author: Blackburn, Judge.

text:
    A99A0175.
    MINCEY v. THE STATE.
    (515 SE2d 433)
   Blackburn, Judge.

Roberto R. Mincey appeals his convictions for armed robbery, possession of a firearm during the commission of a crime, kidnapping, kidnapping with bodily harm, theft by receiving property stolen in another state, and possession of a firearm by a convicted felon. Mincey contends that: (1) in a number of instances, the jury’s verdicts were mutually exclusive of each other; (2) the trial court erred by denying his motions for a directed verdict of acquittal with regard to the offenses of kidnapping with bodily injury and theft by receiving property stolen in another state; and (3) the evidence was insufficient to support the convictions. For the reasons set forth below, we affirm.

1.

[I]n Milam v. State, [255 Ga. 560, 562 (2) (341 SE2d 216) (1986), the Supreme Court of Georgia] rejected the inconsistent verdict rule in criminal cases. Milam involved a criminal defendant charged with two murders committed at the same time. The jury returned a verdict of not guilty by reason of insanity as to one murder, and guilty but mentally ill as to the other murder. [The Supreme Court] affirmed, ruling that there was no error inherent in the inconsistency between the conviction and acquittal. The Milam ruling stands for the proposition that a defendant cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on a different count. Likewise, virtually all other Georgia cases affirming Georgia’s abolition of the inconsistent verdict rule involve jury verdicts of guilty and not guilty that are alleged to be inconsistent. These cases are in accordance with the principle that it is not generally within the trial court’s power to make inquiries into the jury’s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts.

(Footnotes omitted.) Dumas v. State, 266 Ga. 797, 799 (2) (471 SE2d 508) (1996).

In three separate enumerations, Mincey argues that certain guilty verdicts and certain acquittals he received were inconsistent and mutually exclusive. In accordance with the rule set out in Milam, supra, such enumerations are rejected.

2.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Mincey] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

Decided April 1,1999.

Darden & Moyers, Richard M. Darden, for appellant.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Viewed in this light, the evidence shows that Mincey, James Kimble, and an unidentified compatriot drove to the All Cash Coin & Pawn Shop on the morning of June 5, 1996, in a gold Chevrolet Caprice. This car had been stolen from South Carolina, and the locking column on its steering wheel had been broken so that it could be driven away. Exiting the car, the three men then entered the pawn shop, drew guns, and forced the two clerks on duty, Michelle Jones and Christopher Elkins, into a back storage room where they were bound and gagged. The men threatened to kill Jones and Elkins if they failed to cooperate, and Elkins testified that he remembered Mincey pointing a gun at him. While both clerks were lying on the floor, face down, one of the robbers inserted his finger into Jones’ vagina. Jones immediately started crying and testified that she felt as if she had been violated.

Jones and Elkins identified Mincey as one of the robbers, both before and during trial. In addition, Elkins positively identified the car used in the commission of the robbery, and Kimble’s fingerprints were found on the vehicle.

Based on this evidence, we find that the trial court properly denied Mincey’s motions for a directed verdict with regard to the charges of kidnapping with bodily injury and theft by receiving property stolen in another state. Although Mincey argues, without citing any supporting precedent, that there was no showing of bodily injury to Jones and that there was no evidence showing that Mincey knew or should have known the car used in the robbery was stolen, such arguments are not supported by the record in this case. We further find that the evidence amply supported all of Mincey’s convictions under the standard of Jackson v. Virginia, supra.

Judgment affirmed.

Beasley, P. J, and Senior Appellate Judge Harold R. Banke concur.

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


source: Caselaw Access Project

author: Beasley, Presiding Judge.

license: Public Domain

text:
    A99A0182.
    THOMPSON v. THE STATE.
    (517 SE2d 339)
   Beasley, Presiding Judge.

Thompson appeals his conviction of two counts of armed robbery (OCGA § 16-8-41) and one count each of aggravated assault (OCGA § 16-5-21) and possession of a firearm during the commission of a felony (OCGA § 16-11-106). For the armed robberies, he was given a mandatory sentence of life imprisonment as a recidivist. OCGA § 17-10-7 (c). His co-indictee, Harvest Beaudry, avoided the possibility of receiving such a sentence by pleading guilty to the armed robberies and testifying against Thompson at his trial.

The victims of the robberies were Ricky Sweet and Pamela Bouchard. Sweet testified, but Bouchard died of an apparent drug overdose prior to trial. Testimony she gave at the preliminary hearing was admitted into evidence.

The victims testified that at around midnight on December 8, 1996, Sweet went to Cooter’s Lounge in Savannah where he met Bouchard. He also became acquainted with Thompson and Beaudry, who were together. Sweet agreed to give all three a ride home. After directing Sweet along a circuitous route, Thompson asked him to stop at a street corner so he and Beaudry could exit the car. After they did so, Thompson produced a gun, instructed Sweet to hand over his wallet, and told Beaudry to get Bouchard’s purse. Although Sweet complied with Thompson’s instructions, Bouchard resisted and a struggle over the purse ensued between her, Beaudry, and Thompson. Thompson struck Bouchard on the head with the gun, causing her to bleed profusely. After Thompson and Beaudry fled, Bouchard was taken to the hospital. Shortly thereafter, Thompson and Beaudry were apprehended by police and were later positively identified by both Sweet and Bouchard. Police recovered Bouchard’s purse, Thompson’s wallet, and the gun at or near the crime scene. Nothing was missing.

Thompson’s version is that upon leaving the bar, he gave his wallet to Beaudry and Sweet turned his wallet over to Bouchard, so the women could collect money for cocaine which Sweet suggested they purchase. He asked Sweet to stop the car because Beaudry took his wallet and put it in her purse. During the struggle between the two women over the purse, a gun was observed inside. Thompson fled the scene as the women continued to fight. Palmer, another Cooter’s patron, testified that Bouchard possessed a gun that night and was extremely intoxicated.

Although Beaudry appeared as a State’s witness, her testimony recounted events mostly consistent with Thompson’s version. But Beaudry was impeached with testimony she had given at her probation revocation hearing and with a pretrial statement to police, which tracked the victims’ description. She was also impeached with prior criminal convictions. She claimed she had been lying earlier but was testifying truthfully at the trial.

1. Thompson first contends he was deprived of a fair trial as a result of the court’s refusal to declare a mistrial or give curative instructions and rebuke counsel, after the prosecuting attorney suggested Beaudry was testifying untruthfully.

After Beaudry testified in a manner inconsistent with her prior testimony, the prosecuting attorney directed her: “Let’s try this again, because I don’t want you to get in any more trouble.” Thompson’s motion for a mistrial was denied. When the prosecutor then commented to Beaudry that “this time I want you to tell the truth,” Thompson asked the jury to be instructed that determinations as to the credibility of witnesses are solely within the province of the jury. Without giving any instructions to the jury at that point, the court granted the prosecutor permission to treat Beaudry as a hostile witness and impeach her with her prior inconsistent testimony and statement.

Contrary to Thompson’s arguments on appeal, the requested instruction was given to the jury, in the court’s general charge. Of course, it is preferable to instruct at once, so as to clear the matter while it is fresh in jurors’ minds. Misconceptions are easier to dig out before they take root. But it was not reversible error to wait.

Also, it was not error to refuse a mistrial or fail to rebuke counsel. Such remedies are required when counsel, by way of argument, introduces facts not in the record and calculated to prejudice the accused. That is not what happened here. “That [the witness] may not have told the truth was a permissible inference from the evidence” and did not constitute an objectionable comment by counsel.

2. Thompson also claims he was denied a fair trial by the court’s refusal to instruct the jury as to the meaning of a guilty plea entered pursuant to North Carolina v. Alford.

Two of the convictions used to impeach Beaudry were for the armed robberies in this case, based on Alford guilty pleas. Thompson was concerned with the prejudicial effect of having the jury informed that his co-indictee had been convicted of the armed robberies of which he was charged, and he requested a jury charge explaining the meaning of an Alford plea. The trial court refused because the request was that the jury be instructed that an Alford plea is not a guilty plea.

Since an Alford plea is a guilty plea, the court did not err in rejecting the requested charge. Alford does permit a criminal defendant to plead guilty while claiming to be innocent, where the defendant intelligently concludes that it is in his best interest to enter such a plea, but the plea is one of guilt and may be accepted only if the court determines there is a factual basis for a determination of guilt. That is precisely what transpired at Beaudry’s guilty plea hearing.

3. Thompson maintains that the court’s refusal to allow him to call Luther Harley as a defense witness resulted in the denial of his right to a fair trial.

Thompson invoked the reciprocal discovery provisions of OCGA § 17-16-1 et seq. OCGA § 17-16-8 (a) requires the prosecuting and defense attorneys to furnish each other with names, locations, dates of birth, and telephone numbers of the party’s witnesses prior to trial unless, for good cause shown, the court alternatively orders that counsel merely be provided with an opportunity to interview the opposing witness prior to the witness testifying. If defendant fails to comply with discovery requirements, OCGA § 17-16-6 provides that, among other things, the court may give opposing counsel an opportunity to interview the undisclosed witness or, upon a showing of bad faith and prejudice, prohibit the witness from testifying.

On the morning of the first day of trial on September 17, 1997, defense counsel sought permission to present the testimony of Harley as a newly discovered defense witness. The court agreed to consider admitting the evidence if Thompson could make a showing of relevance. Later during the trial’s first day, defense counsel expected Harley to testify that during early evening hours on the night of the alleged robberies he had been at Captain’s Lounge in Savannah where he had seen Bouchard drinking heavily. The court acknowledged that testimony on this subject would be relevant. When the prosecuting attorney complained that she did not have adequate time to investigate, the court stated that the prosecution would be given an opportunity to interview the witness if he were allowed to testify. The prosecuting attorney asked that she be provided with the witness’s date of birth and social security number, and defense counsel responded that he did not have such information but would try to obtain it.

When trial began the next day, Harley had not been located and the prosecutor had not been given the information she requested. As the trial was concluding later in the day, Harley appeared. The court asked the defense to explain how his testimony was newly discovered. Counsel responded that apparently he had been in the courthouse on another matter the day before, happened to encounter Thompson’s relatives who are acquaintances of his, inquired about the reason for their presence and, when so informed, realized he had knowledge concerning Bouchard’s activities on the night in question (approximately one and one-half years earlier). Finding this explanation wholly incredible, the court determined that Thompson (though not necessarily his attorneys) claimed in bad faith that the witness was newly discovered and that the State had been prejudiced by its lack of requested information concerning the witness. The witness was not allowed to testify.

The trial court’s findings on matters such as these are accepted unless they are clearly erroneous. Here they were warranted; the court did not abuse its discretion in refusing to allow the witness to testify. Besides, another defense witness testified to Bouchard’s high degree of intoxication on the night in question, so the court’s bar to Harley’s testimony was not so prejudicial as to deny Thompson a fair trial.

4. Thompson contends there was insufficient evidence from which a jury could have found him guilty beyond a reasonable doubt and that the verdict is contrary to the weight of the evidence.

“This court as a reviewing court must not necessarily pass on the weight of the evidence, but on the sufficiency of the evidence to support the verdict. On appeal of a conviction based on a jury verdict we should examine the evidence in a light most favorable to support that verdict. We resolve all conflicts in favor of the verdict. It is the duty of this Court to sustain the verdict if we should find when viewing the evidence in a light most favorable to the verdict that a rational trier of fact could find the defendant guilty beyond a reasonable doubt.”

Thompson is chargeable with armed robbery if, with the intent to commit theft, he took property from the victims by use of an offensive weapon. The property need not be permanently appropriated. These legal principles lead to the conclusion that the evidence was sufficient to enable any rational trier of fact to conclude beyond a reasonable doubt that Thompson committed the two armed robberies and other crimes of which he was convicted.

5. The next enumeration is that a variance between the allegations of the indictment and proof at sentencing regarding prior convictions resulted in a denial of Thompson’s rights to notice, under Georgia statutory law and the due process clauses of the state and federal constitutions.

OCGA § 17-10-2 (a) authorizes the judge conducting a presentence hearing to hear evidence in aggravation of punishment, including the record of any prior criminal convictions of the defendant, “provided that only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial shall be admissible.”

The recidivist count of Thompson’s indictment alleged that he was previously convicted of criminal damage to property, burglary, and forgery. Thompson was provided with a pretrial notice that the prior convictions to be admitted at sentencing would be for the burglary and criminal damage to property convictions as.well as for possession of a controlled substance with intent to distribute.

The complaint targets the court’s consideration of the latter offense since it was not included in the indictment. Yet under OCGA § 17-10-2, “ ‘it is not required that the prior convictions be included in the indictment but only that the accused receive notice of the state’s intention to seek recidivist punishment and of the identity of the prior convictions. (Cits.)’ [Cit.]”*

6. Finally, Thompson contends he was sentenced as a recidivist in violation of his rights to due process and equal protection under the federal and state constitutions, because the burglary and criminal damage to property convictions resulted from pleas entered on the same date and concurrent sentences were imposed.

OCGA § 17-10-7 (d) provides that for purposes of recidivist sentencing under that Code section, conviction of two or more crimes charged in two or more indictments or accusations “consolidated for trial” shall be deemed to be only one conviction.

Decided April 1,1999.

Zipperer & Lorberbaum, Alex L. Zipperer, Eric R. Gotwalt, for appellant.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Benjamin B. Reed, Assistant District Attorneys, for appellee.

Burglary and criminal damage to property convictions were committed against different victims on the same date. Both convictions were the result of separate indictments. A separate order of sentence was entered on each indictment.

Under these circumstances, the fact that the sentences were entered on the same day and that the sentences on the [one charge] ran concurrent with the [other] sentence does not require the conclusion that the [two] prior convictions had been “consolidated for trial” within the meaning of OCGA § 17-10-7 (c). [Cits.]

Judgment affirmed.

Blackburn, J., concurs. Barnes, J., concurs in judgment only.

       See OCGA § 17-8-75; Smith v. State, 118 Ga. App. 464, 465 (1) (164 SE2d 238) (1968); Thompson v. State, 150 Ga. App. 567, 568 (2) (258 SE2d 180) (1979); Simmons v. State, 174 Ga. App. 171, 177 (12) (329 SE2d 312) (1985); Hall v. State, 180 Ga. App. 881, 882 (3) (350 SE2d 801) (1986).

        Shy v. State, 234 Ga. 816, 824 (218 SE2d 599) (1975); see Thomas v. State, 146 Ga. App. 501 (1) (246 SE2d 498) (1978) (disapproving Iler v. State, 139 Ga. App. 743 (3) (229 SE2d 543) (1976), to the extent that it conflicts with Shy).

       400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970).

       See generally Register v. State, 229 Ga. App. 648 (1) (494 SE2d 555) (1997) (a request to charge must embody, among other things, a correct statement of law).

       See Brower v. State, 230 Ga. App. 125 (495 SE2d 600) (1998).

        Todd v. State, 230 Ga. App. 849, 854 (3) (498 SE2d 142) (1998).

        Williams v. State, 226 Ga. App. 313, 314 (1) (485 SE2d 837) (1997).

       (Citations omitted.) Reid v. State, 232 Ga. App. 313, 315 (2) (501 SE2d 842) (1998).

       OCGA § 16-8-41 (a).

        Miller v. State, 223 Ga. App. 453, 454 (1) (477 SE2d 878) (1996).

        Wainwright v. State, 208 Ga. App. 777, 778 (2) (a) (432 SE2d 555) (1993); see Ross v. State, 210 Ga. App. 455, 458 (4) (436 SE2d 496) (1993).

       Id.

        Philmore v. State, 263 Ga. 67, 70 (6) (428 SE2d 329) (1993); see Clarke v. State, 167 Ga. App. 402, 403 (306 SE2d 702) (1983); Moore v. State, 169 Ga. App. 24, 27 (7) (311 SE2d 226) (1983).


text:
    A99A0213.
    In the Interest of M. N. H., a child.
    (517 SE2d 344)
   Blackburn, Judge.

Appellant, the biological mother of M. N. H., appeals the juvenile court’s termination of her parental rights, contending: (1) that the evidence was insufficient to support the termination; (2) that the juvenile court erred by taking judicial notice of certain orders issued by it with regard to prior deprivation proceedings; (3) that the juvenile court erred by admitting evidence of appellant’s prior misdemeanor convictions; (4) that the juvenile court erred by allowing appellant’s psychologist to testify in violation of the psychologist-patient privilege; and (5) that the juvenile court erred by admitting the results of a drug test taken by appellant.* For the reasons set forth below, we affirm the decision of the juvenile court.

1. On appeal, we must determine

whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

(Citations and punctuation omitted.) In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

M. N. H. was born prematurely on July 21,1996, and tested positive for cocaine. Appellant admitted using cocaine on the night before she went into labor and once a week during the two months prior to M. N. H.’s birth. Appellant also admitted to using marijuana on a regular basis during the year prior to M. N. H.’s birth. M. N. H. was born with several physical infirmities, and she had to be held in the hospital for a number of weeks following her birth. During that time, the Department of Family & Children Services (DFACS) set up a safety plan for appellant to ensure that she began to address her drug addiction and that M. N. H. would be released into a stable home environment.

Appellant failed to satisfy the goals of the safety plan, and, prior to M. N. H.’s release, appellant tested positive for cocaine use. As a result, the juvenile court found M. N. H. to be a deprived child on September 25, 1996, and granted temporary custody to DFACS. A detailed reunification plan was then developed, the major goal of which was for appellant to become drug free. Appellant never satisfied the requirements of this plan. In fact, a number of motions for contempt had to be filed by DFACS due to appellant’s continuing drug use and refusal to follow her reunification plan. On March 12, 1998, the juvenile court issued an order terminating appellant’s parental rights to M. N. H.

Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is “present clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-81 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). ... In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.

In the Interest of V. S., 230 Ga. App. 26, 27 (495 SE2d 142) (1997).

As appellant did not appeal the original order [s] of the juvenile court finding that her children were deprived, she cannot now complain about that finding. In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997). Therefore, only the three remaining criteria must be considered.

In the Interest of V. S., supra at 29 (1).

The evidence of record supports the juvenile court’s determination that appellant’s inability to adequately care for M. N. H. was the cause of her deprivation. As an initial matter, M. N. H. was born with respiratory, feeding, and developmental problems, and the baby tested positive for cocaine in her system. In addition, appellant failed to satisfy the goals of her reunification plan, despite several motions for contempt brought by DFACS to convince her to do so. Accordingly, appellant has shown a failure to consider the needs of her child from the point of her conception to the present date, and her conduct provides clear and convincing evidence that M. N. H.’s deprivation is the result of her neglectful childrearing.

The record also supports a finding that M. N. H.’s deprivation would be likely to continue in appellant’s care.

Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue. The court was entitled to infer from the evidence that, despite the best efforts of DFACS and many other social workers and charities, the same pattern of deprivation would continue [if] the [child was] reunited with [her] mother.

(Citation and punctuation omitted.) In the Interest of R. N, supra at 204 (1) (c). In this case, appellant was given numerous chances to modify her behavior in order to regain custody of her children. However, after years of dealing with DFACS, appellant failed to satisfy the goals of her reunification plan, and she continued her drug use.

The juvenile court’s finding that appellant’s child would likely be harmed by the continued deprivation is also well founded. Although appellant testified that she had started to attend group therapy and Narcotics Anonymous in January 1998, she provided no proof of her attendance. Furthermore, not long before the termination hearing, appellant exhibited “drug seeking” behavior by obtaining narcotic pain medication from an emergency room, and she tested positive for marijuana use on February 24, 1998, within a week of her scheduled termination hearing. In addition, psychological tests performed on appellant indicated the presence of sadistic personality disorder, schizotypal disorder, obsessive-compulsive personality disorder, paranoid personality disorder, depressive personality disorder, and self-defeating personality disorder. Appellant’s psychological profile and inability to appropriately alter her behavior provide clear and convincing evidence that M. N. H. would likely be harmed by continued deprivation.

Finally, the record supports a finding that the best interests of the [child] are served by termination of appellant’s rights. The same factors which show [her] inability to rear her [child] may also provide evidence that termination of her rights would be in the best interests of her [child].

In the Interest of D. W., 235 Ga. App. 281, 283 (509 SE2d 345) (1998). The fact that appellant now promises to alter her behavior and admits to having drug addictions for which she will seek treatment does not alter the outcome of this case. “ ‘[T]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ ” In the Interest of D. I. W., 215 Ga. App. 644, 646 (1) (451 SE2d 804) (1994).

The record also shows that appellant failed to satisfy the requirements of her reunification plan for more than a year prior to the termination of her rights, in accordance with OCGA § 15-11-81 (b) (4) (C) (iii).

2. Appellant contends that the juvenile court erred by taking judicial notice of 25 of its orders from prior deprivation proceedings concerning appellant’s parental rights. Appellant, however, made no objection to the admission of these orders at trial. As such, she has waived any right to complain about their admission for the first time on appeal. In the Interest of R. M. M., 232 Ga. App. 553, 554 (1) (502 SE2d 480) (1998).

3. Appellant contends that the juvenile court erred by admitting evidence of appellant’s prior misdemeanor convictions for shoplifting, drug use and possession prior to M. N. H.’s birth. Specifically, appellant objected to the admission of this evidence on the basis of its relevancy. Even if we were to accept the efficacy of appellant’s argument on this matter, the introduction of this evidence would not require reversal, as there was ample evidence to support the termination without consideration of the misdemeanor convictions. See, e.g., In the Interest of J. T. S., 185 Ga. App. 772, 773 (2) (365 SE2d 550) (1988) (admission of hearsay evidence not reversible error where other evidence supporting termination was ample). Moreover, appellant has failed to identify any harm to her by the admission of these documents.

Decided April 1,1999.

Perrotta & Associates, Anthony N. Perrotta, Brian R. Cahn, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Velma C. Tilley, for appellee.

4. Appellant contends that the juvenile court erred by allowing appellant’s psychologist to testify in violation of the psychologist-patient privilege. However, “the psychologist-patient privilege set forth in OCGA § 43-39-16 arises only when the patient voluntarily seeks treatment from the psychologist, whereas here [appellant] saw [the psychologist] only at the instigation of DFACS and received no treatment.” (Emphasis in original.) In the Interest of R. M., 194 Ga. App. 888, 889 (1) (392 SE2d 13) (1990). Moreover, appellant made no objection to the introduction of this testimony during trial.

5. Appellant contends that the juvenile court erred by admitting the results of a drug test taken by her on February 24, 1998. The basis for appellant’s objection was that the test showed that she had been taking illegal drugs although she claimed that she had not been. This is not a valid objection which would prevent admission of the drug test. Moreover, when appellant submitted to the test, she voluntarily signed an attached waiver form which stated: “I farther consent to the written results of said analysis being admitted as evidence in Court, without objection.”

Judgment affirmed.

Beasley, P. J, and Senior Appellate Judge Harold R. Banke concur.

       M. N. H.’s father does not appeal the termination of his parental rights.

       Other requirements of the plan included submitting to random drug screens, submitting to a psychological evaluation, and attending parenting classes.

       For example, appellant continued to use drugs during her pregnancy with M. N. H.’s brother who was bom on December 15,1997. DFACS sought immediate custody of this child after his birth.


text:
    A99A0378.
    GILLIAM v. THE STATE.
    (517 SE2d 348)
   Beasley, Presiding Judge.

With a Christmas bag in hand, Hassan Gilliam picked up a jacket at Parisian’s, carried it around the store, and then approached a store clerk with the story that he had received the jacket as a gift and wished to return it for a refund. The clerk complied, issuing him a $262 merchandise voucher. A store detective who had videotaped the entire charade detained Gilliam, who confessed.

Gilliam appeals his conviction of felony shoplifting (OCGA § Ids'14) on three grounds: (i) the court charged the jury it could find him guilty of shoplifting for conduct not alleged in the accusation; (ii) the court refused to instruct the jury on the lesser included offense of theft by deception (OCGA § 16-8-3); and (iii) the evidence was insufficient under Jackson v. Virginia.

1. In K-Mart Corp. v. Coker the Supreme Court of Georgia held that a person commits theft by shoplifting when he takes possession of store merchandise with any of the following three intents: “ ‘(1) to appropriate the property to (one’s) own use without paying for it; (2) to deprive the owner of the possession of it or (3) to deprive the owner of the value of it.’ ” The Court cited and accepted the definition in Kurtz, Crim. Offenses & Defenses in Georgia 429 (2nd ed. 1987). The Court explained that “[b]y adding the second and third alternatives, the legislature indicated that the mens rea requirement is not stringent,” again relying on Kurtz.

The categorization of these intents as three discrete mens rea may be misunderstood, in that they may overlap and they are not always mutually exclusive. For example, the first intent (intending to appropriate merchandise to one’s own use without paying for it) in certain cases coincides with the other two intents. In Coker the Court found the evidence allowed a finding that the defendant “intended to deprive the store of both the possession and value of” the merchandise. In Secrist v. State defendant could be found to have intent both to appropriate merchandise for his own use and to deprive the owner of possession of the merchandise. Andrews v. State also illustrates that a theft by taking scheme can be driven by a multiple of the statutorily described intents. The court ruled that the defendant’s conduct supported a finding that she “intended to appropriate it to her own use or to deprive [the store owner] of possession of it.”

Gilliam’s conviction, in which the objective facts are not disputed, is such a case. The evidence shows that Gilliam intended, without payment, to appropriate the jacket to his own use by using it to get cash to which he was not entitled. He also intended to deprive the store of the possession of the jacket, at least temporarily, by carrying it around with him in the store and representing by his behavior that he owned the jacket. He further intended to deprive the store of the value of it by turning it in for a refund, which refund represented the value of the jacket to the store, the price it would have received upon sale to a customer. That was the ultimate aim of the whole sequential scheme.

The accusation charged Gilliam only with taking the jacket with the intent of appropriating it to his own use without paying for it. He contends the court erred in instructing the jury on all three intents. True,

it is error to charge the jury that a crime may be committed by either of two methods, when the indictment charges it was committed by one specific method. If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the conviction is defective because of a fatal variance between the proof at trial and the indictment returned by the grand jury.

The same rule applies to accusations. The defect is considered a due process violation and reversible error unless a limiting or remedial instruction is given.

But the evidence did not create a reasonable possibility that the jury convicted Gilliam of taking possession of the jacket with the second or third intent only. Under the undisputed facts of this case, the jury necessarily found that Gilliam intended to appropriate the jacket to his own use, the intent charged in the accusation. Although the jury may have found Gilliam intended to deprive Parisian’s of possession or of the value of the jacket, in doing so (under the facts of this case) the jury also necessarily would have had to find he intended to appropriate the jacket to his own use by using it to get a refund to which he was not entitled. The jury could not have found he was guilty of having either or both of the “deprive possession” or “deprive value” intents without also finding he was guilty of having the “appropriate to his own use” intent. Thus, instructing the jury as to all three intents was harmless, if error.

Significantly, the court further gave a limiting instruction to restrict the jury’s focus to the intent alleged in the accusation. After reading the accusation verbatim, the court instructed the jury that the State bore the burden of proving every material allegation of the accusation and every essential element of the crime charged. Additionally, the court gave the written accusation to the jury for review during its deliberations. Several cases have indicated that such may cure a defect of having instructed the jury on inapplicable methods of committing the crime. Defect, if any in this case, was cured.

Gilliam requested a charge on theft by deception, an element of which is “the intention of depriving the owner of the property.” He sought this charge on the basis that it was a lesser included offense of the crime charged. This constitutes a concession that in this instance at least, he could have been convicted if he had the specific intent which he now claims was omitted or excluded from the accusation.

2. Next challenged is the court’s refusal to give a lesser included charge of theft by deception, which Gilliam had submitted in writing.

The Supreme Court of Georgia held in Edwards v. State that a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense. But the Court in Martin v. State recognized that where the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.

The first question is whether theft by deception is a lesser included offense of shoplifting.

Even if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well.

OCGA § 16-1-6 (1) provides that an included crime may be established “by proof of the same . . . facts . . . required to establish the commission of the crime charged. . . .”

Theft by deception occurs when an accused, with the intention of depriving the owner of property, obtains that property by creating or failing to correct an impression of fact, which the accused knows is false. In addition to showing that Gilliam may have shoplifted by taking over $100 in merchandise with the intent to appropriate it to his own use without paying for it, the same evidence could be found to show that Gilliam committed theft by deception by making false representations which induced the store clerk to issue the merchandise voucher.

The second question is whether the undisputed evidence shows the completion of the offense of shoplifting. “The accused is not entitled to a charge on a lesser included offense where the evidence establishes without dispute the commission of the greater offense charged.”

At trial Gilliam did not challenge any of the evidence introduced by the State. He did not cross-examine a single witness nor object to the admission of his confession or to any other substantive evidence, including the videotape of his conduct. The evidence is completely undisputed that Gilliam took possession of the jacket with the intent of appropriating it to his own use without paying for it. “Where, as here, the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.”

Gilliam argues the evidence also showed completion of the lesser offense. Even though the body of evidence may factually support a conviction on the lesser crime, the charge need not be given unless “that body of evidence includes countervailing evidence of the lesser included offense.” There is no countervailing evidence here. “A jury does not have the discretion to find defendant guilty of a lesser crime when it finds the elements which support the crime charged.” Otherwise “this would leave up to the jury whether to convict of a felony or of a misdemeanor . . ., under the same set of facts.”

Moreover, even if the charge should have been given, reversal would not be required. As in Edwards v. State, “in light of the overwhelming evidence against [Gilliam], it is highly probable that the failure to give this charge did not contribute to the verdict.”

3. Gilliam contends that the evidence did not support a verdict that he took possession of the jacket with the intent of appropriating it to his own use. He argues that he never “took possession” of the jacket since it remained in the store the entire time, and further that he never intended to appropriate the jacket to his own use.

As stated above, the evidence allowed the jury to convict Gilliam of intending to appropriate the jacket to his own use. One need not leave the store to take possession of merchandise. False statements that merchandise has already been paid for and carrying the merchandise around the store alone evince an intent to appropriate the merchandise to one’s own use; attempting to obtain a “refund” or merchandise voucher is simply additional evidence of this intent. The jury could find that “his own use” was using the jacket to obtain a fraudulent refund.

Decided April 1,1999.

John O. Ellis, Jr., for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Keith E. Adams, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, J., and Senior Appellate Judge Harold R. Banke concur.

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

       261 Ga. 745, 746-747 (2) (410 SE2d 425) (1991).

         Id. at 747; see generally Kurtz at 426, 429-430 (finding the mens rea in the shoplifting statute broader than the intent to steal required for a theft by taking). See also Secrist v. State, 145 Ga. App. 391, 392 (243 SE2d 599) (1978) (“[t]his crime by statutory definition can be committed by removal coupled with any one of the three described states of mind or specific intents”). Compare Fourth Edition of Kurtz 892-893.

       261 Ga. at 747 (3).

       145 Ga. App. at 392.

       143 Ga. App. 791 (1) (240 SE2d 142) (1977).

       (Citations and punctuation omitted.) Childs v. State, 257 Ga. 243, 253 (17) (357 SE2d 48) (1987); see Hunley v. State, 227 Ga. App. 234, 235 (1) (488 SE2d 716) (1997) (error to instruct jury aggravated assault included assault with intent to murder when indictment only charged assault with a deadly weapon; modicum of evidence showed possible murderous intent); Levin v. State, 222 Ga. App. 123, 127 (6) (473 SE2d 582) (1996) (“we are constrained to find that the charge violated Levin’s due process rights by raising a reasonable probability that the jury convicted him of the commission of a crime in a manner not charged in the indictment”) (citations and punctuation omitted); Perguson v. State, 221 Ga. App. 212, 214-215 (1) (470 SE2d 909) (1996) (evidence of injury to the child vitiated conviction where indictment charged that defendant committed aggravated child molestation by engaging in sodomy, and court instructed jury that aggravated child molestation could be found if sodomy were committed or the victim were injured).

        State v. Tweedell, 209 Ga. App. 13 (432 SE2d 619) (1993).

        Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556) (1995); Sanchez v. State, 197 Ga. App. 470, 474 (3) (398 SE2d 740) (1990) (“[i]t is reversible error to instruct the jury that an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury’s consideration to the particular manner”) (citation and punctuation omitted); Owens v. State, 173 Ga. App. 309, 312 (4) (326 SE2d 509) (1985) (same); see generally Walker v. State, 146 Ga. App. 237 (246 SE2d 206) (1978).

       See, e.g., Robinson v. State, 268 Ga. 175, 176 (2) (486 SE2d 156) (1997); Thomas v. State, 268 Ga. 135, 141 (17) (485 SE2d 783) (1997); Harwell v. State, 231 Ga. App. 154, 156 (3) (b), (c) (497 SE2d 672) (1998); McClain v. State, 220 Ga. App. 474, 475 (2) (469 SE2d 756) (1996); White v. State, 208 Ga. App. 885, 890 (7) (432 SE2d 562) (1993). Gilliam’s case involves a particular intent rather than a different method. The crime of theft by shoplifting may be committed by one of five distinct methods. See OCGA § 16-8-14 (a) (1) through (5).

       OCGA § 16-8-3 (a).

       264 Ga. 131, 132 (442 SE2d 444) (1994).

       268 Ga. 682, 685 (7) (492 SE2d 225) (1997).

       (Citations and punctuation omitted.) Jones v. State, 233 Ga. App. 362, 363 (504 SE2d 259) (1998).

       (Citations and punctuation omitted; emphasis in original.) Strickland v. State, 223 Ga. App. 772, 776 (1) (b) (479 SE2d 125) (1996); see Messick v. State, 209 Ga. App. 459, 460 (1) (433 SE2d 595) (1993).

       OCGA § 16-8-3.

       OCGA § 16-8-14 (a).

       (Citations and punctuation omitted.) Jones, 233 Ga. App. at 363-364; see Gilliam v. State, 268 Ga. 690, 693 (4) (492 SE2d 185) (1997) (where evidence without dispute shows completion of greater offense, court not required to offer lesser offense as an option); Hy v. State, 232 Ga. App. 247, 249 (2) (501 SE2d 583) (1998) (where undisputed evidence showed assault committed with a deadly weapon, no need to give charge on simple assault); Kirkland v. State, 173 Ga. App. 687 (2) (327 SE2d 808) (1985) (“a charge on the included offense was not required where the uncontradicted evidence showed completion of the offense of armed robbery”) (citation omitted).

       (Citations and punctuation omitted.) Parham v. State, 218 Ga. App. 42, 44 (3) (460 SE2d 78) (1995) (court did not err in refusing to charge on criminal attempt as a lesser included offense of theft by shoplifting where the undisputed evidence showed defendant concealed two shirts in his pants).

        Oliver v. State, 232 Ga. App. 816, 819 (2) (503 SE2d 28) (1998).

        Holland v. State, 205 Ga. App. 695, 699 (5) (423 SE2d 694) (1992).

        Burgess v. State, 204 Ga. App. 766, 770 (420 SE2d 590) (1992) (Beasley, J., dissenting), rev’d, 263 Ga. 143 (429 SE2d 252) (1993).

       264 Ga. at 133.

       See Stephens v. State, 232 Ga. App. 738, 740 (4) (503 SE2d 643) (1998) (“[g]iven the overwhelming evidence against Stephens, specifically his confession . . ., it is highly probable that the failure to give the requested [lesser] charge did not contribute to the verdict”) (citation omitted); Holeman v. State, 226 Ga. App. 879, 880 (1) (487 SE2d 700) (1997) (overwhelming evidence renders failure to give lesser charge harmless).

        Mathis v. State, 194 Ga. App. 498-499 (1) (391 SE2d 130) (1990).

       Id.


text:
    A99A0515.
    HARDEN v. THE STATE.
    (515 SE2d 627)
   Blackburn, Judge.

Calvin Milton Harden appeals his convictions, following a jury trial, of robbery by sudden snatching, obstruction of an officer, and giving a false name. In two enumerations of error, Harden contends that the evidence was insufficient and the verdict was contrary to the law. We affirm the jury’s verdict.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Harden] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewing the evidence, it reveals that Harden came into the Jet Food Store and asked Tammy Parker, the clerk on duty, for a pack of Newport cigarettes. Parker described Harden as a 35- to 40-year-old black man wearing a cap, work pants, and a faded black t-shirt which had the words “BY THE TIME YOU FINISH READING THIS T-SHIRT . . .” printed on it. Parker did not finish reading the t-shirt. When Parker told Harden that he owed her $1.90, he dug in his pockets and was unable to find any money. He said, “What the f___,” and snatched the cash register off the counter. Parker called 911. The entire incident was taped by a surveillance camera, and the tape was played for the jury.

After viewing the videotape on the night of the incident, the store manager recognized Harden as someone who had been a customer in the store on several previous occasions. Deputy Blake Swicord testified that, upon investigating the scene of the robbery, he found a cash register tape trailing down Hardwick Street toward Fourth Street. Sergeant Trent Swicord testified that, a week before the robbery occurred, Harden told him that he was staying at 158 Fifth Street which is not far from the Jet Food Store. Sergeant Swicord indicated on an aerial map where Harden’s residence was located. Sergeant Deason testified that a look-out was placed on Harden as a suspect for the robbery, and that when he approached Harden, Harden identified himself as Troy Jackson and told him Harden was at Walter Williams Ball Park. Sheriff Sills testified that when he saw Harden he pulled beside him in a car and said, “Calvin, put your hands on the side of the car. We’ve got a warrant for your arrest.” Harden ran and Sheriff Sills pursued him; however, Harden was able to elude him. Harden was taken into custody only after he ran from the residence where he was staying when officers arrived to arrest him. Harden later returned for his suitcase to find the officers waiting for him. The shirt Harden was wearing at the time of the robbery was found in the house where Harden was staying, not far from the Jet Food Store.

The cash register was recovered in some woods between the Jet Food Store and Harden’s residence, and Harden’s fingerprint was on it. Harden told Detective Blenk that he never touched the cash register. Harden denied entering the Jet Food Store and robbing it of the cash register. Harden explained his fingerprint on the cash register by testifying that he found it in the woods and touched it at that point.

[I]t is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited. Furthermore, the credibility of witnesses and the resolution of such conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to that verdict.

Decided April 1,1999.

Jerry D. McRee, for appellant.

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.

(Punctuation omitted.) Campbell v. State, 221 Ga. App. 105, 107 (2) (470 SE2d 503) (1996).

Having viewed the record in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Harden guilty beyond a reasonable doubt of the offenses for which he was convicted. See Jackson v. Virginia, supra.

Judgment affirmed.

Beasley, P. J., and Barnes, J., concur.


text:
    A99A0550.
    HOWARD v. MCFARLAND et al.
    (515 SE2d 629)
   Beasley, Presiding Judge.

Water damaged the residence of Darryl and Joann McFarland and some of its contents. They discovered their house was located in a flood plain and sued the Dunns, from whom they bought the house, and Gregory Howard, the original builder. Evidence showed that Howard knew the house was in a flood plain when he built it in 1988 and that the Dunns were keenly aware of the problem before selling to the McFarlands in 1995.

Asserted against Howard were three claims: fraud (concealing the flood plain problem); vicarious liability (contracting for two surveys of the property, neither of which addressed the flood plain issue); and negligent construction (building the house in a flood plain without proper elevation). He appeals from the denial of his motion for summary judgment on all claims.

1.

The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.

Setting aside the question of whether the other elements of fraud are shown, we need focus only on the “justifiable reliance” element. To avoid summary judgment, the McFarlands must show they exercised due diligence to protect themselves from the alleged fraud.

Copeland v. Home Sav. of America, F.A. affirmed summary judgment on this ground where a home buyer sued (i) the real estate agent who had falsely denied any flooding problems and (ii) the surveyor whose survey had failed to disclose the property was located in a flood plain. A creek ran adjacent to the property, and county records confirmed that the house was in a flood hazard area.

The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity. When the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor’s representations. [Cits.] Miller v. Clabby, 178 Ga. App. 821, 823 (344 SE2d 751) (1986).

In Copeland, as in Miller,

the possibility of a risk of flood hazard was patent, inasmuch as the property was situated adjacent to a creek. Because of Copeland’s failure to make any attempt to discover the reality of that risk despite the opportunity to do so, she cannot be said to have justifiably relied upon any representation by the defendants regarding the matter.

Thus, the court properly granted summary judgment to defendants.

A party who is alerted to a potential realty problem that can be confirmed by a review of public records may not claim fraud based on the representations or silence of others to the transaction. “It is presumed that a purchaser has examined every deed and instrument affecting the title. He is charged with notice of every fact shown by the records, and is presumed to know every other fact which an examination suggested by the records would have disclosed.”

Plainly visible to the naked eye, and as reflected in one of the surveys commissioned by Howard and recorded in the county records, a creek traversed the property. This put the McFarlands on notice of a potential flood hazard problem. The county’s flood insurance rate map available on the public record confirmed that the property was in the middle of a flood plain. The McFarlands could not justifiably rely on Howard’s silence or on the silence of the surveys he commissioned. Although a third survey done for the McFarlands at the time of the 1995 closing was misleading on this issue, Howard had nothing to do with its creation and cannot be held responsible for it, especially since it purported to rely on the county’s flood map with no reference to the prior surveys. Denial of summary judgment on the fraud claim was error.

2. The McFarlands claim Howard is vicariously liable for the negligence of his hired surveyors who failed to disclose the flood plain problem. Setting aside the question of whether Howard is responsible for the actions of the surveyors, we focus first on whether the surveyors themselves would be liable. The amended complaint alleges only that the surveyors negligently failed to note the flood plain problem. Because the McFarlands were not in privity with the surveyors, nor with Howard for that matter, the surveyors would be liable only under a theory of negligent misrepresentation.

This theory fails for the same reason as does the fraud claim.

As the same principles apply to both fraud and negligent misrepresentation, justifiable reliance is also an essential element of a claim asserting negligent misrepresentation. Therefore, [the McFarlands’] failure to exercise due diligence, as a matter of law, also bars [their] negligent misrepresentation claim.

Defendants were entitled to summary judgment on this claim.

3. The McFarlands’ final claim against Howard is that he negligently constructed a house in a flood plain without proper elevation, which caused water damage to the house and to personal property in the house. This claim fails for several reasons.

(a) Regarding damage to the house itself, the applicable statute of limitation is OCGA § 9-3-30, which bars actions for damage to realty brought more than four years after the right of action accrues.

A cause of action by a property owner for damage to a building resulting from negligent construction or design accrues at the time of the completion of the building. . . . [T]his is true, notwithstanding the fact that the plaintiff had no knowledge of such wrongs having been committed until the roof collapsed some four years later. Mere ignorance of the facts constituting a cause of action does not prevent the running of the statute of limitation.

The McFarlands acknowledge that Corp. of Mercer Univ. v. Nat. Gypsum Co.* concluded that “[n] either the discovery rule nor the continuing tort theory is applicable to actions involving only property damage.” Nevertheless, they argue that the existence of OCGA § 9-3-51, which is an eight-year statute of repose for such actions, extends the four-year statute of limitation to eight years for subsequent purchasers of the realty who discover the problem within four years of bringing suit. They point to the special concurrence of Justice Bell in Mercer, in which he states he would apply the discovery rule in instances where there is a statute of repose.

Three times has this Court rejected this argument.

The purpose of the statute of repose is to impose an outside limit on the bringing of lawsuits which are otherwise brought within the applicable statutory period after the action has accrued. See OCGA § 9-3-53. The Georgia courts have never interpreted the statute of repose for construction cases as extending the otherwise applicable period of limitation. It is clear from a reading of OCGA § 9-3-53 that the legislature never intended OCGA § 9-3-51 to establish a new eight year statute of limitation in place of the two, four and six years statutes that may be applicable depending on the cause of action alleged.

The McFarlands do not allege fraudulent concealment under OCGA § 9-3-96 that would toll the statute of limitation. “To toll the statute of limitation, concealment of a cause of action must be by positive affirmative act and not by mere silence.” No such averments are made.

(b) Regarding damage to the McFarlands’ personal property, the statute of limitation began to run at a later time. An action for damage to personal property resulting from negligent construction does not accrue until the actual injury to that property occurs. Because that injury did not occur until after the McFarlands purchased the property in 1995, the filing of this action in 1996 fell within the four-year statute of limitation for damage to personalty.

Howard contends this claim must fail for failure to provide expert testimony. “It is well established that plaintiffs in a negligent construction case must establish the standard of care applicable to the defendant builder by the introduction of expert testimony.” The McFarlands submitted the affidavit of Garvin Dreger, who deposed that based on his review of (i) the affidavits filed in the case and (ii) the “complete file of the Building Department for Coweta County, Georgia” regarding the property, he believed Howard did not properly elevate the house to prevent flooding. He did not attach the referenced file to his affidavit.

Howard objected to the affidavit, arguing that the failure to attach the file rendered the affidavit insufficient under OCGA § 9-11-56 (e). Without addressing this specific point, the court denied summary judgment. Howard claims the court erred. The affidavit is insufficient only if the “records relied upon and referred to . . . are neither attached to the affidavit nor included in the record and clearly identified in the affidavit.” Included in the record is an affidavit of the office manager of the building department attaching a copy of the department’s “entire business records” regarding the property. Dreger’s affidavit, which identified the complete file of the department, was sufficient.

Nevertheless, the claim fails for want of proximate cause.

It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s acts, and which was sufficient of itself to cause the injury. In other words, if the author of the latter negligence, with the intermediate effects of the former negligence consciously before him, is guilty of a new negligent act which preponderates in producing the injurious effect, we say that the first negligent cause is not the proximate cause, that the intervention of the latter negligence breaks the chain of causal connections so far as juridic purposes are concerned.

Based on this rationale, Seely v. Loyd H. Johnson Constr. Co. held that negligent construction by the original builder was not the proximate cause of the plaintiff’s water damages where the plaintiff had discovered the leak and the builder had then contracted R & R Plumbing to repair it. “The alleged negligent failure of R & R Plumbing to fix the leak after it was discovered intervened between the prior acts and became the sole proximate cause, if any, of the . . . subsequent property damage.”

After experiencing water problems, the Dunns became aware the property was in a flood plain. According to the amended complaint, they falsely denied any water problems when selling the property to the McFarlands. These intermediate actors had the effects of Howard’s negligence consciously before them and nevertheless committed a fraudulent act which preponderated in producing the injurious effects to the McFarlands’ personal property. This was not foreseeable by Howard. The new act having broken the causal chain, Howard’s negligence could not be the proximate cause.

Decided April 1,1999.

Louis K. Polonsky, for appellant.

R. Keith Prater, for appellees.

Summary judgment was demanded on the personal property damages claim as well.

Judgment reversed.

Blackburn, J., concurs. Barnes, J., concurs in judgment only.

       (Citation omitted.) Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989); see OCGA § 51-6-1; Simpson Consulting v. Barclays Bank PLC, 227 Ga. App. 648, 650 (1) (490 SE2d 184) (1997).

        Crawford, supra, 258 Ga. at 807-808.

       209 Ga. App. 173 (433 SE2d 327) (1993).

       (Punctuation omitted.) Id. at 174-175; see Smith v. Stanley, 223 Ga. App. 334, 335 (477 SE2d 618) (1996) (grading of area suggested rain water would be directed toward house; summary judgment on fraud count required in favor of sellers); Real Estate Intl. v. Buggay, 220 Ga. App. 449, 451-452 (2) (469 SE2d 242) (1996) (inspection report indicated drainage problems; summary judgment on fraud count required in favor of realtor).

       209 Ga. App. at 175.

        Hardage v. Lewis, 199 Ga. App. 632, 633 (405 SE2d 732) (1991).

       (Citations and punctuation omitted.) Id.

       See Robert & Co. Assoc, v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983).

       (Citations omitted.) Buggay, supra, 220 Ga. App. at 452 (3).

       (Citations and punctuation omitted.) Millard Matthews Builders v. Plant Improvement Co., 167 Ga. App. 855 (307 SE2d 739) (1983); see Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) (368 SE2d 732) (1988) (“[a]n action under OCGA § 9-3-30 must be brought within four years of substantial completion”); Heffernan v. Johnson, 209 Ga. App. 139, 140 (1) (433 SE2d 108) (1993) (“the right of action accrues at the time of substantial completion of the project”) (citation omitted).

       Supra.

        Heffernan, supra, 209 Ga. App. at 140 (1).

       OCGA § 9-3-30.

       See 258 Ga. at 366.

        Armstrong v. Royal Lakes Assoc., 232 Ga. App. 643, 645 (1) (502 SE2d 758) (1998) (“[w]e have previously rejected the contention that Mercer, which requires that an action for damage to realty be brought within four years of substantial completion, does not apply to a case in which a statute of ultimate repose is applicable”); Hanna v. McWilliams, 213 Ga. App. 648, 650 (2) (a) (446 SE2d 741) (1994) (“[t]he discovery rule no longer applies to suits merely for real property damage; this is true whether a statute of repose exists”); Ft. Oglethorpe Assoc. II, Ltd. v. Hails Constr. Co., 196 Ga. App. 663, 665 (3) (396 SE2d 585) (1990) (“[w]e reject plaintiff’s argument that the Mercer case does not apply to a case, such as this one, where a statute of repose applies”).

       (Citation and punctuation omitted.) Id.

       (Citation omitted.) Comerford v. Hurley, 154 Ga. App. 387, 388 (268 SE2d 358) (1980); see Wilson v. Phillips, 230 Ga. App. 290-291 (495 SE2d 904) (1998); Moore v. Meeks, 225 Ga. App. 287, 288 (2) (483 SE2d 383) (1997).

        Millard Matthews Builders, supra, 167 Ga. App. at 855; see Hanna, supra, 213 Ga. App. at 650-651 (2) (b).

       OCGA § 9-3-31.

       (Citations omitted.) Newberry v. D. R. Horton, Inc., 215 Ga. App. 858 (1) (452 SE2d 560) (1994); see Rentz v. Brown, 219 Ga. App. 187,188 (464 SE2d 617) (1995) (“the standard of care must be established through expert testimony”) (citation omitted).

       (Citations and punctuation omitted.) Taquechel v. Chattahoochee Bank, 260 Ga. 755, 756 (2) (400 SE2d 8) (1991); Pratt v. Tri City Hosp. Auth., 193 Ga. App. 473, 474 (388 SE2d 69) (1989); see generally OCGA § 9-11-56 (e) (“[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith”).

       (Citations and punctuation omitted.) Black v. Ga. Southern & Fla. R. Co., 202 Ga. App. 805, 807 (1) (415 SE2d 705) (1992).

       220 Ga. App. 719, 722 (1) (470 SE2d 283) (1996).

       Id.


text:
    A99A0760.
    BROWN v. THE STATE.
    (515 SE2d 428)
   Blackburn, Judge.

Victor Leonard Brown appeals his convictions, following a jury trial, for driving an automobile without proof of insurance and without a license tag. Brown contends, in four related enumerations of error, that his convictions must be reversed because the State failed to give him notice of his arraignment hearing. As the record clearly shows otherwise, we affirm.

Brown was issued traffic citations for driving his automobile without proof of insurance and without a license tag on November 15, 1997. On April 8, 1998, the clerk of the State Court of Jackson County mailed a notice of arraignment to Brown at the address appearing on his traffic citations. This notice instructed Brown to appear before the state court for arraignment on April 17, 1998, which Brown failed to do. Accordingly, the state court appropriately issued a bench warrant for Brown’s arrest.

On April 23, 1998, Brown posted a cash bond which had been imposed on him due to his failure to appear in court, and, in the appearance bond contract which Brown signed at that time, notice was given that an arraignment hearing would be held on June 19, 1998. Brown attended his arraignment hearing on June 19, and he pled not guilty to both counts of the indictment against him. Following a jury trial held on August 10, 1998, during which the defendant admitted that he had been driving the car in question, Brown was convicted for both driving without proof of insurance and driving without a tag.

Decided April 1,1999.

Victor L. Brown, pro se.

Donald E. Moore, Solicitor, for appellee.

Brown’s contentions on appeal that he received defective notice of arraignment on April 17, 1998, are misguided, as Brown simply was not arraigned on that date. Brown’s arraignment occurred on June 19, 1998, and there is no question that he was given ample notice of this hearing, which he attended. As such, all four of Brown’s enumerations which relate to defective notice of an April 17 arraignment hearing are rejected, and Brown’s convictions are affirmed.

Judgment affirmed.

Beasley, P. J, and Barnes, J., concur.

       OCGA § 17-7-91 (a) provides:
      In all criminal cases the court shall fix a date on which the defendant shall be arraigned. The clerk of the court, at least five days prior to the date set therefor, shall mail to the accused and his attorney of record, if known, notice of the date which has been fixed for arraignment.

       The notice mailed by the state court clerk was returned by the post office. The traffic citations listed Brown’s address as 39 Piedmont Street. Brown testified for the first time at trial that his address was actually 36 Piedmont Street.


author: Eldridge, Judge.

text:
    A99A0871.
    HOLIDAY v. THE STATE.
    (515 SE2d 423)
   Eldridge, Judge.

Johnny Holiday appeals from a DeKalb County jury’s verdict finding him guilty of aggravated assault with a handgun. In his sole enumeration of error, Holiday challenges the sufficiency of the evidence introduced against him. We affirm his conviction.

In a light most favorable to upholding the jury’s verdict, the evidence shows that Keith Williams and Johnny Holiday had known each other since high school and saw each other frequently because both resided at the Wildwood Apartments in DeKalb County. At some point, Williams allowed Holiday to borrow $40. In return, Holiday gave Williams his radio and stereo amplifier to hold. Apparently, Holiday was to pay back the $40 the next day, but he did not. After two weeks, Williams sold Holiday’s radio and amplifier, which action angered Holiday.

Shortly thereafter, Holiday approached Williams in the parking lot of the apartment building. Williams was returning from McDonald’s with take-out food. As Williams exited his Monte Carlo, McDonald’s bag in hand, Holiday “drawed down on me,” i.e., pulled a gun on Williams. Williams dropped the McDonald’s bag and hit Holiday’s arm. The weapon fell to the ground. A friend of Holiday’s retrieved the weapon and returned it to Holiday as Williams ran around to the passenger side of the Monte Carlo and stopped. Holiday came after Williams and tried to “slap him with the gun.” The weapon fired hitting Williams in the neck. At that point, “I had — only thing that was in my head was get the gun from him. I didn’t have no gun. He had a gun, and ain’t nothing I could do but try to fight.” Williams charged Holiday. The gun barrel struck Williams’ chest, and the weapon fired, hitting Williams. Holiday tried to shoot Williams again, but the gun jammed. Williams ran to his apartment, and his girlfriend called 911.

Officer M. A. Carani of the DeKalb County Police Department answered the 911 call. He found Williams in the bathroom of his apartment, “sitting on the floor with his back against the wall. He had been shot at least once in the chest. He had a hole in his chest. He also had a hole in the back of his neck. . . . He was conscious. He was bleeding, I would say, fairly heavily. I was able to communicate with him. I asked him what happened.” Just before he lost consciousness, Williams told the officer that Holiday, a/k/a “Sweet,” shot him. Williams was transported to Grady Hospital.

Pursuant to subsequent investigation, Officer Carani located Williams’ Monte Carlo. There was a McDonald’s bag with food in it just outside the driver’s door of the car, consistent with Williams’ statement and trial testimony that he had just come from McDonald’s and dropped the bag when Holiday approached him with the gun. Also, McDonald’s drink cups were in the cup holders of the vehicle. Blood was found on the ground on the passenger side of the car, as well as on the outside of the passenger side door, consistent with Williams’ statement and trial testimony that he ran around the Monte Carlo to the passenger side where he was shot in the chest. A .380 caliber shell casing was found under the right front tire. Held:

Before this Court, Holiday maintains that the above-referenced evidence is insufficient because the State’s only eyewitness, the victim Williams, was impeached by the introduction of prior criminal convictions and because the defense put forward another alleged eyewitness who testified that Williams was the one holding the gun during the altercation, not Holiday. However, “[t]he success of an attempt to impeach a witness is always a jury question, as is the credibility of the witnesses.” (Citation and punctuation omitted.) Stephens v. Adkins, 226 Ga. App. 648, 649 (2) (c) (487 SE2d 440) (1997).

Decided April 1,1999.

Jerome C. McKee, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Melissa L. Himes, Assistant District Attorneys, for appellee.

This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. The jury chose to believe the victim. Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find the defendant guilty of [aggravated assault with a handgun].

(Citations and punctuation omitted.) Porter v. State, 233 Ga. App. 337, 339 (503 SE2d 912) (1998).

Judgment affirmed.

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

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


author: Judge Harold R. Banke.

text:
    A99A0286.
    VERRET v. ABB POWER T & D COMPANY, INC.
    (515 SE2d 435)
   Judge Harold R. Banke.

Phil Verret sued ABB Power T & D Company, Inc. (“ABB”) for allegedly breaching his severance pay contract. Verret appeals the trial court’s grant of ABB’s motion for summary judgment and the denial of his motion for the same.

The underlying case emanated from a conflicting interpretation of the parties’ separation agreement. After ABB terminated Verret for unsatisfactory performance, ABB and Verret negotiated a settlement package. It is undisputed that the agreement between Verret and ABB consisted of a cover page followed by ten pages, a total of eleven consecutively numbered pages. The cover page, dated and initialed by Verret, provides in pertinent part,

[c]onfirming our conversation of 8/25/95, you [Verret] are being offered a separation package the terms of which are contained in the portions of this communication entitled, “Settlement Agreement Between Phil Verret and ABB Power T&D Company Inc. and Release of Age Discrimination Claims,” and entitled “Settlement Agreement Between [same parties] For Non-Age Employment Law Claims,” both Of which appear below. To accept this separation package, you must sign both of these agreements simultaneously.

It is undisputed that Verret signed both releases on August 29.

Both the Settlement Agreement and Release of Age Discrimination Claims and Settlement Agreement for Non-Age Employment Law Claims provide in pertinent part that ABB “agrees to pay Mr. Verret the sum of 31 additional weeks pay with medical and dental coverage beginning October 1, 1995 and ending May 3, 1996, in exchange for the release of claims described [above].”

Although the agreement afforded Verret only seven days to revoke or cancel, in a letter dated September 6,1995, Verret’s counsel wrote ABB as follows: “[w]ith this letter, Mr. Verret wishes to formally accept the two separation agreements offered to and signed by him on August 29,1995.” The letter then proceeded to claim Verret’s entitlement to 62 weeks of benefits. The parties dispute whether Verret’s counsel subsequently orally confirmed with ABB that Verret’s benefits would only consist of 31 weeks.

In suing ABB, Verret contended that the settlement package was actually two distinct contracts each of which provided for a separate 31 weeks of severance pay for a total of 62 weeks of benefits. ABB countered that Verret was attempting to obtain double benefits since the document embodied only one agreement providing for a total of 31 weeks of post-employment benefits.

After examining the document at issue, the trial court found that the separation package constituted a single settlement agreement in which Verret unambiguously agreed to release his potential age discrimination and non-age discrimination employment claims in exchange for a total of 31 weeks of severance pay. Determining that there was only one binding unambiguous contract which was capable of only one reasonable interpretation, the court held that ABB was entitled to judgment as a matter of law. Held:

1. Verret contends that the trial court erred by finding that the settlement agreement was not ambiguous in light of his understanding of the meaning of its terms.

The construction of a contract is a question of law for the trial court unless ambiguity remains after the court applies the rules of contract construction. OCGA § 13-2-1. Ambiguity means duplicity, indistinctness, or uncertainty of meaning or expression. Bumgarner v. Green, 227 Ga. App. 156, 159 (1) (489 SE2d 43) (1997). A word or phrase is ambiguous when it is of uncertain meaning and may fairly be understood in more ways than one. Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (2) (381 SE2d 322) (1989).

Here, the terms of the settlement are not ambiguous. Cassville White Assoc. v. Bartow Assoc., 150 Ga. App. 561, 564 (3) (a) (258 SE2d 175) (1979) (whether ambiguity exists in a contract is a legal question). The agreement specifies that in order to be accepted by ABB, Verret had to execute both releases simultaneously which he admittedly did. The benefit period is expressly set forth as 31 weeks “beginning October 1,1995 and ending May 3, 1996.” Nowhere in the agreement is 62 weeks of benefits even mentioned.

Decided April 2,1999.

Crain & Davis, Michael O. Crain, William C. Bushnell, for appellant.

Littler Mendelson, Charles K. Howard, Jr., Jill W. Richburg, for appellee.

Notwithstanding Verret’s claim to the contrary, where the terms of a written contract are clear and unambiguous, the court cannot go beyond the contract itself and must confine itself to the contract alone to find the parties’ intent. Park ’N Go &c. v. U. S. Fidelity &c. Co., 266 Ga. 787, 791 (471 SE2d 500) (1996); Thomas v. Am. Global Ins. Co., 229 Ga. App. 107,108 (2) (a) (493 SE2d 12) (1997). The letter from Verret’s counsel, dated after the seven day period afforded to Verret to revoke or cancel the separation package, cannot be used to create ambiguity or to concoct new terms. Compare Salvatori Corp. v. Rubin, 159 Ga. App. 369, 373 (3) (283 SE2d 326) (1981). Had the letter been sent contemporaneously with the executed documents, it might have indicated there was no meeting of the minds, but such is not the case. See id.]

2. Verret asserts that the trial court erred by failing to find that the settlement agreement consisted of two separate contracts. We disagree.

Where contract terms are plain and unambiguous, as here, judicial construction which would alter the express terms is inappropriate. Lyle v. Southern Fed. Sav. &c., 160 Ga. App. 196, 197 (2) (286 SE2d 438) (1981) (overruled on other grounds, Southern Fed. Sav. &c. v. Lyle, 249 Ga. 284 (290 SE2d 455) (1982)).

Finally, although we have found no merit to this appeal, we decline ABB’s request for sanctions under Court of Appeals Rules 15 (b) and 7. Compare Eakin v. Meighen, 228 Ga. App. 190,192-193 (491 SE2d 402) (1997).

Judgment affirmed.

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

         The agreement provides: “I HAVE SEVEN (7) DAYS FOLLOWING MY SIGNATURE ON THIS SETTLEMENT AND RELEASE TO REVOKE OR CANCEL IT.”


author: Barnes, Judge.

text:
    A99A0713.
    LASSITER v. THE STATE.
    (515 SE2d 636)
   Barnes, Judge.

Following his indictment for two counts of armed robbery and two counts of aggravated assault, Ulysse Lassiter was tried before a jury and found guilty of all charges. Lassiter appeals, contending the prosecutor improperly commented on his failure to testify and that there was insufficient evidence to support his convictions. We disagree and affirm.

The record shows that a masked gunman robbed a Taco Bell after its usual 1:00 a.m. closing time. At the time of the robbery, only two Taco Bell employees remained in the store. Joseph Harris was in the dining area while Tonya Hall, the manager, was completing paperwork in the office located in the rear of the store. Hall heard a loud crash while talking on the telephone with her boyfriend, a police officer, and saw a masked man holding a gun to Harris’s head. As the gunman directed Harris toward the back of the store, Hall “freaked out,” hung up the phone, and tried to close the office door. The gunman threw Harris to the ground, which prevented Hall from completely closing the door, and told Hall that he would “blow him away” if she shut the door.

When Hall opened the door, the gunman put the gun to her head and told her that she had “five seconds to open the safe or he ’was going to blow [her] away.” After Hall explained that she could not open the safe because it was on time-lock, the gunman ordered her to open the cash registers in the front of the store. The gunman then placed cash from the register Hall opened into a dark blue book bag.

After obtaining the money from the cash register, the gunman held a gun to Hall’s head, led her to the rear of the store and told her that "his ride was coming, that [she] had to hurry, that [she] had five seconds to open the safe or he was going to blow [her] away.” When Hall told him again that she could not open the safe, the robber took her purse, placed it in his book bag, ordered her to lie face down on the ground, and ran out of the store. Approximately two minutes later, Harris called the police.

Hall testified that the gunman was wearing dark blue or black pants, a blue hooded sweatshirt and two blue and white bandannas over his face. One of the bandannas covered his forehead and the other covered his face from the bridge of his nose down. As a result, only his eyes were visible. Hall described the gun as "a chrome-looking, shiny silver gun.”

Hall’s boyfriend, Officer Tim Edison, testified that when he was talking to Hall around 1:25 a.m., he heard the sound of glass breaking and screaming in the background. When the phone went dead, Officer Edison assumed there might be a robbery in progress and notified the police dispatcher.

Officer Steve Brown responded to a 1:29 a.m. dispatch of an armed robbery in progress at the Taco Bell and arrived approximately two minutes later. Officer Brown parked his marked police car a few feet into the driveway of the Taco Bell, removed a .12 gauge shotgun from his trunk and started walking toward the restaurant. As Officer Brown rounded a comer of the restaurant, he saw the gunman leaving the restaurant through a shattered side door. He had brief eye-to-eye contact with the gunman, who ran west toward the rear of an adjacent Dairy Queen when Officer Brown raised his shotgun.

Officer Brown testified that the gunman was wearing black warm-up type jogging pants, a blue hooded warm-up top, black and white tennis shoes and a blue and white bandanna across his forehead. He was carrying a “duffel backpack type bag” and was holding a silver pistol. Officer Brown testified that the gunman’s face was visible and that the lower portion of his face was not covered with a second bandanna.

When the gunman ran away, Officer Brown pursued him for a short distance and then returned to his car to enlist the aid of other officers. After briefing the other officers and interviewing the victims, Officer Brown resumed his search around commercial buildings to the west of the Taco Bell. He found the gunman’s blue hooded top, two blue and white bandannas, a pair of gloves, the silver handgun, the book bag which contained money, and Hall’s purse in shrubs near an office building approximately 800 feet away from the Taco Bell. While Officer Brown was searching the area west of the Taco Bell, Deputy Brent Willis, a trained canine officer, arrived with his German Shepherd, Rolf, to track the gunman’s scent. Rolf picked up the scent of a man who left the Taco Bell and tracked it to an area approximately 200 yards from the Taco Bell, where Deputy Willis discovered Lassiter sitting in a crouched position facing the other direction. Lassiter refused to come out of the woods, forcing Deputy Willis to release Rolf and forcibly apprehend him.

At the time he was apprehended, Lassiter was wearing black and white tennis shoes and black jogging pants. He was not wearing a shirt. When Officer Brown heard on his radio that a suspect had been apprehended, he went to the location of the police car where Lassiter was being held and identified him as the man he saw leaving the Taco Bell with a gun.

In a statement made after his arrest, Lassiter claimed that he had been given poison drink by some girls with whom he was partying. When he left the bathroom in their home, he “saw two men with guns so he took off running.” “He ran a long way, but he did not know which way he ran or how far he ran. When he got tired, he stopped in some bushes, and the next thing he knew a dog was sniffing him and then he got arrested.”

1. This evidence, though circumstantial, was sufficient to support Lassiter’s convictions under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his remaining enumeration of error, Lassiter claims the State improperly commented on his right to remain silent during its closing argument. The record shows that defense counsel told the jury in his opening statement that the evidence would show that Lassiter told the police that he did not commit the crimes.

During the state’s closing argument, the prosecutor stated:

Now, I anticipate Mr. Greenwald [the defense attorney] is going to come up — and I’ve tried cases with Mr. Greenwald, and he’s a good lawyer, and he’s done a good job in this case as he always does — and he can be very persuasive when it comes to argument. He knows what he’s doing. I expect Mr. Greenwald is going to tell you that we don’t have the videotape showing this crime from start to finish and that I haven’t brought you any fingerprints in here on any of this evidence that links conclusively this Defendant to this crime. And the only statement that you’ve got from this Defendant is not a confession of guilt hut a complete denial of involvement and that there was no evidence of this crime taken directly from the person of his client, Mr. Lassiter. I expect Mr. Greenwald to talk about all of that. And the reason Mr. Greenwald will do that is because he wants to talk about what we don’t have. He doesn’t want you to think about what we do have.

Decided April 5,1999.

Darel C. Mitchell, for appellant.

Daniel J. Porter, District Attorney, Rodney K. Miles, Assistant District Attorney, for appellee.

Lassiter points to the emphasized portion of this argument to support his allegation that the prosecutor improperly commented on his failure to testify.

In Ranger v. State, 249 Ga. 315, 319 (2) (290 SE2d 63) (1982), the Supreme Court concluded that one of the following must be found before reversing based upon a prosecutor’s improper comment on the defendant’s failure to testify: (1) that the prosecutor intended to comment upon the defendant’s failure to testify, or (2) that the remark was of such a character that the jury would naturally and necessarily take it to be a comment on the defendant’s failure to testify. We must look at the context in which the prosecutor’s statement was made in order to determine if either of these two factors exist. Christenson v. State, 261 Ga. 80, 88 (7) (a) (402 SE2d 41) (1991).

When viewed in context, it is clear that the prosecutor in this case simply summarized Lassiter’s pre-trial statement and outlined how he anticipated defense counsel would use this statement during closing argument. We find no error because there was no manifest intent by the prosecutor to comment on Lassiter’s right to remain silent and the jury would not naturally and necessarily take it to be such a comment. Id.; Thomas v. State, 257 Ga. 24, 25 (3) (354 SE2d 148) (1987).

Judgment affirmed.

Blackburn, P. J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A99A0744.
    TRUBEY v. HALL.
    (515 SE2d 639)
   Barnes, Judge.

Anne Hall sued Tanya Trubey, an adjacent landowner, alleging that Trubey violated Putnam County land use regulations and subdivision covenants by placing two manufactured houses on her 1.19-acre lot, which already had one house on it. Both Hall’s and Trubey’s lots were in a commercial development zone known as C-l. Hall sought an injunction against any further property development, an order requiring Trubey to remove the two houses, and compensatory damages. After a hearing, the trial court denied Trubey’s motion to dismiss for failure to join Putnam County as an indispensable party, and further determined that Hall was not entitled to relief based on the doctrine of laches. Both parties appealed to the Supreme Court.

The Supreme Court agreed that Putnam County was not indispensable because its participation was not required to grant the relief Hall sought. Hall v. Trubey, 269 Ga. 197, 200 (2) (498 SE2d 258) (1998). But the Court reversed the trial court’s ruling that Hall was barred by laches. Id. at 199. The Court held that, while Hall had not initiated suit immediately after she first learned of Trubey’s plans, she had promptly asserted her objections and sought an out-of-court resolution before resorting to litigation. Id. The Supreme Court’s opinion sets forth the facts in some detail, which we will not reiterate here.

After remand and another hearing, the trial court held that Trubey had subdivided her property without following proper procedures and that under the zoning law in effect at that time, each manufactured home had to be sited on at least one acre of land. The court further ordered Trubey to remove the two houses and enjoined her from “further acts in contravention of said Land Use Regulations of Putnam County on such property.” Trubey appeals this ruling, enumerating as error the trial court’s holdings that she created a subdivision and can place only one dwelling per lot, that she must site the dwellings on at least one acre per dwelling, and that her building permits were void. For the reasons that follow, we reverse.

1. Because Trubey’s first three enumerations of error — that the trial court erred in finding that she created a subdivision, that she could place only one dwelling per lot, and that she needed an acre per dwelling — are interrelated and depend on the construction of the Putnam County zoning ordinance and subdivision regulations contained in the land use regulations, we will address them together. The construction'of a zoning ordinance is a question of law, and the court’s duty is to ascertain and effectuate the intent of the lawmaking body. DeKalb County v. Post Apt. Homes, 234 Ga. App. 409, 411 (1) (506 SE2d 899) (1998). In order to ascertain and effectuate the lawmaking body’s intent, we look to all parts of the ordinance and construe them together, harmonizing wherever possible. Hogan v. DeKalb County, 196 Ga. App. 728, 729 (397 SE2d 16) (1990). Further, we must strictly construe the zoning ordinance in favor of the property owner, resolving ambiguities in the language in favor of the free use of property. Bd. of Commrs. of Henry County v. Welch, 253 Ga. 682, 683 (1) (324 SE2d 178) (1985).

Here, both parties agree that Trubey’s property was zoned C-l, commercial district, that it covered 1.19 acres, and that a “stick-built” home existed on the property before the two manufactured homes at issue were placed there. So the question of law before us is whether the owner of commercially zoned property can place three dwellings on a 1.19-acre lot.

The Putnam County zoning ordinance defines the permitted uses of C-l property, which include “[a] 11 uses in R-l and R-2 Districts.” R-l and R-2 uses include single family dwellings. Therefore, single family dwellings are permitted on commercially zoned property. While the trial court also determined that the code permits a single-family dwelling on commercially-zoned property, it then applied the lot size and other requirements of R-l and R-2 zoning to conclude that Trubey was limited to one dwelling per lot, and that each lot had to be at least an acre in size. We agree with the trial court that the ordinance allows single family dwellings in C-l property, but disagree that Trubey had to meet the stricter restrictions of R-l and R-2 zoning as well.

The word “use” is not defined in the Putnam County zoning ordinance; however, the ordinance specifies that words shall be given their ordinary meanings. The definition of the noun “use” in this context is “the purpose for which something is used” (emphasis supplied), and the relevant permitted R-l use for C-l property is “single family dwelling.” The ordinance does not indicate that all the requirements set forth in R-l and R-2 must be met before a use is allowed on a commercially zoned lot; it merely refers to permitted “uses.” If the law-making body intended to have R-l and R-2 restrictions apply to C-l property, it could have said so in the ordinance. Therefore the restrictions set forth in the section defining C-l are controlling, and those restrictions set forth in R-l and R-2 regulations do not apply to C-l property.

We next look at how C-l restricts single family dwellings. If the ordinance does not allow Trubey to place multiple dwellings on her commercially zoned lot, our inquiry ends there. If the ordinance does allow multiple dwellings in C-l, we must then determine whether the ordinance allows three dwellings on a single lot of 1.19 acres.

The ordinance does not answer this question directly. The zoning code chapter of the Putnam County land use regulations defines “lot” as “land . . . occupied or capable of being occupied by one or more buildings.” That chapter further defines “building” as “[a]ny structure intended for shelter, [and] housing. . . .” We find, therefore, that the zoning code allows multiple houses on a commercially-zoned lot.

Hall argues that Trubey is restricted to one dwelling per lot because the land use regulations define “lot” as “[t]he basic developmental unit. . . used or intended to be used by one building and its accessory buildings.” We do not find this argument persuasive. The land use regulation to which Hall cites is contained in the subdivision chapter, not the zoning code. Construing the statute as a whole and in favor of the landowner, we find that the lawmaking body intended to apply the zoning code section to the commercially-zoned property. Hogan, supra, 196 Ga. App. at 729; Bd. of Commrs., supra, 253 Ga. at 683.

Finally, after concluding that Trubey can place multiple dwellings on her commercially-zoned lot, we address whether her lot was large enough under Putnam County’s land use regulations to accommodate three dwellings. A chart that outlines all the land requirements for all the zoning categories contains the only reference to size requirements for commercially zoned property. That chart specifies both the lot area, 15,000 square feet, and the lot size per dwelling, 15,000 square feet. This chart sets out the minimum requirements for both the total lot area and the required lot size per dwelling. Since Trubey’s property totaled 1.19 acres, which the Putnam County Building Inspector testified was enough to site these three dwellings, we conclude that the lot was large enough under Putnam County’s land use regulations to accommodate three dwellings.

Hall argues that under the special provisions chapter of the zoning regulations, Trubey’s two manufactured homes are subject to “all standards and set back minimum lot sizes in R-l Single Family Residential/Recreation District.” Thus, she asserts, Trubey needed at least one acre per dwelling, the minimum lot size under R-l. However, as the former Putnam County Attorney testified, the chart outlining the required lot area and square feet per dwelling includes both R-l and C-l specifications. If the lawmaking body had intended for all dwellings placed on commercially zoned property to comply with the land requirements of single family residential property, the information regarding the C-l requirements would be surplusage. Since meaning should be given to each part of the statute to avoid constructions that render a portion of the statute mere surplusage, we construe the land use regulations to require only 15,000 square feet per dwelling on a commercially zoned lot. DeKalb County v. Post Apt. Homes, supra, 234 Ga. App. at 412.

2. The remaining enumerations are rendered moot by our holding in Division 1.

Decided April 5,1999.

Donald W. Huskins, for appellant.

Blasingame, Burch, Garrard, Bryant & Ashley, William S. Ashley, Jr., for appellee.

Judgment reversed.

Blackburn, P. J, and Senior Appellate Judge Harold R. Banke concur.

       The former city attorney testified that the land use regulations at issue here were superseded by new regulations.

       Oxford American Dictionary, Oxford University Press.