DFCS meant when they concluded allegations had been confirmed, and overruled the mistrial motion “at this time.” Upon the return of the jury, the State proceeded to examine the witness as follows: “[PROSECUTOR] Q. [Could you] explain to the jury a little bit, what it meant for DFCS to confirm the allegation? [DFCS WITNESS] A. We can confirm a case, meaning that we have enough evidence that supports the allegations. It does not necessarily mean that law enforcement has enough information to charge anybody. I knew with the medical evidence this child had been sexually abused, which was enough for me to confirm my case.” (Emphasis supplied.)

Examining the record in its totality, it appears that the DFCS witness did not express any affirmative opinion as to the credibility of the victim; at most she opined that in view of the medical evidence (which subsequently was presented to the jury), DFCS, though not necessarily a law enforcement agency, could conclude for its purposes that an allegation of sexual abuse of the victim was confirmed. This case is factually distinguishable from Guest v. State, 201 Ga. App. 506, 507 (411 SE2d 364) where a police officer testified that the basis for obtaining an arrest warrant for appellant was that he had viewed a videotape of the victim’s statement and felt the victim had been qualified on the tape and appeared “credible” in the officer’s “eyes.” Although not directly in point, we find persuasive and controlling our holding in Satterwhite v. State, 212 Ga. App. 543 (2) (442 SE2d 5) where the investigator did not improperly give his opinion of the victim’s truthfulness, but instead merely expressed his opinion that the physical evidence was consistent with the victim’s testimony. In this case, the witness affirmatively testified before the jury that DFCS confirmation of an allegation does not necessarily mean that a law enforcement agency would have enough evidence to arrest anyone, and in essence opined that the medical testimony was consistent with and supportive of an allegation that the victim had been sexually abused. Although we discourage this practice as it treads dangerously close to the precipice of prejudice, in this instance, sure legal footing was maintained by the State and error did not result; the trial court did not abuse its discretion in denying appellant’s motion for mistrial.

3. Appellant further contends the trial court erred in denying his mistrial motion when a sheriff’s department investigator erroneously testified that the victim said appellant had "raped” her. "The volunteering of non-responsive prejudicial evidence by a law enforcement officer may be grounds for mistrial. [Cit.] . . . The question of whether non-responsive and improper statements by a law enforcement officer are so prejudicial as to warrant a mistrial is one which must be resolved by the exercise of discretion by the trial court. [Cit.]” Teasley v. State, 177 Ga. App. 554, 555-556 (3) (340 SE2d 32).

The record reveals that the sheriff’s investigator was asked to testify as to what the child victim had told her, and responded in pertinent part as follows: "[Appellant] would forcibly make her suck his penis. ... He would lick her vagina. . . . Then he would rape her. . . . She would tell him it would hurt, and he said, ‘he didn’t care.’ . . . And she told of him [drawing] . . . pictures of her vagina, then would lick her vagina and then rape her.” (Emphasis supplied.) Appellant immediately moved for a mistrial outside the presence of the jury on the ground that the victim had not made any statement that appellant had raped her. The investigator reviewed her documents and conceded that the victim had not stated that appellant had raped her, but had said he placed his “penis” inside her “private.” The trial court denied the mistrial motion stating that instead he was going to give the jury a "caution and instruction.” Before the jury returned and before the curative instruction was given, the defense counsel stated for the record that he would renew his mistrial motion at the proper time, and that he did “reserve the objection” (Emphasis supplied.) The trial court merely announced it understood the procedure to be adopted by appellant but did not affirmatively authorize such a procedure. Upon the return of the jury, the trial court gave the following curative instruction: “During the previous testimony, the witness testified that the victim stated to her that the defendant raped her. I’m going to direct you to disregard the characterization of the conduct as rape, and I’m going to allow [the prosecutor] to re-question the witness to make out exactly what the victim did say to the witness.” (Emphasis supplied.) Thereafter, the investigator was re-questioned as to the conversation and gave the following pertinent clarifying testimony: “She told me that he touched her by placing his penis inside her vagina. She used the word private. And that he would forcefully make her put her mouth on his penis. . . . That he also would place his mouth on her vagina.” Appellant did not renew its motion for mistrial immediately following the curative instruction. See generally Schirato v. State, 260 Ga. 170, 172 (5) (391 SE2d 116); Harris v. State, 202 Ga. App. 618, 620 (3) (b) (414 SE2d 919).

We find Nichols v. State, 177 Ga. App. 689 (340 SE2d 654) to be distinguishable and not controlling; in the case at bar, unlike Nichols, supra, a curative instruction was immediately given, instructing the jury to disregard the rape characterization and the investigator then testified as to the words actually used by the child victim in her statement.

At most, the investigator’s initial remarks were “an erroneous legal conclusion, mischaracterizing the extent to which appellant’s statement was inculpatory.” Teasley, supra at 555 (3). Immediately following the curative instruction, the investigator testified as to the terminology actually employed by the child thereby correcting this mischaracterization. Examining the witness’s testimony in its entirety and the corrective action promptly taken by the trial court, we find that the curative instruction and the clarifying testimony served to prevent any prejudicial impact on the jury due to the initial mischaracterization of the terminology employed by the child victim in her statement. A trial court’s ruling will not be disturbed on appeal absent an abuse of discretion, which does not exist if the curative instruction serves to prevent any prejudicial impact and/or the jury indicates that it can follow the instruction and will not consider any improper prejudicial statements or testimony. Allen v. State, 259 Ga. 303, 304 (2) (379 SE2d 513). “ ‘Where a motion for mistrial is made on the ground of inadmissible matters being presented to the jury, the corrective measure to be taken by the trial court also is largely a matter of discretion, and where(, as here,) proper corrective measures are taken and there is no abuse of that discretion, a refusal to grant a mistrial is not error.’ ” (Citations omitted.) Jackson v. State, 207 Ga. App. 190, 191 (2) (427 SE2d 566). Additionally, the investigator’s erroneous “rape” characterization testimony could not have shocked the jury to a point where it could not perforce follow an adequate curative instruction “given all of the sordid details of this case that were [legitimately] introduced into evidence.” Chastain v. State, 262 Ga. 178, 179 (3) (415 SE2d 629). On this record, we conclude the trial court properly exercised its discretion in denying the mistrial motion. Id.

Judgment affirmed.

Blackburn, J., concurs. Beasley, C. J., concurs in the judgment only.

Decided March 28, 1996

Reconsideration denied April 12, 1996.

T Lee Henley, for appellant.

James R. Osborne, District Attorney, E. Chandler Barrett, Assistant District Attorney, for appellee.


text:
    A96A0164.
    GASKIN v. THE STATE.
    (470 SE2d 531)
   Smith, Judge.

Ralph Gaskin was convicted of two counts of burglary, OCGA § 16-7-1 (a), and one count of arson in the first degree, OCGA § 16-7-60. His motion for new trial was denied, and he appeals.

The evidence presented at trial showed that on the night of August 20, 1992, the offices of an accounting firm burned. A fire investigator testified that the burn pattern on the carpet indicated that a flammable liquid had been used to start the fire, suggesting arson. He also testified that a piece of a glass bottle was found near the origin of the fire. Shortly after the fire, a burglary occurred at a nearby electronics store. A detective testified that access to that store was gained by smashing the glass front door to the business.

At trial, two of Gaskin’s co-defendants, Jermaine Roberts and Marion Stevens, pled guilty and testified for the State, implicating Gaskin and another co-defendant, Frederick Ash, in the burglaries and the arson.

1. Gaskin asserts the general grounds, specifically enumerating as error the trial court’s failure to grant a motion for new trial because the testimony of accomplice Marion Stevens was insufficiently corroborated as to the burglary counts.

A defendant may not be convicted on the uncorroborated testimony of an accomplice. Whitfield v. State, 159 Ga. App. 398, 400 (6) (283 SE2d 627) (1981); OCGA § 24-4-8. The testimony of a second accomplice, however, satisfies the corroboration requirement. Ledesma v. State, 251 Ga. 885, 887 (1) (b) (311 SE2d 427) (1984); McDaniel v. State, 158 Ga. App. 320 (279 SE2d 762) (1981). In this case, two accomplices testified against Gaskin.

Stevens testified that the four men were driving around in a car together, and when they stopped for gas, Ash filled a glass Gatorade bottle with gasoline. Stevens indicated that Ash and Gaskin used the bottle filled with gasoline to start the fire at the accounting office in order to divert attention from a planned burglary at Cannon Electronics. Stevens also testified that after Gaskin and Ash started the fire at the accounting office, the four men drove to a trailer park behind Cannon Electronics. There, Stevens, Gaskin, and Ash got out of the car and told Roberts, who was driving, to meet them later at an appointed location. Stevens testified that the three of them broke into the electronics store, and that Gaskin and Ash were to “get” amplifiers and a car alarm.

Roberts testified that he dropped Gaskin off with Stevens and Ash. He testified that when the three men returned to meet him at the appointed location, they were carrying boxes Roberts later learned contained stolen electronics equipment. Roberts’s testimony as to these facts corroborates Stevens’s testimony both factually and by indicating knowledge of an overall plan to commit the arson and the burglary. Only slight corroboration of accomplice testimony is required. “While a defendant may not be convicted on the uncorroborated testimony of an accomplice, OCGA § 24-4-8 . . ., slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict.” (Citations and punctuation omitted.) Hardin v. State, 252 Ga. 99, 100 (4) (311 SE2d 462) (1984).

To commit burglary, a person must, “without authority and with the intent to commit a felony or theft therein,” enter or remain within any building or any room or any part of that building. OCGA § 16-7-1 (a). Participants in a crime need not be the actual perpetrators of the crime. See Lobdell v. State, 256 Ga. 769, 773 (7) (353 SE2d 799) (1987). Every person concerned in the commission of a crime is a party to that crime and may be charged with and convicted of the crime. OCGA § 16-2-20 (a). To be concerned in the commission of a crime, a person must directly commit the crime, or intentionally aid or abet in the commission of the crime. OCGA § 16-2-20 (b) (1), (3), inter alia.

While mere presence at the scene of a crime is insufficient to show that a defendant is a party to the crime, Brown v. State, 250 Ga. 862, 864 (1) (302 SE2d 347) (1983), criminal intent may be inferred from conduct before, during and after the commission of the crime. Jones v. State, 242 Ga. 893 (1), 894 (252 SE2d 394) (1979). See also Williams v. State, 262 Ga. 677 (1) (424 SE2d 624) (1993). The jury was authorized to infer from Gaskin’s conduct before and after the burglary that Gaskin did in fact take part in both of the crimes. See Day v. State, 197 Ga. App. 875, 876 (399 SE2d 741) (1990) (whether accomplice testimony adequately corroborated to be determined by jury). That inference was valid based on the facts presented in Roberts’s testimony that indicated an overall plan to commit both the arson and the burglary. Roberts dropped Gaskin off with Stevens and Ash behind the electronics store; when they returned, the three men were carrying boxes later determined to contain stolen electronics equipment; when Roberts dropped Gaskin off, Gaskin took some items out of the trunk of the car driven by Roberts and left. These facts were sufficiently corroborated by the testimony of Stevens. The trial court therefore properly denied Gaskin’s motion for new trial on this ground.

2. Gaskin enumerates the insufficiency of corroboration only as to the burglary count, and we therefore do not address the issue as to the arson count in this appeal. Gaskin does, however, enumerate the general grounds as to his conviction for arson. Gaskin asserts that Stevens’s testimony does not directly place him at the scene of the arson; it indicates that he and Ash got out of the car in the vicinity of the accounting office and that they later ran back to the car. But Stevens also testified that when Ash returned to the car he said a distraction had been made. This comment established that the two crimes were connected; they were part of a continuing course of criminal action in which Gaskin was clearly involved.

Viewing the evidence in the light most favorable to the verdict, sufficient evidence was presented to enable a rational trier of fact to find beyond a reasonable doubt that Gaskin was also a party to the crime of arson. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Gaskin contends that the order of restitution was improper for two reasons:

(a) The trial court failed to enter written findings as required by law. This Court held in Garrett v. State, 175 Ga. App. 400 (333 SE2d 432) (1985), that OCGA § 17-14-10 requires the ordering authority to make a record regarding consideration of certain enumerated factors. In this case, the trial court held a restitution hearing and considered the defendants’ earning capacity (based upon prior education and job experience), as well as the existence of any assets and/or financial obligations. While these factors were considered on the record, no written findings were entered as required by law. If this were the only deficiency in the restitution proceedings, the absence of findings alone would not necessitate a new hearing. It is clear from the record that the trial court considered the required factors, and written findings could be entered upon remand to the trial court without another hearing. However, a new hearing on restitution is required for a different reason.

(b) Gaskin contends that the trial court also erred in ordering restitution because no evidence was presented as to the reasonable value of the property at the time it was damaged. We find this contention meritorious, and we remand this case to the trial court for a new hearing on restitution.

OCGA § 17-14-10 sets forth a list of factors to be considered by the ordering authority in determining the nature and amount of restitution. These factors include the amount of damages. OCGA §17-14-10 (3). “The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” OCGA § 17-14-9. “[T]he maximum amount of restitution recoverable in a criminal case is that which would be recoverable in a civil action. [Cits.]” Lawrenz v. State, 194 Ga. App. 724 (1) (391 SE2d 703) (1990).

Decided April 12, 1996.

Ratcliff, Smith & Rose, Charles P. Rose, Jr., for appellant.

Dupont K. Cheney, District Attorney, John T. Durden, Jr., Assistant District Attorney, for appellee.

At the restitution hearing, a partner in the accounting office testified that no attempt was made to determine the fair market value of the destroyed property. This determination was not made because the accounting office’s insurance coverage provided for replacement cost rather than fair market value.

Determination of the amount of damages must be based upon fair market value, which must be determined exactly. Lovell v. State, 189 Ga. App. 311, 313 (3) (375 SE2d 658) (1988) (evidence insufficient when amount of restitution determined by approximation). The correct determination for the amount of restitution is the fair market value of the property rather than the replacement cost. See Sutton v. State, 190 Ga. App. 56, 57 (1) (378 SE2d 491) (1989) (value assigned to the property for which restitution ordered based upon a consideration of the fair market value of a truck of comparable age and condition). See also Hoard v. Wiley, 113 Ga. App. 328, 333-334 (2) (147 SE2d 782) (1966) (testimony regarding cost price must be coupled with evidence showing condition of item both at time of purchase and at time of loss). Because the trial court in this case relied upon replacement cost rather than a determination of fair market value, the order of restitution was improper.

We therefore vacate the order of restitution and remand the case to the trial court for a new hearing on restitution and entry of a new order based upon written findings.

Judgment of conviction affirmed, order of restitution vacated and case remanded with direction.

Pope, P. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A96A0381.
    MOORE v. KROGER COMPANY.
    (470 SE2d 529)
   Andrews, Judge.

While shopping at a Kroger Company food store, James C. Moore stepped on a grape lying on the floor and slipped and fell. He sued Kroger claiming the store negligently failed to keep the premises in a safe condition for invitees and that this negligence was the proximate cause of injuries he suffered in the fall. Moore appeals from the order of the trial court granting summary judgment in favor of Kroger.

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). In other words, recovery is permitted only when the dangerous condition is known to the owner or occupant of the premises and not known to the person injured. Id. at 622. In considering whether or not Moore had knowledge of the foreign substance which caused him to slip and fall, Alterman Foods requires that he must “exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of [Kroger’s] negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Alterman Foods, supra at 623. Thus, under Alterman Foods, Moore cannot recover if he saw or in the exercise of ordinary care should have seen and avoided the grape on which he slipped and fell, unless Kroger somehow prevented him from discovering it.

Moore does not claim that anything distracted or diverted his attention or that Kroger did anything that prevented him from seeing the grape. Nevertheless, Moore testified on deposition that he did not see the grape on the floor before he stepped on it because he was looking straight ahead and not down at the floor. He deposed as follows:

“Q: Where were you looking at the time that you fell? A: Straight ahead. . . . Q: Did you ever look down at the floor before you encountered whatever [it was] that caused you to fall? A: No. Q: Is there any reason why you didn’t look down at the floor before you fell? A: No. Q: Were you distracted by anything? A: No, I was just paying attention to what I was doing when I went in there. Q: Was your vision obstructed in any way? A: No. Q: Was anything preventing you from looking down? A: No.”

There was evidence that the floor was a light cream color and the grape was green. Although Moore testified that he did not look down and see the grape, he testified that the grape was lying on the floor in a clear open area when he stepped on it. When asked if he could have seen the grape if he had looked down at the floor, Moore responded: “I have no idea. I didn’t look down.” But Moore also testified that the grape would have been visible on the floor to a nearby cashier.

Decided April 12, 1996.

Belcher, Pakchar & Sams, Henry B. Sams, for appellant.

Webb, Carlock, Copeland, Semler & Stair, James R. Doyle II, Douglas A. Wilde, for appellee.

“Q: How far away from the grape on the floor was this cashier located? A: Roughly six to eight feet. Q: And you think that she could have seen it from six to eight feet away? A: Yes.”

Moore’s deposition testimony clearly indicates that the grape was in plain view on the floor and that it was visible to anyone who looked down at the floor. Although the duty to exercise ordinary care for one’s own safety does not require continuous scanning of the floor for hazards under all circumstances, it does require the use of one’s eyesight to discover and avoid plainly visible hazards on the floor in one’s path. Vermont American Corp. v. Day, 217 Ga. App. 65, 66 (456 SE2d 618) (1995); J. H. Harvey Co. v. Johnson, 211 Ga. App. 809, 811 (440 SE2d 548) (1994); Yeaple v. Grand Union Co., 207 Ga. App. 15, 16 (427 SE2d 13) (1992); Sinclair v. Orozco, 205 Ga. App. 498, 499 (423 SE2d 25) (1992). Where, as in the present case, it is clear that the plaintiff slipped and fell on a plainly visible hazard in his path that he could have seen and avoided if he had looked, recovery is barred under the plain view rule because the proximate cause of any resulting injury was the plaintiff’s failure to exercise ordinary care for his own safety. Vermont American Corp., supra at 66-67; Edwards v. Wal-Mart Stores, 215 Ga. App. 336, 338 (449 SE2d 613) (1994); Bruno’s, Inc. v. Pendley, 215 Ga. App. 108 (449 SE2d 637) (1994); Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 52 (443 SE2d 871) (1994); J. H. Harvey Co. v. Kinchen, 213 Ga. App. 868, 869 (446 SE2d 218) (1994); Johnson, supra at 811; Winn Dixie Stores v. Carroll, 212 Ga. App. 234 (441 SE2d 432) (1994); Foodmax v. Terry, 210 Ga. App. 511, 513 (436 SE2d 725) (1993); Sinclair, supra; Riggs v. Great A. & P. Tea Co., 205 Ga. App. 608, 609 (423 SE2d 8) (1992).

Since the evidence clearly shows that the grape on which Moore slipped and fell was in plain view and visible to anyone who looked down at the floor, Moore is barred from recovery for failing to exercise ordinary care to discover and avoid the plainly visible hazard. The trial court correctly granted summary judgment in favor of Kroger.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A96A0438.
    LAZENBY v. THE STATE.
    (470 SE2d 526)
   Smith, Judge.

Ricky Lazenby was indicted for kidnapping and aggravated assault. He was convicted by a jury of aggravated assault and was acquitted on the kidnapping charge. The trial court sentenced him to 20 years confinement. His amended motion for new trial was denied, and he appeals.

1. Lazenby contends the evidence was insufficient to support the verdict. He questions the sufficiency of the evidence through an attack on the victim’s credibility.

Construed to support the verdict, evidence was presented that around 5:00 a.m., June 30, 1994, Cheryl Robinson was walking home from a party, where she had smoked crack cocaine and had “gotten high.” Robinson testified that Lazenby began to follow her and to question her about her sister. When Robinson would not tell Lazenby where to find her sister, Lazenby shot her three times. Subsequently, as Robinson was being taken from an ambulance into the hospital, she saw an officer and Lazenby and identified Lazenby as her assailant. She also positively identified Lazenby at trial.

Although evidence was presented that Robinson had smoked crack before she was shot, she also testified, “I was in my right mind.” Whether she was credible was solely for the jury to determine. See Parker v. State, 145 Ga. App. 205, 206 (1) (243 SE2d 580) (1978). Construing the evidence in a light most favorable to the verdict, sufficient evidence was presented from which a rational trier of fact could have found Lazenby guilty of aggravated assault under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Lazenby maintains that the trial court erroneously admitted his statements made while the arresting officer was struggling with him trying to read him his rights. He argues that the statements were involuntary, were induced by fear of injury, and thus were inadmissible.

Officer A. R. Wallace testified that after receiving a description of Robinson’s assailant, he located Lazenby. Wallace stated that when Lazenby saw the police car, “he took off.” Wallace chased him, pulled his gun, and stated, “I’m going to kill you. Don’t move. Don’t move.” Lazenby continued to run from Wallace but ended up against an eight-foot fence. Wallace grabbed him, wrestled him to the ground, and handcuffed him. Wallace, who weighed 280 pounds, held Lazenby on the ground with his knee in Lazenby’s back. Immediately after he wrestled Lazenby to the ground, he began reading Lazenby’s Miranda rights to him. Before he could finish reading the rights, though, Lazenby stated, “I didn’t shoot nobody, man. I didn’t shoot nobody.” Wallace testified that he told Lazenby, “Now, hold up, man. Let me get through with the rights.” As Wallace again attempted to read the rights, Lazenby said, “It wasn’t me.” Wallace unequivocally testified that Lazenby continued to interrupt the reading of his rights, and he continued to tell Lazenby to “be quiet” until he could finish reading the rights. Wallace finally finished reading the card on which the rights were written and then asked Lazenby whether he wished to talk. Lazenby said, ‘Yeah, I’ll talk. I’ll talk. Wasn’t me. It was Lemar.” Wallace testified that the statements made before he was able to completely read the Miranda rights were made without threat, violence, or hope of benefit. Further, those statements were not prompted by questions from Wallace.

Lazenby’s statements were not confessions of guilt; they clearly were exculpatory in nature. Moreover, the statements made before Wallace could completely read the rights were not made as a result of interrogation. Lazenby blurted out the statements before Wallace could completely read him his rights and continued to interrupt despite Wallace’s instructions to wait. While Wallace weighed 280 pounds and held Lazenby on the ground with his knee, we do not agree with Lazenby that his statements were inadmissible because they were induced by fear of injury. “[W]hile interrogation includes not only express questioning but also any words or actions on the part of the police which the police should know are reasonably likely to elicit an incriminating response from the suspect, it does not include words or actions, such as here occurred, that are normally attendant to arrest and custody. [Cit.]” Lebis v. State, 212 Ga. App. 481, 482 (3) (442 SE2d 786) (1994). Wallace’s wrestling Lazenby to the ground and holding him with his knee were activities attendant to the arrest. Lazenby’s statements were spontaneous exclamations made at the time of arrest, not prompted by interrogation, and were admissible. Id. See also Lolley v. State, 259 Ga. 605, 606 (2) (385 SE2d 285) (1989); Sweet v. State, 191 Ga. App. 516, 518-519 (6) (382 SE2d 376) (1989).

Lazenby’s statement that someone else shot Robinson, made after Wallace could finally finish reading the rights, was also admissible. Again, the statement was not a confession of guilt and was voluntary. Lazenby was eager to volunteer information, as he continued to talk both before and after his rights were read to him. We find nothing in the record indicating that Lazenby asked for a lawyer before making any statements. The evidence presented was clear that Lazenby’s rights were fully read to him, and he told Wallace that he understood those rights. That Wallace opined, “I can’t say that he fully understand [sic],” does not warrant reversal. Lazenby told Wallace that he understood his rights, did not ask for an attorney, and disregarded Wallace’s warnings to keep quiet. The only additional information he imparted after the rights were fully read was that someone else shot Robinson. The trial court did not err in admitting Lazenby’s statements.

Decided April 12, 1996.

Stacy Y. Cole, for appellant.

Lewis R. Slaton, District Attorney, Charles E. Rogers, Leonora Grant, Assistant District Attorneys, for appellee.

3. Lazenby contends the trial court erroneously sentenced him as a recidivist under OCGA § 17-10-7 (b) because one of his previous convictions used as a predicate for sentencing under that statute was a conviction under the Youthful Offender Act. Relying on Queen v. State, 182 Ga. App. 794 (357 SE2d 150) (1987), he maintains that use of this conviction was improper.

We disagree. Queen v. State addresses the effect of treatment under the First Offender Act, OCGA § 42-8-60 et seq., on subsequent convictions. An individual sentenced under the First Offender Act, “[u]pon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement. . . shall be discharged without court adjudication of guilt. The discharge shall completely exonerate the defendant of any criminal purpose . . . and the defendant shall not be considered to have a criminal conviction.” OCGA § 42-8-62 (a).

The Youthful Offender Act, OCGA § 42-7-1 et seq., contains significantly different provisions; it does not authorize the discharge of a felony conviction. While the Youthful Offender Act provides “for treatment of youthful offenders who have the potential and desire for rehabilitation,” OCGA § 42-7-3 (c), it does not provide for exoneration. It impacts the sentence, but not the conviction. Although Lazenby may have been sentenced under the Youthful Offender Act, the robbery conviction from which the sentence arose remains a felony conviction for purposes of recidivist sentencing. We find no error.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.


text:
    A95A1166.
    THE STATE v. CARRANZA.
    (470 SE2d 818)
   Blackburn, Judge.

In State v. Carranza, 217 Ga. App. 431 (457 SE2d 699) (1995), we reversed the trial court’s order which granted Miguel Carranza a/k/a Miguel Carranza Fonnacco’s motion to suppress his statement and motion to suppress evidence. The Supreme Court granted certiorari and affirmed our decision in part and reversed it in part. Carranza v. State, 266 Ga. 263 (467 SE2d 315) (1996). The Supreme Court determined that the trial court properly granted the motion to suppress with regard to the evidence but that the motion to suppress was improperly granted with regard to Carranza’s statement. Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Decided April 15, 1996.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellant.

Dwight H. May, James M. Bivins, for appellee.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Andrews, J., concur.


text:
    A96A0635.
    SHOOK v. STATE OF GEORGIA.
    (470 SE2d 535)
   Andrews, Judge.

After receiving information that Henry Wayne Shook was engaged in illegal drug sales, police made and monitored a controlled purchase of methamphetamines from Shook at his residence using a confidential informant. Based on this information, police obtained and executed a warrant to search Shook’s residence. In the search, officers found and seized approximately 16 grams of methamphetamines, numerous plastic baggies, a set of triple beam scales, and $37,415 in cash located on Shook’s person and in his truck. Shook was arrested and charged with possession of methamphetamines, a controlled substance, with intent to distribute. Thereafter, the State initiated civil in rem forfeiture proceedings against the $37,415 of currency pursuant to OCGA § 16-13-49. After a trial, the trial court entered an order declaring the money forfeited, and Shook appeals.

In his sole enumeration of error, Shook claims the forfeiture of the $37,415 was an excessive fine in violation of the Eighth Amendment of the United States Constitution.

In Thorp v. State of Ga., 264 Ga. 712 (450 SE2d 416) (1994), the Supreme Court adopted a three-factor analysis as a minimum guideline for determining whether an in rem forfeiture is constitutionally excessive. Accordingly, in determining whether forfeiture of the property was constitutionally permissible, the trial court was required to apply the following factors in light of all the facts of the case: (1) whether the harshness of the penalty imposed by forfeiture of the property is proportional to the gravity of the offense giving rise to the forfeiture; (2) whether the property had a close enough relationship with the offense to render it “guilty”; and (3) whether the criminal activity involving use of the property was extensive in terms of the period of time the property was used and/or the spatial use of the property. Id. at 717-718.

Based on evidence that Shook was engaged in an ongoing operation of buying, selling and using methamphetamines and that the $37,415 was either proceeds of the illegal conduct or was used or intended to be used to facilitate the illegal conduct, the trial court determined that forfeiture of the money to the State was proper under OCGA § 16-13-49 (d) (2) and (6). See also OCGA § 16-13-49 (d) (3). Part of the $3,415 in cash found on Shook’s person was identified as money used by the confidential informant to purchase methamphetamines from Shook. The remaining $34,000 was found in wrapped and marked bundles hidden in a bag behind the front seat of Shook’s truck. The truck was parked adjacent to a shed where officers found approximately 13 grams of methamphetamines along with numerous plastic baggies. There was expert opinion testimony from police that the amount of methamphetamines in Shook’s possession exceeded the amount generally held for personal use and that the plastic baggies, scales and large amount of cash found with or near the drugs are items commonly used to facilitate the sale and distribution of illegal drugs. Davis v. State, 200 Ga. App. 44, 46 (406 SE2d 555) (1991); James v. State, 214 Ga. App. 763, 764 (449 SE2d 126) (1994). “The fact that money . . . was found in proximity to contraband or to an instrumentality of conduct giving rise to forfeiture authorizes the trier of the fact to infer that the money . . . was the proceeds of conduct giving rise to forfeiture or was used or intended to be used to facilitate such conduct.” OCGA § 16-13-49 (s) (2). Although Shook testified that he was not involved in the sale and distribution of drugs and that the money had nothing to do with the drugs, the trial court, as the trier of fact, judged the credibility of the witnesses. Its findings of fact will not be set aside unless clearly erroneous. Maynard v. State of Ga., 217 Ga. App. 344, 346 (457 SE2d 253) (1995). Since the clearly erroneous test is the same as the any evidence rule, we will not disturb the fact findings of the trial court where, as here, there is evidence to support them. Id. at 346.

In considering these facts under the three-factor analysis set forth in Thorp, supra, the trial court concluded that the money was “guilty” proceeds, closely connected to and used in extensive criminal activity giving rise to the proceeds, and that forfeiture of the money was not too harsh considering the gravity of the offense. We agree. The forfeiture of the money was not an excessive fine in violation of the Eighth Amendment.

Judgment affirmed.

Pope, P. J, and Smith, J., concur.

Decided April 15, 1996.

Millard G. Gouge, for appellant.

KermitN. McManus, District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.


text:
    A96A0864.
    FRAZIER et al. v. DEEN et al.
    (470 SE2d 914)
   Blackburn, Judge.

David Frazier, Thomas Ledford, James McDaniel, and Henry Oxley (referred to collectively as plaintiffs) appeal the trial court’s order which granted the defendants’ motion for summary judgment. Plaintiffs brought the underlying action seeking an injunction against Jerry Deen, as trustee for Tanner-Deen Motors Profit Sharing Plan & Trust (the builder). By their complaint, plaintiffs contended that defendants Gayle Chapman, William Walden, Thomas Walden, Emily McAfee, and First State Bank & Trust Company, as executor under the will of William Haley, deceased (collectively referred to as the developers) improperly changed the restrictive covenants governing their subdivision.

The facts construed most favorably to the nonmovant plaintiffs indicate that the plaintiffs live in Lake Park “C” Addition to Section One, a subdivision created by the developers. The subdivision is governed by recorded protective covenants which originally required that garages and carports be entered from the side or rear of the house. On May 26, 1994, the developers sold the remaining eight lots in the subdivision to the builder. In December 1994, the builder requested that the developer amend the protective covenants in order to allow front entrance garages with electronic doors on three of the lots purchased. The builder made the request to maximize the square footage size of the houses because two of the lots were only 90 feet wide and the third lot was in the curve of the cul-de-sac. On December 16, 1994, the developers amended the covenants to allow the front entrance garage on the three affected lots. The amended covenants were filed on December 29, 1994. Plaintiffs filed their complaint on February 22, 1995.

Although plaintiffs recognize that the developers retained the right and privilege to alter or change the protective covenants when deemed advisable for the best interest of the subdivision, plaintiffs contend that the developers lost this right when they sold all of the lots in the subdivision. In Armstrong v. Roberts, 254 Ga. 15, 16 (325 SE2d 769) (1985), the Georgia Supreme Court adopted the New York and Illinois rules which provide that “[a] developer of a subdivision who reserved the authority to waive restrictions in covenants running with the land no longer possesses that authority after divesting himself of his interest in the subdivision.” The developers argue that they did not completely divest themselves of their interest in the subdivision because Lake Park “C” Addition to Section One is actually only one phase of a much larger development under construction. While it is not disputed that the developers own and are presently developing much of the land surrounding Lake Park “C” Addition to Section One, it is also not disputed that the covenants here involved govern only Lake Park “C” Addition to Section One and do not refer to any other part of a larger development. Therefore, the developers divested themselves of their interest as developers in the Lake Park “C” Addition to Section One subdivision when they sold their remaining lots to the builder. According to Armstrong, the developers had no authority to alter the covenants after they divested themselves of their interest. Id. However, also according to Armstrong, this determination does not end our inquiry.

In Armstrong, the developer waived a set-back restriction contained in the covenants after he sold his last lot to the builder therein involved. Id. at 15. The owners of the adjacent lot filed suit seeking an interlocutory injunction to stop construction and for damages. Id. Although the Court recognized that the developer had no authority to waive the set-back restriction after he had divested himself of his interest in the subdivision, the Court actually affirmed the trial court’s denial of the injunction due to “a balancing of the conveniences and a consideration of whether greater harm might be done by refusing than by granting the injunction.” (Punctuation omitted.) Id. at 16. The Court determined that the waiver was not given for arbitrary or capricious reasons but because of the awkward lot layout. Id.

In the present case, no evidence was presented to suggest that the waiver of the garage placement covenant was in any way arbitrary and capricious. The evidence indicated that the waiver was granted so that larger, more expensive homes could be built on the lots affected, thereby increasing the value of the neighborhood. The record on appeal contains no evidence regarding any harm suffered by the plaintiffs. The plaintiffs offer no evidence of decrease in property values or of detriments to the appearance of the neighborhood. In fact, one of the plaintiffs testified that he would have put his garage facing the front if it had been allowed by the covenants. However, he did not request a waiver of the covenants as was done in the present case. “Balancing the circumstances of this case, we conclude they are in favor of denying the injunction.” Id. at 16. Therefore, based on the undisputed facts, the trial court did not err in granting defendants’ motions for summary judgment.

Decided April 15, 1996.

Farkas, Ledford & Perry, Leonard Farkas, for appellants.

Watson, Spence, Lowe & Chambless, Stephen S. Goss, L. Clayton Smith, Jr., for appellees.

Judgment affirmed.

Beasley, C. J, and Birdsong, P. J., concur.

       In Armstrong, the Court recognized that “[s]o long as the developer owns an interest in the subdivision being developed his own economic interest will tend to cause him to exercise a right to waive restrictions in a manner which takes into account harm done to other lots in the subdivision.” In the present case, we note that the developers’ ownership of the surrounding development provides some economic restraint against arbitrary waiver.

       This case involved the request for an injunction; therefore, we do not address the plaintiffs’ ability to obtain monetary damages should they be requested and proven.


text:
    A96A1034.
    A96A1035.
    FORD v. THE STATE. SCHOEPPLER v. THE STATE.
    (470 SE2d 537)
   Blackburn, Judge.

In Case No. A96A1034, John Mark Ford was arrested for failing to obey an officer conducting a roadblock. Ford allegedly refused to submit to a State-administered breath test and, as a result, was the subject of a proceeding for the administrative suspension of his license pursuant to OCGA § 40-5-67.1. Ford’s efforts to contest the suspension were unsuccessful, and he lost his license for a one-year period. Subsequently, he was charged in the underlying criminal prosecution with DUI, attempting to elude a police officer and speeding.

In Case No. A96A1035, Scott R. Schoeppler was arrested for driving on the wrong side of the road. Schoeppler submitted to a breath test and, based on its results, became the subject of an administrative proceeding for license suspension. Unlike Ford, Schoeppler’s efforts to contest the suspension proved successful, and he was able to maintain his license. In the underlying criminal prosecution, Schoeppler was charged with DUI and driving left of the centerline.

In their respective criminal cases, Ford and Schoeppler filed a plea in bar based on double jeopardy, asserting that they had already been subject to prosecution for these offenses alleged in their criminal indictments by virtue of their prior administrative proceedings. In both cases the plea was denied. These appeals followed.

Decided April 15, 1996.

William C. Head, for appellants.

Ralph T. Bowden, Jr., Solicitor, Bernard R. Ussery, Walter C. Howard, Noah H. Pines, Assistant Solicitors, for appellee.

Both Ford and Schoeppler contend that the trial courts erred in holding that the State’s criminal prosecution, following an administrative action for license suspension, does not constitute double jeopardy. Their argument was rejected in Nolen v. State, 218 Ga. App. 819 (463 SE2d 504) (1995), and we decline to reconsider our holding therein. See also Jackson v. State, 218 Ga. App. 677 (462 SE2d 802) (1995).

Judgments affirmed.

Beasley, C. J., and Birdsong, P. J., concur.


text:
    A96A0581.
    BANFIELD v. THE STATE.
    (471 SE2d 16)
   Ruffin, Judge.

Wilmer Banfield and a co-defendant were indicted for possession of cocaine. The cases were severed for trial, and Banfield was convicted of the offense. He appeals from the denial of his motion for new trial. In his sole enumeration of error, Banfield contends the trial court erred in excusing for cause a prospective juror who was the father of his co-defendant. We disagree. Under Cambron v. State, 164 Ga. 111 (1) (137 SE 780) (1927), the relative of a co-defendant not on trial is not competent to serve as a juror in the trial of the case.

The pristine status of a prospective jury should not be compromised by the presence of a relative of a co-defendant on the jury panel. As well intentioned as a juror may be, the delicate balance between subjectivity and objectivity may be skewed to one extreme or the other. The prismal perception is that human nature should not be subjected to such chance. We should be governed by the rule of reason rather than the rule of rapture. Moreover, while we embrace trial by a jury of one’s peers, we have not yet come to embrace trial by a jury of one’s relatives, including, as it were, a relative of one’s co-defendant. Concluding that the trial judge did not err, the judgment is affirmed.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

Decided April 4, 1996

Reconsideration denied April 16, 1996

Randall M. Clark, for appellant.

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


text:
    A96A0496.
    A96A0497.
    YOUNG v. JOHN DEERE COMPANY. TAYLOR v. JOHN DEERE COMPANY.
    (471 SE2d 19)
   Birdsong, Presiding Judge.

Appellants Melvin E. Young and Roy G. Taylor appeal the order of the superior court granting summary judgment to appellee John Deere Company (John Deere).

Appellant/defendant Young who was then employed as a salesman by United Tractor Company, Inc. (tractor company) signed a variable rate loan contract-security agreement on November 13, 1992 to obtain financing from John Deere for a John Deere tractor to be purchased from the tractor company; the agreement is a combination loan application, promissory note, and security agreement. Within one or two days thereafter, Young notified the tractor company, which was the equipment seller, that he did not wish to purchase the equipment in issue. Young asserts he has never received the farm equipment set forth in the note or anything of value from the transaction; the loan agreement, however, expressly states, “I agree that I have received the goods.” The loan was approved by appellee on December 23, 1992 and, pursuant to the terms of the loan agreement, the funds were duly apportioned between and paid to the tractor company and the Deere Insurance Company. Young admitted in his answer to the complaint and in his deposition that he had not repaid any of the money to John Deere pursuant to the terms of the agreement; he likewise admitted receipt of an acceleration/demand letter, dated July 1, 1994.

Young contends that, as genuine issues of material fact exist whether he received any “consideration” for the agreement, whether he effectively withdrew the agreement before it was accepted and whether he had received the farm equipment “contrary to the note,” there arise genuine issues of material fact for jury resolution.

On November 20, 1992, appellant/defendant Taylor, who also was employed as a salesman by United Tractor Company, Inc., signed a variable rate loan contract-security agreement to obtain financing from John Deere to purchase a Massey Ferguson tractor and a used Lilliston peanut combine from the tractor company. Within one or two days of November 20, 1992, Taylor notified the tractor company that he did not wish to purchase the equipment. Taylor contends he never received the equipment set forth in the note nor did he receive any funds or anything of value from the transaction. The loan was approved by appellee on December 11, 1992 and the loan proceeds were paid to the tractor company and Deere Insurance Company pursuant to the terms of the loan agreement.

Taylor defaulted and appellee/plaintiff accelerated loan payment demanding immediate payment of all principal and interest; payment was not made and suit was initiated to collect the loan principal, interest, attorney fees and court costs. Taylor admitted in his answer to the complaint that he had signed the agreement but averred he had not received the tractor and combine or any money. He also admitted in his deposition that he had been given the opportunity to read the agreement before he signed it, and that it included the following language: “I agree that I have received the goods.” However, in his deposition, Taylor asserted that certain parts of the note, which subsequently contained typed information and amounts, were blank when he signed the document.

Taylor contends that, as genuine issues of material fact exist whether he received any “consideration” for the agreement, whether he effectively withdrew the agreement before it was accepted and whether he had received the farm equipment, material issues of fact arise for jury resolution. Held:

1. To prevail on a motion for summary judgment, a movant must show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). The opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

Further, factual assertions in a party’s brief that are unsupported by evidence of record cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223).

2. We have opened and considered the sealed depositions of the appellants/defendants. The orders of the trial court affirmatively state that in granting summary judgment to appellee the depositions of appellants Young and Taylor were considered. Although the depositions may have been sealed, this court can consider them in its de novo review of the grant of summary judgments to appellee. Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535); compare Mauldin v. Weinstock, 201 Ga. App. 514, 516 (1) (411 SE2d 370).

3. Contrary to appellant’s assertions, there exists no genuine material issue of fact of record that United Tractor Company was the agent of appellee John Deere. Although appellant Young concluded in his deposition testimony that Vance Buchan, co-owner of the tractor company, was the representative of appellee, such bare assertion creates no genuine issue of material fact regarding the issue of agency. “[A] bare assertion of the existence of an agency relationship, when made by an outsider to the alleged relationship, is not a statement of fact, but merely an unsupported conclusion of law.” Entertainment Developers v. Relco, Inc., 172 Ga. App. 176, 177 (2) (322 SE2d 304). This holding is compatible with the general rule that “[i]n response to a motion for summary judgment, the non-moving party may not rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial.” Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47).

4. Both appellants Young and Taylor admitted to their general familiarity as tractor company salesmen with the forms which they signed; both also admitted signing the documents at issue. Both admitted that the loan contract-security agreement documents expressly stated: “I agree that I have received the goods.” Further, both testified to facts evidencing that they did not timely notify appellee of their decision not to obtain the loan for farm equipment. Additionally, appellant Young testified in the affirmative when asked if he understood that appellee “relied” upon the accuracy of the express statement in the agreement that Young was in possession of the goods at the time he applied for the loan, and that appellee was “relying” upon Young’s representation that he was in possession of the goods when it “paid” loan agreement “monies” to the tractor company and the insurance company. Appellant Taylor testified in the affirmative when asked if, as a salesman, he understood appellee was going to “rely,” for purposes of “deciding whether or not to loan this money,” upon the express “representations” in the agreement that he had received the goods. He also testified in the affirmative that to the best of his knowledge the statement, “I agree that I have received the goods,” was in the agreement at the time he affixed his signature to it. We find that the evidence in the appellate record clearly and palpably establishes that a jury could reach only one reasonable conclusion in this case; specifically, that in approving the loans (which lead to the tender of monies to the tractor company and the insurer) appellee relied to its prejudice upon the express statement in the agreements that appellants currently were in the possession of the farm equipment at issue. Accordingly, appellants have waived by their conduct any right to assert in a suit against appellee that they did not receive the farm equipment and that there was a lack of consideration. Compare Fernandez v. Bank of Dahlonega, 217 Ga. App. 739, 743 (4) (b) (459 SE2d 424); see generally Crotty v. Crotty, 219 Ga. App. 408, 412 (3) (465 SE2d 517) and cases cited therein. A grant of summary judgment must be affirmed if it is right for any reason. Hanna v. McWilliams, 213 Ga. App. 648, 651 (3) (446 SE2d 741).

Decided April 16, 1996.

John A. Rumker, for appellants.

Oxford, McKelvey & Calhoun, Howard S. McKelvey, Jr., for appellee.

Judgments affirmed.

Beasley, C. J., and Blackburn, J., concur.