text:
    A95A0397.
    WILLS v. THE STATE.
    (453 SE2d 762)
   Blackburn, Judge.

Connie Elaine Wills appeals her conviction by a jury of one count of prostitution.

1. On appeal, Wills contends the trial court erred in failing to grant her motion for continuance. Such a contention requires that Wills make a clear showing of the trial court’s abuse of discretion in granting or refusing a continuance. See Pope v. State, 140 Ga. App. 643 (1) (231 SE2d 549) (1976).

In the present case, the accusation was filed November 23, 1993. Thereafter, the trial court appointed counsel for Wills. The case was placed on the May 31, 1994, trial calendar at which time Wills’ appointed counsel was released. The record does not contain any evidence as to why such counsel was released. Wills then retained counsel, who entered an appearance on July 13, 1994. The case was placed on a trial calendar for July 18, 1994, at which time it was continued due to Wills’ retained counsel’s medical condition. The case was next placed on the trial calendar for the week of August 15, 1994. At the call of the trial calendar on August 15, 1994, Wills and her retained counsel were present and announced ready for trial. Later that day, Wills fired her retained counsel, and apparently attempted to obtain the services of another attorney. Wills maintains that she fired her attorney because he was not ready and had filed no motions. However, the record contains several motions, including discovery motions, filed by Wills’ appointed counsel. This case was called for trial on August 16, 1994. Wills’ new attorney was not present; although he sent a letter to the trial court accepting the case, if the trial court granted a continuance.

The trial court determined that Wills was aware of her concerns regarding her retained counsel prior to the call of the trial calendar on August 15, 1994, yet she chose to announce ready for trial. The trial court concluded that Wills’ last minute attempt to substitute counsel was made in an effort to delay trial. This case is distinguishable from the cases cited by Wills, in that the trial court made such a factual finding. See Butler v. State, 198 Ga. App. 217 (401 SE2d 43) (1990) (provides physical precedent only); Robertson v. State, 162 Ga. App. 873 (293 SE2d 477) (1982) (defendant’s lack of attorney on trial date resulted from reasonable misunderstanding between defendant and new counsel). This court also notes that Wills’ appellate counsel was present during the second day of trial to represent Wills in any post-trial matters.

“A party is not allowed to use the discharge of counsel and employment of other counsel as a dilatory tactic in requesting a continuance. [Cit.]” Harris v. State, 138 Ga. App. 388, 390 (226 SE2d 462) (1976). Furthermore, “[w]here, as here, the defendant was fined and given a conditional, probated sentence, [s]he was not entitled to court-appointed counsel. [Cits.]” Smith v. State, 211 Ga. App. 567, 568 (440 SE2d 44) (1993). Under the particular facts of this case, we find no abuse of the trial court’s discretion.

2. In her second enumeration of error, Wills asserts the evidence was insufficient to sustain the jury’s guilty verdict. “A person commits the offense of prostitution when [s]he performs or offers or consents to perform an act of sexual intercourse for money.” OCGA § 16-6-9.

At trial, Agent Lovette, of the Clayton County Narcotics Unit, testified that he had obtained Wills’ telephone number from a person arrested in an undercover operation involving escort services in Clayton County. In response to his call, Wills arrived at his hotel room carrying only her purse. Upon entering the room, Wills called the agency and said that she had just arrived and was going to check the room out. She then asked for identification from Agent Lovette, which he produced. Wills searched the room including lifting up the mattress and box spring. Wills did not disclose why she searched the room. After the search, Wills called the agency and advised that everything was okay and that she was going to begin her modeling session. Wills then advised Agent Lovette that she was there to model and she was not giving consent to anything else and asked for her fee of $200. Agent Lovette gave Wills $200.

Wills then asked Agent Lovette if he would like to get comfortable, and he took off his clothes with the exception of his underwear. Wills took off her clothes, with the exception of her panties. Agent Lovette testified that Wills’ underwear was not the type that would be modeled in a lingerie shop, nor was there anything about her skin or person that was worthy of modeling. Wills and Agent Lovette were both on the bed completely naked when additional officers entered and arrested Wills for prostitution. The three officers testified that based on their experience in law enforcement and working with prostitution, they believed Wills had come to Agent Lovette’s hotel room for the purpose of prostitution.

“The rule as to the sufficiency of circumstantial evidence to support a conviction is that the evidence excludes every reasonable hypothesis except the guilt of the accused, not that it removes every possibility of innocence of the crime charged.” (Citations and punctuation omitted.) Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769) (1994). Wills’ statement at the time she requested the money was belied by her later actions of completely disrobing with no attempt to model, and coming in close proximity with Agent Lovette on the hotel bed.

Decided January 27, 1995

Lee Sexton, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

“The [jury] was authorized by the evidence presented to exclude other possible hypotheses as unreasonable and find that [Wills] knowingly and intentionally indicated to an undercover officer her consent to engage in an act of sexual intercourse in exchange for money in violation of OCGA § 16-6-9. [Cits.]” Id. at 699.

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A94A2233.
    KILLEBREW v. SUN TRUST BANKS, INC.
    (453 SE2d 752)
   Pope, Presiding Judge.

Plaintiff, a customer of defendant bank, was shot in the course of an attempted robbery in the bank’s parking lot. Plaintiff then brought this action against the bank, alleging that the bank failed to exercise ordinary care in keeping its premises and approaches safe (OCGA § 51-3-1), and further alleging that the bank’s security guard negligently inflicted emotional distress upon him when the guard drew his gun and pointed it at plaintiff after the assailant shot plaintiff and escaped. The trial court granted summary judgment for defendant, and plaintiff appealed. We affirm in part and reverse in part.

Viewing the evidence in the light most favorable to plaintiff, it appears that plaintiff went to one of defendant’s branches to withdraw money from an automatic teller machine (“ATM”) at approximately 10:00 p.m. on a Friday. Plaintiff knew the bank had a security guard, and he saw the guard when he drove into the bank parking lot. Unbeknownst to plaintiff, however, the guard had been hired to keep non-customers from parking in the lot and did not consider protecting customers to be part of his job. Because the ATM was located in a vestibule of the main bank building, plaintiff had to park in a fairly dark area and leave his truck to reach the machine. As plaintiff returned to his vehicle, a car pulled in beside his truck and someone got out. While he was unlocking his truck, that person jumped on his shoulder. Plaintiff was able to flip the assailant over and onto the ground, but the assailant then pulled a gun. Seeing the weapon, plaintiff started running around the truck and down the sidewalk toward the back of the parking lot where the security guard was located. The assailant shot at plaintiff several times, hitting him once.

The security guard approached plaintiff where he had fallen into the bushes, but instead of immediately helping plaintiff, he pulled his gun and pointed it at him, telling him not to move. Another person then came up, and that person gave plaintiff a tourniquet and called an ambulance.

1. Plaintiff argues that the trial court erred in granting summary judgment for defendant on plaintiff’s claim that defendant negligently failed to keep its premises safe, and we agree. Among other things, plaintiff suggests defendant should have located its ATM so that a customer could use it without getting out of his vehicle, and that the parking lot should have had better lighting.

“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. But a landowner may be liable for damages caused by the criminal act of a third party on his property only if he has reasonable grounds for expecting that such a criminal act would be committed. Savannah College of Art & Design v. Roe, 261 Ga. 764 (2) (409 SE2d 848) (1991). Knowledge of an “unreasonable risk of criminal attack is a prerequisite to recovery under OCGA § 51-3-1, and may be demonstrated by evidence of the occurrence of prior substantially similar incidents. [Cit.]” Id. at 765.

Although defendant acknowledges that plaintiff was an invitee on its property, it contends it cannot be liable for the criminal attack because it did not know of any reason to expect such an attack. However, five months prior to the incident at issue here, another customer using the same ATM after hours was robbed in the same parking lot, by an assailant who threatened to hit the customer with a half-gallon bottle of vodka if he did not cooperate. Defendant asserts it was unaware of this robbery. But the knowledge giving rise to the landowner’s duty may be constructive as well as actual. See Savannah College of Art, 261 Ga. at 766 (“the college was entitled to summary judgment because there was no evidénce sufficient to create a factual issue as to whether the college knew or should have known [of the unreasonable risk]”). (Emphasis supplied.) In this case, a substantially similar incident occurred in the exact same location five months earlier. Although the bank says it was not notified, the victim did report the incident to the police and a police report is in the record. Moreover, there is testimony from the bank’s chief of security that his department is responsible for investigating all robberies that occur on bank property. This evidence is sufficient to create a question of fact regarding whether the bank knew or should have known of the unreasonable risk.

Decided January 12, 1995

Reconsideration denied January 30, 1995

Robert C. Koski, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Fred M. Valz III, William G. Pike, Jr., Philip P. Taylor, for appellee.

Defendant also contends it cannot be liable because plaintiff’s injuries were caused by his own negligence in resisting the robber. This contention is clearly without merit, as we cannot accept the proposition that it is unreasonable, as a matter of law, to resist an assailant.

2. The trial court properly granted summary judgment with respect to plaintiff’s claim that the bank is liable for the emotional distress caused him by the security guard’s allegedly negligent actions after the shooting, as there is no evidence that the guard’s post-shooting conduct caused or exacerbated plaintiff’s injuries. See Ob-Gyn Assoc. v. Littleton, 259 Ga. 663 (1 & 2) (386 SE2d 146) (1989) (no recovery for emotional distress without physical injury where defendant’s conduct is negligent rather than intentional). This does not mean, however, that plaintiff cannot recover for emotional distress stemming from the robbery itself, in which he was physically injured: “[A] person who has suffered a physical injury resulting from the negligence of another may claim damages for emotional distress in the action to recover for the injury.” Littleton, 259 Ga. at 664.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Smith, J., concur.

       Of course, the fact that in one robbery the assailant used a large bottle and in the other the assailant used a gun does not mean the incidents are not substantially similar. See, e.g., Matt v. Days Inns of America, 212 Ga. App. 792 (443 SE2d 290) (1994) (cert. granted); Grandma’s Biscuits v. Baisden, 192 Ga. App. 816 (386 SE2d 415) (1989).

       Plaintiff testified that he continues to have dreams about gunshots, and that he worries and looks frequently over his shoulder.


author: McMurray, Presiding Judge.

text:
    A94A2320.
    DeLOACH v. THE STATE.
    (453 SE2d 766)
   McMurray, Presiding Judge.

Defendant DeLoach appeals his conviction of the offenses of aggravated assault and possession of a firearm during commission of a crime. Held:

1. Before addressing the merits in the case sub judice, we note that this court has received a pro se communication, with copy indicated to his attorneys, from defendant complaining of his attorneys’ failure to obtain for him a bond pending appeal and relating his decision to discharge his attorneys. This communication was received more than two months following the filing of a brief and enumeration of error on behalf of defendant by these attorneys. This letter does not request any action by this court. Furthermore, there has been no communication from the attorneys related to this issue. Under these circumstances we deem it appropriate to continue with the consideration on the merits of defendant’s pending appeal.

2. Defendant presented evidence of his good character via his own testimony and that of several additional witnesses. During the cross-examination of one of defendant’s character witnesses, the prosecuting attorney asked whether or not the witness knew if defendant had ever been convicted of a crime. The witness answered that he did not know of any criminal conviction of defendant. The prosecuting attorney then paused to have marked for identification an exhibit consisting of a certified copy of a conviction of defendant for child abandonment. Shortly thereafter defense counsel moved for a mistrial, complaining that the conviction for child abandonment was not a proper means of impeachment or otherwise addressing the issue of character. The trial court overruled defendant’s motion for mistrial, expressing an understanding that child abandonment is a crime involving moral turpitude. Upon the tender into evidence of the certified conviction, defendant objected once more and was again overruled. The certified copy of the child abandonment conviction was admitted into evidence and defendant enumerates as error the admission of that evidence.

“ ‘When the defendant, in the trial of a criminal case, puts his character in issue the State (a) may cross-examine the witnesses offered by him in order to test their knowledge of his character, and (b) may also offer witnesses to prove his general bad character . . . , and (c) the State may, where the defendant has been previously convicted of a crime involving moral turpitude, introduce the record of such conviction in the manner provided by law.’ Giles v. State, 71 Ga. App. 736 (32 SE2d 111) (1944).” Ailstock v. State, 159 Ga. App. 482, 485 (3) (283 SE2d 698). In offering proof of the defendant’s general bad character, the State is held to the same restrictions as defendant regarding character evidence and cannot prove specific acts to show defendant’s bad character save where the accused has been convicted of a crime involving moral turpitude. Giles v. State, 71 Ga. App. 736, 737, 739, supra.

The trial court was mistaken in its understanding that child abandonment is a crime involving moral turpitude since it has been established that such is not correct. See Hall v. Hall, 261 Ga. 188 (402 SE2d 726) citing Seaboard Coast Line R. Co. v. West, 155 Ga. App. 391, 392 (3) (271 SE2d 36). It follows that the certified copy of defendant’s conviction of the offense of child abandonment was not properly admitted under the theory expressed by the trial court, that is, that it was admissible as evidence of defendant’s conviction of a crime involving moral turpitude.

Decided January 30, 1995.

Calhoun & Associates, John R. Calhoun, Gregory N. Crawford, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

Nonetheless, on appeal, the State maintains that any error was harmless since the certified copy of the conviction was properly admitted under an alternative theory of impeachment. This “right for any reason” hypothesis is predicated upon several statements made at trial by defendant and his attorney which the State maintains should be viewed as amounting to a representation that defendant had no criminal record whatsoever. Such a misrepresentation, if made, would be subject to impeachment by evidence which proves the falsity of specific testimony of the defendant. See Jones v. State, 257 Ga. 753, 754 (1), 759 (363 SE2d 529). However, after a careful examination of the trial transcript, we do not find the transcript excerpts referenced by the State when viewed in context to contain misrepresentations subject to impeachment. Insofar as the State relies upon inaccurate factual statements made by the defendant’s attorney and directed to the court or to the defendant, we note that these statements were not evidence and can find no authority for the admission of evidence for the purpose of rebutting such colloquy. The referenced testimony of defendant, when viewed in context, is directed entirely to the question of whether he had previously been involved in any violent confrontations and does not amount to a denial of his criminal record.

As the certified copy of defendant’s conviction of child abandonment was not admissible to impeach any contradictory evidence presented at trial, it was not properly admitted at trial. Since this evidence was improperly admitted and we cannot say with any degree of confidence that it did not influence the jury’s verdict, defendant’s conviction must be reversed and the case remanded for retrial. We note that defendant’s remaining enumerations of error, being unlikely to recur, are rendered moot.

Judgment reversed.

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


author: Beasley, Chief Judge.

text:
    A94A2324.
    GEORGIA RECEIVABLES, INC. v. MADDOX et al.
    (454 SE2d 541)
    Decided January 30, 1995.

      Frederick J. Hanna, Elizabeth C. Whealler, for appellant.
    Jimmy L. Maddox, pro se.

    Winnie J. Maddox, pro se.

   Beasley, Chief Judge.

On October 10, 1985, Winnie Maddox borrowed money from Great Southern Federal Savings Bank for the purchase of a car. The Bank also received a loan guaranty from Jimmy Maddox. The Maddoxes failed to make payments and the car was repossessed and sold in 1988. Georgia Receivables, assignee to Great Southern, sued the Maddoxes in April 1993 for the deficiency, interest, and costs.

The court, on its own motion, dismissed the complaint, which is the subject of the appeal. The court noted that Georgia Receivables’ notice of intent to sell was dated April 12, 1988, the car was sold on May 17, 1988, and suit was filed April 14, 1993; it concluded that the complaint was filed beyond the four-year period of limitation set forth in OCGA § 11-2-725 (1).

1. Georgia Receivables contends the court erred because the applicable statute of limitation is found in OCGA § 9-3-23 and provides for a 20-year period for contracts entered under seal. The contract signed by Winnie Maddox states “Buyer agrees to pay ...” and ends “Signed, sealed, and delivered by the Buyer. . . .” The guaranty signed by Jimmy Maddox states that he “guarantee(s) the full and prompt payment when due ... of all obligations of the Debtor to the Bank ...” and ends “the undersigned have hereunto set their hands and affixed their seal the day and year above written.” On both documents, the word “(SEAL)” appears after the signature. Such language is sufficient to place the contracts under seal. The 20-year period of limitation set forth in OCGA § 9-3-23 applies. Telfair Finance Co. v. Williams, 172 Ga. App. 489 (323 SE2d 689) (1984).

The record before us does not indicate that Jimmy Maddox signed the original contract agreeing to pay for the car, which only bears the name and signature of Winnie Maddox. In the guaranty, the only reference is to Jimmy Maddox’s own debts, not those of Winnie Maddox. Resolution of such issues, however, is not before us; we are concerned only with the court’s incorrect application of the statute of limitation.

2. Georgia Receivables’ other enumeration of error is moot.

Judgment reversed.

Andrews and Johnson, JJ., concur.


text:
    A94A2440.
    HARDEMAN v. THE STATE.
    (453 SE2d 775)
    Decided January 30, 1995.

      Terry Clyne, for appellant.

      Harry N. Gordon, District Attorney, Greg Schwartz, Assistant District Attorney, for appellee.
   Beasley, Chief Judge.

In the aftermath of a traffic stop, Hardeman was found in possession of marijuana and arrested. She was indicted for possession of marijuana with intent to distribute, OCGA § 16-13-30 (j) (1), and convicted of possession of more than one ounce of marijuana, also OCGA § 16-13-30 (j) (1). In her sole enumeration of error, Hardeman contends the court erred in charging the jury that possession of marijuana is a lesser included offense of possession with intent to distribute.

The court was correct. “[A]s a matter of law the offense of possession of marijuana . . . [is] a lesser included offense of the offense of possession of marijuana with intent to distribute. . . .” Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463) (1991).

Hardeman contends that she was nonetheless prejudiced by the use of the term “lesser included offense” because it may have engendered the belief that conviction on a possession charge would result in a lesser penalty. The jury is not concerned with punishment, as Hardeman concedes, and we find nothing in the charge that might have indicated that it should consider the punishment effects of its verdict. The court specifically charged that the jury’s only concern was guilt or innocence. The court also charged the jury on the elements of the two crimes. Possession is a lesser included offense simply because it lacks the element of specific intent to distribute, Talley, supra, which the jury by its verdict found wanting. The punishment for such does not affect the elements but is affected by the amount of the substance, not intent.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

       In her brief and enumeration, Hardeman cites several instances when the court referred to the lesser included offense, but the jury was present only during the references made in the charge.


author: Andrews, Judge.

text:
    A94A2618.
    In the Interest of J. M. W., a child.
    (453 SE2d 764)
   Andrews, Judge.

The mother of J. M. W. appeals from the order of the Juvenile Court of Cherokee County terminating her parental rights. Both the putative natural father of the child and the legal father of the child consented to the termination of parental rights.

At the termination hearing, evidence showed that J. M. W. was initially taken into custody when he was six months old, after the death of his half-sister. J. M. W.’s half-sister died from injuries which resulted from abuse. As a result of this death, appellant was convicted of felony murder and is now serving a life sentence. Evidence was that she must serve a minimum of seven years in prison.

The Department of Family & Children Services caseworker testified that it would be in the child’s best interest for his mother’s rights to be terminated. The caseworker also testified that the child has developed a bond with his foster parents of two years, and that J. M. W. had not bonded with his mother. J. M. W. is a special needs child and the caseworker testified that he made dramatic improvements in foster care due to the good nutrition and high degree of attention he received.

1. In her first enumeration of error, appellant claims that there was insufficient evidence to support the order terminating her parental rights in that there was not clear and convincing evidence of parental misconduct sufficient to authorize such termination. Citing In the Interest of S. K. L., 199 Ga. App. 731 (405 SE2d 903) (1991), she claims that her imprisonment alone does not compel a termination of her rights. She also argues that the Department of Family & Children Services caseworker who testified in favor of termination was unqualified to give such testimony.

This enumeration is without merit. OCGA § 15-11-81 (a) provides: “[i]n considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability as provided in subsection (b) of this Code section. If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the .need for a secure and stable home.” OCGA § 15-11-81 (b) (4) (A) provides that the court shall determine parental misconduct or inability by finding that: “(i) The child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) The lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.”

“The standard of appellate review where a parent’s rights to his child have been severed is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Citations and punctuation omitted.) In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993).

At the outset of our evaluation, we note that “[although imprisonment alone does not always compel a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist.” In the Interest of S. K. L., supra at 733.

Here, the court took judicial notice within the termination order of the prior deprivation order, which was unappealed. Thus, appellant is bound by that determination. See In the Interest of B. P., supra at 244. Moreover, a rational trier of fact could have found clear and convincing evidence that J. M. W. was a deprived child. With regard to the remaining factors under OCGA § 15-11-81 (b) (4) (A), the evidence supports the trial court’s findings that the lack of proper parental care was the cause of the child’s status as deprived; that such cause of deprivation was likely to continue; and that the continued deprivation would likely cause serious physical, mental, emotional, and moral harm to the child. Accordingly, the court’s determination that there was clear and convincing evidence of parental misconduct or inability was not erroneous.

“Turning to the second step, whether the termination is in the [child’s] best interest, one factor to be considered ... is the [child’s] need for a stable and secure home. Moreover, those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest. Thus, a finding as to whether the termination of parental rights is in the best interest of the child represents, in essence, a finding as to whether the specifics of the parental default that have otherwise been found to exist are of such magnitude as to warrant the conclusion that the child himself would be better served by the grant of the petition to terminate. In this regard, our review of the entire record shows that there was likewise sufficient clear and convincing evidence to support the juvenile court’s finding that the termination of appellant’s parental rights would be in the [child’s] best interest.” (Citations and punctuation omitted.) In the Interest of B. P., supra at 245-246.

2. In her second enumeration, appellant contends that the court failed to make the explicit finding regarding parental misconduct or inability under OCGA § 15-11-81 (b) (4) (A).

Decided January 30, 1995.

Bishop & McElyea, Barry W. Bishop, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Dana M. Thompson, Lois D. Shingler, for appellee.

This enumeration is without merit. The court made an explicit finding as to the existence of parental misconduct or inability, as required. In the Interest of G. K. J., 187 Ga. App. 443 (370 SE2d 490) (1988).

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.


text:
    A94A2630.
    In the Interest of W. J. G., a child.
    (453 SE2d 768)
   Beasley, Chief Judge.

The juvenile court terminated the parental rights of W. J. G.’s natural parents. The mother alone appeals, on both procedural and substantive grounds. The child has been in the temporary custody of the Georgia Department of Human Resources since he was twenty-two months old and he is now nearly age six.

“ ‘The statutory criteria for the termination of parental rights is the two-step procedure of OCGA § 15-11-81 (a). First the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second the court considers whether termination is in the best interest of the child. (Cit.) Parental misconduct is determined by finding: 1) the child is deprived; 2) lack of proper parental care or control is the cause of the deprivation; 3) such deprivation is likely to continue or will not be remedied; 4) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). Among the factors which may be considered with regard to a child lacking proper parental care or control are: medically verifiable deficiency of the parent’s mental or emotional health of such duration or nature as to render the parent unable to provide adequately for the child’s needs; conviction of a felony and imprisonment which has a demonstrable negative effect on the quality of the parent-child relation; (and) physical, mental or emotional neglect of the child. OCGA § 15-11-81 (b) (4) (B). . . .

“ ‘The standard of appellate review where a parent’s rights to his child have been severed is “ ‘whether after reviewing the evidence in the light most favorable to the appellee [Department], any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.’ ” [Cit.]’ [Cit.] ‘The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review ... is not met.’ [Cit.]” In the Interest of B. P., 207 Ga. App. 242, 243 (427 SE2d 593) (1993).

The evidence supporting termination showed the following. At age 14, appellant bore a daughter whom she first put in a children’s home and later placed in her grandmother’s care. She married W. J. G.’s father at age sixteen, when she was five months pregnant with W. J. G. The family settled in Columbus, Georgia. In late 1989, when the baby was not yet a year old, appellant left him with her husband and went to Louisiana.

The Department received numerous complaints of neglect with regard to the father’s care, including that the home was dirty, that the father was drinking a lot, and that the child had not received any immunizations. A Department caseworker worked with the father for several months. In October 1990, when W. J. G. was 22 months old, he came into the Department’s custody after the father left him with a babysitter one evening and was arrested the following morning for carrying a concealed weapon, public drunkenness and contributing to the delinquency of a minor. At that time, the Department was unaware of appellant’s whereabouts.

An investigation and juvenile court hearing ensued, after which a consent order issued on October 29, 1990, requiring that W. J. G.’s custody remain with the Department for a period of 18 months or until the father was released from jail, had disposed of all charges pending against him in Georgia and Louisiana, and made application to the court for return of custody; the Department was to place the child with the father’s first cousin until further order of the court; the father agreed to seek counseling for alcohol abuse, a divorce from appellant whose address was unknown, and permanent legal custody. On November 21, a case plan for reunification of the child with his parents was developed even though appellant’s whereabouts were still unknown.

At least by January 1991, appellant learned that W. J. G. had been placed in the Department’s custody and was apprised of the case plan for reunification with her child. The father’s cousins who had physical custody of the boy moved to Louisiana. In March they decided they could no longer care for him, so he was returned to Georgia and placed in a foster home.

Appellant attended a six-month panel review in May and agreed to comply with the requirements of a case plan to work towards reunification with her son. The case plan, which was subsequently court ordered, required that the father resolve his outstanding criminal legal problems, that he get treatment for alcoholism, and that both parents attend parenting skills classes and pay $10 per month child support. Appellant requested that a home evaluation be completed on her home with her maternal grandmother in Louisiana for possible placement. The Department arranged for it and also for the parents to schedule regular visits with W. J. G. The home evaluation was unfavorable. Both parents completely failed to comply with the agreed case plan. No regular visits were scheduled and the only visitation occurred in early 1991 when the parents saw the child once or twice at a relative’s home. By the time of the hearing, neither parent had seen the child again.

Both parents were notified of a panel review of the case plan in December 1991, but neither one attended. At that time the goal became termination of parental rights and the parents were so notified. In January 1992, appellant wrote to the Department of Family & Children Services objecting to her son being “put up for adoption.” In response, the Department notified appellant of the case plan requirements for reunification and of an extension of custody hearing in April. Although it was stressed that her attendance was critical, she was absent. The court determined that the parents had failed to follow the provisions of the previous court order and that they had not visited with their son in over one year. The previous requirements for the parents were extended and custody in the Department was continued for another two years. The prior support order was modified to require each parent to pay $10 per week towards support. None was ever received from appellant. Subsequent panel reviews were conducted in June and December of both 1992 and 1993. Appellant was notified of each review and indicated that she would attend the one in June 1993. She failed to attend any of them.

A psychologist who evaluated appellant testified that she was depressed and had difficulty handling stress and that this plus immaturity made it likely for her to have problems handling daily living. The psychologist opined that in regard to caring for W. J. G., appellant might let things go until “they got in a crisis state.”

At the termination hearing, the caseworker testified that W. J. G. had bonded with the foster family with whom he had resided for three years, that there was no bonding between the child and appellant, that the child did not even know the appellant, and that appellant had not seen him in three years. She has remarried, has another child and resides in Louisiana.

1. Appellant contends that the juvenile court erred in exercising jurisdiction over her in the termination hearing because the Department failed to make a substantial effort to locate her and because there was no service of process for the initial deprivation action.

Appellant by her own conduct waived any service of summons of the Department’s initial action, which culminated in the October 1990 consent order placing W. J. G.’s custody with the Department. First, she voluntarily absented herself from the family’s home in Georgia and her whereabouts became unknown. Although she claimed her husband was hiding the child from her, she admittedly made no effort to contact authorities to help her locate him. When appellant’s husband was arrested, there was no caregiver at all for W. J. G. and the Department had to intervene. The Department’s petition before the court was proper. See Cain v. Dept. of Human Resources, 166 Ga. App. 801, 803 (3) (305 SE2d 492) (1983). Compare In the Interest of W. M. F., 180 Ga. App. 397, 398 (2) (349 SE2d 265) (1986), and McBurrough v. Dept. of Human Resources, 150 Ga. App. 130, 131 (2) (3) (257 SE2d 35) (1979), in which there was no evidence that the appellants purposely absented themselves from the court’s jurisdiction or that personal service could not have been accomplished.

Second, even as to a deprivation hearing, a party (other than the child) may waive service of summons by voluntary appearance. OCGA § 15-11-26 (f). Whether the Department could or should have taken further measures to attempt personal service of the initial petition on appellant, the validity of the present termination proceeding is not affected. When appellant’s whereabouts became known to the Department, she was served with notice of each review and subsequent hearing, including the termination hearing. In fact, the Department assisted in obtaining an attorney to represent her. Under these circumstances, appellant waived any objection to service of process of the initial deprivation proceeding.

2. Appellant next contends that the court erred in finding that W. J. G. was deprived as defined in OCGA § 15-11-2 (8). She argues that the initial deprivation was based on her ex-husband’s incarceration and that there is not clear and convincing evidence of the child’s present deprivation attributable to her.

First, the appellant did not appeal the initial finding that the child was deprived, so she is bound by that determination. In the Interest of B. P., supra at 244. Second, there was clear and convincing evidence that after she left her home in Georgia in 1990, she failed to communicate with or see the child in any significant way or in any manner provide care or support for him. She only sporadically made an outward show of interest in regard to her son. These circumstances constituted abandonment and rendered the child deprived, as defined by OCGA § 15-11-2 (8) (A) & (C).

3. Appellant contends there was no statutory basis under OCGA § 15-11-81 to terminate her parental rights. To the contrary, the evidence viewed in favor of the Department satisfies the statutory bases of OCGA § 15-11-81 (b) (2), (3) & (4) (A).

4. The next error claimed is that the court failed to find by clear and convincing evidence that W. J. G.’s deprivation was likely to continue or would not likely be remedied and that the continued deprivation would cause or was likely to cause serious harm to the child.

The juvenile court in its order expressly found that W. J. G. is “deprived as defined in Code Section OCGA § 15-11-2” and that in regard to appellant, “there is clear and convincing evidence of parental misconduct and inability.” The evidence is supportive. See Division 3, supra. Further, there is evidence to a “clear and convincing” degree that, if the mother is given custody, deprivation “is likely to continue or will not likely be remedied; and [t]he continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” The trial court found that placement with appellant now “would be destructive to the child.” The additional statutory findings required under OCGA § 15-11-81 (b) (4) (A) (iii, iv) were sufficiently made and are nearly self-evident from the order as a whole. It is unnecessary to remand the case for further findings of fact and conclusions of law, for a new judgment to be entered, and for another appeal to be taken, because the result is inevitable and the child’s permanent status need not, and should not, be delayed. Compare In the Interest of M. H. F., 201 Ga. App. 56, 57 (410 SE2d 167) (1991).

Although appellant claims that her new situation in Louisiana with her remarriage, birth of another child, and steady employment enables her to now provide W. J. G. with a suitable home, the court found that to take the child out of the secure placement in which he now is doing well would be “destructive” and not in his best interest, not merely fail to remedy the deprivation of care and support exhibited by appellant over the past three years and even while the petition was pending. As the court pointed out, there was adequate opportunity for rehabilitation, even through plans, but it was never accomplished. “[T]here is no indication but the promise to suggest hope of improvement.” In re G. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987). The court also found that “[tjhere are no approved relatives available to take responsibility for the child.” See In the Interest of P. F. J., 174 Ga. App. 47 (329 SE2d 194) (1985).

5. Finally, appellant contends that the court erred in terminating her parental rights without “ensuring a thorough [sic] investigation by [the Department] of all other possible alternatives,” that the Department has refused to consider additional placements for the boy. The record, however, does support the juvenile court’s conclusion that the Department “has made an exhaustive and thorough search for a suitable family member in attempting to place the child with his family [and that] [t]here is no such suitable family member.”

Decided January 30, 1995.

Anne M. Couch, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Edgar J. Perkerson III, Julie A. Prokopovich, for appellee.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A2727.
    COMMITTEE FOR BETTER GOVERNMENT v. BLACK et al.
    (453 SE2d 772)
   Beasley, Chief Judge.

A proceeding was instituted under OCGA § 48-5-296 to remove from office the chairman and certain members of the Cherokee County Board of Tax Assessors.

1. OCGA § 48-5-296 provides that “[w]henever by petition to the judge of the superior court any 100 or more freeholders of the county allege that any member of the county board of tax assessors is disqualified or is not properly and impartially discharging his duties or is discriminating in favor of certain citizens or classes of citizens and against others, the judge shall cite the member to appear before him. . . .” Pursuant to this Code section, the judge then “shall hear and determine the matter without a jury and shall render such judgment and order as may be right and proper, either dismissing the petition or removing the offending member . . . from office and declaring a vacancy in the office.”

The initial question is whether this suit must be dismissed, despite the absence of a motion to dismiss, in that it is not being prosecuted in the name of a legal entity and is therefore null and void. See Embassy Row Assoc. v. Rawlins, 162 Ga. App. 669 (292 SE2d 541) (1982); Cook v. Computer Listings, 137 Ga. App. 526, 527 (224 SE2d 501) (1976); Orange County Trust Co. v. Estate of Abe Takowsky, 119 Ga. App. 366, 367 (3, 4) (166 SE2d 913) (1969).

OCGA § 48-5-296 authorizes 100 or more freeholders of the county to petition the superior court judge for the removals sought here. Although the Committee for Better Government, which is not a legal entity, is designated as the plaintiff in the style of the complaint, over 100 freeholders are stated as the plaintiffs in the body, and the petitions of the freeholders were presented to the court through the complaint as exhibits. Each petition alleges that the named board members, without lawful authority, granted inventory freeport exemptions to select business taxpayers after the mandatory deadline and thereby caused the county to lose tax revenue. In each petition, the petitioner authorized the Committee to present the petition on his or her behalf to the superior court.

This method of presentation meets the pleading and procedural requirements of the statute, which implicitly contemplated the formation of a like-minded group of freeholders who act in concert to obtain the remedy provided. Otherwise, there would be no orderly process for the redress the law provides. The requisite number of individuals who had the capacity to sue constituted the plaintiffs, who in pursuing their common interest are known by their committee name. Because of their number and their freeholder status, they qualified to invoke the statutory cause of action.

The proper style of the case would be the names of the petitioner freeholders. See, e.g., Thompson v. Queen, 198 Ga. App. 627 (402 SE2d 361) (1991); Allen v. Norris, 151 Ga. App. 305 (259 SE2d 701) (1979). Nevertheless, their composite designation is not fatal because substance prevails over form. Bytell v. Paul, 173 Ga. App. 83, 84 (325 SE2d 451) (1984). In these circumstances, the suit is not subject to dismissal. Cf. Block v. Voyager Life Ins. Co., 251 Ga. 162 (1) (303 SE2d 742) (1983).

2. Plaintiffs contend that the court erred in not removing defendants from office because of their unauthorized and discriminatory action in allowing untimely applications for freeport exemptions in 1993.

OCGA § 48-5-48.2 authorizes the governing authority of any county or municipality to enact the freeport exemption, subject to the approval of the electors. Cherokee County electors gave such approval in 1978. OCGA § 48-5-48.1 (a) states that when any person, firm, or corporation seeks a freeport exemption, the application “shall be filed in the year in which exemption from taxation is sought no later than the date on which the tax receiver or tax commissioner of the county in which the property is located closes his books for the return of taxes.” OCGA § 48-5-48.1 (c) states that the failure to “properly” file the application “shall constitute a waiver of the exemption on the part of the person, firm, or corporation failing to make the application for such exemption for that year.” There is no express authority to grant an extension of time or to ignore the statutory waiver of exemption for failing to make a timely application.

The evidence introduced at the hearing below showed that the Cherokee County tax books are closed on April 1 of each year. The Board was informed in May 1993 that the statutory deadline for filing applications for freeport exemptions is April 1. The chairman of the Board, who was the defendants’ sole witness, testified that he voted to allow untimely applications for 1993 because the past practice of the Cherokee County Tax Office’s Personal Property Department had misled applicants into believing they could apply for the exemption at any time. The Personal Property Department in fact had not informed applicants of the April 1 deadline, and applications filed after April 1 had been allowed in previous years. As a result, the Board decided to allow untimely applications in 1993 but not in any subsequent years, and the Board instructed the Chief Appraiser to publicize the time for filing such applications. There were also applications for freeport exemptions which had not been “properly” filed, in that they contained mistakes such as wrong information and lack of a signature. These, too, were allowed, as were untimely applications for homestead exemptions in 1993.

The court held that although OCGA § 48-5-48.1 (c) states that the taxpayer has waived the exemption by failing to file a timely application, this does not prohibit the Board from extending the period of time for accepting applications. Noting that the Board had a history of accepting any untimely application for freeport exemptions and had permitted the late filing of other types of exemptions including homestead exemptions, the court found that the Board members had properly and impartially discharged their duties so that removal is not warranted.

We must disagree with the court’s holding that the Board was authorized to extend the period of time for accepting applications beyond the date on which the books for the return of taxes in the county were closed. State law establishes such date as a mandatory deadline and gives a local board of tax assessors no authority to extend it. Under the law, we thus hold that the defendants acted improperly in allowing untimely applications for freeport exemptions for 1993.

In DeKalb County Bd. of Tax Assessors v. Lanier Worldwide, 208 Ga. App. 435 (1) (430 SE2d 595) (1993), as here, a business made an application for a freeport exemption beyond the April 1 deadline. The DeKalb County Board of Tax Assessors denied the application as untimely. In subsequent litigation between the applicant and the Board, this court held that the superior court erred in denying the Board’s motion for new trial. Although we were not called upon to decide whether a board of tax assessors has the authority to accept an untimely application for a freeport exemption, a reading of Lanier shows that the DeKalb County Board of Tax Assessors acknowledged that there is no legal basis for granting an extension. 208 Ga. App. at 436.

In Lanier, the county taxpayers were informed of the mandatory deadline in documentation mailed to them. The evidence in this case shows that until 1993 the Cherokee County taxpayers were misled into believing that they could apply for the exemption at any time; and that in 1993 the defendants ordered the mandatory deadline to be enforced, although only in future years, after taxpayers were informed of it. Under the law, the defendants are subject to removal from office if the court finds that they did not properly and impartially discharge their duties or that they discriminated in favor of certain citizens or classes of citizen and against others. The evidence does not demand such a finding.

Decided January 30, 1995.

Ted B. Herbert, for appellant.

Jimmy Hill, pro se.

R. Mark Mahler, for appellees.

Allen v. Norris, supra, holds that the breach of a duty imposed by law does not ipso facto mandate removal of members of the board of tax assessors from office and that it is within the court’s discretion to remove the members from office upon a showing of cause. As in Allen, supra, as well as Thompson v. Queen, supra, the court did not abuse its discretion in refusing to find cause here.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A93A1102.
    A93A1186.
    GIVENS v. THE STATE. BARFIELD v. THE STATE.
    (454 SE2d 141)
   Blackburn, Judge.

In Givens v. State, 211 Ga. App. 290 (439 SE2d 22) (1993), we affirmed the convictions of Carroll Givens and Arthur Barfield for criminal attempt to possess cocaine. The Supreme Court granted certiorari and reversed our decision in Givens v. State, 264 Ga. 522 (448 SE2d 687) (1994).

As the testimony of two eyewitnesses supported the convictions, we determined that the trial court’s failure to allow each of the defendants the opportunity to open and conclude closing argument to the jury was harmless. However, the Supreme Court determined that the trial court’s denial of opening and concluding closing argument to the jury, for each of the defendants’ separate counsel, was harmful error requiring reversal of the convictions.

The Supreme Court acknowledges that the evidence showed that the defendants approached the officers with money in hand, sought to purchase cocaine, received and examined a bag of cocaine and returned it to the officers. Since the sale was not consummated, the Supreme Court finds that the jury could seriously consider the defense of abandonment and therefore the refusal to allow both defendants opening and closing argument was not harmless.

Decided January 11, 1995

Reconsideration denied January 31, 1995.

Borough & Sizemore, Kermit S. Dorough, Jr., for appellants.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.

The defendants were charged with criminal attempt to possess cocaine, not criminal attempt to purchase cocaine. The only thing that was not consummated, was the sale; the possession (the basis of the indictment) was completed when the defendants accepted and took possession of the cocaine. The crime was completed upon the possession of the cocaine by the defendants, and you cannot abandon a completed crime. This is a criminal case, not a sale governed by the Uniform Commercial Code with a right of inspection and rejection by the purchaser under OCGA §§ 11-2-512 and 11-2-513 (1).

The law provides that the Supreme Court is the final authority, whatever its holding, and accordingly our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Pope, P. J., and Birdsong, P. J., concur. McMurray, P. J., and Smith, J., concur specially. Beasley, C. J., Andrews, Johnson and Ruffin, JJ., concur in the judgment only.

McMurray, Presiding Judge,

concurring specially.

While I agree this case must be reversed, as directed by the Supreme Court of Georgia in Givens v. State, 264 Ga. 522 (448 SE2d 687), I cannot agree with the statements of the majority in its second, third and fourth paragraphs.

I am authorized to state that Judge Smith joins in this special concurrence.


author: Blackburn, Judge.

text:
    A93A1252.
    EMPLOYEES RETIREMENT SYSTEM OF GEORGIA v. EVANS.
    (453 SE2d 776)
   Blackburn, Judge.

In Employees Retirement System of Ga. v. Evans, 211 Ga. App. 448 (439 SE2d 690) (1993), we reversed the trial court’s grant of summary judgment for the reasons stated therein. The Supreme Court reversed our judgment in Evans v. Employees’ Retirement System of Ga., 264 Ga. 729 (450 SE2d 195) (1994). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Decided January 31, 1995.

Michael J. Bowers, Attorney General, Jeffrey L. Milsteen, Susan L. Rutherford, Senior Assistant Attorneys General, for appellant.

Chilivis & Grindler, Nickolas P. Chilivis, John K. Larkins, Jr., for appellee.

G. Stephen Parker, Joshua R. Kenyon, amici curiae.

Judgment reversed.

Smith and Ruffin, JJ., concur. McMurray, P. J., and Johnson, J., disqualified.


text:
    A94A1899.
    BURNS v. THE STATE.
    (454 SE2d 152)
   Pope, Presiding Judge.

Defendant Elf or d Jay Burns was arrested for driving under the influence. Defendant filed a motion to suppress evidence, and when the trial court denied said motion, defendant pled guilty. On appeal, defendant’s sole enumeration of error is that the trial court erred in denying his motion to suppress. We disagree and affirm.

On September 5, 1993, officers from the Georgia State Patrol and the Georgia Department of Natural Resources set up a road check/ license check at the intersection of Black Bluff Road and Highway 100 in Floyd County. The record shows that Black Bluff Road intersects Highway 100, which runs north and south, at a right angle thereby forming a tee. Old Foster’s Mill Store and a large parking lot are located in the right-hand corner of this tee. It is undisputed that at approximately 6:40 p.m., Officer Wilson saw defendant’s vehicle coming west toward the intersection along Black Bluff Road. During the hearing on defendant’s motion to suppress, Officer Wilson, who was the only person to testify, stated that what drew his attention to defendant’s vehicle was that within 35 to 40 feet of the intersection, “instead of coming up to the intersection, [defendant] pulled into the store parking lot there, to the — to the right.” Wilson also testified that “[defendant] pulled between the store and the highway” and that “it wasn’t like [defendant] pulled before he got to the store. He waited until he got past the store in this big parking lot, and he turned to the right there in the parking lot.” Furthermore, Wilson téstified that because everyone else that day had driven up to the intersection, it appeared that defendant was trying to avoid the license check.

According to Officer Wilson, after defendant stopped in the parking lot, Officers Toles and Wilson walked over to defendant’s vehicle. It is undisputed that Toles spoke with defendant, but the content of this conversation was not overheard by Wilson and, as noted above, neither Toles nor defendant testified at the motion to suppress hearing. Wilson testified that after Toles spoke with defendant, Toles turned away from the vehicle and walked toward Wilson. At that time defendant opened the door of his vehicle and, in an attempt to exit, stumbled as if he was going to fall. Wilson testified that defendant was unsteady on his feet, glassy eyed, and smelled heavily of alcohol. After observing defendant, the officers determined that he was under the influence of alcohol and was less safe to operate a vehicle. Subsequently, defendant was arrested and read his implied consent rights at the scene. Defendant later submitted to a chemical test of his breath and registered .23 on the Intoximeter 3000.

Defendant’s motion to suppress was based on the ground that Officers Wilson and Toles did not have an articulable suspicion that warranted stopping defendant and that the stop was therefore unlawful. See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). In support of this contention defendant relies on Jorgensen v. State, 207 Ga. App. 545 (428 SE2d 440) (1993). Jorgensen, however, is distinguishable from this case. In Jorgensen, a road block was set up approximately 200 feet from the entrance to an apartment complex. David Jorgensen turned into the complex in a white BMW in a normal manner. A police officer then pursued Jorgensen into the complex and actually stopped Jorgensen after he had exited his car and was walking toward an apartment. The officer testified that at the time he stopped Jorgensen, Jorgensen was not free to leave. The reason the officer gave for stopping Jorgensen was that the officer did not believe Jorgensen lived in the complex. No other reason for the stop was given other than the officer’s intuition. Id. at 545-547.

In this case, even though it is undisputed that prior to turning into the store parking lot, defendant had not violated any traffic laws, defendant’s activities and driving pattern once in the parking lot, all of which occurred within 35 to 40 feet of the officers at the check point, at the very least were suspicious. Without addressing the issue of whether such suspicion constitutes “articulable suspicion,” we note that “even when officers have no basis for suspecting a particular individual [of a crime], they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search; as long as the police do not convey a message that compliance with their requests is required. It is clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. State v. Westmoreland, 204 Ga. App. 312-313 (1) (418 SE2d 822) (1992). See also Vance v. State, 205 Ga. App. 201 (421 SE2d 730) (1992); State v. Jackson, 201 Ga. App. 810, 813-814 (2) (412 SE2d 593) (1991).” (Citations and punctuation omitted.) State v. Willis, 207 Ga. App. 76, 77 (427 SE2d 306) (1993).

Decided January 31, 1995.

Garner & Barnes, Richard E. Barnes, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Here, the only evidence presented at the motion to suppress was the testimony of Officer Wilson. Unlike Jorgensen, there is nothing in the record in this case demonstrating that at the time Officers Toles and Wilson approached defendant, defendant was not free to go. Consequently, we conclude that prior to the time defendant actually stepped out of his vehicle and stumbled, the officers’ encounter with defendant did not rise to the level of a stop. After defendant exited his vehicle, the undisputed testimony of Officer Wilson demonstrates that probable cause existed to stop and subsequently arrest defendant for driving under the influence. Thus, we affirm the trial court’s denial of defendant’s motion to suppress.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


author: Ruffin, Judge.

text:
    A94A2088.
    COREY v. THE STATE.
    (454 SE2d 154)
   Ruffin, Judge.

Michael J. Corey appeals from his sentence of life imprisonment for armed robbery.

In his sole enumeration of error, Corey contends the trial court erred in denying his motion to modify his sentence. Corey argues that OCGA § 16-8-41 (b), under which he was sentenced, is unconstitutionally vague because it provides two maximum sentences, one of life imprisonment and another of 20 years. We disagree.

OCGA § 16-8-41 (b) provides in pertinent part that “[a] person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than five nor more than 20 years. . . .” Although the statute allows the sentencing judge broad discretion, it does not provide two different maximum sentences and is not unconstitutionally vague. The courts of this state have consistently held that “[t]he maximum penalty upon conviction for armed robbery is life imprisonment.” (Citations and punctuation omitted.) Getty v. State, 207 Ga. App. 736, 738 (429 SE2d 100) (1993). As an alternative to imposing this maximum sentence, under OCGA § 16-8-41 (b), a court also has the discretion to impose a determinable sentence of any period of time between five and twenty years. See Thornton v. State, 226 Ga. 837 (2) (178 SE2d 193) (1970).

Decided January 31, 1995.

Michael J. Corey, pro se.

T. Joseph Campbell, District Attorney, for appellee.

“Where the sentence is within the limits established by law, this court may not control the discretion of the trial court in imposing punishment. [Cits.]” Flagg v. State, 187 Ga. App. 297, 299 (2) (370 SE2d 46) (1988). Since OCGA § 16-8-41 (b) is clear in its provision for a maximum sentence of life imprisonment, and the sentence of life imprisonment imposed by the trial court in this case is within that limit, we find no error.

Judgment affirmed.

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


author: Andrews, Judge. Beasley, Chief Judge,

text:
    A94A2482.
    In the Interest of R. O. B., a child.
    (453 SE2d 776)
   Andrews, Judge.

R. O. B. was adjudicated delinquent, found in need of treatment and rehabilitation, and placed on probation. On appeal he contends the juvenile court erred in denying his motion to dismiss the delinquency petition because an adjudicatory hearing was not held or set to be held within 60 days from the date of the filing of the petition.

Under OCGA § 15-11-26 (a), if the child is not in detention, “the court shall fix a time for hearing [on the petition] which shall be not later than 60 days from the date of the filing of the petition.” It is undisputed that the petition alleging delinquency was filed on December 13,1993; that R. O. B. was not held in detention; that R. O. B. was arraigned on December 17, 1993; that on February 22, 1994, an adjudicatory hearing was set for March 4, 1994, and that the adjudicatory hearing on the petition was held on March 4, 1994.

Prior to the adjudicatory hearing, R. O. B. moved for dismissal of the petition on the basis that the juvenile court failed to comply with the 60-day time requirement of OCGA § 15-11-26 (a). The juvenile court denied the motion ruling that R. O. B.’s arraignment on December 17 satisfied the requirement of OCGA § 15-11-26 (a) that a hearing be held within 60 days of the filing of the petition.

OCGA § 15-11-26 (a) requires that the juvenile court fix a time for an adjudicatory hearing on a petition alleging delinquency not later than 60 days from the date the petition was filed. Sanchez v. Walker County Dept. of Family &c. Sucs., 237 Ga. 406, 408 (229 SE2d 66) (1976); see Johnson v. State, 183 Ga. App. 168, 169 (358 SE2d 313) (1987). “While the adjudicatory hearing itself need not be conducted within [60] days of the filing of the petition, the hearing date must be set within that period. [Cit.]” In the Interest of L. A. E., 214 Ga. App. 268, 269 (447 SE2d 627) (1994). An arraignment hearing scheduled within the 60-day time period is not sufficient to satisfy the requirement that an adjudicatory hearing must be set within that period. See id. at 269.

Since an adjudicatory hearing was not held, nor was a hearing date set for an adjudicatory hearing, within 60 days from the date the petition was filed, and the 60-day time limit is jurisdictional and must be strictly observed, the juvenile court erred by denying R. O. B.’s motion to dismiss the petition. See id. at 269-270.

Judgment reversed.

Johnson, J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur. This case differs from the circumstances in In the Interest of L. A. E., 214 Ga. App. 268 (447 SE2d 627) (1994), because an arraignment was scheduled in this case for four days after the petition was filed, the child and his mother were summoned expressly for arraignment, and an arraignment was held, all as provided by Rule 10, Uniform Juvenile Court Rules, and particularly subsection 10.1. The purposes of an arraignment were met, as demonstrated by the signatures of the 16-year-old child and his mother on the acknowledgment of rights form and on the entry of his admission to the underage possession of alcohol and his denial of the charges of battery and pointing a gun at another. The fact that what had transpired at that time was an arraignment was confirmed at the subsequent adjudicatory hearing, for which the child and both his parents were summoned to show cause. The witnesses were also summoned for that March 4 date.

In the case involving L. A. E., the record demonstrated to my satisfaction that the first matter set was not an arraignment but an adjudicatory hearing, that the child and his mother were summoned to make defense and to show cause why the child should not be dealt with according to the law, that an arraignment was not held, and that preliminary matters to the actual adjudication required a continuance to be afforded.

The difficulties of meeting the statutory time requirements of OCGA § 15-11-26 (a) when a judicially-created arraignment is inserted into the proceedings were not present in In the Interest of M. D. C., 214 Ga. App. 59 (447 SE2d 143) (1994), because the court omitted the optional formal arraignment. Dismissal of the petition against the child was mandated because “the hearing was not originally set for a date within the ten-day limitation” for the detained child. Id. at 61.

Decided January 31, 1995.

Debra G. McDonald, for appellant.

Lindsay A. Tise, Jr., District Attorney, Kathy Johnson, Assistant District Attorney, for appellee.

It is notable that if, at the arraignment on December 17, the adjudicatory hearing had been set for any time on or before the sixtieth day after the petition was filed on December 13, and later continued for a good reason to March 4, the actual date of adjudication, the speedy trial requirement imposed by the legislature would have been met. But the record only shows that it was not until February 22, after the 60 days had expired, that the adjudicatory hearing was set.

Thus it is understandable that the juvenile court reasoned that since the child actually had a significant court hearing within the 60 days, the legal requirement was met, because as judicially interpreted it allows the adjudicatory hearing which is set within 60 days to be continued for good cause even without any appearance of the child before the court within that 60 days.

The problem is that the judicial branch’s effort to improve the process by a rule providing for arraignment, so that the child and the child’s parents are more fully informed at an earlier stage than adjudication, can run afoul of the legislative branch’s mandate that adjudication occur within ten or sixty days (depending on detention status) or at least be set to occur within that period and only continued for good cause. Both branches seek expedition, but the application of the court’s rule must conform to the law as it has been construed.


text:
    A93A1672.
    STATE OF GEORGIA v. WHITE.
    (454 SE2d 542)
   Blackburn, Judge.

In State of Ga. v. White, 210 Ga. App. 876 (437 SE2d 826) (1993), we reversed the trial court’s denial of the State’s complaint for forfeiture of White’s vehicle arising out of criminal charges involving counterfeit cocaine. The trial court held that the forfeiture provisions of OCGA § 16-13-49 did not apply to transactions involving counterfeit controlled substances. We disagreed and reversed the trial court’s ruling; the Supreme Court disagreed with us and reversed our judgment in White v. State of Ga., 264 Ga. 547 (448 SE2d 354) (1994). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Decided February 1, 1995.

Daniel J. Craig, District Attorney, Daniel W. Hamilton, William C. Davison, Assistant District Attorneys, for appellant.

Peter D. Johnson, for appellee.

Judgment reversed.

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


text:
    A94A1933.
    FIELDS v. THE STATE.
    (453 SE2d 794)
   McMurray, Presiding Judge.

Defendant was charged in a 15-count indictment for crimes stemming from a series of forcible abductions and sexual assaults in Richmond County, Georgia. The evidence adduced at a jury trial reveals that defendant sexually assaulted four young women during separate abductions that occurred between April 7, 1991, and July 19, 1991. The four victims identified defendant at trial as the perpetrator of the abductions, each woman giving a detailed account of how defendant used a gun to force sexual intercourse. Investigator Andrew Bolton of the Richmond County Sheriffs Department offered proof of the weapon defendant used during the abductions, testifying that he arrested defendant three days after the last abduction and that he then seized a weapon which is described as a “.177 caliber Marksman Repeater B-B pistol ...” from the floorboard of defendant’s car.

Defendant was found guilty of three counts of kidnapping (Counts 1, 8 and 13), one count of kidnapping with bodily injury (Count 4), four counts of rape (Counts 2, 5, 10 and 14) and four counts of possession of a firearm while committing these felonies in violation of OCGA § 16-11-106 (b) (Counts 3, 7, 12 and 15). This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant first contends the evidence is insufficient to sustain his convictions under Counts 3, 7, 12 and 15 of the indictment for possession of a firearm during commission of felonies, arguing that the State proved only that he was in possession of a “.177 caliber Marksman Repeater B-B pistol . . .” during the. abductions and that this weapon is not a firearm within the meaning of OCGA § 16-11-106. In opposition, the State discounts evidence of defendant’s possession or use of the “.177 caliber Marksman Repeater B-B pistol . . .” (pointing out that only one victim positively identified this weapon as the gun possessed by defendant) and argues the testimony of all four victims that defendant “wielded a pistol when attacking them . . is sufficient to authorize defendant’s convictions on all four counts for unlawful possession of a firearm in violation of OCGA § 16-11-106 (b). The State cites Head v. State, 170 Ga. App. 324 (1) (316 SE2d 791), reversed on other grounds at 253 Ga. 429 (322 SE2d 228), in support of this argument, apparently reasoning that specific proof of the type weapon possessed by an accused is unnecessary to sustain a conviction for unlawful possession of a firearm when a victim testifies that the accused possessed an object which appears to be within the class of weapons prohibited by an unlawful firearms possession statute.

In Head v. State, 170 Ga. App. 324 (1), supra, the defendant challenged the sufficiency of the evidence as to his conviction for possession of a firearm by a convicted felon, pointing out that the State failed to prove the “pistol” he possessed was a firearm within the meaning of OCGA § 16-11-131 (a) (2). The defendant argued that the “pistol” the victim observed in his possession may have been a replica or a toy and correctly pointed out that possession of a replica or a toy is insufficient to support a conviction for possession of a firearm under OCGA § 16-11-131. See Wilson v. State, 207 Ga. App. 528, 529 (2), 530 (428 SE2d 433). This court rejected defendant’s argument, finding that “[t]here being no evidence that the pistol was not a firearm, the evidence was sufficient to support the jury’s finding that it was such beyond a reasonable doubt.” Head v. State, 170 Ga. App. 324 (1), 325, supra. The same logic was employed in Jolly v. State, 183 Ga. App. 370 (358 SE2d 912), to sustain a conviction for unlawful possession of a firearm under OCGA § 16-11-131. This court then reasoned as follows: “While appellant is correct about the lack of testimony specifically asserting that the guns found in his car were capable of firing projectiles, we note that the police officer who found the guns testified that they were pistols, not that they appeared to be pistols. There was, in fact, no evidence introduced to refute the officer’s testimony. Thus, the jury was authorized to find that the guns were actual working firearms and to convict appellant on that count. Head v. State, 170 Ga. App. 324 (1)[, supra].” Jolly v. State, 183 Ga. App. 370, 372 (3), supra. In the case sub judice, the jury would not have been authorized to draw such a conclusion from the victims’ description of the “gun” defendant possessed during the abductions as there is proof that the weapon defendant possessed during the abductions is not a firearm within the meaning of OCGA § 16-11-106.

At trial, Investigator Patrick Young of the Richmond County Sheriff’s Department identified the weapon found in defendant’s car as a “Marksman repeater pellet pistol” and demonstrated how this weapon “goes off” when a “trigger” is pulled, releasing a “slide” mechanism which is manually pulled and engaged. This weapon is also described (in an exhibit identification sheet) as a “.177 caliber Marksman Repeater B-B pistol. . .” and is referred to by defendant as a “pellet gun.” There is no proof that defendant possessed any other weapon during the abductions and, contrary to the State’s contentions, there is varying proof (both direct and circumstantial) that the weapon described as a “.177 caliber Marksman Repeater B-B pistol . . .” is the weapon defendant possessed during all four abductions. Under these circumstances, it is apparent defendant’s contention as to the sufficiency of the evidence as to his convictions for unlawful possession of a firearm depends entirely upon a legal question (rather than a question of fact) regarding whether a “Marksman repeater pellet pistol” (otherwise described as a “.177 caliber Marksman Repeater B-B pistol . . .”) is a firearm within the meaning of OCGA § 16-11-106. To say otherwise dilutes the requirement that the State prove each and every essential element of a crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

OCGA § 16-11-106 (b) proscribes possession of “a firearm or a knife having a blade of three or more inches . . . during the commission of . . .” certain enumerated felonies and subsection (a) of this Code section provides that “the term ‘firearm’ shall include stun guns and tasers.” However, OCGA § 16-11-106 does not otherwise define the term “firearm” and defendant argues that this omission, along with the statute’s inclusion of weapons not commonly perceived as firearms, requires exclusion of any weapon not so included which is outside the standard dictionary definition of the term firearm, i.e., “a weapon which propels a projectile by means of an explosive charge.” We agree.

“[I]t is an elementary rule of statutory construction that, absent clear evidence to the contrary, words should be assigned their ordinary, logical, and common meaning. [Cits.]” Curlee v. Mock Enterprises, 173 Ga. App. 594, 600 (327 SE2d 736); see OCGA § 1-3-1 (b). To this extent, we observe that Webster’s Third New International Dictionary (1961), defines “firearm” as “a weapon from which a shot is discharged by gunpowder. ...” Id. at 854. Further, Black’s Law Dictionary (4th ed. 1951) defines “firearm” as “[a]n instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within it [and a] weapon which acts by force of gunpowder.” Id. at 761. Interestingly, the only weapons specifically described in OCGA § 16-11-106 are those that do not discharge a projectile via force of gunpowder. Because these are the only weapons specifically described by the statute outside the class of weapon commonly defined as firearms, under the maxim expressum facit cessare taciturn it may be inferred that the legislature intended to include within OCGA § 16-11-106 only those types of weapons specifically mentioned therein, i.e., stun guns, tasers, knives having a blade of three or more inches and weapons which discharge a projectile by force of gunpowder. See State v. Peters, 213 Ga. App. 352, 355 (444 SE2d 609). It thus follows that the legislature did not intend to have OCGA § 16-11-106 prohibit the possession of a “Marksman repeater pellet pistol” (otherwise described as a “.177 caliber Marksman Repeater B-B pistol . . .”) as this weapon is not mentioned in the statute and there is no proof that it is capable of discharging a projectile via force of gunpowder. Accordingly, since the State failed to produce any evidence that defendant possessed a firearm within the meaning of OCGA § 16-11-106 during abduction of the victims, defendant’s convictions under Counts 3, 7, 12 and 15 of the indictment for possession of a firearm in violation of OCGA § 16-11-106 (b) must be reversed.

2. Defendant next challenges his conviction for rape under Count 5 of the indictment, arguing “[t]he State failed to introduce evidence that would show beyond a reasonable doubt that the vagina of [the victim of the second abduction] was penetrated by [his] penis. ...” This contention is without merit. A medical examination of the victim of the second abduction after defendant abducted and assaulted her revealed the presence of spermatozoa inside her sex organ. This evidence and the victim’s testimony that defendant “forced me to have sex with him” is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, that he penetrated the victim’s sex organ with his sex organ in violation of OCGA § 16-6-1. Jackson v. Virginia, 443 U. S. 307, supra; Richie v. State, 183 Ga. App. 248 (1), 249-250 (358 SE2d 648).

3. In his final enumeration, defendant challenges the sufficiency of the evidence as to his conviction under Count 4 of the indictment for kidnapping with bodily injury, arguing that the victim of the second abduction was never held against her will. This enumeration is without merit. The victim of the second abduction testified that defendant forced her out of his car at gunpoint and grabbed her arm when she tried to escape, causing the victim to fall and scrape her knees. This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of kidnapping with bodily injury in violation of OCGA § 16-5-40. Jackson v. Virginia, 443 U. S. 307, supra; Green v. State, 193 Ga. App. 894 (389 SE2d 358).

Decided February 1, 1995.

Richard 0. Ward, for appellant.

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

Judgment affirmed in part and reversed in part.

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

       The victim of the first assault identified the “.177 caliber Marksman Repeater B-B pistol...” found in defendant’s car as the handgun used by defendant and defendant admitted in a custodial statement that he used a “pellet gun” to force the victim of the last abduction to endure sexual intercourse. The victim of the third abduction initially identified the “.177 caliber Marksman Repeater B-B pistol...” as the handgun used by defendant but she later questioned the certainty of this identification on cross-examination, explaining that stress of the abduction dulled her memory of the specific characteristics of the handgun used by defendant. The victim of the second abduction neither affirmed nor refuted that the “.177 caliber Marksman Repeater B-B pistol . . .” is the weapon used by defendant during her abduction. However, she identified the car where this weapon was found (as did all of the victims) as the vehicle used by defendant during her abduction.

       For apparently divergent statutory definitions of the term firearm, compare OCGA §§ 16-11-131 (a) (2) and 16-11-132 (a) (1).


text:
    A94A1943.
    PADEN v. THE STATE.
    (453 SE2d 788)
   Ruffin, Judge.

William Jefferson Paden was convicted of possession with intent to distribute crack cocaine in violation of the Georgia Controlled Substances Act (OCGA § 16-13-30) and, pursuant to OCGA § 16-13-30 (d), was sentenced to life imprisonment. This appeal follows the trial court’s denial of Paden’s motion for new trial.

Viewed in the light to support the verdict, the evidence shows that on the afternoon of February 5, 1993, narcotics agents executed a search warrant at co-indictee Frankie Maxine Lindley’s residence where they discovered Paden and Lindley in Lindley’s bedroom. On the floor beside the bed, Agent McCoy found a glass tube commonly known as a “straight shooter” used in smoking crack cocaine, two rock-like substances believed to be crack cocaine, a razor blade, and a few hand-rolled cigarettes believed to be marijuana. Agent McCoy testified that a smokey haze permeated the room and that the “straight-shooter” was blackened and warm to the touch. Agents found in excess of $200 in Paden’s clothing and $41 on the dresser beside an amber pill bottle containing 38 pieces of crack cocaine of a size commonly distributed at a price of $10 to $20.

After pleading guilty to possession of crack cocaine, Lindley testified at trial that she telephoned Paden on the morning of February 5, and he agreed to bring her $85 for her rent in exchange for sex. Lindley stated that before the agents arrived she melted some crack cocaine in the bedroom, but that any smoke must have come from a roast and vegetables cooking in the kitchen. Agent Pace, however, testified that no roast or any other food was being prepared in the kitchen when the search warrant was executed.

Lindley also testified that the previous night, several friends had been smoking marijuana in her room. She testified that her boyfriend had also been there, but returned to Tennessee after an argument early that morning. Lindley further claimed to know nothing about the 38 rocks of crack found on her dresser and not to have seen them in Paden’s possession. The jury also heard evidence that Paden had deposited approximately $170 in Lindley’s jail account during the three months prior to his trial. Lindley denied that she was protecting Paden.

Paden testified that he gave $85 to Lindley as a loan to pay her rent, that the $200 taken from his pants pocket was salary received that day, and that he did not see Lindley smoke any crack cocaine. He also testified that neither the $41 nor the 38 pieces of crack on the dresser belonged to him and that he deposited money in Lindley’s jail account because he was a family friend.

1. Paden enumerates as error the denial of his motions for a directed verdict of acquittal and for a new trial. In prosecuting Paden for possession with intent to distribute crack cocaine, the State relied on circumstantial evidence to show constructive possession with intent to distribute. “[A] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” (Citations and punctuation omitted.) Reid v. State, 212 Ga. App. 787, 788 (442 SE2d 852) (1994).

In addition, “[w]here a conviction for possession of contraband depends entirely on circumstantial evidence, it must both be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis.” Ennis v. State, 130 Ga. App. 716, 717 (2) (204 SE2d 519) (1974). “When the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt beyond a reasonable doubt. While the determination of whether the circumstances are sufficient to exclude every reasonable hypothesis except that of defendant’s guilt is usually made by the jury and while we must view the evidence in the light most favorable to the jury verdict, we must not be blinded by that verdict when a reasonable hypothesis of innocence appears from the evidence or lack thereof, and may declare such as a matter of law.” (Citations and punctuation omitted.) Brooks v. State, 206 Ga. App. 485, 486-487 (1) (425 SE2d 911) (1992).

Decided February 1, 1995.

J. Al Johnson, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Debra H. Bernes, Assistant District Attorneys, for appellee.

Here, the circumstantial evidence and the reasonable inferences derived therefrom were insufficient to connect Paden to the crack cocaine found at the residence of an admitted crack cocaine user, premises that Paden did not regularly occupy. Moreover, Lindley rented a room in a house where others also resided, and she testified that on the night of February 4, friends and other residents used drugs in her bedroom. Even if the jury chose not to believe this testimony, it is undisputed that Paden did not live in the house. In Ennis, supra at 717, we recognized our Supreme Court’s approval of the rule that “where the evidence on the possession of contraband is entirely circumstantial, it is usually sufficient to convict where the proof shows the premises to be occupied by and under the control of the accused, but if the proof also shows that others than the accused have equal right of access and occupancy it is usually insufficient.” The fact that Paden, employed as a wrecker driver, possessed over $200 when arrested is also insufficient to connect him to the 38 pieces of cocaine on Lindley’s dresser. Similarly, evidence that Paden deposited money in Lindley’s jail account, while perhaps suspicious, does not connect Paden to the cocaine. Whether he did so as a family friend or, as the State argues, to influence Lindley’s trial testimony, the jury was not authorized to infer from such evidence a connection between Paden and the cocaine. Paden offered a reasonable hypothesis for the events and the State failed to prove he was in constructive possession of cocaine sufficient to sustain a conviction for possession with intent to distribute. It follows that the jury was not authorized by the evidence to return a guilty verdict on that charge beyond a reasonable doubt, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Ridgeway v. State, 187 Ga. App. 381 (370 SE2d 216) (1988), and that Paden’s motion for a directed verdict should have been granted.

2. Paden’s remaining enumerations need not be considered in light of our holding in Division 1.

Judgment reversed.

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


text:
    A94A2156.
    DUNTON v. THE STATE.
    (453 SE2d 800)
    Decided February 1, 1995.

      Jennifer B. Mann, for appellant.

      J. Tom Morgan, District Attorney, Robert M. Coker, Elisabeth

      G. Macnamara, Assistant District Attorneys, for appellee.
   Ruffin, Judge.

Juan Dunton was indicted for rape and kidnapping and after a trial by jury, convicted of the rape. This appeal follows the denial of Dunton’s motion for a new trial.

At trial, the evidence showed that the victim first encountered Dunton in front of a convenience store when she was attempting to repair her car and he offered assistance. After getting the car started, Dunton and the victim drove around town for several hours while Dunton smoked crack cocaine. The rape occurred after Dunton pulled into a heavily wooded area and the car stopped running. Although Dunton testified the victim smoked cocaine with him and agreed to have intercourse with him in exchange for cocaine, the victim denied both these assertions.

On appeal, Dunton contends the trial court erred in granting the State’s motion in limine, prohibiting him from cross-examining the victim concerning whether she had used cocaine in the past. Dunton argues that since the State’s direct examination of the victim portrayed her as a woman who was naive to the drug scene, he should have been able to rebut the inference of naiveté and probe her credibility with questions concerning prior drug use. We disagree.

“The right to a thorough and sifting cross-examination is not abridged when the trial judge limits it to relevant matters. Stephens v. State, 207 Ga. App. 645, 646 (1) (428 SE2d 661) (1993).” Peterson v. State, 212 Ga. App. 31, 33 (3) (441 SE2d 267) (1994). In the instant case, the record does not support Dunton’s assertion that during the State’s examination of the victim, it portrayed her as a woman naive to the drug scene. Moreover, whether the victim used drugs in the past or was generally knowledgeable about illegal drugs is irrelevant to the issue of whether Dunton committed the offenses of rape and kidnapping. Rape is no more lawful when committed against a woman who uses cocaine than it is against one who does not use cocaine. Furthermore, “ ‘[instances of specific misconduct may not be used to impeach a witness’ character or veracity unless the misconduct has resulted in the conviction of a crime involving moral turpitude. . . .’ [Cits.]” Woods v. State, 210 Ga. App. 172, 173 (1) (435 SE2d 464) (1993). Since no such conviction has been shown to exist in this case, we find no error in limiting Dunton’s cross-examination of the victim.

Judgment affirmed.

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


text:
    A94A2394.
    STOCKSTILL v. PRIME FOODS SYSTEM, INC.
    (453 SE2d 784)
   Andrews, Judge.

Stockstill, injured when she fell in the Hardee’s operated by Prime Foods, appeals from the grant of summary judgment to the company.

Viewed with all inferences in favor of Stockstill, opponent of summary judgment, Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence was that she and a friend had gone into the Hardee’s to get a cup of coffee and wait for some friends who were shopping across the street. Stockstill was of retirement age and wore a back brace due to problems with her vertebrae. They obtained their coffee and sat at a table where they could see the shopping center.

While they were seated, Franklin, an employee of Prime Foods, prepared to perform one of two daily routine moppings of the dining room floor. He placed at least four warning signs around the dining area. These signs were two feet tall, bright yellow, and bore the warning “Caution Wet Floor.” Franklin then inspected the dining floor area and did not find any evidence of any foreign substances. The floor was mopped with clean warm water, to which had been added a non-greasy bleach sanitizer. The evening before, as was customary every evening, the floor had been mopped with detergent after closing.

According to her deposition, Stockstill did not see the signs or Franklin mopping before she fell. There is no evidence that she was prevented from seeing them by any distraction created by Prime Foods. She said she got up from the table and began to walk toward the door behind her friend, Weldon. Weldon was a couple of feet in front of her and Stockstill was looking straight ahead and down as she walked. Both of her feet went out from under her at the same time and she fell about five feet from the table where she had been sitting. Weldon, walking in front of Stockstill, had no trouble traversing the floor.

Stockstill stated that, after she fell, the floor felt wet and greasy.

Hayes, the assistant manager of the Hardee’s, stated that, in addition to the twice daily moppings, all employees were instructed to periodically check the floor for foreign substances and take corrective actions if necessary. Further, at the time in question, Franklin had just finished emptying the trash from inside and it was company policy that the floors be mopped with the water/sanitizer mixture after trash had been emptied. Franklin stated that, after Stockstill fell, he noticed that one of the wet floor signs was five feet from where she fell.

1. While Stockstill has made some allusion, see fn. 1, supra, to the fact that the floor felt “greasy,” that is not enough, on summary judgment, to carry her case with regard to the presence of a foreign substance. “ ‘In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.’ [Cit.]” Lea v. American Home Equities, 210 Ga. App. 214 (1) (435 SE2d 734) (1993).

Here, Franklin’s affidavit stated unequivocally that the mop which he was using at the time of Stockstill’s fall was “clean and free of grease.” In response, Stockstill submitted her own contention that the floor felt “wet and greasy” and the statement of one of the women with her that she saw the floor was wet after the fall and a young man was standing in the restaurant “with a very dirty and oily looking mop.” No issue of fact requiring submission to a jury is made out.

2. “The slip and fall cases involving foreign substances are inapplicable in an instance where the plaintiff alleges that [s]he fell because of the slippery wax, oil or other finish that defendant placed on the floor. Because the defendant applied or authorized the application of the floor treatment, he is presumed to have knowledge of its existence. [Cit.] In this type of case the plaintiff may make out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of [the] injury and which could not have been avoided by the plaintiff through the exercise of ordinary care. [Cit.]” Alterman Foods v. Ligon, 246 Ga. 620, 623-624 (272 SE2d 327) (1980).

Here, there has been no showing of any act or omission on the part of Prime Foods which violated the required standard of care. The duty is one of “ordinary care” and to protect against an “unreasonable risk of harm.” Adams v. Winn-Dixie Stores, 192 Ga. App. 892, 893 (386 SE2d 686) (1989).

Although Stockstill may not have seen them, it is undisputed that at least four wet floor signs had been placed before Franklin began his routine mopping. “ ‘This was reasonable and ordinary care on [appellee’s] part, even assuming . . . [appellant] did not have equal knowledge of the hazard. To say otherwise would render [appellee] an insurer of its customers’ safety, which (it) is not in this state. (Cit.) . . . There is simply no evidence of negligence on the part of this [appellee].’ [Cit.]” Alterman Foods v. Munford, 178 Ga. App. 214, 215 (342 SE2d 480) (1986).

Decided February 1, 1995.

Barnes, Browning, Tanksley & Casurella, Jerry A. Landers, Jr., for appellant.

Bovis, Kyle & Burch, J. S. Scott Busby, for appellee.

While Munford and other cases dealing with mopping by a proprietor have generally occurred in the context of attempting to remove water created by rainy conditions, there is no reason to treat routine maintenance mopping in a different way, absent a showing of negligence in the manner of mopping, which has not been shown here.

Therefore, the grant of summary judgment to Prime Foods was appropriate.

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.

       At the oral argument on the motion for summary judgment, plaintiffs contentions were stated as “the condition was caused by mopping the floor, regardless of the .. . how you would define the condition, whether the floor was wet, greasy, greasy wet, slippery wet, or wet and greasy.”

       Compare Winn-Dixie Atlanta v. Bianco, 204 Ga. App. 292, 293 (41 SE2d 819) (1992) (plaintiff fell inside door during rain, proprietor routinely inspected and mopped dry the entrance every 30 minutes during rain, summary judgment mandated) and Adams v. WinnDixie Stores, supra (plaintiff did not see “wet floor” sign; fell in water she did not see until after she fell where proprietor had “shortly before” checked and mopped the area, summary judgment affirmed) with Broomberg v. Hudgens, 206 Ga. App. 797 (426 SE2d 617) (1992) (issue of fact created where plaintiff fell on slick and wet floor where signs had not been placed on the occasion of her fall, but had been previously when floor mopped).