author: Johnson, Judge. Ruffin, Judge,

text:
    A96A1467.
    DENNY v. THE STATE.
    (475 SE2d 698)
   Johnson, Judge.

David William Denny was indicted on three counts of felony obstruction of a law enforcement officer. A jury found him guilty of three counts of misdemeanor obstruction of a law enforcement officer, and he appeals from the judgment entered on the jury’s verdict. On appeal, the presumption of innocence no longer prevails, we view the evidence in the light most favorable to the verdict, and we do not speculate as to which evidence the jury chose to believe or disbelieve. Gurlaskie v. State, 196 Ga. App. 794 (1) (397 SE2d 66) (1990). Viewed in that light, the evidence presented at trial established that three deputies from the Whitfield County Sheriff’s Office went to Denny’s home to arrest him pursuant to a contempt of court order for failure to pay child support. Although Denny’s social security number, date of birth, and address were correct on the order, Denny pointed out to the officers that the order was technically deficient because it denominated the party sought as David William Denny, not David William Denny II and because the child’s name was incorrect. Despite Denny’s concerns about the form of the order, the officers informed him that they intended to take him into custody. As the officers attempted to handcuff him, Denny began shoving, elbowing, and kicking the officers. Denny broke free and ran into the backyard where the officers ultimately subdued him.

1. Denny argues that because he was convicted of misdemeanor obstruction of an officer rather than felony obstruction, the three counts, which arose out of the same transaction, should have merged for sentencing purposes. The crime of felony obstruction of a law enforcement officer requires “offering or doing violence to the person of” a law enforcement officer. OCGA § 16-10-24 (b). Citing Walker v. State, 206 Ga. App. 81 (424 SE2d 364) (1992), Denny acknowledges that injuring more than one officer would have justified sentencing on multiple counts of the same offense. But he maintains that misdemeanor obstruction, which is defined as “knowingly and willfully obstruct[ing] or hinder[ing] any law enforcement officer in the lawful discharge of his official duties” (OCGA § 16-10-24 (a)), should be sentenced as only one offense regardless of how many officers are involved because his arrest constituted a single transaction. Denny relies on Phillips v. State, 162 Ga. App. 199 (290 SE2d 142) (1982), in which the Court held that the theft of several items constituted a single larceny offense. However, the Court also noted in Phillips that “crimes against property differ from crimes against persons, for one who, by a single act, injures more than one person may be charged with multiple offenses.” Id. at 200 (2). Here, even though the jury did not find Denny guilty of felony obstruction which has the essential element of offering or doing violence to the officers, it did find that he wilfully obstructed or hindered three officers’ attempts to take him into custody by shoving each of the officers, pushing all three off of him, and physically resisting their efforts to handcuff him, knocking Officer Shiver’s glasses off, and shoving Officer Chastain against the wall. While some of Denny’s actions were collective, such as fleeing, and would constitute a single offense, Denny’s actions against each individual law enforcement officer constituted separate crimes and do not merge in fact or law. See OCGA §§ 16-1-6 (1) and 16-1-7; State v. Smith, 193 Ga. App. 831, 832 (1) (389 SE2d 547) (1989). Because there were three separate victims, the trial court did not err in treating the counts as discrete offenses for sentencing. See Dennis v. State, 220 Ga. App. 420 (469 SE2d 494) (1996); Duitsman v. State, 212 Ga. App. 348 (441 SE2d 888) (1994).

2. Denny’s assertion that the trial court erred in failing to give his requested charge on justification is without merit. “ ‘It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. (Cits.)’ [Cit.]” Jackson v. State, 193 Ga. App. 844, 845 (2) (389 SE2d 521) (1989). The trial court instructed the jury that a person has a right to resist an illegal or unlawful arrest with such force as is reasonably necessary to prevent the arrest. Comparing this language to the charge on justification requested by Denny, we conclude that the charge as a whole, as given, was not deficient. Likewise, the trial court’s charge on the presumption of validity of a court order was a correct statement of the law and did not impermissibly shift the burden of proof to Denny.

Judgment affirmed.

Beasley, C. J., McMurray, P. J, Birdsong, P. J., Pope, P. J., Andrews and Smith, JJ., concur. Blackburn and Ruffin, JJ., dissent.

Ruffin, Judge,

dissenting.

The majority concludes in Division 1 that because Denny’s actions involved three officers, there were “three separate victims” and the evidence was sufficient to convict Denny of three separate counts of misdemeanor obstruction of an officer. Because I believe that the number of officers is not determinative of the number of offenses committed, I respectfully dissent.

It is clear that OCGA §§ 16-1-6 and 16-1-7, relied on by the majority, do not always permit the State to charge a defendant with multiple counts of an offense merely because the facts show he committed a single act affecting more than one person. One example cited by the majority is the theft of several items which constitutes only a single larceny offense. See Phillips v. State, 162 Ga. App. 199, 200 (2) (290 SE2d 142) (1982). Similarly, in Beecher v. State, 164 Ga. App. 54, 56 (2) (296 SE2d 374) (1982), we reversed multiple convictions for perjury because the numerous acts of perjury were committed under a single oath. And, in Harris v. State, 165 Ga. App. 249, 252 (5) (299 SE2d 924) (1983), we held that a defendant could be convicted of only one count of impersonating a police officer “even though he so represented himself to two persons . . . who were together.” Although OCGA §§ 16-1-6 and 16-1-7 provide ,a general rule regarding multiple convictions for certain acts, there are exceptions to that rule, and we must look to the legislative intent of the particular criminal statute to determine whether multiple convictions can result. See OCGA § 1-3-1.

Under OCGA § 16-10-24 (a), a person commits misdemeanor obstruction of a law enforcement officer when he or she “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties. . . .” The legislature intended that OCGA § 16-10-24 (a) proscribe conduct which obstructs or hinders law enforcement officers from carrying out their duties; this section does not proscribe assaults on officers, which was denounced under a prior version of the statute. Hudson v. State, 135 Ga. App. 739, 741 (2) (218 SE2d 905) (1975). Neither does OCGA § 16-10-24 (a) proscribe obstructing an officer by “offering or doing violence to the person of such officer[,]” which is specifically addressed in OCGA § 16-10-24 (b), defining felony obstruction. In this case the jury was charged on both misdemeanor and felony obstruction. By convicting Denny of only the misdemeanor, the jury must have found that he did not do violence to the person of any officer. Accordingly, the jury did not find, as the majority asserts, that Denny shoved, pushed, and otherwise physically resisted each of the three officers. Rather, the jury’s verdict shows that it was Denny’s act of obstructing the serving of the warrant that must be punished under OCGA § 16-10-24 (a). Such punishment should be imposed without regard to the number of officers who accompanied the officer who attempted to serve the warrant.

While it is unfortunate that the legislature has failed to provide greater guidance in the statutory language, this failure should not work to the detriment of an accused. “It has always been the law that criminal statutes must be strictly construed against the state. [Cit.]” Mitchell v. State, 239 Ga. 3 (235 SE2d 509) (1977). “Any criminal law should be plain and unambiguous and not dependent upon the current conflicting views of appellate judges. [Cit.]” Id. Because OCGA § 16-10-24 (a) is unclear as to whether multiple convictions can result under the facts in this case, we must construe it against the State and conclude that Denny’s conduct can result in only one conviction.

The United States Supreme Court reached the same conclusion in interpreting a federal statute with language similar to OCGA § 16-10-24. In Ladner v. United States, 358 U. S. 169 (79 SC 209, 3 LE2d 199) (1958), the Court held that the defendant could be convicted of only one count of assaulting a federal officer even though two federal officers were victims. Id. at 178. The convictions in Ladner were based on a violation of 18 USC § 254 (1940 ed.), which defined the offense where an individual was found to “ ‘forcibly resist, oppose, impede, intimidate, or interfere with any person ... (if he is a federal officer designated in § 253) while engaged in the performance of his official duties, or shall assault him on account of the performance of his official duties. . . .’ ” Id. at 170, n. 1.

The Court properly found that the question was one of legislative intent. In light of the scant legislative history from which to determine Congress’s intent, the Court concluded that, based on the statutory language alone, only one conviction could result from the defendant’s actions. Id. at 178. In addressing the ambiguous nature of the statutory language with regard to the number of convictions that can result from a single confrontation, the Court observed: “ ‘(W)hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.’ [Cit.]” Id. at 177-178.

Construed in this light, the Court found the language showed that the “aim was to prevent hindrance to the execution of official duty, and thus to assure the carrying out of federal purposes and interests. . . .” Id. at 176. This aim, the Court found, would “be served by considering the act of hindrance as the unit of prosecution without regard to the number of federal officers affected by the act. For example, the locking of the door of a building to prevent entry of officers intending to arrest a person within would be an act of hindrance denounced by the statute. We cannot find clearly from the statute . . . that the Congress intended that the person locking the door might commit as many crimes as there are officers denied entry.” Id.

The Court further reasoned that such result, equating the number of offenses with the number of officers, would produce incongruous results. “Punishments totally disproportionate to the act of assault could be imposed because it will often be the case that the number of officers affected will have little bearing upon the seriousness of the criminal act.” Id. at 177.

Equally incongruous results are possible, and likely, under the majority’s construction of OCGA § 16-10-24 (a). If 15 officers attempted to serve Denny’s contempt order, would he now be convicted of 15 counts of obstruction of an officer? The potential for abuse is limitless, and I do not believe that the legislature intended such result. Again, it is the conduct which is proscribed, irrespective of the number of officers involved. Such multiple charging in reality amounts to governmental overcharging, and borders on governmental vindictiveness. History reveals that the evil of government consists of excesses and abuses of power. The current abuse is no exception to excessiveness. Let us not be patient with it. Let us not be tender toward it. And let us not be forgiving of it.

Decided September 5, 1996

Bates, Kelehear, Starr & Toland, Harlan M. Starr, for appellant.

Kermit N. McManus, District Attorney, Stephanie M. Wright, Assistant District Attorney, for appellee.

I disagree with the majority’s interpretation of OCGA § 16-10-24 (a) and believe that two of Denny’s convictions for misdemeanor obstruction of a law enforcement officer should be reversed. Furthermore, because this case involved only misdemeanor obstruction, I do not feel it necessary to address the issue of whether a defendant can be convicted of multiple counts of felony obstruction under OCGA § 16-10-24 (b). I concur with the Court’s opinion in all other respects.

I am authorized to state that Judge Blackburn joins in this dissent.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A96A2102.
    WATERS v. THE STATE.
    (475 SE2d 696)
   Eldridge, Judge.

Appellant was tried before a Gordon County jury on a four count indictment for the offenses of aggravated assault, first degree criminal damage to property, and two counts of DUI. The jury found appellant guilty of the lesser included offense of simple assault; appellant was found guilty as charged under the remaining counts. The evidence revealed that appellant and the victim were legally separated and in the process of obtaining a divorce. On the evening in question, appellant, who has an alcohol problem, drank 12 beers between 5:00 p.m. and 11:00 p.m.; he then decided to drive his 1952 Ford flatbed pickup truck to the victim’s residence at the Spring Valley apartment complex. Once there, appellant saw the victim and a male friend standing outside the apartment door. Enraged, appellant pulled his truck around to face the victim; with the vehicle aimed at her, appellant accelerated and drove his truck at the victim. The truck missed the victim and plowed into the front windows of the victim’s apartment, embedding itself in the wall and causing extensive damage in the apartment. The victim’s two young children were asleep in one of the upstairs’ bedrooms of the apartment. The victim called the police.

Officer Terry Trammell arrived on the scene and arrested appellant; Trammell testified that following his arrest, appellant “was wanting me to take him to Northwest Regional Hospital; that it wasn’t going to do any good for me to take him to jail; that when he got out he was going back down there with his .12 gauge shotgun, and he was going to kill both of them and then kill hisself (sic).”

1. Appellant cites as reversible error the trial court’s denial of appellant’s motion for mistrial made when the victim referred to appellant as “a man who violates women.” Following the appellant’s motion for mistrial, the trial court gave the jury a curative instruction. Appellant failed to renew his motion for mistrial, and this enumeration of error has not been preserved for our review. McLendon v. State, 181 Ga. App. 851 (354 SE2d 193) (1987).

2. Next, appellant contends that he received ineffective assistance of counsel because his trial attorney introduced appellant’s character into evidence, thereby permitting the State to introduce damaging evidence that had previously been held to be inadmissible. We disagree.

“[T]he burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. [Cit.]” (Punctuation and emphasis omitted.) Williams v. State, 258 Ga. 281, 286 (368 SE2d 742) (1988); Hudson v. State, 218 Ga. App. 671 (462 SE2d 775) (1995).

The record demonstrates that during direct examination, the appellant was asked a series of questions by his defense counsel which were designed to contradict the testimony of Officer Trammell concerning appellant’s post-arrest statement: “[DEFENSE COUNSEL]: Had you made any — From the time that you drove that night, did you ever make any threats to your wife at that time? [APPELLANT]: No, sir. [DEFENSE COUNSEL]: Officer Trammell said that you threatened to kill her and don’t take me to Northwest Georgia Hospital. Did you make those statements? [APPELLANT]: No, sir. I stated to him that I had been to Northwest Georgia Hospital; that I had threatened her previously to that night.”

Thereafter, the trial court held that appellant had opened the door to cross-examination on appellant’s prior threats to his wife. During cross-examination, appellant testified that he “could not recall” if he had left a message on the victim’s answering machine threatening to kill her. Although prior to trial the answering machine tape had been held to be inadmissible, the State was subsequently permitted to play the appellant’s taped threats to the victim in rebuttal to appellant’s testimony.

Based on an examination of the record, this Court is convinced that if the door to appellant’s conduct regarding prior threats to his wife was opened at all, it was opened by appellant; his attorney’s question called for a specific affirmation or denial of Officer Trammell’s testimony that appellant had made an express statement, that night, threatening to kill the victim. The additional elaboration regarding past threats made to the victim was clearly the appellant’s notion and, based on the attorney’s speedy change of subject and strenuous objections to cross-examination thereon, was completely unforeseen by trial counsel. The result, including the introduction of previously inadmissible evidence, cannot be laid at the feet of defense counsel. Thus, “we cannot conclude that his trial counsel’s performance was deficient in this instance.” Creson v. State, 218 Ga. App. 184, 186 (460 SE2d 83) (1995); see Baker v. State, 250 Ga. 671 (300 SE2d 511) (1983).

Decided September 5, 1996.

Lorie A. Moss, for appellant.

T. Joseph Campbell, District Attorney, Rebecca B. Tierce, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A96A0817.
    SUMNER et al. v. IDEAL STEEL PRODUCTS, INC.
    (475 SE2d 708)
   Ruffin, Judge.

Gilbert and Sherin Sumner sued Ideal Steel Products, Inc. (“ISp”) for injuries they allegedly sustained when Gilbert fell from an elevated platform erected by ISP. The complaint alleged that ISP was negligent in failing to install guardrails around the perimeter of the platform. The Sumners claimed damages resulting from Gilbert Sumner’s personal injuries and from Sherin Sumner’s loss of consortium. At trial, following the close of all the evidence, ISP moved for a directed verdict on the grounds that Gilbert Sumner assumed the risk of working on the platform and that his own negligence caused his injuries. The trial court granted ISP’s motion, and the Sumners appeal from that order. For reasons which follow, we affirm.

“A directed verdict is proper when all the evidence introduced and all reasonable inferences therefrom, construed in favor of the nonmoving party, demand a particular verdict. OCGA § 9-11-50 (a); [Cit.]” Brown v. Carlisle, 214 Ga. App. 483 (448 SE2d 256) (1994).

Viewed in this light, the evidence at trial showed that Gilbert Sumner was a self-employed mechanic. At the time of his accident, Sumner was repairing a concrete silo for Fowler-Flemister Concrete, Inc. (“Fowler-Flemister”) at its Greensboro plant. The platform from which Sumner fell was located at the base of the concrete silo and was raised approximately 14 feet from the ground. The platform was square, measuring approximately ten feet on each side, and its floor constructed of expanded metal decking. The decking had a grate-like appearance, with hexagonal cutouts. While ISP acknowledged that industry standards required that the platform have guardrails, it constructed the platform without guardrails at Fowler-Flemister’s direction.

The incident occurred while Sumner was standing on a wooden ladder located on the platform’s expanded metal decking. As Sumner was swinging a small sledgehammer at a control box, the ladder’s rear right leg fell through a hexagonal cutout in the expanded metal deck. The ladder collapsed and Sumner fell, rolling off the platform to the ground and sustaining the injuries complained of here.

On appeal, the Sumners assert that the trial court erred in directing a verdict because a jury question remained as to whether Gilbert Sumner’s negligence caused the accident and whether he assumed the risk of falling from the platform. They point to Gilbert Sumner’s trial testimony showing that he never realized there were no guardrails on the platform and that he checked the ladder before he climbed it to ensure it was sturdy.

The evidence presented at trial, however, demands the conclusion that Gilbert Sumner not only knew there was no guardrail, but also knew that the ladder could fall through the expanded metal decking. On the day of the incident, but prior to his fall, Sumner had climbed up to and walked on the platform three separate times. On his first trip to the platform, which lasted five to ten minutes, Sumner evaluated how he was going to get his tools on the platform and noticed there was a big drop-off. Sumner then went to his truck, put his welding tools into the bucket of a front-end loader, and, with the assistance of two Fowler-Flemister employees, lifted the tools onto the platform. On his second trip to the platform, Sumner used his welding tools to cut a hole in an auger, then placed his tools on the deck within three to four feet of the platform’s edge. The incident occurred during Sumner’s third trip to the platform.

Although Sumner testified that he made sure the wooden ladder was sturdy, he admitted that if the ladder turned, its legs could fall through the holes in the platform deck. Likewise, Sumner’s expert witness testified that the ladder was unsuitable for use on the expanded metal surface and that Sumner had sufficient time to summon another workman to hold the ladder or put a piece of plywood beneath the ladder. Furthermore, although Sumner testified numerous times that he did not notice the absence of guardrails, even his expert witness testified that the lack of guardrails was “open and obvious” and readily apparent when standing on the platform. Moreover, in deposition testimony which was presented at trial, Sumner acknowledged that one could tell by looking at the platform if it had a railing on it.

Decided September 9, 1996.

Parkerson, Shelfer & Groff, David B. Groff, William P. Tinkler, Jr., for appellants.

This case is similar to Brown, supra, where we affirmed the trial court’s directed verdict in favor of the defendant. In Brown, the plaintiff, a construction worker, was injured when he opened a door onto a yet unconstructed porch and fell ten feet to the ground. He contended that if a bar had been placed across the door, he would not have tried to go through the door opening. The evidence showed, however, that the plaintiff was familiar with the progress of construction and that he had equal knowledge that no bar had been nailed across the door. We held that even though the premises were dangerous and the defendant was negligent, he was “not liable for an injury where the plaintiff had equal or superior knowledge of [the] dangerous condition and failfed] to exercise ordinary care for his own safety. If he knows of a defect, or in the exercise of reasonable care would have known of it, he must use all his senses in a reasonable measure amounting to ordinary care to discover and avoid those things that might cause him harm. [Cit.] Although the issue of a plaintiff’s exercise of due diligence for his own safety is ordinarily a question for the jury, it may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear and palpable. [Cit.] [A p]laintiff is charged with knowledge of those defects which he had actually observed or which were so transparently obvious that his failure to observe them cannot reasonably be excused. [Cits.]” Id. at 484.

In this case, the evidence showed that Sumner not only knew there was no guardrail, but also knew that the ladder could fall through the expanded metal decking. “In these circumstances, the evidence and all reasonable deductions therefrom demand a verdict for [ISP].” Id. See also Morrison v. Anderson, 221 Ga. App. 396 (1) (471 SE2d 329) (1996) (summary judgment proper where evidence showed that plaintiff had equal knowledge there was no railing on loading dock from which he fell); Brantley v. Custom Sprinkler Systems, 218 Ga. App. 431 (2) (461 SE2d 592) (1995) (summary judgment proper where evidence showed that plaintiff knew there was no cover or barricade on pit in which he fell). Accordingly, the trial court did not err in granting ISP a directed verdict in this case.

Judgment affirmed.

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

Forrester & Brim, James E. Brim III, for appellee.


author: Judge Harold R. Banke.

text:
    A96A1093.
    GUNN v. DEPARTMENT OF TRANSPORTATION.
    (476 SE2d 46)
   Judge Harold R. Banke.

As part of its Golden Isles Parkway project, the Department of Transportation (“DOT”) condemned 23.726 acres and obtained certain easement rights to rural Houston County land belonging to Otis Gunn. Gunn contested the DOT’s offer of $25,200 for the taking, and contended that fair compensation should encompass both surface and subsurface value, which included large subterranean limestone deposits. On appeal, Gunn challenges one jury charge as harmfully misleading and the denial of the jury’s request to rehear the testimony of one of his experts.

The sole issue for jury determination was whether the DOT’s compensation offer which included no remuneration for the known limestone deposits on Gunn’s land was fair and constitutional. DOT retained an engineering firm which drilled ten holes in the right-of-way and confirmed the presence of limestone underneath. Although it is undisputed that the property taken contained millions of tons of limestone, DOT contended that because the limestone was not being mined on the date of the taking, no purchase offer was then pending, and no plans to mine the limestone had been formulated as of March 13, 1991, Gunn was precluded from any recovery for the value of the limestone.

The DOT’s only witness, a real estate appraiser who admitted he had no expertise in evaluating limestone deposits, testified that the limestone added no value to the condemned property and that the highest and best use of the property acquired was agricultural or timberland use. Assigning no value to the limestone, he testified that the property’s fair market value on the date of taking was $18,000, based on comparable agricultural land or timberland. Gunn’s experts, who took the presence of limestone into account, valued the land exponentially higher. Gunn appeals the jury’s verdict of $23,500. Held:

1. Gunn contends the trial court erroneously instructed the jury on the theory of reasonable probable use. Gunn objected to the following charge: “In regard to value, you should determine whether there is a reasonable probability that the land and the limestone in the ground could have been used as contended as of . . . March 13th, 1991.” Gunn argued that the charge was erroneous and misleading because it was based on Dept. of Transp. v. Benton, 214 Ga. App. 221 (447 SE2d 159) (1994), a case not involving mineral deposits. He claimed that Benton did not apply because it dealt with speculation about the possible future use of condemned land, rather than the known, unalterable fact of limestone deposits in the land at issue.

As in Dept. of Transp. v. Sharpe, 219 Ga. App. 466, 468 (2) (465 SE2d 695) (1995) (cert. granted) we again find Benton has no application to mineral deposit cases. In Benton, the trial court erroneously allowed speculative testimony concerning the hypothetical future development of the condemned land as subdivision lots. Id. Benton turned on the issue of prospective future use of the land. Here, as in Sharpe, supra, the issue is the present value of the land which includes a known natural resource at the time of taking.

Georgia law on the method of valuing land containing mineral or soil deposits suitable for extraction is clear. See, e.g., Williams v. Mayor &c. of Carrollton, 195 Ga. App. 590 (394 SE2d 389) (1990) (calculation of the overall value of property must include valuable soil deposits). The presence of subterranean minerals is a relevant factor to be considered in determining the overall value of property. Id. at 591 (2). See generally State Hwy. Dept. v. Robinson, 103 Ga. App. 12, 15 (2) (118 SE2d 289) (1961). See Ga. Power Co. v. Owen, 207 Ga. 178, 179 (60 SE2d 436) (1950). Land containing valuable deposits may be of greater market value than land without such deposits, but the land and the deposits constitute one subject matter and there cannot be separate recovery for the land and also for the deposits. Southern R. Co. v. Miller, 94 Ga. App. 701, 704 (1) (96 SE2d 297) (1956).

A Benton-type analysis is inappropriate under these facts. Instead, “[t]he only relevant inquiry [is] the overall value of the property on the date of taking with the presence of the limestone deposits being taken into account.” Sharpe, 219 Ga. App. at 468. Gunn was entitled to recover the fair market value of the land as enhanced by the limestone. Williams, 195 Ga. App. at 591 (2).

The disputed instruction improperly made the jury’s consideration of the limestone’s value conditional on its determination of the reasonable probability as to whether the land could have been mined as of March 13, 1991. This allowed the jury to determine the value of Gunn’s land on the date of the taking without ascribing any value to the limestone deposits if the jury concluded there was no reasonable probability that on that date the limestone could have been mined. Compare Williams, 195 Ga. App. at 591 (2). The charge as worded disallowed the permissible analysis of possible future use and instead limited the jury’s consideration to determining whether the land could be used for mining only as of March 13, 1991. Compare Dept. of Transp. v. Katz, 169 Ga. App. 310, 315 (5) (312 SE2d 635) (1983). The charge is confusing and subject to more than one interpretation.

Decided September 9, 1996

Daniel, Lawson, Tuggle & Jerles, Tom W. Daniel, William R. Jerles, Jr., for appellant.

Michael J. Bowers, Attorney General, Cathy A. Cox-Brakefield, Assistant Attorney General, Sell & Melton, Michelle W. Johnson, John A. Draughon, for appellee.

Moreover, the charge contradicts the pattern instruction given by the court which required consideration of “all the capabilities of the property and all the uses to which the land may be applied, or for which it is adapted.” See OCGA § 22-2-62; Hard v. Housing Auth. &c. of Atlanta, 219 Ga. 74, 80 (132 SE2d 25) (1963). Juxtaposed, these internally inconsistent charges so clearly confused the jury that the condemnee was given no consideration for the value of the minerals under his property.

We thus reject the DOT’s argument that considering the court’s charge as a whole, the jury was correctly instructed. Compare Dept. of Transp. v. Swanson, 191 Ga. App. 752, 755 (4) (382 SE2d 711) (1989) (in context, court’s instruction properly allowed jury to correctly consider elements affecting value). On the contrary, we find that the charge as a whole, rather than correcting the error, compounded it by confusing the jury with irreconcilable instructions. Moreover, the charges appeared to shift the burden of proof to Gunn to prove the value of the property taken. Because the charge is inherently confusing and an inaccurate statement of the law applicable to the valuation of mineral deposits, the trial court erred as a matter of law in permitting the charge. OCGA § 5-5-24 (c); Williams, 195 Ga. App. at 591. We find the use of this instruction requires reversal. Dept. of Transp. v. Sharpe, 213 Ga. App. 549, 550 (1) (445 SE2d 343) (1994); see Akin v. Patton, 235 Ga. 51, 55 (218 SE2d 802) (1975) (misleading and confusing charge may require new trial).

2. Having determined in Division 1 to reverse and remand, Gunn’s remaining enumeration is rendered moot.

Judgment reversed and remanded.

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

       The court charged, “When, as in this case, the condemnees contend that the value of the property taken is greater than shown by the condemnor, Department of Transportation, the condemnees have the burden of going forward with evidence of greater value.” Compare Dawson v. Dept. of Transp., 203 Ga. App. 157, 158 (2) (416 SE2d 163) (1992) (burden of proof never shifts from condemnor); Suggested Pattern Charges, Civil Cases, Vol. I, p. 50.


author: McMurray, Presiding Judge.

text:
    A96A1321.
    BRAMBLETT v. THE STATE.
    (475 SE2d 704)
   McMurray, Presiding Judge.

Defendant was charged in an accusation in the Superior Court of Whitfield County, Georgia, with driving with a blood-alcohol concentration of .10 grams or more (Count 1), operating a motor vehicle without proof of insurance (Count 2) and driving with a suspended driver’s license (Count 3). Defendant filed a plea of former jeopardy, alleging that he was tried for the same offenses in the Probate Court of Whitfield County, Georgia; that the probate court bound the case over to the superior court after a witness was sworn, without his consent, and that he “did not . . . waive his right to object to the improper termination of his trial.” The undisputed evidence adduced at a hearing on this plea reveals that defendant was first accused of the above offenses in the Whitfield County Probate Court; that defendant and the arresting police officer appeared before a judge in the probate court on July 5, 1994, and that this probate court judge then announced, in open court, that she was binding the matter over to the superior court. Although defendant testified that the arresting officer was sworn and had testified when the probate court judge bound the case over to the superior court, without his consent, the judge who called defendant’s case for trial in the probate court testified that no witnesses were sworn to testify at the bench trial; that she “did not hear any testimonies on the case . . .” and that defendant — acting pro se — asked her to bind his case over to the superior court as soon as he (and the arresting officer) approached the bench. The trial court denied defendant’s plea of former jeopardy.

The case was later tried before a jury whereupon the evidence revealed that Deputy Phillip Herron of the Whitfield County Sheriff’s Office arrested defendant for drunk driving at about 7:30 in the morning on May 31, 1994, after observing defendant walking about “200, 300 feet away” from a wrecked vehicle. Deputy Herron testified that he found defendant’s car in a ditch on the side of the road; that defendant was unsteady on his feet at the collision scene; that defendant’s eyes were bloodshot; that defendant smelled like alcohol and that, “[w]hen [defendant] was standing, he would just weave.” The deputy also testified that he found the wrecked car’s ignition keys in defendant’s pocket; that he observed no other person at the collision scene and that he detected warmth emanating from the wrecked car’s engine-bonnet. Defendant’s blood alcohol concentration was .24 percent on the morning of the collision.

The jury found defendant guilty of driving with a blood-alcohol concentration of .10 grams or more (Count 1), not guilty of operating a motor vehicle without proof of insurance (Count 2) and guilty of driving with a suspended driver’s license (Count 3). This appeal followed denial of defendant’s motion for new trial. Held,'.

1. Defendant contends the trial court erred in denying his plea of former jeopardy because the State conceded that jeopardy attached in the probate court by failing to file a traverse to his plea in bar. This enumeration is without merit.

“The failure to demur does not confess the action either in law or in fact, and the proof of the facts in the plea does not authorize a judgment unless the existence of those facts so authorize. Kelly v. Strouse & Brothers, 116 Ga. 872 (43 SE 280) (1902).” Bell v. State, 249 Ga. 644, 645 (1) (292 SE2d 402). In the case sub judice, defendant filed a plea of former jeopardy and offered testimony at a hearing in support of his claim that the probate court bound the case over to the superior court without his consent, after witnesses were sworn. The State challenged this testimony by way of testimony from the judge who presided over the probate court proceedings. And while the probate court judge’s testimony was not undisputed, it is sufficient to authorize findings which support the trial court’s denial of defendant’s plea of former jeopardy. See Rachell v. State, 210 Ga. App. 106 (2) (b), 107 (435 SE2d 480). That is, according to the judge who called defendant’s case for trial in the probate court, jeopardy did not attach in the probate court because no witnesses were sworn to testify at the bench trial. OCGA § 16-1-8 (a) (2). Compare Dean v. State, 214 Ga. App. 768 (449 SE2d 158). Further, this judge’s testimony indicates that defendant waived his right to object to termination of the probate court proceedings by requesting the probate court judge to bind the case over to the superior court. OCGA § 16-1-8 (e) (1). Accordingly, since defendant received a fair and impartial hearing on the merits of his plea of former jeopardy and since defendant does not show how the State’s failure to demur to his plea has prejudiced him, we find this enumeration of error to be without merit.

2. The trial court did not err in allowing evidence of defendant’s prior conviction for driving under the influence of alcohol to an extent that it was less safe for him to drive. The evidence was relevant to establish defendant’s bent of mind and course of conduct. See Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638).

Decided September 9, 1996.

Michael R. McCarthy, for appellant.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

3. Defendant contends the trial court improperly sentenced him beyond the maximum sentence prescribed by OCGA § 40-5-121 (a) for his first conviction, within five years, for driving with a suspended driver’s license. The State concedes that defendant’s 12 month sentence for this offense exceeds OCGA § 40-5-121 (a)’s six month limit for a first conviction, within five years, for driving with a suspended driver’s license. Under these circumstances, we are compelled to remand the case sub judice to the trial court for a hearing to determine and impose a lawful and appropriate sentence for defendant’s conviction for driving with a suspended driver’s license.

Judgment affirmed as to conviction and sentence in Count 1; judgment affirmed as to conviction in Count 3, with sentence in Count 3 vacated and case remanded for resentencing.

Johnson and Ruffin, JJ, concur.

       A probate court traffic clerk testified that defendant and the arresting police officer were sworn to testify as soon as the probate court judge called the case for trial. This clerk explained, however, that neither witness testified because defendant stated that “he’d rather have it bound over” after the probate court judge asked defendant “how did he plead. . . .” The arresting police officer testified that he does not recall who initiated binding the case over to the superior court and admitted, on cross-examination, that he does not recall whether he was sworn to testify at the bench trial or whether he testified during the probate court proceedings. Defendant and his father testified that defendant and the arresting officer were sworn as soon as they approached the bench; that the arresting officer was then given an opportunity to describe the events which are alleged to be the basis of the crimes charged and that the probate court judge unexpectedly announced, after the arresting officer’s testimony, that she was binding the case over to the superior court.


author: Blackburn, Judge.

text:
    A96A1513.
    FARROW v. THE STATE.
    (475 SE2d 706)
   Blackburn, Judge.

Lavarne Farrow appeals his conviction by a jury of selling cocaine in violation of the Georgia Controlled Substances Act.

1. On appeal, Farrow contends the trial court failed to grant his motion for new trial on the issue of entrapment. Farrow did not make any motion for directed verdict, and by his motion for new trial he did not raise any error at trial regarding his entrapment defense. Therefore, assuming, without deciding, that this enumeration raises a sufficiency of the evidence argument we find that sufficient evidence was presented to allow a jury to find Farrow guilty beyond a reasonable doubt of selling cocaine. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence viewed in the light most favorable to support the verdict reveals that agents of the Oconee-Dublin Drug Task Force used an informant to conduct an investigation into street-level drug sales in a certain area of Cochran, Georgia. The informant agreed to participate in the investigation in return for the agent’s promise that she would not be charged with purchasing cocaine in an earlier transaction of which the agent was aware. On the day of the investigation, the informant was searched, equipped with a body bug, and her car was equipped with a hidden surveillance camera. The informant was told to drive to a certain area and see if anyone would sell drugs to her.

The informant testified that Farrow approached her car and asked if she needed anything. She told him she was looking for some crack and he said he would get it for her. He then told her to meet him at the Piggly Wiggly. Upon meeting her there, Farrow directed her to meet him behind the Family Dollar Store, where he sold her crack cocaine. The transaction was captured on video and audio tape, although the audio tape is of such poor quality it is of little value.

To support his defense of entrapment, Farrow testified that the informant begged him to find her some crack, and that he was led to believe he would receive sex, in addition to money, in return for providing the crack. He testified that he told the informant that he did not “mess” with drugs because he had previously been in trouble. Farrow asked the informant what he would get out of the deal if he sold her some crack. She responded that she would “make it worth his while.” and then agreed to meet him later that night.

“Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” OCGA § 16-3-25. “After a defendant presents a prima facie case of entrapment, the burden is on the state to disprove entrapment beyond a reasonable doubt. That determination generally rests with the jury. . . . The government’s burden is far greater than merely impeaching the accused, it must go further and contradict this witness’ testimony as to the affirmative defense.” (Citations and punctuation omitted.) Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991).

In the present case, Farrow’s testimony was directly contradicted by the informant’s testimony, as distinguished from the facts in Hill, supra, where the informant’s testimony confirmed the defendant’s testimony. Id. at 378. Furthermore, we have previously held that a desire to “get in good” with the drug purchaser is not, without more, enough to demand a finding of entrapment. See Venable v. State, 203 Ga. App. 517 (3) (417 SE2d 347) (1992).

In the present case, the issue of entrapment was properly placed before the jury.

Decided September 9, 1996.

Straughan & Straughan, William T. Straughan, for appellant.

Timothy G. Vaughn, District Attorney, for appellee.

2. In Farrow’s second enumeration of error, he contends that the trial court erred in allowing the replay of the video and audio tapes to the jury upon their request.

“The rule in this state is that the trial judge, in his discretion, may permit the jury at their request to rehear in the defendant’s presence the requested testimony after beginning deliberation. The jury is entitled to designate the testimony which it desires to rehear, in the absence of special circumstances which might work an injustice. While some later cases approve of cautionary instructions they do not demand that they be given so as to require reversal in the event such instructions are not given.” (Citations and punctuation omitted.) Pontoon v. State, 177 Ga. App. 868, 869 (341 SE2d 505) (1986).

In the present case, we note that, although Farrow objected to the replay of the audio and video tape, he did not request cautionary instructions. No injustice was done to Farrow by the replay of the audio and video tape, especially considering the contradictory testimony of the informant and Farrow as to what took place and the poor quality of the audio tape. Therefore, the trial court did not abuse its discretion in allowing the replay of the requested evidence.

Judgment affirmed.

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

       The trial court charged on entrapment despite Farrow’s failure to submit the charge in writing.


text:
    A96A1765.
    AUTRY v. MAYOR & ALDERMEN OF THE CITY OF SAVANNAH.
    (475 SE2d 702)
   Judge Harold R. Banke.

Berta Ann Autry appeals the trial court’s reversal of an assessment of attorney fees against her employer, the Mayor & Aldermen of the City of Savannah (“the City”).

Autry strained her left elbow in July 1991 as she lifted bottled water at work. Subsequent to this injury, Autry claimed three other compensable injuries, including an injury to her neck and back suffered in August 1993. Following both the 1991 and 1993 injuries, a plethora of medical providers became involved in the course of treatment. In April 1994, Autry changed physicians and began seeing Dr. Steven Novack as her authorized treating physician for her left elbow problems. Novack prescribed occupational therapy “to help with carpal tunnel syndrome, reported to be more severe on [her] right side.”

After a number of visits by Autry for the prescribed therapy, relying on OCGA § 34-9-221, the City controverted the treatment on the grounds that it was not likely to effect a cure or give relief. The City noted that Autry had been back at her full-time job for some time and that she simultaneously had been working a part-time job at nights and on weekends. More than five months later in response to correspondence from Autry’s attorney, Novack altered his earlier statement that the treatment had been prescribed for carpal tunnel and noted, “The occupational therapy prescribed for her was for that left elbow discomfort.” At trial, Hugh Summers, Risk Manager for the City, testified that the City disputed-the treatment because the therapy was for bilateral carpal tunnel syndrome, for which no claim had been submitted.

An Administrative Law Judge (“ALJ”) awarded Autry medical benefits and found that the City’s refusal to pay for the physical therapy directed by her authorized physician was without reasonable grounds and awarded attorney fees under OCGA § 34-9-108 (b) (1). Although the Appellate Division of the State Board of Workers’ Compensation (“the board”) affirmed the ALJ’s award, the trial court reversed the portion of the board’s decision assessing attorney fees. The trial court determined that the board overlooked two grounds on which the City based its defense which were in addition to the City’s defense that the disputed treatment was for an unrelated condition: (1) that Autry had previously received physical therapy which proved unsuccessful; and (2) that the physical therapy was not likely to effect a cure. See OCGA § 34-9-200 (a). Autry appeals. Held:

Autry’s sole contention is that the trial court erred in reversing the board’s affirmance of the award of attorney fees because the therapy at issue had been prescribed by her authorized physician and the City lacked reasonable grounds for denying her benefits. We disagree. While the question of whether there are reasonable grounds for resisting an award of compensation is an issue of fact to be determined by the board, attorney fees may not be awarded where the matter is closely contested on reasonable grounds. Brigmond v. Springhill Homes of Ga., 180 Ga. App. 875, 876 (350 SE2d 846) (1986). Further, the board does not satisfy its burden of proving that a defense is unreasonable by setting forth its own separate basis for the award. Rather, the board must prove by the record that there is “ ‘evidence upon which to base a finding of unreasonableness with respect to the employer’s defense of a claim.’ ” (Citation and punctuation omitted.) Pet, Inc. v. Ward, 219 Ga. App. 525, 527 (466 SE2d 46) (1995).

Decided September 9, 1996

Zipperer & Lorberbaum, Ralph R. Lorberbaum, Eric R. Gotwalt, for appellant.

In making the determination of whether the matter defended is without reasonable grounds, the board should consider the whole of the evidence. Pacific Employers Ins. Co. v. Peck, 129 Ga. App. 439, 441 (200 SE2d 151) (1973). Here, it appears that the board ignored or failed to consider part of the evidence supporting the City’s defense because at the time the City controverted the treatment at issue, there was conflicting medical evidence. Six months earlier, a physical therapist observed that Autry’s outward activities failed to comport with her subjective complaints of pain. The evidence fails to show that Dr. Novack was aware that another physician had prescribed an unsuccessful round of therapy for pain radiating into Autry’s shoulders and arms. Moreover, according to Novack’s note of June 3, 1994, the disputed therapy had proven fruitless: “[Autry] says every time she goes to therapy her pain increases tremendously. I spoke with the occupational therapist involved, Bob. He told us that he is barely working with her at all secondary to her pain behavior. He is very surprised anything he is doing is intensifying her pain to this degree.” Prior to receiving notice of the City’s decision to controvert, Novack reported on June 10, 1994, “We had to stop therapy secondary to therapy increasing her pain threshold.”

Given the evidence that Autry’s subjective manifestations of pain failed to correspond with objective medical findings, Autry’s failure to improve after an earlier cycle of physical therapy, and Novack’s contemporaneous notes indicating that the May-June treatments were likewise ineffective, it cannot be said that the prescribed therapy was likely to effect a cure or give relief. OCGA § 34-9-200 (a).

In view of the evidence presented, the award of attorney fees was not demanded. The fact that the board did not accept the City’s defenses does not necessarily render those defenses unreasonable or unfounded. Brigmond, 180 Ga. App. at 876; Goode Bros. Poultry Co. v. Kin, 201 Ga. App. 557, 560 (3) (411 SE2d 724) (1991). Therefore, the finding of the board that the City’s defense was made without reasonable grounds is without evidence to support it, and the superior court did not err by reversing the award of attorney fees to Autry. Ga.-Pacific Corp. v. Sanders, 171 Ga. App. 799, 804 (3) (320 SE2d 850) (1984).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

Oliver, Maner & Gray, Patricia T. Paul, Patrick T. O’Connor, Wiseman, Blackburn & Futrell, James B. Blackburn, for appellee.

       Accidents dates are July 12, 1991, August 16, 1993, September 19,1994, and January 19, 1995. Only the first two accidents are relevant here.


text:
    A96A0890.
    BARNWELL v. BARNETT & COMPANY.
    (476 SE2d 1)
   Judge Harold R. Banke.

Michael Barnwell sought interlocutory review of the denial of his ■motion for summary judgment in Barnett & Company’s (“Barnett”) suit arising from the termination of its distributorship agreement with Johnson Yokogawa Corporation. The trial court denied Barn-well’s motion for summary judgment on Barnett’s claims of slander and conspiracy to slander, tortious interference with business and contractual relations, conspiracy to interfere, and trespass.

From 1985 until 1993, Barnett and its principal, Bill Barnett, 'served as the exclusive sales representatives in Georgia for Johnson Yokogawa Corporation and its predecessor corporation (“JYC”). This ■distributorship was based on a contract terminable at will with 30 days written notice. Barnwell was JYC’s product sales manager in Georgia. As part of his routine duties, Barnwell provided information about Barnett and other distributors in his region to various JYC .managers.

; After Walter H. Steward, JYC vice-president of sales, decided to ’terminate Barnett’s distributorship, a JYC executive suggested that Process Specialties, Inc. (“PSI”) submit a business plan for JYC’s distributorship in Georgia. PSI’s vice president, Norman Weed, immediately prepared a proposal, which JYC accepted. Weed then invited ■Barnwell and other JYC employees to interview for PSI’s new office opening in Atlanta. Shortly thereafter, Barnwell accepted a job with PSI, having learned not long before Barnett’s termination that due to a business reorganization, he was to receive a new position at JYC.

Barnett then sued JYC for breach of contract, alleging that several JYC executives including Steward, Charles Micallef, Barnwell, PSI and Weed had tortiously interfered with its JYC contract. Another count alleged that JYC and these defendants conspired to •tortiously interfere with Barnett’s business relationships with JYC and Barnett customers. The suit further accused Barnwell of libel, slander, and trespass.

To prevail on summary judgment, defendants who will not bear the burden of proof at trial may point out by reference to the record that there is no evidence, viewed in the light most favorable to the non-movant, sufficient to create a genuine jury issue on at least one •essential element of plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows that JYC executives became dissatisfied with Barnett’s performance in 1992. According to Steward, he and a JYC manager discussed terminating Barnett’s distributorship in early 1992. Thereafter, Steward wrote Bill Barnett expressing disappointment in his company’s sales over the previous three years, describing its performance as “unacceptable.” Several months later, Barnett was informed that its distributorship would be terminated if it failed to meet 100 percent of specified sales quotas for that quarter.

Steward testified he alone had responsibility for terminating Barnett’s distributorship, and that he made that decision based on Barnett’s insufficient sales growth and high employee turnover. According to Steward, he reached this decision after consulting with JYC managers, receiving published sales reports, and hearing from Barnwell and others that Barnett had lost salespeople. Barnwell provided no information which spurred his decision, Steward testified. Barnwell admitted that, when asked, he informed his superiors at JYC that he believed Barnett should be replaced. Held,-.

1. Barnwell was entitled to summary judgment on Barnett’s claim of tortious interference with the distributorship contract with JYC. The contract at issue, as supplemented, was terminable at will upon 30 days notice. Tortious interference with contract requires proof of: (1) an independent wrongful act of interference by a stranger to the contract; (2) malicious intent to cause injury; and (3) resulting damage. See Hylton v. American Assn. &c., 214 Ga. App. 635, 638 (2) (448 SE2d 741) (1994); Singleton v. Itson, 192 Ga. App. 78, 79 (383 SE2d 598) (1989). Steward’s testimony that Barnwell had no input into the decision to terminate Barnett is fatal to this claim. Moreover, Barnett provided no evidence that Barnwell was a stranger to the contract or acted beyond the scope of his agency with JYC. Nexus Svcs. v. Manning Tronics, 201 Ga. App. 255 (1) (410 SE2d 810) (1991); see Meeks v. Pfizer, 166 Ga. App. 815, 816 (305 SE2d 497) (1983). Nor was there any evidence that Barnwell was a stranger to the business relations at issue, an essential element of the tortious interference with business relations claim. Renden, Inc. v. Liberty Real Estate &c., 213 Ga. App. 333, 336 (2) (444 SE2d 814) (1994). Thus, summary judgment was improperly denied on Barnett’s claims of tortious interference with contract and business relations.

2. Barnwell is entitled to summary judgment on Barnett’s slander claim. The statute of limitation bars the claim because, by Barnett’s own admission, the allegedly slanderous conversation with an ITT Rayonier employee in Jesup, Georgia, occurred in 1992, more than one year before Barnett filed suit in 1994. Davis v. Hosp. Auth. of Fulton County, 154 Ga. App. 654, 656 (3) (269 SE2d 867) (1980). Whether Barnett claims personal damage or damage to a business reputation, a claim for slander or conspiracy to slander remains a claim for injury to reputation subject to the one-year statute of limitation specified in OCGA § 9-3-33. Lee v. Gore, 221 Ga. App. 632, 635 (2) (472 SE2d 164) (1996). Further, Barnett provided no evidence to support its allegation that Barnwell made slanderous statements or conspired with other JYC employees to communicate false complaints to employees of Interstate Paper Company. See Roberts v. Lane, 210 Ga. App. 10, 11-12 (1) (435 SE2d 227) (1993).

Decided August 21, 1996

Reconsideration dismissed September 10, 1996.

Mayer & Beal, Randolph A. Mayer, Elizabeth B. Thompson, for appellant.

Cashin, Morton & Mullins, Richard W. Gerakitis, Andersen, Davidson & Tate, Gerald Davidson, Jr., Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Leslie S. Sullivan, King & Croft, Terrence L. Croft, for appellee.

We reject Barnett’s contention that his claim survives as a continuing tort. Because the allegations do not support a claim that the purported injury was inflicted over a period of time, that theory is inapplicable. See Bitterman v. Emory Univ., 175 Ga. App. 348 (1) (333 SE2d 378) (1985). Although Barnett’s complaint alleged both slander and libel, he failed to allege facts sufficient to state a libel claim. Accordingly, Barnwell was entitled to summary judgment on this claim.

3. We find no merit to Barnett’s trespass claims against Barn-well. The evidence shows no actionable “misfeasance, transgression, or offense” attributable to Barnwell. OCGA § 1-3-3 (20); see Sanders v. Brown, 178 Ga. App. 447, 449 (1) (343 SE2d 722) (1986). Accordingly, the trial court erred in denying Barnwell’s motion for summary judgment.

4. The evidence that Barnwell conspired to tortiously interfere with Barnett’s business relations is likewise insufficient to withstand Barnwell’s motion. Insofar as Barnett alleges that Barnwell interfered with its relations with JYC, Steward indisputably had authority to terminate the contract with Barnett. Therefore, Steward and Barnwell, as JYC’s agents, could not conspire to do that which they were legally entitled to do. Ga. Power Co. v. Busbin, 242 Ga. 612, 614 (3) (250 SE2d 442) (1978). Further, Barnett provided no evidence linking Barnwell to any wrongful act affecting Barnett’s relationship with ITT Rayonier, Interstate Paper, or TN Technologies. See Roberts, 210 Ga. App. at 12 (1).

Judgment reversed.

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


text:
    A96A1190.
    HOSSEINI v. DONINO.
    (475 SE2d 665)
   Blackburn, Judge.

Hassan Hosseini appeals the jury verdict in favor of defendant Donino following a jury trial of this tort action arising out of an automobile collision.

1. Hosseini asserts that the trial court erred in (1) admitting evidence of an allegedly prejudicial and misleading photograph, (2) failing to grant his motion for directed verdict, and (3) denying his motion for j.n.o.v. and in the alternative motion for new trial.

“The burden is on the party alleging error to show it affirmatively by the record. When the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. Where the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.” (Citation and punctuation omitted.) Mike’s Garage Door Co. v. Dews, 220 Ga. App. 648, 649 (469 SE2d 855) (1996). No statutorily authorized substitute for the trial transcript was submitted. See also Alexander v. Jones, 216 Ga. App. 360 (454 SE2d 539) (1995).

Although each of appellant’s enumerations of error requires a review of the transcript and evidence in order to determine the merit of this appeal, Hosseini failed to instruct the clerk of the trial court to include the trial transcript in the appellate record. Therefore, the rulings of the trial judge and the jury verdict must be affirmed.

2. Donino requests that this Court impose a penalty against Hosseini for frivolously pursuing this appeal pursuant to Court of Appeals Rule 15 (b). A penalty for a frivolous appeal may be assessed in cases where the appellant could have no reasonable basis for anticipating reversal of the trial court’s judgment. Hallisy v. Snyder, 219 Ga. App. 128, 129 (464 SE2d 219) (1995).

Hosseini has intentionally failed to include the trial transcript or statutorily authorized substitute in the record on appeal, and he could therefore have no reasonable basis for anticipating that this Court would reverse the judgment of the trial court. We therefore impose a penalty of $500 against Hosseini pursuant to Court of Appeals Rule 15 (b) and direct the trial court to enter judgment against Hosseini in this amount upon return of the remittitur.

Judgment affirmed with direction.

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

Decided August 19, 1996

Reconsideration denied September 10, 1996.

David C. Farshy, for appellant.

Carter & Ansley, Keith L. Lindsay, Thomas E. Magill, for appel-

       This omission was clearly intentional, as Hosseini directed that the transcript of the hearing on the motion for j.n.o.v. and in the alternative motion for new trial be included, omitting any reference to the trial transcript.


text:
    A96A1472.
    WILLIAMS v. THE STATE.
    (475 SE2d 667)
   Blackburn, Judge.

Patricia Williams appeals her conviction for possessing less than one ounce of marijuana, asserting that the State Court of Jeff Davis County lacked jurisdiction to hear her case.

Prior to trial, Williams sought to dismiss the charge, asserting that, by virtue of her former conviction of possession of marijuana, her current charge could not be treated as a misdemeanor under OCGA § 16-13-2 (b), and therefore, the trial court was without jurisdiction. The trial court denied her motion, determining that her offense was a misdemeanor properly within the jurisdiction of a state court under OCGA § 15-7-4.

1. OCGA § 16-13-30 (j) outlines the general rule that possession of marijuana constitutes a felony. One limited exception to this general rule is found in OCGA § 16-13-2 (b) which specifically targets those defendants who are accused of possessing one ounce or less of marijuana. It provides: “[notwithstanding any law to the contrary, any person who is charged with possession of marijuana, which possession is of one ounce or less, and such person would have qualified for the conditional discharge provided for in this Code section but for the fact that the judge chose not to avail himself of the authority granted by this Code section or that the person violated the conditions imposed by the court, shall be guilty of a misdemeanor and punished by imprisonment for a period not to exceed 12 months or a fine not to exceed $1,000.00, or both, or public works not to exceed 12 months. Subsequent offenses of possession of one ounce or less of marijuana shall be punished as a misdemeanor” (Emphasis supplied.)

While the State argues that this final line of OCGA § 16-13-2 (b) dispositively provides for misdemeanor prosecution in this matter, we have held that just because a statute allows a crime to be punished as a misdemeanor, the offense itself is not transformed into a misdemeanor. In Bass v. State, 169 Ga. App. 520 (313 SE2d 776) (1984), a state court conviction for entering an automobile with' intent to commit theft was reversed as the matter charged in the accusation was a felony for which the state court lacked jurisdiction-under OCGA § 15-7-4. The statute that the defendant was accused of. violating, OCGA § 16-8-18, provides that a person convicted of entering an automobile with intent to commit a theft “shall be punished by imprisonment for not less than one nor more than five years, or, in the discretion of the trial judge, as for a misdemeanor.” On appeal it. was held that although the “statute grants the trial judge discretion to impose misdemeanor punishment this provision does not reduce the offense to a misdemeanor. Accordingly, the [state court] did not have jurisdiction over the appellant under the accusation, and all. proceedings held in the state court pursuant thereto are a nullity.” (Citations and punctuation omitted.) Bass, supra.

Similarly, the language of OCGA § 16-13-2 (b) draws a distinction between a misdemeanor offense and misdemeanor punishment. The first part of the statute provides that under certain conditions first time offenders convicted of possession of small amounts of marijuana will be “guilty of a misdemeanor” whereas upon their subsequent conviction for possessing small amounts of marijuana they shall be “punished as a misdemeanor.”

The fact that OCGA § 16-13-2 (b) provides for misdemeanor prosecution only in first offender cases is apparent in Kent v. State, 129 Ga. App. 71 (198 SE2d 712) (1973), wherein a state court conviction of misdemeanor marijuana possession was reversed partly because' the accusation did not state that the defendant was a first offender. “In order ... to charge an accused . . . with a misdemeanor, and thus confer jurisdiction in the state court, the indictment/accusation forming the basis for the charges, must affirmatively show that the accused ... is a first offender.” Id. In the present case, Williams’ accusation did not affirmatively show that she was a first offender. Indeed, the undisputed evidence demonstrates that this was not her first drug offense.

Because Williams did not meet the conditions necessary for misdemeanor prosecution under OCGA § 16-13-2 (b), the statute with’ which she was charged, the state court lacked jurisdiction and, accordingly, Williams’ conviction is reversed. See Bass, supra.

2. Williams’ court-appointed attorney asserts that the trial court, erred in failing to award him adequate compensation for his repre-' sentation of Williams. However, Williams’ counsel signed an affidavit as part of a fee request, averring that he was entitled to compensa-' tion for work performed on Williams’ case at a rate of $50 an hour, the standard rate for attorneys performing indigent representation in Jeff Davis County. The trial court granted the amount of compensation Williams’ counsel requested without ever ruling on his motion to establish a higher rate. “There being no ruling by the trial court on the [compensation] issues, there is nothing for this court to review.” Gen. Accident Ins. Co. v. Wells, 179 Ga. App. 440 (1) (346 SE2d 886) (1986). Accordingly, this enumeration is without merit.

Decided August 20, 1996

Reconsideration denied September 10, 1996

William K. Blackstone, David L. Hammock, for appellant.

Kris Knox, for appellee.

Judgment affirmed in part and reversed in part.

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

       The preceding part of the statute, OCGA § 16-13-2 (a), provides the trial court with discretion in dealing with first-time drug offenders. Particularly, it outlines how the trial court may dismiss and discharge the proceedings against such an offender without entering a judgment of guilt.


text:
    A96A0883.
    JACKSON v. THE STATE.
    (475 SE2d 717)
   Blackburn, Judge.

Samuel Dwyane Jackson appeals the trial court’s denial of his motion for discharge and acquittal based on his speedy trial demand pursuant to OCGA § 17-7-170.

On April 24, 1995, Jackson was indicted in Greene County for trafficking in cocaine, violating the Georgia Controlled Substances Act, and failure to wear a seat belt. On July 10, 1995, Jackson filed a demand for trial within the present term or the succeeding term of court. Greene County Superior Court has four terms of court which begin on the fourth Monday in January, April, August, and November. See OCGA § 15-6-3 (28) (B). Jackson was indicted and filed his demand for speedy trial within the April term of court. The case appeared on the trial court’s July 24, 1995, criminal trial calendar. However, Jackson’s attorney requested a continuance due to his participation in a different case being tried in the United States District Court that he estimated would last three to six weeks. Jackson’s attorney did not inform the trial court of the completion of the case in the district court; therefore, the continuance was in effect for the full six weeks requested, or until the first week in September.

In the August term of Greene County Superior Court two juries were impaneled; one on August 28,1995, and the other on September 25, 1995. After the expiration of the continuance, the case was available only for the September 25, 1995, jury, and it was not reached. Thereafter, Jackson moved for an acquittal arguing that the State had failed to comply with his speedy trial demand pursuant to OCGA § 17-7-170.

Decided September 10, 1996.

William H. Lumpkin, for appellant.

Fredric D. Bright, District Attorney, Vanessa Flournoy, Assistant District Attorney, for appellee.

“A defendant may waive his right to an automatic discharge under a demand for a speedy trial by some action on his part or on the part of his counsel, such as his own request for a continuance of the case.” (Citations and punctuation omitted.) Jackson v. State, 172 Ga. App. 359, 360 (323 SE2d 198) (1984) (trial court correctly denied defendant’s motion for discharge of indictments after he waived his speedy trial demand for 52 days).

Appellant’s reliance on our decisions in Williams v. State, 216 Ga. App. 109, 110 (454 SE2d 142) (1995) (Blackburn, J., concurring specially) and McKnight v. State, 215 Ga. App. 899 (453 SE2d 38) (1994) is misplaced as these cases are factually distinguishable from the present case. In Williams, supra, the trial court continued the case for a period of twenty-one days following counsel’s request for a three- to four-day continuance because of a conflicting trial, and the court was then unable to reach defendant’s case. McKnight, supra, deals with the effect of the absence of counsel at the time the case is called.

In the present action, the defense attorney actively sought and obtained a six-week continuance, effectively foreclosing the State’s opportunity to try the defendant until the last impaneled jury. If such continuances did not constitute a waiver of a speedy trial demand, defendants would be in the position to manipulate the trial courts’ calendars.

Based upon the foregoing, the trial court correctly denied Jackson’s motion for discharge and acquittal.

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A96A1042.
    SMITH v. THE STATE.
    (475 SE2d 715)
   Birdsong, Presiding Judge.

A white car spun wildly out of a roadhouse parking lot in the North Georgia mountains late at night near Christmas 1994. A police officer, hearing the commotion and seeing the car in his car’s rearview mirror, came around behind the white car at an intersection, with the intention of stopping that car. He saw two persons in the white car before it sped away. Suspecting a drunk driver, the officer gave chase with siren screeching and blue lights flashing. He chased the speeding car but suddenly lost sight of it around a curve. Seconds later, he came upon a terrible scene. The white car had hit a guardrail and struck a utility pole, ripping the pole in half. Immediately the officer called for assistance. A deputy who is an expert in accident reconstruction arrived. He determined the car had crashed through two guardrails and had become airborne until it hit the utility pole and broke the pole in half. Two persons were in the car, and neither moved. One man was in the passenger seat leaning out the window, dead. His feet were pinned beneath the passenger side dashboard. The other man was in the driver’s seat, alive, with his feet on the driver’s side floorboard. The driver’s seat had broken, and its occupant was supine, with his head toward the back window. The man in the driver’s seat, appellant Stephen John Smith, survived. Smith was charged with, and convicted of, homicide by vehicle in the first degree (OCGA § 40-6-393), DUI (he had .17 grams percent blood alcohol content), laying drags, fleeing to elude a police officer, failing to obey a traffic control device, and driving while license suspended. The trial court admitted, as a similar transaction, evidence that appellant had been arrested for DUI with a similar blood alcohol content in December 1993, in the late night and in the same town. On appeal, he asserts three errors. Held:

1. Appellant contends the circumstantial evidence was insufficient to prove his guilt beyond a reasonable doubt and that the trial court erred by denying the motion for directed verdict of acquittal as to all the charges, which are, necessarily, based on his being the driver of the car. Appellant’s contention, in short, is that the evidence is insufficient to prove he, and not the deceased Greg Jackson, was the driver of the white car. We have examined the evidence including photographs, and we find it sufficient to persuade a rational trier of fact that appellant was driving this car, beyond a reasonable doubt and to the exclusion of any other reasonable hypothesis. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant contends the trial court erred in admitting a similar transaction where, according to appellant, “the only defense was lack of identification and the State’s case was entirely circumstantial.” We find no merit in this enumeration. In the first place, the evidence is not rendered entirely circumstantial merely because there was no positive testimony that appellant was seen driving the car or occupying the driver’s seat before the crash. Direct evidence is evidence “which immediately points to the question at issue” (OCGA § 24-1-1 (3)); whether any of the evidence in this case was of such character is generally, as with all other matters of fact, a question for the jury. That the question is a “difficult determination” (see Yarn v. State, 265 Ga. 787 (462 SE2d 359)) does not necessarily make it one for the courts, although often the courts are called upon to decide the question. See Yarn and cases cited. The facts of this case are such that we would not take this matter from the jury. Evidence of the relative positions of the car’s occupants seconds after the crash may so “immediately [point] to the question at issue” as to lend itself to no other reasonable or even possible conclusion than that appellant was the driver. “A jury should not be precluded from putting two and two together,” (Southern R. Co. v. Newman, 187 Ga. 132, 133 (1) (199 SE 753)); if two and two equals no sum but four, that calculation may constitute direct evidence.

Appellant’s argument is basically that the State did not prove identification, that is, that appellant was the driver of the white car and therefore the State could not admit evidence of another incident involving appellant. See, cited, Banks v. State, 216 Ga. App. 326, 328 (454 SE2d 784). However, as indicated in Division 1, the evidence is such that the jury could rationally conclude beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis that appellant was the driver of the white car and that he was the same person as was charged in the similar transaction.

3. Finally, appellant contends the trial court erred by sentencing him on the counts for DUI, laying drags, fleeing to elude, and failing to obey a traffic control device, because the evidence as to those charges was “used up” in the homicide count. The cases cited by appellant — Kirkland v. State, 206 Ga. App. 27 (424 SE2d 638); Mitchell v. State, 187 Ga. App. 40, 44 (369 SE2d 487); and Hadden v. State, 180 Ga. App. 496 (349 SE2d 770) — involve multiple counts which charged cumulative ways in which a single offense could violate several criminal prohibitions.

In Kirkland, the evidence that defendant’s driving under the influence caused one of the victim’s feet to become useless was held to be “used up” in the count alleging defendant’s DUI caused the victim’s other foot to be useless. In Mitchell, the defendant committed only one act of attacking his mother, so that the counts of aggravated assault with intent to murder and aggravated assault with a deadly weapon were in fact the same and singular act. In Hadden the two crimes charged were the identical act of driving while drunk: driving with a .12 percent or more by weight of alcohol in defendant’s blood and driving under the influence of alcohol. The counts in this case involve separate and distinct criminal offenses. Homicide is not the same offense as DUI, laying drags, fleeing to elude, failing to obey a traffic signal or driving while license is suspended; proof of those acts was not “used up” to prove the homicide count, nor are they lesser included offenses of homicide. Appellant is in effect suggesting a rule that when a pattern or series of criminal acts is committed and those acts are testified to in a trial of any or all of those acts, only one of those acts or the final culminating criminal act can be prosecuted. This has never been the law. See, e.g., Taylor v. State, 177 Ga. App. 624, 628 (4) (340 SE2d 263). The State is required to prosecute in the same proceeding all offenses arising out of the same course of conduct; that is, reckless driving, DUI, and driving over the centerline may contribute to a homicide, but they are not included offenses and proof of any offense does not “use up” the evidence of homicide. See State v. Stowe, 167 Ga. App. 65 (306 SE2d 663).

Decided September 10, 1996.

Michael R. McCarthy, for appellant.

Kermit N. McManus, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A96A1053.
    ELROD v. THE STATE.
    (475 SE2d 710)
   Ruffin, Judge.

A jury convicted Larry Gene Elrod of aggravated assault on a police officer (OCGA § 16-5-21 (c)) and two counts of misdemeanor obstruction of a police officer (OCGA § 16-10-24 (a)). Elrod’s conviction was entered on September 13, 1993. A timely notice of appeal was filed on October 8, 1993. Elrod, acting pro se, filed a second notice of appeal on April 22, 1994, in which he indicated that a motion for new trial “was never entered.”

Elrod’s counsel moved for leave to withdraw and for appointment of new counsel in light of Elrod’s assertion that his counsel engaged in “unprofessional conduct” in handling his case on August 12, 1994. The motion was granted, and new counsel was appointed to prosecute Elrod’s appeal by order entered on August 22, 1994.

No further action was taken in this case until December 11, 1995, when new counsel filed a motion for new trial. The motion alleged the general grounds, as well as ineffective assistance of trial counsel. A hearing on the motion was conducted on December 19, 1995, and the motion was subsequently denied by order entered on January 15, 1996. A third notice of appeal was filed on January 25, 1996, and the case was docketed in this Court on January 30, 1996.

Í. We must first address the jurisdictional and procedural posture of this case. “We are required to inquire into our own jurisdiction.” Hart v. State, 184 Ga. App. 300, 301 (361 SE2d 277) (1987). Elrod’s initial notice of appeal, filed on October 8, 1993, was timely filed. OCGA § 5-6-38. His second appeal, filed on April 22, 1994, is a nullity because Elrod had already filed a notice of appeal with this Court. O’Kelly v. State, 196 Ga. App. 860 (1) (397 SE2d 197) (1990).

The trial court correctly dealt with the motion for withdrawal and substitution of counsel. While this motion was filed during the pendency of Elrod’s notice of appeal, “during that time the trial court retained jurisdiction in such matters. . . .” State v. James, 211 Ga. App. 149,150 (438 SE2d 399) (1993). However, the trial court did not have jurisdiction over the motion for new trial. A notice of appeal divests the trial court of jurisdiction to hear motions for new trial or to grant a new trial on its own motion after the period in which a motion for new trial may be filed in accordance with OCGA § 5-5-40. Griffin v. Loper, 209 Ga. App. 504 (433 SE2d 653) (1993); Anderson v. State, 193 Ga. App. 540 (1) (388 SE2d 351) (1989). In this case, Elrod’s motion for new trial was not timely filed; this is not a case where Elrod’s notice of appeal was premature, but later ripened when the denial of his motion for new trial was entered. Compare Hope v. State, 193 Ga. App. 202, 203 (1) (a) (387 SE2d 414) (1989). Hence, the order denying the motion for new trial is a nullity, and Elrod’s third notice of appeal, filed on January 25,1996, and based on this order, is also a nullity. See O’Kelly, supra.

However, it is clear that Elrod’s second counsel would have been permitted to raise the ineffective assistance of counsel issue as an enumeration in the first appeal pending before this Court because this would have been “the earliest practicable moment” for such a claim to have been raised. See Norman v. State, 208 Ga. App. 830, 831 (3) (432 SE2d 216) (1993); White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991) (“the claim may be raised for the first time in the direct appeal if the direct appeal marks the first appearance of new counsel”). Compare Glover v. State, 266 Ga. 183 (465 SE2d 659) (1996) (the claim is waived if new counsel had the opportunity to file a motion for new trial, yet failed to do so).

In cases such as the one at bar, this Court generally remands the case for a hearing on the issue. See Hutton v. State, 192 Ga. App. 239, 241 (5) (384 SE2d 446) (1989). However, as Judge Beasley noted in her separate opinion in Hutton, “[r]emand should be principled and necessary, not automatic, delaying, and wasteful of judicial and legal resources.” Id. at 243. Moreover, the ineffectiveness issue may be decided on the record by this Court where remand “would serve no useful purpose.” Brundage v. State, 208 Ga. App. 58 (2) (430 SE2d 173) (1993). While a remand would be appropriate in this case, the trial court has already held a hearing and rendered a decision, albeit a nullity, on the ineffectiveness issue. Thus, a remand in this case would serve no useful purpose, would merely delay the case, and would waste judicial and legal resources. Therefore, in the interest of judicial economy, we will consider Elrod’s current appeal and all issues presented.

2. In his first enumeration of error, Elrod claims the trial court erred in denying his motion for new trial on the general grounds. We disagree.

Construed most favorably to uphold the verdict, the evidence shows that police officers Williams and Appling were on duty, in uniform, and responding for a second time to a “fight in progress . . . male armed with a knife” call at Elrod’s residence. Upon arriving, both officers noted Elrod possessed a large Rambo-style hunting knife which he refused to relinquish despite being repeatedly ordered to do so by both Officer Williams and Officer Appling. Both officers testified that Elrod stated he intended to cut Officer Williams with the knife. Officer Williams testified he believed Elrod was going to run toward him and stab him with the knife and that he believed Elrod intended to hurt him. After Elrod’s father took the knife from him, Elrod turned sideways as if to run and struggled with Officer Appling, making it impossible for Officer Appling to handcuff him. Officer Williams had to assist Officer Appling, and it required both of them to get Elrod’s hands positioned so that Elrod could be handcuffed.

While there was conflict between the officers’ testimony and that of Elrod and his witnesses, “[a]n appellate court does not weigh the evidence or judge, the credibility of the witnesses but only determines whether the adjudication of guilt is supported by sufficient competent evidence.” (Citations and punctuation omitted.) Duitsman v. State, 212 Ga. App. 348 (1) (441 SE2d 888) (1994). The foregoing evidence, construed in a light most favorable to the State, was sufficient to authorize a rational trier of fact to find Elrod guilty beyond a reasonable doubt of aggravated assault on a peace officer and misdemeanor obstruction of an officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Duitsman, supra. Accordingly, we find no error in the trial court’s refusal to grant a new trial based on this argument.

3. Elrod next asserts the trial court erred in denying his motion for new trial based upon ineffective assistance of counsel. Specifically, Elrod claims his trial counsel (a) failed and/or refused to call witnesses that Elrod directed counsel to subpoena to testify at trial, (b) failed to meet with Elrod for a sufficient amount of time prior to trial and adequately review the case with him, and (c) rejected a negotiated plea offer from the district attorney’s office before conveying the offer to him. After a hearing in which trial counsel testified, the court determined that trial counsel was effective. While this proceeding was outside the trial court’s jurisdiction, as previously stated, the testimony presented at the hearing was taken under oath, and the parties are bound by their statements. Thus, in considering Elrod’s claim for ineffective assistance of counsel, we may rely on the testimony presented during the trial court’s hearing.

“In order to establish ineffectiveness of. trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown, in the adversary process that renders the result unreliable.” (Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). In addition, the trial court’s determination that a defendant has not been denied effective assistance of trial counsel will be affirmed on appeal unless that determination is clearly erroneous. Jones v. State, 217 Ga. App. 722, 723 (2) (458 SE2d 894) (1995).

(a) In this case, trial counsel’s failure to call witnesses to testify at trial cannot provide the basis for an ineffective assistance of counsel claim. At the hearing on the motion for new trial, trial counsel testified that Elrod never mentioned calling any witnesses other than those actually called at trial. Elrod testified he provided trial counsel with additional names, but admitted the additional witnesses would have testified to the same matters as the witnesses who were called at trial. Trial counsel further testified that had he been aware of other witnesses, he would have thought carefully about calling them because, based on his training and experience, calling repetitive witnesses can backfire and have an adverse effect on the jury.

Assuming Elrod informed trial counsel about these other witnesses, the decision as to which defense witnesses will be called is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel. Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790) (1994). “The fact that appellant and his present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that [Elrod] received representation amounting to ineffective assistance of counsel. [Cit.]” Stewart v. State, 263 Ga. 843, 847 (6) (440 SE2d 452) (1994). Moreover, Elrod has failed to demonstrate a reasonable probability that, but for trial counsel’s failure to call additional witnesses, the trial’s result would have been different.

(b) The record fails to support Elrod’s claim that trial counsel was ineffective because he did not meet with him often enough or adequately review the case with him prior to trial. The record shows trial counsel thoroughly reviewed the state’s file, including the police officers’ incident and supplemental reports, met with Elrod at least two times and possibly as many as five times, and traveled to Elrod’s home to view the crime scene and interview Elrod’s mother, father, brother, and all eyewitnesses. “In any event, the amount of time [trial] counsel spent with [Elrod] is not determinative of whether counsel rendered ineffective assistance. [Cit.]” Capers v. State, 220 Ga. App. 869, 873 (470 SE2d 887) (1996). We fail to see a reasonable probability that but for counsel’s failure to discuss the case further with Elrod, the trial’s outcome would have been different. Even if Elrod’s representation was less than desirable, Elrod failed to satisfy his burden of affirmatively showing the Strickland criteria for ineffectiveness by the record. Jacobson v. State, 201 Ga. App. 749, 753 (5) (d) (412 SE2d 859) (1991).

(c) Elrod next contends trial counsel was ineffective because he rejected a plea offer before conveying the offer to him. Trial counsel testified he negotiated a plea offer on behalf of Elrod, but that Elrod flatly rejected the negotiation, stating he was not guilty of anything. At the hearing, Elrod admitted he told trial counsel he had not done anything wrong and would not plead guilty to anything, but contended trial counsel failed to present the plea offer to him. Elrod’s girl friend also testified that Elrod told her he had not done anything wrong and was not going to plead guilty to anything. Based on the foregoing, we find the trial court was not clearly erroneous in determining that trial counsel “did relay the State’s plea offer to [Elrod] and [that Elrod] refused to accept the plea offer based on his belief that he had not done anything wrong.”

4. In his last enumeration of error, Elrod claims the trial court erred in submitting partial written jury instructions to the jury after it started deliberations. The record shows that the jury requested “written clarification of the difference of obstruction, felony, and obstruction, misdemeanor.” Both parties agreed to provide the jury with copies of the pattern charge on both misdemeanor obstruction and felony obstruction. Subsequently, the jury requested “written confirmation of the law concerning aggravated assault.” At that point, Elrod’s counsel requested a recharge rather than “piecemealing the pattern instructions in there to them.” The trial judge declined to recharge the entire charge and offered to orally recharge on aggravated assault before giving the jury the written charge, which Elrod’s counsel refused. According to the trial judge, he was concerned the jury would not understand why they were provided with a copy of the written charge pursuant to their first request, yet had to be recharged pursuant to their second request.

Contrary to Elrod’s assertion, we cannot find that the trial judge abused its discretion in providing the jury with partial written jury instructions in response to its request. This issue has previously been decided by this Court. See Jordan v. State, 207 Ga. App. 710, 712 (2) (429 SE2d 97) (1993). In Jordan, the trial judge furnished the jury with written copies of “only that portion of the charge with respect to which it had requested a recharge.” Id. at 713. The Court noted that “[i]t is within the court’s discretion to recharge only that which is specifically requested. It was not an abuse of discretion to recharge only that which was specifically requested nor, under the circumstances of this case, to do so in writing rather than orally again.” (Citations and punctuation omitted.) Id. at 713.

Decided September 10, 1996.

William A. Jordan, for appellant.

Garry T. Moss, District Attorney, for appellee.

Judgment affirmed.

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


author: Pope, Presiding Judge.

text:
    A96A1130.
    McLEAN v. TURTLE COVE PROPERTY ASSOCIATION, INC.
    (475 SE2d 718)
   Pope, Presiding Judge.

Plaintiff Thomas McLean is the owner of six lots in Turtle Cove subdivision, a residential development in Jasper County, and defendant Turtle Cove Property Association, Inc. (“the Association”) is a non-profit corporation whose members include all owners of property in the development. Pursuant to a Declaration of Covenants and Restrictions, the Association collects dues from the landowners and provides them with certain benefits. Plaintiff brought this action to enjoin it from collecting dues and exercising its powers with respect to four of his six lots. The trial court granted the Association’s motion for summary judgment and denied plaintiff’s, concluding that the rights and obligations set forth in the Declaration of Covenants and Restrictions apply to all lots in the subdivision despite the Association’s failure to file additional declarations when additional lands were developed. We agree with the trial court and affirm.

Turtle Cove subdivision began in 1971, with the development of a tract of approximately 297 acres. The Association was incorporated at that time, and the Declaration of Covenants and Restrictions was recorded. In subsequent years, numerous other tracts were added to the development. The original declaration clearly anticipated that this would happen: “the Developer . . . shall have the right to bring Additional Property in future stages of development within the general plan or scheme of this Declaration. Additions, if any, shall comply with the standards set forth in this document. The additions shall be subject to assessment for their just share of the Association expenses.” But the document also provided that when additions were made, a “Supplementary Declaration of Covenants and Restrictions” would be recorded, and it is undisputed that no supplementary declarations were filed. The plats of the additions referenced the original Declaration of Covenants and Restrictions, however. Moreover, plaintiff acknowledges that he knew of the Declaration of Covenants and Restrictions when he purchased his lots and that he — like all of the other landowners — assumed it applied to his four lots in the additions as well as his two lots in the original 297-acre tract. Indeed, the Association and the landowners have acted on that assumption for more than 20 years, with the landowners paying dues and the Association maintaining common recreational areas and providing other benefits to its members.

1. Plaintiff argues that since no one filed supplemental declarations when the subdivision grew to encompass additional tracts, the covenants and restrictions contained in the original Declaration do not apply to lots in those additional tracts. But restrictive covenants may apply to lots in a planned development under an implied covenant theory, even if the developer failed to comply with all formalities, as long as the landowner had knowledge of the restrictive covenants at the time he purchased the property. See Westhampton, Inc. v. Kehoe, 227 Ga. 642, 645-647 (182 SE2d 430) (1971); Kilby v. Sawtell, 203 Ga. 256 (1), (2) (46 SE2d 117) (1948). Westhampton and Kilby involve the developer’s failure to include the restrictive covenants in the deed while this case focuses on the developer’s failure to record supplemental declarations, but we do not consider this distinction crucial: the point of those cases is that the developer’s failure to do something he should have done to ensure notice does not render the covenants inapplicable as long as the purchaser had notice of the covenants at the time of purchase. And the need for such a rule is particularly compelling where third parties have relied on the applicability of the covenants. See Westhampton, 227 Ga. at 646.

In this case, plaintiff acknowledges that he had actual notice of the covenants when he purchased his lots. Moreover, the Association and plaintiff’s neighbors have relied for many years on the applicability of the covenants to the added tracts. Under these circumstances, the trial court did not err in holding that the covenants were applicable to all of plaintiff’s lots.

Decided September 10, 1996.

Philip A. Johnson, for appellant.

Anderson, Walker & Reichert, Travis M. Trimble, for appellee.

2. Plaintiff also appeals the trial court’s ruling that he . was not entitled to copies of documents prepared by the Association’s attorney regarding the validity of the covenants. Without citing any authority, he argues that it is only fair that he should have access to this information: he is a member of the non-profit corporation, so its attorney is his attorney. Correspondence and other documents received from the Association’s attorney are not among the records a member has an automatic right to inspect and copy under OCGA § 14-3-1602 (a) & (b), however. And assuming these documents are among the records a member would be entitled to inspect with written notice setting forth with reasonable particularity the purpose of the inspection, plaintiff failed to meet his burden of setting forth a proper purpose. See OCGA § 14-3-1602 (c) & (d); Riser v. Genuine Parts Co., 150 Ga. App. 502, 504 (1) (258 SE2d 184) (1979) (applying analogous analysis in case involving for profit corporation; shareholder status does not entitle individual to unfettered access to corporate confidences and secrets).

Judgment affirmed.

Andrews and Smith, JJ, concur.

       We note that although this is an appeal from the denial of injunctive relief, the correctness of the denial turns on the legal question of whether the covenants apply to lots in the tracts added to the subdivision after the original 297-acre tract was developed. Accordingly, the case is properly before this Court. See Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993).

       Plaintiff’s reliance on C. H. E., Ltd. v. Kent, 262 Ga. 418 (419 SE2d 915) (1992) (reversing the trial court’s imposition of restrictions based on covenants) is misplaced, as it was clear from the language of the covenants in that case that they were only intended to restrict the use of “lots,” and the appellants’ parcel was not a “lot.”