text:
    A01A0123.
    GOOCH v. THE STATE.
    (549 SE2d 724)
   Ruffin, Judge.

A jury found Thomas Joseph Gooch guilty of possession of methamphetamine, possession of methamphetamine with intent to distribute, and attempted sale of methamphetamine. On appeal, Gooch asserts multiple errors. For reasons that follow, we affirm in part and reverse in part.

Viewed in a light most favorable to the jury’s verdict, the record shows that on August 17, 1997, Kimsey Akin “Ray” Burt was at his father’s trailer along with his brother, Allen Burt, and Gooch’s brother, Willis Ridley. Ray Burt announced that he was going to obtain some methamphetamine, also called “crank,” and he called Gooch. Shortly thereafter, Gooch arrived and spoke with Ray Burt outside the trailer. According to Ridley, Ray Burt attempted to trade a .22 rifle for the drugs, but Gooch refused. As Gooch was preparing to leave, Ray Burt said, “hold on. I’ll go get my money.”

Gooch then waited outside with Ridley as Ray Burt entered his father’s trailer. Approximately five to ten minutes later, Gooch and Ridley heard gunshots, and the two ran to Gooch’s truck. According to Ridley, they “figured [Burt’s] dad was trying to shoot at [Burt].” As Gooch and Ridley got into the truck and began driving away, Ray Burt ran to the truck and said, “daddy’s up, can you get me out of here.” Both Ray Burt and his brother Allen entered the truck, and Gooch drove them to another location. Once at that location, Ray Burt gave Gooch “$250 to go get an eight ball” of methamphetamine, and Gooch took the money and drove away, leaving Ridley, Ray Burt, and Allen Burt. While the three were waiting for Gooch to return, Ray Burt told Ridley that he had killed his father.

When Gooch returned, he brought back “a quarter” of methamphetamine, which Ridley, Ray Burt, and Allen Burt shared. Ridley later told Gooch that Ray Burt claimed to have killed his father. Gooch and Ridley then left, and Gooch called the sheriff to report the crime. Two deputies from the sheriff’s office went to the trailer, where they discovered the body of Burt’s father, who had been shot in the head.

Both Ray Burt and Gooch were indicted for malice murder, felony murder, armed robbery, and possession of methamphetamine. Gooch was also indicted for possession of methamphetamine with intent to distribute and sale of methamphetamine. The two were tried jointly, and the jury acquitted Gooch of malice murder, felony murder, and armed robbery, but convicted him of all three drug offenses. The trial court then directed a verdict of not guilty on Count 6 of the indictment, thus acquitting Gooch of the sale of methamphetamine charge.

1. Gooch challenges the sufficiency of the evidence supporting his convictions for the drug offenses. According to Gooch, the convictions were based upon circumstantial evidence that failed to establish that he actually possessed methamphetamine. Gooch points to the fact that the State neither tendered any methamphetamine into evidence nor produced any laboratory analysis to confirm the substance was, in fact, methamphetamine. Thus, he reasons, his convictions must be reversed. We disagree.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Whether this standard has been met is a jury question, and we will not disturb the jury’s verdict unless it is unsupportable as a matter of law.

Contrary to Gooch’s contention on appeal, the absence of chemical testing is not fatal to the State’s case. The testimony regarding the methamphetamine “was not without evidentiary value due to the lack of expert testimony since identification of a material or substance may be made by other than expert testimony.” Here, both Allen Burt and Ridley testified that they were familiar with methamphetamine and had taken it on multiple occasions. Both witnesses confirmed that the substance Gooch provided appeared to be methamphetamine, and Allen Burt said that, when he ingested the drug, it produced the same sensation in his body as had other methamphetamine. “This constitutes at least circumstantial evidence supporting the [methamphetamine charges].” Moreover, in Gooch’s statement, which was tendered at trial, he admitted that, after receiving a call for some methamphetamine, he provided the “dope” to Ridley, Ray Burt, and Allen Burt. Given both Gooch’s acknowledgment that he provided methamphetamine and Allen Burt’s testimony that the substance produced the effects of methamphetamine, the evidence was sufficient to sustain Gooch’s conviction for either possession of methamphetamine or possession of methamphetamine with intent to distribute.

2. Gooch contends that the trial court erred in denying his motion to sever his trial from that of his co-defendant, Ray Burt. As a defendant requesting severance, Gooch must do more than merely raise the possibility that a separate trial might give him a better chance of acquittal. “He must make a clear showing of prejudice and a consequent denial of due process.” The factors that a trial court must consider in determining whether severance is appropriate are: (1) whether a joint trial will create confusion; (2) whether there is danger that evidence implicating one defendant will bé considered against the other; and (3) whether the co-defendants have antagonistic defenses. The decision of the trial court regarding severance will not be disturbed absent an abuse of discretion.

Gooch asserts that severance was warranted based upon the second two criteria. We disagree. Initially, we note that “antagonistic defenses alone do not require severance.” Moreover, Gooch has failed to show any inherent danger that evidence implicating Burt would be used against him. Although both defendants gave a statement to police, each statement was heavily redacted prior to its introduction in evidence. And, although Gooch argues that “Burt . . . explicitly blamed [him] for the heinous murder of [Burt’s] father,” Gooch was acquitted of murder, which undermines his argument that evidence of Burt’s guilt was used against him. To the extent that Burt accused Gooch of being a drug dealer, Gooch admitted to this conduct in his own statement. Under these circumstances, we find no abuse of discretion in the trial court’s refusal to sever the trial.

3. Gooch also argues that the trial court erred in admitting Ray Burt’s statement because Burt did not testify at trial. Notwithstanding the fact that the statement was redacted, Gooch maintains that its admission violated Bruton v. United States. In Bruton, the United States Supreme Court concluded that the confession of a nontestifying co-defendant that implicates the defendant is inadmissible as it violates the defendant’s Sixth Amendment right to confront witnesses. If, however, the confession has been redacted to eliminate any reference to the defendant, it may be admissible. In this case, Gooch argues that, although redacted to remove his name, Burt’s statement nonetheless implicated him. Thus, Gooch reasons, his conviction should be reversed.

Pretermitting whether the trial court erred in admitting Burt’s statement, we find no basis for reversal. An alleged Bruton violation is subject to scrutiny for harmless error. We find no reversible error here. Although Burt’s statement arguably implicated Gooch in the murder of Burt’s father, Gooch was acquitted of this offense. And, as discussed above, Gooch essentially acknowledged committing the offenses for which he was convicted. It follows that the admission of Burt’s statement, if error, was harmless.

4. Gooch contends that the trial court erred in sentencing him on the offense of sale of methamphetamine, which was Count 6 of the indictment. We agree.

The record shows that, following the jury’s verdict convicting Gooch of Count 6, the trial court directed a verdict of acquittal on that count. The State asserts that the trial court exercised its discretion and charged the jury on the lesser included offense of attempt to sell methamphetamine, and the jury convicted him of this lesser offense. The State further reasons that “the fact that the [trial] court directed the verdict as to the charge on the indictment does not prevent the jury from considering the lesser included offense.” The State’s reasoning is flawed.

The express language of the trial court’s order provides that, “the Court directs a verdict of Not Guilty as to Count 6.” A court should direct a verdict “only where there is no conflict in the evidence and it demands a verdict of acquittal as a matter of law.” Accordingly, by directing a verdict as to Count 6, the trial court evidently concluded that the evidence demanded acquittal. It follows that the trial court cannot then sentence the defendant on that count of the indictment. Even if the trial court directed the verdict in error, we cannot revisit its ruling on appeal.

The case cited by the State, Mayberry v. State, does not require a different result. In Mayberry, the defendant was indicted for aggravated assault, felony murder, and concealing the death of another. The trial court directed a verdict on the concealment charge, and the jury found him guilty of voluntary manslaughter, the lesser included offense of felony murder. It is evident that, in Mayberry, the trial court did not direct a verdict on the felony murder charge. Thus, the jury was authorized to convict the defendant of voluntary manslaughter, which is a lesser included offense of felony murder. Contrary to the State’s contention, this case does not provide broad authority for the trial court to direct a verdict on one count while preserving the State’s ability to prosecute and the trial court’s authority to sentence on lesser included offenses contained within that count. It follows that the trial court erred in imposing any sentence with regard to Count 6 of the indictment. Thus, any sentence on Count 6 is hereby vacated.

5. Gooch argues that the trial court erred in failing to merge the possession of methamphetamine count with the possession of methamphetamine with intent to distribute count. Again, we agree.

When the same conduct establishes the commission of more than one crime, a defendant may be prosecuted for each crime, but may not be convicted of both. In determining whether multiple offenses merge, the key question is whether the different offenses are proven with the same facts. In this case, it is clear from the indictment and the evidence presented at trial that both the possession of methamphetamine and the possession with the intent to distribute methamphetamine convictions were based upon the same evidence. Accordingly, the trial court erred in sentencing Gooch for both offenses. We therefore remand the case to the trial court to resentence appellant in accordance with this opinion.

6. Gooch contends that the trial court erred in sentencing him for crimes that he did not commit. During the sentencing hearing, the trial court stated that the “jury clearly found that [Gooch] was nothing more, nothing less than a drug dealer who but for his delivery of the drugs we wouldn’t have a homicide on our hands.” The court then sentenced Gooch to 30 years for possession of methamphetamine with intent to distribute. According to Gooch, the trial court, in sentencing him to the maximum punishment, was punishing him for the murder and armed robbery of Burt’s father - crimes for which he was acquitted. Thus, he maintains that the sentence violates his due process rights and must be reversed.

Regardless of why the trial court sentenced Gooch to the maximum penalty, the sentence is within the statutory limit. “This court is without authority to review sentences within the statutory range,” and any question as to excessiveness should be addressed to the sentence review panel.

Decided May 17, 2001

Gary P. Bunch, for appellant.

N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellee.

7. As a condition of probation, Gooch was ordered to pay a fine of $12,415 at a date “to be determined by [Gooch’s] probation officer.” Gooch asserts that the trial court erred in imposing this fine without first conducting a hearing on his ability to pay. As Gooch’s “probation was not conditioned upon the fine first being paid,” a hearing is not required. Thus, this claim of error presents no basis for reversal.

Judgment affirmed in part and reversed in part. Sentence vacated and case remanded with direction.

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

       Both Gooch and his co-defendant, Rimsey Akin Burt, were also charged with two counts of murder and one count of armed robbery. Gooch, however, was acquitted of these charges.

       See Hudson v. State, 242 Ga. App. 218 (1) (529 SE2d 218) (2000).

       OCGA § 24-4-6.

       See Young v. State, 242 Ga. App. 681, 683 (1) (530 SE2d 758) (2000).

       See Chancey v. State, 256 Ga. 415, 421 (III) (1) (A) (c) (349 SE2d 717) (1986) (failure to produce physical sample of drug “does not lead ineluctably to the conclusion that there has been no proof of a corpus delicti”).

        Wiley v. State, 238 Ga. App. 334, 336 (5) (519 SE2d 10) (1999).

        Chancey, supra at 422.

       In his statement, Gooch referred to the drug as “crank,” but it is undisputed that crank is a street term for methamphetamine.

       See Burroughs v. State, 190 Ga. App. 467, 470 (1) (b) (379 SE2d 175) (1989).

        Adorno v. State, 236 Ga. App. 588, 591 (3) (512 SE2d 703) (1999) (physical precedent only).

       (Punctuation omitted.) Id.

       See Bryant v. State, 270 Ga. 266, 269 (2) (507 SE2d 451) (1998).

       See Ledbetter v. State, 202 Ga. App. 524, 525 (2) (414 SE2d 737) (1992).

         Adorno, supra.

       See Bryant, supra.

       See Adorno, supra.

       391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).

       See Hanifa v. State, 269 Ga. 797, 801 (2) (505 SE2d 731) (1998).

       Id. at 802.

       See York v. State, 242 Ga. App. 281, 285 (2) (a) (528 SE2d 823) (2000).

       In Burt’s statement, he confessed that he “told another person [he] would have to shoot [his] dad to get the money. Another person said do it.” As the only other defendant, Gooch maintains that he clearly was the person to whom Burt was referring.

       See id. See also Adorno, supra.

        Zuber v. State, 248 Ga. 314, 316 (3) (282 SE2d 900) (1981).

       Compare Smith v. State, 222 Ga. App. 887, 888 (2) (476 SE2d 653) (1996) (“beneficiary of a directed verdict of acquittal” not sentenced for offense of which he was acquitted).

       See State v. Lawrence, 208 Ga. App. 588, 589 (431 SE2d 409) (1993) (even if directed verdict improvidently granted, the State cannot challenge it on appeal).

       237 Ga. App. 226 (514 SE2d 268) (1999).

        See Austin v. State, 268 Ga. 602, 603 (3) (492 SE2d 212) (1997).

       Gooch also argues that the trial court erred in failing to merge Count 6, involving the sale of methamphetamine. Our holding in Division 4 renders this argument moot.

       See OCGA § 16-1-7 (a) (1).

        Bellamy v. State, 243 Ga. App. 575, 581 (5) (530 SE2d 243) (2000).

       See State v. Estevez, 232 Ga. 316, 317-320 (1) (206 SE2d 475) (1974); Kinney v. State, 234 Ga. App. 5, 7-8 (2) (505 SE2d 553) (1998).

       The trial court also sentenced Gooch to ten years for possession of methamphetamine and ten years for attempt to sell methamphetamine. For reasons discussed in Divisions 4 and 5, those sentences are void. See Kinney, supra at 7 (“ ‘a void sentence is one which imposes punishment the law does not allow’ ”).

       See OCGA § 16-13-30 (d).

       (Punctuation omitted.) Reviere v. State, 231 Ga. App. 329, 332 (4) (498 SE2d 332) (1998).

       See Taylor v. State, 232 Ga. App. 825, 827 (7) (502 SE2d 540) (1998).

        See Reid v. State, 204 Ga. App. 358, 362 (4) (419 SE2d 321) (1992).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A01A0166.
    RICHES TO RAGS, INC. v. McALEXANDER & ASSOCIATES, INC.
    (549 SE2d 474)
   Ruffin, Judge.

Over three years after McAlexander & Associates, Inc. (McAlexander) filed suit against Riches to Rags, Inc., the trial court struck Riches to Rags’ answer and counterclaims for discovery abuses. On appeal, Riches to Rags contends that the trial court abused its discretion in so doing. We disagree and affirm.

The record demonstrates that McAlexander agreed to distribute Riches to Rags’ products and Riches to Rags agreed to pay a seven percent commission on goods sold. McAlexander contends that, in 1996, Riches to Rags failed to pay certain commissions and McAlexander obtained an attorney who sent a demand letter to Riches to Rags. Stanley Atkins, who managed Riches to Rags, responded by writing a letter to the attorney denying that Riches to Rags owed any commissions. Atkins also wrote that

this [case] will drag over two years or three and even if you have a still tight case (which [McAlexander] couldn’t be further from), it still doesn’t mean [McAlexander] will be a winner. ... It was [McAlexander] who caused this and it will be [McAlexander] who loses. Sure you can sue me. I also can play this game and once I start I will not let go and he will not be able to afford it. . . . You say I owe you, then sue. Then I’ll start playing the game.

In April 1997, McAlexander filed suit and served its first interrogatories, seeking information regarding orders placed and commissions paid. Rather than providing the information in narrative form, Riches to Rags elected to produce documents, which it claims were responsive to McAlexander’s interrogatories. Donna Guttmann, a McAlexander employee, examined four boxes produced by Riches to Rags containing over 11,000 documents. According to Guttmann, the boxes included documents pertaining only to those orders for which McAlexander had already been paid. In her affidavit, she also stated that the “documents were not organized or assembled in a fashion that would enable [McAlexander] to reasonably obtain the information necessary to confirm the commissions due and owing.” McAlexander wrote Riches to Rags, asserting that Riches to Rags had failed to produce the requisite information and requesting that Riches to Rags supplement its discovery responses.

Riches to Rags apparently did not supplement its responses, and on August 18, 1997, McAlexander filed a motion to compel discovery. Following a hearing on the motion, the trial court ordered Riches to Rags to “prepare a monthly accounting in substantially the same form as [Riches to Rags] provided to [McAlexander] prior to the termination of their agreement.”

Riches to Rags produced an accounting and submitted an amended answer in which it conceded that “it may be indebted to [McAlexander] in the amount of $9,970.68.” Notwithstanding Riches to Rags’ apparent concession, McAlexander asserted that Riches to Rags’ accounting was incomplete and did not fully comply with the trial court’s order. The trial court conducted a hearing to address McAlexander’s assertion, after which it determined “that an independent accounting is required in order to obtain the information necessary for the case to proceed and to determine whether [Riches to Rags] has complied with the terms of this Court’s [prior] Order.” The parties were unable to agree upon an auditor, and on September 28, 1998, the trial court appointed Frank Henry.

Once Henry was appointed, the parties were ordered to pay him fifty percent of his retainer within ten days of receiving his retainer agreement. On September 30, 1998, Henry forwarded “Engagement Letters” to both McAlexander and Riches to Rags, but did not receive a response or payment from Riches to Rags until October 26, 1998, well after the time specified by the trial court. Upon receiving the signed agreement, Henry wrote the attorney for Riches to Rags, informing him that the audit was scheduled for November 10 through November 12, 1998. Nevertheless, Riches to Rags waited until November 16, four days after the audit was to commence, to send Henry any documents, which Henry characterized as “incomplete, constituting merely a partial document production.”

In a letter dated November 19, 1998, Henry requested that Riches to Rags produce additional information, including (1) a comprehensive sales journal for the relevant time period; (2) bank statements; (3) a reconciliation to each deposit amount by customer; (4) a listing of each bank and account number used; and (5) a list of all people who performed accounting for Riches to Rags and their availability for meetings. The attorney for Riches to Rags called Henry and informed him that the company did not maintain a comprehensive sales journal or deposit reconciliations, but that Riches to Rags would gather and forward bank statements and provide the name of its accountant.

Riches to Rags did not provide this information, and Henry wrote again on December 9, 1998, requesting the information and reminding the company that, pursuant to Henry’s engagement letter, it was subject to a $500 per day penalty if it failed to cooperate. Atkins responded by letter dated December 14, 1998, forwarding “all of the bank statements [he could] find.” Atkins also wrote,

[w]e are a mom and pop business and this is our busiest time of the year. We have not had time to prepare what you need. Your letter of request on November 19, 1998 was in our peak time. Since this has been going on for over 2 years now the only rush I see is that you are heading into your busiest time. Mr. Henry it is us who are paying for this service.

(Emphasis in original.) Atkins later found additional bank statements, which were forwarded to Henry. On December 29, 1998, Atkins wrote Henry that he was “welcome to our offices [to] dig [and] get whatever else you need.” Evidently, Riches to Rags did not produce any additional information, and Henry did not go to Riches to Rags’ offices to look for more documents.

McAlexander subsequently filed a motion for sanctions, requesting that the trial court strike Riches to Rags’ answer and counterclaims “for discovery abuse and non-compliance with the Court’s Orders.” Following a hearing, the trial court granted the motion, finding that Riches to Rags

has intentionally and wilfully refused to comply with the Orders of the Court and that [Riches to Rags] has further engaged in a campaign of obstruction throughout the pendency of this case. . . . Although [Riches to Rags] has provided some responsive answers and documentation to [McAIexander, Riches to Rags] has consistently failed to provide complete documentation and figures for the business to [McAIexander], to the court-appointed auditor, and to the Court in the intervening two years and eight months since [McAlexander’s] Requests were filed. . . . The record is replete with examples of [Riches to Rags’] diversionary and obstructive tactics avoiding compliance with the express mandates of this Court. In [Riches to Rags’] repeated arguments that it invited [McAIexander] and the court-appointed auditor to go through [its] records and find anything that they believed they were missing, [Riches to Rags] has attempted to place the responsibility for providing relevant and complete documentation of the business and its transactions on [McAIexander] and on the court-appointed auditor, rather than acknowledging its own burden to comply with discovery. Neither [McAIexander], nor the court-appointed auditor, nor the Court itself has any burden to shoulder [Riches to Rags’] duty to generate the necessary information. . . . The Court further notes [Riches to Rags’] persistently tardy responses to Court mandates, including the untimely and grudging production of documents and payment to the court-appointed auditor. Based upon a consideration of all of the evidence, the Court finds that [Riches to Rags’] excuses and explanations are patently incredible. This Court is instead constrained to find that [Riches to Rags] has intentionally mismanaged its records to obstruct discovery and to prolong litigation to [McAlexander’s] detriment, exactly as promised in [Riches to Rags’] ill-advised initial letter to [McAIexander].

“Trial judges have broad discretion in controlling discovery, including [the] imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.” If a party wilfully fails to comply with a court order regarding discovery, a trial court may even impose the harsh sanctions of dismissal and default. “The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.” If a trial court determines that a party has consciously or intentionally failed to act, we will affirm that trial court’s factual finding if there is any evidence to support it. In this case, ample evidence supports the trial court’s determination that Riches to Rags purposefully engaged in dilatory tactics and intentionally failed to provide requested information in a timely manner.

Riches to Rags maintains that sanctions are unwarranted, arguing that it timely responded to McAlexander’s interrogatories by producing over 11,000 documents. As Riches to Rags notes, pursuant to OCGA § 9-11-33 (c), a party may opt to produce business records in response to interrogatories. However, this Code section applies only where “the answer to an interrogatory may be derived or ascertained from the business records.” Here, McAlexander asserts that it was unable to ascertain the answers to its questions from the documents. Given the fact that the court-appointed auditor also was unable to ferret out the requisite information from the boxes of documents Riches to Rags provided, the trial court was authorized to conclude that Riches to Rags did not provide full answers to the interrogatories McAlexander propounded.

Riches to Rags suggests that it is being penalized for being “a small, unsophisticated company which does not use computer systems for accounting [and] relies on its invoices and related documents to track its sales orders.” However, even small, unsophisticated companies must timely respond to discovery requests. Moreover, given the grudging and piecemeal manner in which Riches to Rags supplied information to both McAlexander and the court-appointed auditor, the trial court was authorized to conclude that Riches to Rags was intentionally prolonging the discovery process. Indeed, as the trial court noted in its order, Atkins promised as much in his response to McAlexander’s initial demand letter. Thus, under the facts of this case, we cannot say that the trial court abused its discretion in imposing sanctions.

Judgment affirmed.

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

Decided May 17, 2001.

Paul, Hastings, Janofsky & Walker, John G. Parker, Joseph C. Sharp, for appellant.

J. Christopher Simpson, Greg S. McLaughlin, for appellee.

       (Punctuation omitted.) Butler v. Biven Software, 238 Ga. App. 525, 527 (2) (522 SE2d 1) (1999).

       See Gen. Motors Corp. v. Conkle, 226 Ga. App. 34, 38 (1) (486 SE2d 180) (1997) (physical precedent only).

       (Punctuation omitted.) Roberts v. Maren Engineering Corp., 225 Ga. App. 110, 111 (1) (483 SE2d 141) (1997).

        Santora v. American Combustion, 225 Ga. App. 771, 772 (1) (a) (485 SE2d 34) (1997).

       OCGA § 9-11-33 (c).

       See Gazelah v. Rome Gen. Practice, 232 Ga. App. 343, 344-345 (2) (502 SE2d 251) (1998) (discovery sanctions may be appropriate where answer does not fully satisfy the question posed).

       See Time Warner Entertainment Co. v.'Six Flags Over Ga., 245 Ga. App. 334, 349-351 (3) (b) (537 SE2d 397) (2000).


text:
    A01A0237.
    TINGLE et al. v. JONES.
    (549 SE2d 477)
   Ruffin, Judge.

Shirley Jones sued her neighbors, the Tingles, for trespass, claiming that, while building a lake on their property, the Tingles destroyed numerous trees on her property. Jones also contends that the improvements to the Tingles’ property caused increased water runoff, which damaged her property. A jury found in favor of Jones, and the Tingles appeal, asserting that the trial court erred in failing either to direct a verdict in their favor or grant their motion for a judgment notwithstanding the verdict (judgment n.o.v.). For reasons that follow, we affirm.

The evidence, viewed most favorably to support the jury’s verdict, shows that Jones and the Tingles owned adjoining property. Ben Tingle decided to build a small lake on his property. According to Mr. Tingle, the lake was to go “between [my] and Mrs. Jones’ property.” To this end, in 1996, he contracted with the Georgia Department of Transportation (DOT) for DOT to remove 5,000 cubic yards of dirt from his property. Although the contract incorporated a drawing designating where DOT was to dig, the drawing did not show property boundaries. In 1997, Tingle agreed to sell an additional 5,000 cubic yards of dirt to DOT, and the parties signed a second contract, which incorporated a similar drawing.

Jones was aware of the work being done on the Tingles’ property. She testified that, while the Tingles were building their lake, she began noticing water buildup and swampy conditions on her property, which she attributed to the lake construction. Jones also testified that, after hearing the sound of sawing for several days, “I . . . walked around the barn to see what was going on, and I saw that they were over on my side of the property. And so then I walked down there . . . and saw that they had been cutting trees on my side of the property.” Hugh Tyre, an arborist, testified that at least 40 trees had been removed from Jones’ property. Annette Bowman, a landscape designer, testified that it would cost $33,439 to restore the property.

Jones was unable to identify who cut down her trees, but she contends that the Tingles employed the workers. According to Jones, she saw the man the Tingles hired to do yard work, Osby Yancey, standing with the workers. She also saw the workers leave through the Tingles’ driveway.

There were several different people who worked on the Tingles’ property who might have been responsible for removing Jones’ trees. They were the DOT workers. Also, after DOT finished digging, Mr. Tingle paid Billy Cosper $50 per hour to “round [ ] out the lake and [build] the dam.” Mr. Tingle also testified that he hired Willie Wells, whom he paid $50 per hour to clear trees from between his property and Jones’ property. According to Mr. Tingle, he used spray paint to mark the trees that Wells was to remove. Finally, Mr. Tingle testified that he employed Yancey and Frank Goodwin to perform yard work.

After learning that her trees had been cut down, Jones wrote Mr. Tingle to complain about the removal of the trees. Sometime later, Jones met with Mr. Tingle to discuss having him replace the trees. Jones testified that, after she told Mr. Tingle how much it would cost to restore her property, he “told [me] to sue him; that he wasn’t replacing the trees.” Mr. Tingle nevertheless brought approximately 12 small, potted trees over to Jones’ house and left them in her driveway. Although Jones saw the trees in her driveway, the next day she discovered that the trees were gone, and she assumed Mr. Tingle had picked them up. Mr. Tingle testified that he had planted the trees in Jones’ yard without first seeking her permission.

The record shows that, in addition to planting the trees without Jones’ permission, Mr. Tingle entered Jones’ property at least two other times without first obtaining permission. On one occasion, Jones returned home to find Mr. Tingle mowing her yard with a bush hog. As Jones paid someone else to mow her lawn, she asked Mr. Tingle to stop. On another occasion, Jones discovered Mr. Tingle plowing up a garden patch in her backyard.

On appeal, the Tingles contend that this evidence was insufficient to support a claim of trespass and, thus, the trial court erred in failing either to grant a directed verdict or enter a judgment n.o.v. We 'disagree.

Neither a directed verdict nor a judgment n.o.v. is proper “unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” Here, Jones accused the Tingles of trespass, which “is any wrongful, continuing interference with a right to the exclusive use and benefit of a property right.” The evidence that Jones saw workers, at least one of whom was employed by the Tingles, standing on her property next to trees that had recently been cut created a jury issue as to whether the Tingles were responsible for removing the trees. It follows that the trial court did not err in failing to grant a directed verdict or enter a judgment n.o.v.

The Tingles assert that a directed verdict was demanded by the evidence, which “conclusively established that of all the actors which were present during the relevant time period, none except for Mr. Yancey and Mr. [Goodwin] could be considered employees of Mr. Tingle. Of the remaining actors, Mr. Wells . . . , Mr. Cosper, and workmen from the [DOT] were all independent contractors.” According to the Tingles, they cannot be held liable for the actions of an independent contractor.

Whether the various workers were, in fact, independent contractors rather than employees was a question for the jury. In this case, the jury, having been properly instructed that an employer generally is not liable for the acts of an independent contractor, nevertheless concluded that the Tingles were liable. The evidence supports this conclusion. Specifically, the record indicates that Mr. Tingle decided to have a lake built on his property and he chose the location, which abutted Jones’ property. The evidence also suggests that the damage to Jones’ property occurred in connection with the building of the lake. Mr. Tingle testified that he knew where the boundary was between the two properties and that he pointed out the boundary to the various workers. The record also shows, however, that Mr. Tingle did not always respect the boundary between the properties, as he performed work on Jones’ property on at least three occasions without first seeking permission. Under these circumstances, the jury was authorized to conclude that Mr. Tingle, once again, disregarded the boundary line, which resulted in trees being removed from Jones’ property.

Moreover, the jury could have found the Tingles liable on a basis other than the cutting of trees. It is well settled that the act of diverting water from one’s property onto the property of another can give rise to an action for trespass. Here, Jones based her complaint both on the tree removal and the damage to her property caused by surface water runoff. Given this additional basis for imposing liability on the Tingles, the trial court did not err in failing to grant a directed verdict or enter a judgment n.o.v.

Decided May 17, 2001.

McNally, Fox & Cameron, Dennis A. Davenport, for appellants.

Howard G. Slade, for appellee.

Judgment affirmed.

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

       See Bradford v. City of Albany, 242 Ga. App. 477, 478 (529 SE2d 906) (2000).

       In their brief, the Tingles assert that “[n]o evidence was provided and no inference is possible that either Mr. Yancey or Mr. [Goodwin] have ever cut any trees much less trees on [Jones’] property.” At trial, however, Jones testified that Yancey was with the workers who she alleges cut down her trees. Thus, there is some inference that Yancey participated in the cutting of the trees.

       (Punctuation omitted; emphasis in original.) MacGibbon v. Akins, 245 Ga. App. 871 (1) (538 SE2d 793) (2000).

        Lanier v. Burnette, 245 Ga. App. 566, 570 (3) (538 SE2d 476) (2000).

       See Klingshirn v. McNeal, 239 Ga. App. 112-113 (1) (520 SE2d 761) (1999).

       See Hooters of Augusta v. Nicholson, 245 Ga. App. 363, 367 (3) (537 SE2d 468) (2000).

       See Klingshirn, supra.

       See Goode v. Mountain Lake Investments, 271 Ga. 722 (524 SE2d 229) (1999); see also Baumann v. Snider, 243 Ga. App. 526 (532 SE2d 468) (2000).


author: Johnson, Presiding Judge.

text:
    A01A0658.
    ARCHIE v. THE STATE.
    (549 SE2d 480)
   Johnson, Presiding Judge.

Freddie Archie was convicted of armed robbery, kidnapping, and possessing a firearm during the commission of a felony. He appeals, claiming that the court erred in allowing the state to introduce evidence of two similar transactions: Archie’s prior armed robbery conviction, and Archie’s forcible robbery of another inmate’s necklace while in jail awaiting trial.

Although the court properly admitted Archie’s prior armed robbery conviction as sl similar transaction, it erred in allowing evidence of the in-jail robbery because it is not sufficiently similar to the crimes charged. Nevertheless, the state’s properly admitted evidence was overwhelming, so the court’s error was harmless.

Regarding the crimes for which Archie was on trial, the state showed that at 6:00 a.m., on July 9, 1996, Margaret Durrance was preparing to open the Holiday Market in Alapaha. She went outside the store to unlock ice boxes. A man wearing dark clothes — a mask, a jacket, and camouflage pants — approached her and put a gun to the back of her head. He forced Durrance into the store, made her open the safe, took money from the safe, and ordered her to lie on the floor. The man then fled from the store.

Because the man was wearing a mask, Durrance could not specifically identify the robber. But she testified that Archie matched the physical description of the man who had robbed her.

Police officers also found freshly made shoe prints outside the store; they photographed the prints and made plaster casts of them. Officers later found shoe prints outside of Archie’s girlfriend’s house which matched the prints found outside the store. Inside a closet in the house, the police found a pair of Archie’s boots, which still had fresh dirt on the soles, and a hooded sweatshirt that was still damp.

Police took the sweatshirt back to the store to show to Durrance. She immediately identified it as the one worn by her assailant. And at trial, she reiterated that the sweatshirt looked like the one worn by the robber.

A Georgia Bureau of Investigation forensic expert testified that Archie’s boots are similar in size to the plaster casts of the shoe prints found at the crime scene, are similar in tread design to the crime scene shoe prints, and could have made those prints. Because there were no imperfections or accidental marking in the shoe tread design, this was the best expert opinion that could be given in such a case.

The state further presented the victim of a 1988 armed robbery. She testified that Archie, dressed in dark clothing, approached her in a convenience store parking lot, showed her a gun, demanded her car keys, and then drove away in her car. Archie was convicted of that armed robbery and was given a seven-year sentence.

The state also introduced evidence that a jail inmate had reported that Archie, who was in jail awaiting trial, had forcibly stolen a gold chain from another inmate’s neck. The stolen necklace was never recovered, and Archie was never charged with any crime for the theft.

An independent act of a defendant is admissible to show motive, intent, plan, identity, bent of mind, or course of conduct. To be admissible, the independent act must be sufficiently similar to the crime for which the defendant is on trial. In determining if an independent act is sufficiently like the current crime, a court must focus on the similarities of the occurrences rather than their differences.

Here, both Archie’s prior armed robbery and the current one are alike in that both took place at convenience stores, both started in the respective store’s parking lot, both were accomplished by the threat of a gun, both involved female victims who were alone, and both times Archie wore dark clothing. While there are some differences between the two armed robberies, it is not required that the crimes be identical in every respect. Contrary to Archie’s complaint, his prior armed robbery is sufficiently similar to the current armed robbery so that it was admissible to show his motive, intent, plan, bent of mind, and course of conduct. The trial court therefore did not err in admitting evidence of that prior crime.

Decided May 17, 2001

Sutton & Slocumb, Howard B. Slocumb, for appellant.

Robert B. Ellis, Jr., District Attorney, Ellen S. Golden, James M. Walker III, Timothy L. Eidson, Assistant District Attorneys, for appellee.

As for the alleged incident in the jail, the only similarity between it and the current offense is that both involved forcible thefts. But, unlike the current armed robbery, the in-jail theft did not involve a weapon, was not against a female victim, and occurred in a completely different setting. In essence, both incidents are merely the same sort of crime — robbery — which is not a sufficient similarity to permit the admission of evidence of the independent act. The trial court thus erred in allowing the state to introduce evidence of the alleged theft in the jail.

Nevertheless, we find that the court’s error was harmless. Given the overwhelming physical evidence connecting Archie to the crime, coupled with the properly admitted evidence of his prior conviction for a similar crime, we find it highly improbable that the evidence of his in-jail theft contributed to the guilty verdict. Accordingly, we uphold the trial court’s judgment.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Cole v. State, 216 Ga. App. 68, 70 (1) (453 SE2d 495) (1995).

       Id.

        Guild v. State, 236 Ga. App. 444, 445 (2) (512 SE2d 343) (1999).

        Davis v. State, 226 Ga. App. 83, 87 (3) (485 SE2d 508) (1997).

       See Murray v. State, 269 Ga. 871, 874 (2) (505 SE2d 746) (1998); Davis, supra at 86-87 (3).

       See Ricks v. State, 217 Ga. App. 666, 667 (1) (458 SE2d 862) (1995) (unarmed robbery by snatching not sufficiently similar to in-home armed robbery).

       See Richards v. State, 222 Ga. App. 853, 856 (3) (476 SE2d 598) (1996).


text:
    A01A0696.
    VICKERY et al. v. WASTE MANAGEMENT OF GEORGIA, INC. et al.
    (549 SE2d 482)
   Johnson, Presiding Judge.

Kathy Vickery worked at Fort Howard Paper Company. On January 27, 1997, she was killed at work when a company truck carrying large refuse containers backed over her. In 1998, her husband, Clyde Vickery, initiated an action, which he later amended, alleging product liability and failure to warn against five defendants: (1) E & J Truck Sales, Inc., which had sold the truck to Fort Howard in 1987; (2) Waste Management of Georgia, Inc., which had leased the refuse containers to Fort Howard; (3) Galbreath, Inc., which had manufactured the hoist used to move the containers on and off the truck; (4) Hamby Truck & Equipment Sales, Inc., which had mounted the hoist on the truck and (5) Consolidated Disposal Systems, Inc., the equipment dealer which had obtained the hoist for the truck. The crux of Vickery’s complaint was that the defendants were liable for failing to install an alarm on the truck which would have warned bystanders when the truck was moving backward.

E & J, Waste Management, Galbreath, Hamby and Consolidated all moved for summary judgment. Before the court had ruled on all the motions, Vickery and Consolidated reached a settlement, and the action against Consolidated was dismissed. Ultimately, the court granted summary judgment to the four remaining defendants on Vickery’s claims.

Vickery appeals, arguing that the court erred in granting summary judgment against him on both the product liability and failure to warn claims. Because Vickery’s arguments are without merit, we affirm the trial court’s grant of summary judgment to E & J, Waste Management, Galbreath and Hamby.

1. Vickery admits that his product liability claim was filed beyond the applicable ten-year statute of repose set forth in OCGA § 51-1-11 (b) (2), which provides: “No action shall be commenced pursuant to this subsection with respect to an injury after ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.”

But, he argues, a “willful disregard for life” exception to the ten-year limit applies to his product liability claim. Under OCGA § 51-1-11 (c), the ten-year limitation does not apply to “an action seeking to recover from a manufacturer for injuries or damages . . . arising out of conduct which manifests a willful, reckless, or wanton disregard for life or property.”

Pretermitting the issue of whether E & J, Waste Management, Galbreath or Hamby was a “manufacturer” of the truck that killed Vickery’s wife, Vickery has pointed to no evidence in the record showing that any of them acted with a wilful, reckless or wanton disregard for life or property. It is telling that in the entire argument section of his brief on this issue, Vickery makes no citations to the record to support his conclusory statement that there was wilful misconduct.

We are guided not by such unsubstantiated conclusions, but by the legal principles that wilful conduct is based on an actual intent to cause harm or injury and that wanton conduct is that which is so reckless or so indifferent to consequences that it is equivalent in spirit to actual intent. Because there is no evidence that E & J, Waste Management, Galbreath or Hamby failed to install an alarm on the truck or its components with the actual intent of causing injury or with a reckless indifference to consequences, we must conclude that the wilful misconduct exception to the ten-year statute of repose is inapplicable to this case. Vickery’s reliance on that exception is thus misplaced, and he has failed to show that the trial court erred in granting summary judgment on his product liability claim.

Decided May 17, 2001

Savage, Turner & Pinson, Brent J. Savage, C. Dorian Britt, for appellants.

Branan, Searcey & Smith, David R. Smith, Howard & Whatley, Thomas G. Whatley, Jr., Forbes & Bowman, Morton G. Forbes,

2. Vickery contends that the trial court erred in granting summary judgment against him on the failure to warn claim. The contention is without merit.

It is well established that a manufacturer or seller has no duty to warn of a product danger that is obvious or generally known. In the instant case, the fact that the truck which backed over Kathy Vickery would sometimes move in reverse was an obvious and well-known danger that did not require a warning from E & J, Waste Management, Galbreath or Hamby.

And, contrary to Vickery’s claim, there was no requirement that his wife be warned that the truck did not have a beeper indicating when it was backing up. Any such warning, if needed, would have been given to the purchaser of the truck, not to a bystander. Moreover, such a warning to the purchaser was not even necessary in this case because Fort Howard, which had purchased the truck and used it for ten years, and the Fort Howard truck driver at the time of the accident actually knew that the vehicle did not have a backing-up alarm. Because there was no duty on E & J, Waste Management, Galbreath or Hamby to warn of the obvious and well-known danger of the truck moving in reverse, the trial court did not err in granting summary judgment against Vickery on his failure to warn claim.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Johnny A. Foster, Ellis, Painter, Ratterree & Bart, Ryhurn C. Ratterree, Jeffrey R. Harris, for appellees.

        Hendon v. DeKalb County, 203 Ga. App. 750, 758 (5) (417 SE2d 705) (1992) (physical precedent).

       As Vickery notes, and as the trial court found, the ten-year statute of repose does not apply to the failure to warn claim. See OCGA § 51-1-11 (c); Daniels v. Bucyrus-Erie Corp., 237 Ga. App. 828, 829 (516 SE2d 848) (1999).

        Daniels, supra.

        Exxon Corp. v. Jones, 209 Ga. App. 373, 375-376 (433 SE2d 350) (1993).

       See Daniels, supra at 829-831; Exxon Corp., supra.


author: Blackburn, Chief Judge.

text:
    A01A0588.
    DUMAS & ASSOCIATES v. NALECZ.
    (549 SE2d 730)
   Blackburn, Chief Judge.

Dumas & Associates (Dumas), a law firm, appeals from the denial of its motion for new trial after the jury rendered a verdict against it in the underlying breach of contract action. Because the jury’s verdict was supported by the evidence and was not contrary to the law, we affirm.

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the . denial of defendant’s motion for directed verdict and new trial will not be disturbed.

(Punctuation omitted.) MARTA v. Green Intl.

Dr. Andrezej G. Nalecz d/b/a Vehicle Dynamics International filed this action, contending that Dumas breached the service contract between the parties when Dumas failed to pay for services rendered. Dumas hired Nalecz to provide expert assistance and accident reconstruction material in a vehicle rollover civil litigation case being handled on behalf of one of Dumas’ clients. After Dumas failed to make payments pursuant to Nalecz’s invoices as required by the contract, Nalecz brought the underlying action for breach of contract, interest, and attorney fees. Dumas counterclaimed for breach of contract, tortious interference with a business relationship, injury to reputation, and punitive damages.

The jury awarded Nalecz $19,902 on his breach of contract claim and $13,357.90 in attorney fees. Thejury awarded Dumas nothing on its counterclaims. In its motion for new trial, Dumas asserted the general grounds and contended that the original contract was paid in full so that any fees claimed by Nalecz were pursuant to a subsequent contract that was void for lack of consideration. The trial court ruled that the verdict was supported by the evidence. The trial court also determined that Dumas’ contention that Nalecz performed services pursuant to a new contract lacking in consideration was without merit because the evidence reflected that Nalecz’s services were not paid in full pursuant to the contract in evidence.

Decided May 18, 2001.

Essentially, the issue before us concerns a factual question as to whether the work performed and invoiced by Nalecz was within the scope of services to be performed pursuant to the contract admitted into evidence. The evidence on this issue is in conflict. Nalecz testified that the work he performed and invoiced was required work only and was not optional work. Dumas contends that the work was performed pursuant to a cost estimate which was not within the scope of services outlined in the contract.

We will not weigh the evidence, and in fact are precluded from doing so. In the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported by some evidence even where the verdict may be against the preponderance of the evidence. We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal, this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict, and after the verdict is approved by the trial judge, the evidence must be construed so as to uphold the verdict even where there are discrepancies.

(Citations omitted.) Williams v. Stankowitz. Because this was a disputed factual issue, it was properly sent to the jury to resolve. And because there was some evidence supporting the jury’s decision, the trial court did not err in denying Dumas’ motion for new trial on general grounds.

Judgment affirmed.

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

Lawson & Thornton, George O. Lawson, Jr., for appellant. Gibson, Deal & Fletcher, William A. Fletcher, Jr., for appellee.

        MARTA v. Green Inti, 235 Ga. App. 419, 420 (1) (509 SE2d 674) (1998).

        Williams v. Stankowitz, 149 Ga. App. 865, 866 (256 SE2d 147) (1979).


author: MlKELL, Judge.

text:
    A01A0701.
    SIBLEY v. THE STATE.
    (550 SE2d 104)
   MlKELL, Judge.

Victor Sibley, a teacher, was charged with one count of aggravated child molestation and one count of child molestation based on incidents involving two male students. On the advice of counsel, Sibley entered a plea of guilty to two counts of child molestation on July 14, 2000. The court accepted Sibley’s plea and sentenced him as follows: twenty years for Count 1, with seven years to serve and the balance on probation; and ten years probation for Count 2, to run consecutively to the first count. The court agreed to schedule a mitigation hearing where it would consider reducing the sentence; however, it pronounced Sibley’s sentence in court on July 14 in order to prevent him from withdrawing his guilty plea.

The court conducted a mitigation hearing on August 8, 2000. At the hearing, Sibley’s counsel, George P. Donaldson III, informed the court that Sibley wished to withdraw his plea and to hire new counsel. The court refused to allow Sibley to withdraw his plea, but it did permit him to retain new counsel. The court held hearings on September 1 and 6, 2000, and subsequently amended Sibley’s sentence to require that he serve only six years in prison and fourteen years on probation for the first count and ten years probation for Count 2, to run concurrently with the first count. In the same order, the court denied Sibley’s motion to withdraw his guilty plea. This appeal followed. We affirm.

In the sole error raised, Sibley argues that the court erred in denying his motion to withdraw his guilty plea because he was denied effective assistance of counsel. He contends that the court should have permitted him to withdraw his plea to correct a manifest injustice pursuant to Uniform Superior Court Rule 33.12.

It is well settled that “after [a] sentence is pronounced, as here, permission to allow the withdrawal of a guilty plea lies within the trial court’s sound discretion, and the court’s decision will not be disturbed unless that discretion is manifestly abused.” Dalton v. State, 244 Ga. App. 203, 205-206 (2) (534 SE2d 523) (2000). See also England v. State, 232 Ga. App. 842 (502 SE2d 770) (1998). We cannot conclude that the trial court’s refusal to allow Sibley to withdraw his plea was a manifest abuse of discretion.

In the context of a guilty plea, a defendant must demonstrate the following to establish a claim of ineffective assistance of counsel: first, that the performance of counsel “fell below an objective standard of reasonableness ([cit.])” and second, “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Punctuation omitted.) McIntyre v. State, 239 Ga. App. 623-624 (520 SE2d 55) (1999), citing Hill v. Lockhart, 474 U. S. 52 (106 SC 366, 88 LE2d 203) (1985).

Sibley has failed to satisfy the first prong of this test because he has not demonstrated that Donaldson’s performance fell below an objective standard of reasonableness. In his appellate brief, Sibley contends that Donaldson was unprepared for trial, that Sibley was “coerced and badgered” by Donaldson to enter a plea, and that he was further induced to plead guilty because counsel told him that the court would admit the statements of the two young victims rather than requiring them to testify and be subject to cross-examination. However, the evidence does not support Sibley’s allegation of deficient performance. At the September 6, 2000 hearing on Sibley’s motion to withdraw his plea, Donaldson testified that he had reviewed the state’s entire file, a videotape of the crime scene, and videotaped interviews with the two victims; that he discussed the case with the assistant district attorney several times; that he actively negotiated the plea on Sibley’s behalf; and that he had several meetings with Sibley about the case, during which he emphasized the overwhelming evidence of Sibley’s guilt. Donaldson denied telling Sibley that the victims would not testify at trial.

When Sibley entered his guilty plea on July 14, 2000, the court asked if he was satisfied with the services rendered by Donaldson, and he responded affirmatively. Sibley further testified under oath that he had spoken with counsel about the case; that he had had time to prepare and bring witnesses to court; that he had instructed Donaldson that he wished to enter the plea; that he understood his right to a jury trial; and that he understood that he waived that right by pleading guilty. Sibley denied that anyone had threatened him or promised him anything to influence his plea.

We conclude that Sibley has failed to establish deficient performance by his counsel. Regardless of the allegations raised in his motion to withdraw his plea, the transcript of Sibley’s plea shows clearly that it was entered voluntarily, and that he fully understood what he was doing at the time he pleaded guilty. See Thornton v. State, 180 Ga. App. 274, 275 (349 SE2d 23) (1986). Because Sibley failed to meet the first prong of the test for ineffective assistance of counsel, he cannot satisfy the second prong. McIntyre, supra at 624. Accordingly, we affirm the trial court’s denial of Sibley’s motion to withdraw his plea.

Judgment affirmed.

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

Decided May 18, 2001.

John P. Cannon, for appellant.

Kenneth B. Hodges III, District Attorney, Kenneth A. Dasher, Assistant District Attorney, for appellee.


author: Phipps, Judge.

text:
    A01A0258.
    SMITH v. THE STATE.
    (549 SE2d 487)
   Phipps, Judge.

Tony Lamario Smith pled guilty to armed robbery, kidnapping, hijacking a motor vehicle, two counts of aggravated assault, and two counts of burglary. He appeals the trial court’s denial of his motion to withdraw his guilty plea. Finding no abuse of discretion, we affirm.

When a defendant challenges the validity of his guilty plea, the State bears the burden of showing that the plea was entered voluntarily and intelligently and that the defendant had an understanding of the nature of the charges against him and the consequences of the plea. The State may meet its burden in two ways: “(1) showing on the record of the guilty plea hearing that the defendant was cognizant of all the rights he was waiving and the possible consequences of his plea; or (2) fillfing] a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” After the defendant has been sentenced, the question of whether he may withdraw his guilty plea is vested in the sound discretion of the trial court. The exercise of that discretion will not be disturbed unless it is manifestly abused.

Smith contends that his guilty plea is invalid for the following reasons: (1) he was not advised of his rights to a jury trial, to confront witnesses, to subpoena witnesses, and to appeal a jury’s verdict; (2) the nature and the bases of the charges were not explained to him; and (3) he was not told that he would be ineligible for parole.

1. The record clearly belies Smith’s claims that he was not advised of his rights to a jury trial, to confront witnesses, to subpoena witnesses, and to appeal a jury’s verdict. Before Smith pled guilty, the prosecutor explicitly advised him on the record of each of those rights. Furthermore, in answer to questions posed by the judge, Smith stated that he understood everything the prosecutor had told him about the rights he was waiving by pleading guilty and that he had no questions.

At the hearing on the motion to withdraw his guilty plea, Smith testified that he felt rushed into entering his guilty plea, that he did not really understand his rights when he pled guilty, and that he had indicated that he understood his rights at that time because he was prompted to do so by his attorney. Smith, who was in his second year of college when he was arrested, testified that he could read and write, that he understood the English language, and that he was not under the influence of any alcohol or drugs when he pled guilty. Moreover, when Smith pled guilty, he told the court that he had received adequate time to speak with his attorney about his case. From these facts, we find no error in the determination that Smith understood the rights he was waiving by pleading guilty.

2. The record also supports a conclusion that Smith understood the nature of the charges to which he pled guilty. The indictment which Smith signed indicating his guilty plea listed the charges against him and the bases for the charges. At Smith’s guilty plea hearing, Smith’s attorney waived formal reading of the indictment. Nevertheless, the prosecutor read to Smith the offenses with which he was charged, specifying the two offenses that were being recommended for dead docketing and detailing the maximum and minimum punishments for each of the remaining offenses. Afterward, the prosecutor asked Smith if he understood what he was charged with, and Smith responded, “Yes, sir.” Then, the prosecutor asked Smith if he had had enough time to talk with his lawyer about his case, including any possible defenses. Smith responded, ‘Yes, sir.”

Later in the hearing, the prosecutor thoroughly set forth the factual bases for the charges against Smith. Afterward, Smith’s attorney stated, “[Smith] has never denied his involvement; he has never denied that he did what he’s accused of doing. . . .” After the presentation by Smith’s attorney, the court asked Smith, ‘You are admitting your guilt in each and every charge you are pleading guilty to?” Smith said, “Yes.” Shortly thereafter, the court asked Smith’s attorney, “[H]ave you explained to Mr. Smith what the [S]tate would have to prove in order to convict him in each of these charges and what possible defenses he might have?” The attorney responded, “Yes, [Y]our Honor.” Despite Smith’s argument, we find that based on this record the trial court did not err in determining that Smith understood the nature of the charges to which he pled guilty.

Decided May 22, 2001.

Alicia C. Head, for appellant.

Paul L. Howard, Jr., District Attorney, George W. K. Snyder, Jr., Assistant District Attorney, for appellee.

3. With regard to Smith’s claim that he was not advised of his ineligibility for parole, the Supreme Court has held that there is no general requirement that a defendant be advised of his eligibility or ineligibility for parole for his guilty plea to be valid. Nonetheless, before the court accepted Smith’s guilty plea, the prosecutor stated on the record, “And because it is a deadly offense, the [S]tate’s understanding is that by law the defendant would not be eligible for parole or good time.” Smith’s guilty plea was not rendered invalid by any lack of advice regarding parole ineligibility.

Because we find that the record sufficiently shows that Smith received the legal advice to which he was entitled and that he entered his guilty plea voluntarily and intelligently, we affirm the denial of his motion to withdraw his guilty plea.

Judgment affirmed.

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

       Pursuant to a joint plea recommendation from the prosecution and the defense, the trial court dead docketed charges of possession of a gun during the commission of a crime and false imprisonment.

        McFadden v. State, 243 Ga. App. 896, 898 (1) (534 SE2d 566) (2000); Parks v. State, 223 Ga. App. 694, 695 (479 SE2d 3) (1996).

       (Footnote omitted.) McFadden, supra.

        May v. State, 179 Ga. App. 736, 738-739 (7) (348 SE2d 61) (1986).

       Id.

        Williams v. Duffy, 270 Ga. 580, 581-582 (1) (513 SE2d 212) (1999); compare Crabbe u. State, 248 Ga. App. 314 (546 SE2d 65) (2001) (where defendant pled guilty based upon erroneous advice of counsel that terms of plea bargain would ensure his eligibility for parole, defendant received ineffective assistance of counsel).


author: Ellington, Judge.

text:
    A01A0316, A01A0453.
    A01A0317, A01A0454.
    WHITE et al. v. BDO SEIDMAN, LLP et al.; and vice versa. BLAKE et al. v. BDO SEIDMAN, LLP; and vice versa.
    (549 SE2d 490)
   Ellington, Judge.

These appeals arise from a superior court order granting summary judgment to an accounting firm in consolidated civil actions. In Case Nos. A01A0316 and A01A0317, the named individual plaintiffs and the certified class they represent (“appellants”) sued accounting firm BDO Seidman, a partnership, and BDO Seidman, LLP, the successor in interest to BDO Seidman, and BDO Seidman partner and accountant Ernie Davis (collectively “BDO”). Appellants sought damages for their financial losses in the publicly offered securities of G & W Financial Corporation (“GWFC”) and its parent, G & W Asset Management Corporation (“GWAM”), companies that BDO audited. The appellants claim BDO caused their losses by negligently performing certain audits of the companies’ financial statements and by negligently certifying financial statements which contained inaccuracies regarding the companies’ financial soundness. In Case Nos. A01A0453 and A01A0454, BDO cross-appeals, contending the trial court erred in certifying the cases as class actions pursuant to OCGA § 9-11-23 (a). We consolidate these cases for the purpose of appeal, and, for the following reasons, we affirm.

Case Nos. A01A0316 and A01A0317

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiffs claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (503 SE2d 581) (1998).

It is undisputed that the appellants are individual investors who purchased high-risk, publicly offered GWAM and GWFC securities through their own stockbrokers. The appellants were not clients of BDO and had no contractual relationship with BDO.

GWAM retained BDO to audit its financial statements in preparation for an initial public offering of notes. BDO issued audit opinions on GWAM’s financial statements for the fiscal years ending December 31, 1992, 1993, 1994, and 1995. The audit opinions for these years represented: (1) that the financial statements fairly and accurately showed GWAM’s year-end financial position, (2) that the financial statements contained no material misstatements, and (3) that BDO’s audit was performed according to generally accepted auditing standards. The audit opinions did not endorse GWAM or GWFC or otherwise express an opinion regarding the quality of the investment. BDO represented only that GWAM’s financial statements, which always revealed that GWAM was losing money, fairly and accurately reflected GWAM’s financial condition. Consequently, BDO’s audit opinion was meaningful to an investor only when read in conjunction with GWAM’s financial statements. BDO’s audit opinion for the year ending in 1995 also included a “going concern” qualification expressing doubt about GWAM’s continued financial viability. In the summer of 1996, GWAM defaulted on its securities and shortly thereafter filed for liquidation under Chapter 11 of the United States Bankruptcy Code.

Most of the appellants admit they did not review GWAM’s financial statements nor did they see or hear BDO’s audit opinion with respect to those financial statements prior to making their investment. Many of the appellants contend they relied either solely or primarily on their broker’s recommendation to buy the securities. Several of the appellants contend they would not have invested in GWAM had their broker shared what the audited financial statements actually showed — that GWAM was losing money and had never been profitable. None of the appellants assert that they actually relied upon any representation in BDO’s audit opinions in making their decision to invest in the securities.

1. Appellants couch their claim against BDO in terms of accounting malpractice. Georgia law, however, provides only one cause of action to persons who are not clients of an accounting firm but who wish to sue the firm and any of its accountants for professional malpractice: an action for negligent misrepresentation. See Badische Corp. v. Caylor, 257 Ga. 131, 132-133 (356 SE2d 198) (1987); Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681-682 (300 SE2d 503) (1983).

In cases like those before us, where the plaintiffs are third parties who are not in privity with the party alleged to have made the negligent misrepresentation, recovery may be had only when the “known third party’s reliance was the desired result of the misrepresentation.” Robert & Co. Assoc., 250 Ga. at 681. In Robert & Co. Assoc., the Supreme Court of Georgia adopted the rule enunciated in the Restatement of Torts, 2d, § 552 (1977), which provides:

[O]ne who supplies information during the course of his business, profession, employment, or in any transaction in which he has a pecuniary interest has a duty of reasonable care and competence to parties who rely upon the information in circumstances in which the maker was manifestly aware of the use to which the information was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly. In making a determination of whether the reliance by the third party is justifiable, we will look to the purpose for which the report or representation was made. If it can be shown that the representation was made for the purpose of inducing third parties to rely and act upon the reliance, then liability to the third party can attach.

Robert & Co. Assoc., 250 Ga. at 681-682. In the cases before us, the superior court granted summary judgment to BDO because the appellants failed to present evidence in support of the justifiable reliance element of their claim of negligent misrepresentation. The superior court did not address the duty and causation elements of the claim, and neither do we.

Appellants argue they do not have to show they actually relied on any particular statement made by BDO in making their investment decision; rather, they argue they may survive summary judgment upon a showing of “indirect reliance.” The appellants contend that “indirect reliance” may be established by showing that their decision to buy the securities was “causally dependent” upon or “closely connected” to BDO’s audit opinions in that (1) the Securities & Exchange Commission (“SEC”) would not have approved the public offering without BDO’s audit opinions; and (2) the appellants’ brokers would not have sold the securities without SEC approval. Therefore, the appellants indirectly relied upon BDO’s audits because the audits were necessary to make the securities available to them. Or, as one appellant summarized: The investors were “the intended beneficiaries of the paternalism of the SEC’s regulatory procedures.” Appellants argue that the Supreme Court of Georgia embraced this idea when it adopted that portion of § 552 of the Restatement that extended liability to those persons for whom the information was intended “either directly or indirectly.” See Robert & Co. Assoc., 250 Ga. at 681-682. Assuming, for the sake of argument, that the implicit assumptions in the appellants’ indirect reliance theory are supportable, we cannot agree that Georgia law permits such indirect reliance to substitute for proof of actual reliance in a negligent misrepresentation case. In fact, appellants’ indirect reliance argument is, for all practical purposes, an argument for a rebuttable presumption of reliance similar to that of the so-called “fraud on the market” or “fraud on the regulatory process” theories of reliance used in federal securities fraud cases.

Although our appellate courts have not addressed whether a third party’s reliance may be presumed in a common law negligent misrepresentation case, a majority of federal courts considering the question have held that § 552 of the Restatement requires actual reliance. See In re ValuJet Securities Litigation, 984 FSupp. 1472, 1481 (VII) (N.D. Ga. 1997) (“the majority of courts have held that § 552 of the Restatement requires actual reliance before a party may be held liable for negligent misrepresentation. [Cits.]”); Smolen v. Deloitte, Haskins & Sells, 921 F2d 959, 964 (9th Cir. 1990) (under § 552 “negligent misrepresentation requires actual and justifiable reliance”); Goldman Svcs. Mechanical Contracting v. Citizens Bank &c. Co., 812 FSupp. 738, 742 (W.D. Ky. 1992) (the “Restatement and its comments make clear that actual reliance on the information by the person for whom it was intended is required for liability for a negligent misrepresentation”). We follow this majority view because proof of justifiable reliance in Georgia has historically required some evidence that a plaintiff exercised due diligence in discovering the truth. See, e.g., Artzner v. A & A Exterminators, 242 Ga. App. 766, 771-772 (2) (531 SE2d 200) (2000); Williams v. Fallaize Ins. Agency, 220 Ga. App. 411, 414 (1) (469 SE2d 752) (1996). If we were to adopt the appellants’ indirect reliance theory, we would also be shifting, to a large extent, the appellants’ due diligence obligation onto the regulatory process and those involved in that process. For the following reasons, we believe that is unwise.

Although the appellants now complain that BDO’s audit reports formed the sine qua non of their investments and that they lacked the expertise to investigate the truth of BDO’s reports, the ultimate decision to invest is often based on a number of business factors that have little to do with an accountant’s audit report. After all, an auditing certified public accountant rarely examines every aspect of a client’s business, has little or no expertise or control over a client’s products, services, or markets, and does not choose or control the client’s executives or make its business decisions. See Siliciano, Negligent Accounting & the Limits of Instrumental Tort Reform, 86 Mich. L. Rev. 1929, 1932-1933 (1988). Thus, an investment decision based solely or primarily on an accountant’s audit report would be, in most cases, difficult to justify. Consequently, we see no reason why such an investor should be presumed to have relied upon it in a common law negligent misrepresentation case. Moreover,

Decided May 22, 2001

Womble, Carlyle, Sandridge & Rice, Nisbet S. Kendrick III, Everett W. Gee III, Caroline B. Keller, for White.

Carr, Tabb, Pope & Freeman, W. Pitts Carr, Render C. Freeman, Vaughan & Murphy, Charles C. Murphy, Jr., Dane L. Steffenson, Davis, Zipperman, Kirschenbaum & Lotito, Nicholas A. Lotito, for Blake.

Sutherland, Asbill & Brennan, Steven L. Polk, Peter J. Anderson, Kristen J. Indermark, Rebecca L. Burnaugh, Todd E. Ratner, for BDO Seidman, LLP et al.

[a]s a matter of economic and social policy, third parties should be encouraged to rely on their own prudence, diligence, and contracting power, as well as other informational tools. This kind of self-reliance promotes sound investment and credit practices and discourages the careless use of monetary resources. If, instead, third parties are simply permitted to recover from the auditor for mistakes in the client’s financial statements, the auditor becomes, in effect, an insurer of not only the financial statements, but of bad loans and investments [as well].

(Footnote omitted.) Bily v. Arthur Young & Co., 3 Cal.4th 370, 403 (IV) (A) (2) (834 P2d 745) (1992).

For these reasons, we hold that appellants must show they actually and justifiably relied on the representations in BDO’s auditing reports before they may recover for their investment losses under a common law negligent misrepresentation theory of recovery. Because appellants failed to make a prima facie showing satisfying the reliance element of their claim, the trial court properly granted BDO summary judgment.

Case Nos. A01A0453 andA01A0454

2. Because we have resolved the direct appeals in favor of BDO, their defensive cross-appeals are moot and must be dismissed. See Smith v. Ga. Kaolin Co., 269 Ga. 475, 477 (3) (498 SE2d 266) (1998); Welch v. Welch, 265 Ga. 89, 91 (453 SE2d 445) (1995).

Judgments affirmed in Case Nos. A01A0316 and A01A0317. Appeals dismissed in Case Nos. A01A0453 and A01A04S4.

Johnson, P. J, and Ruffin, J., concur.

       Appellants’ brokers sold them a variety of publicly offered GWAM and GWFC securities that were issued to fund a loan program designed to assist individuals in paying their automobile insurance premiums. These securities included promissory notes, common stock, preferred stock, limited partnership interests, and trust interests. The prospectuses accompanying these securities emphasized that they were speculative, subject to complete loss, and intended only for investors of sophistication and substantial means.

       According to the “fraud on the market” theory, a plaintiff claiming securities fraud under § 10(b) of the Securities Exchange Act of 1934 is entitled to a rebuttable presumption of reliance based on the idea that “in an open and developed securities market, the price of a company’s stock is determined by the available material information.” (Citation and punctuation omitted.) Basic Inc. v. Levinson, 485 U. S. 224, 241 (108 SC 978, 99 LE2d 194) (1988). Consequently, “[mjisleading statements will . . . defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.” (Citation and punctuation omitted.) Id. at 241-242.

       The “fraud on the regulatory process” theory rests on the idea that in making investment decisions, an investor relies, at least indirectly, on the integrity of the regulatory process and the truth of any representations made to the appropriate agencies and the investors. See Mishkin v. Peat, Marwick, Mitchell & Co., 658 FSupp. 271, 274-275 (S.D. N.Y. 1987) (a § 10(b) case applying fraud on the regulatory process theory to presume reliance by a securities broker-dealer’s investors).


author: Mikell, Judge.

text:
    A01A0093.
    LEE v. COLLINS.
    (547 SE2d 583)
   Mikell, Judge.

James F. Collins filed a petition in the Probate Court of Fannin County seeking removal of an obstruction from a private way traversing Robert E. Lee’s property. The probate court ordered Lee to remove the obstruction. Lee appealed to the superior court, which conducted a bench trial and issued a judgment in favor of Collins. Lee appeals. We affirm the judgment.

The record shows that Collins signed a contract to purchase a 2.03-acre tract of land in Fannin County on September 30,1989. Collins and his family took possession of the property and began residing in a cabin there on the weekends within two weeks of signing the contract. Since that time, Collins, his family, and their guests have accessed Collins’ property via a road which traverses the property currently owned by Lee. Collins has continuously maintained the road by having it scraped, having gravel put on it, replacing a drainage gutter, and removing limbs and rocks. Collins had no significant difficulties with the previous owners of the property traversed by the road.

Lee purchased the property on which the road is located on October 14, 1999. He immediately sent a letter informing Collins that he planned to close the road and place a gate across it. Subsequently, a gate was erected across the road preventing Collins from accessing his cabin.

Collins filed a petition for removal of an obstruction from a private way in the Probate Court of Fannin County, pursuant to OCGA § 44-9-59 (a), on November 5, 1999. Attached to the petition was a rule nisi scheduling a hearing for November 22,1999. Lee was served with the petition and rule nisi on November 16, 1999; therefore, he was afforded more than three days notice of the hearing as required by the statute.

Lee filed a motion to transfer, arguing that the Fannin County court did not have jurisdiction to hear the matter because Lee was a resident of Fulton County. Lee appeared before the probate court on November 22, and the court denied the motion to transfer. Lee then refused to participate in the hearing on Collins’ petition and left the courtroom. The probate court heard Collins’ evidence and issued an order containing findings of fact and conclusions of law on November 30, 1999. The court ruled in Collins’ favor and ordered Lee to remove the obstruction from the private way within 48 hours. After the order was entered, Lee filed an answer to the original petition.

Lee appealed the decision of the probate court to the Superior Court of Fannin County, pursuant to OCGA § 44-9-59 (b). The superior court initially reviewed the probate court’s denial of Lee’s motion to transfer and conducted a hearing on January 20, 2000. The superior court concluded that jurisdiction had been proper in the Probate Court of Fannin County, and that the case was properly before the superior court on appeal. The superior court certified the matter for immediate review; however, this Court denied the application for interlocutory appeal.

The matter came before the superior court for a bench trial on May 8, 2000. After hearing the evidence, the superior court ruled that Collins possessed a private way by prescription which traversed Lee’s property.

1. In his first enumerated error, Lee argues that the probate court and superior court erred in refusing to transfer the case to Fulton County where Lee resides. This argument has no merit.

The applicable Code sections are abundantly clear that the probate court of the county in which an alleged private way is located has jurisdiction over an action for the removal of obstructions from that private way. First, with regard to the jurisdiction of the probate court, OCGA § 15-9-30.1 provides:

Notwithstanding any local law or other law conferring jurisdiction on any other tribunal, the judges of the probate courts shall have the jurisdiction, concurrent with any such tribunals, in all cases in their counties involving the removal of obstructions from roads, as provided in subsection (a) of Code Section 44-9-59.

OCGA § 44-9-59 (a) provides:

In the event the owner or owners of land over which a private way may pass . . . obstructs, closes up, or otherwise renders the private way unfit for use, the party . . . injured by the obstructions or other interference may petition the judge of the probate court in the county where the private way has been in use to remove the obstructions. . . .

(Emphasis supplied.)

It is undisputed that Lee’s property, which is traversed by the private way at issue, is located in Fannin County. Therefore, Collins properly brought this action in the probate court of that county. Furthermore, OCGA § 44-9-59 (b) provides that a party who is dissatisfied with the judgment of the probate court regarding a petition for removal of obstructions may appeal to the superior court as a matter of right. Thus, the case was properly before the Superior Court of Fannin County on appeal, and neither court erred in denying Lee’s motion to transfer.

2. Next, Lee argues that the superior court erred in denying his motion to dismiss this action. Again we find no error.

In open court prior to the start of the bench trial, Lee stated, “I would be remiss if I did not move for dismissal of this complaint based on the complaint itself.” Presumably, Lee’s motion to dismiss was one for failure to state a claim upon which relief can be granted. OCGA § 9-11-12 (b) (6). As a preliminary matter, we note that a motion to dismiss for failure to state a claim can be considered although it is not in writing when it is made at the trial. Irvin v. Lowe’s of Gainesville, 165 Ga. App. 828, 829 (1) (302 SE2d 734) (1983). See also OCGA § 9-11-12 (h) (2).

Lee argued that the action should be dismissed because Collins did not actually acquire title to his property until July 9, 1993. According to Lee, Collins could not demonstrate that he had been in uninterrupted use of the road for seven years or more, as required to establish the existence of a private way by prescription. See Eileen B. White & Assoc. v. Gunnells, 263 Ga. 360 (434 SE2d 477) (1993).

A motion to dismiss may be granted only where a plaintiff would not be entitled to relief under any set of facts that could be proven in support of his claim. Mattox v. Yellow Freight Systems, 243 Ga. App. 894 (534 SE2d 561) (2000). Applying this standard to Collins’ petition, the trial court did not err by denying the motion to dismiss. Collins alleged that he had been in continuous use of the private way for more than seven years; therefore, he sufficiently stated a claim for relief. Whether Collins could prove his allegation was a question for the factfinder.

3. Lee argues that the trial court erred in concluding that Collins possessed a private way traversing Lee’s property. We disagree.

In a bench trial, the trial court sits as the trier of fact, and we will not disturb its findings unless they are clearly erroneous. OCGA § 9-11-52 (a). Furthermore, “[s]ince the clearly erroneous test is the same as the any evidence rule, we will not disturb factfindings of the trial court if there is any evidence to sustain them.” Excel Design & Constr. v. Autry, 240 Ga. App. 448-449 (523 SE2d 658) (1999).

In order to establish the existence of a private way and to maintain an action for removal of an obstruction of that private way, the petitioner must show the following: (1) that he has been in uninterrupted use of the alleged private way for seven years or more; (2) that the private way does not exceed twenty feet in width, and that it is the same twenty feet originally appropriated; and (3) that he has kept the private way in repair during the period of use. Eileen B. White, supra at 360; OCGA § 44-9-59 (a). The superior court concluded that Collins met these requirements, and we find evidence to support each of the superior court’s findings.

First, the trial court determined that Collins and his guests have used the road in question consistently on weekends for a period in excess of seven years. This finding is supported by the contract to purchase the land Collins signed on September 30, 1989, and his testimony that he and his family began using the road within two weeks of signing the contract. Lee emphasizes that Collins did not actually obtain title to his property until July 9, 1993, when the deed to the property was transferred to Collins after he completed payment as provided in the contract. Contrary to Lee’s argument, however, there is no requirement that Collins actually own the property where his cabin was located as a condition precedent to his adverse usage of the private way for seven years. See OCGA § 44-9-59 (a); Eileen B. White, supra at 360. Therefore, the superior court properly concluded that the first requirement had been satisfied.

Next, the court determined that the road was ten feet wide. This finding is supported by Collins’ testimony, as well as the trial judge’s personal observation of the road. Lee challenges this determination based on the fact that the road was expanded by the previous owner of Lee’s property to create a “turn around” in front of his cabin. The superior court rejected this argument, finding that the area expanded to create a “turn around” was not a part of the road. Because there is evidence to support the court’s conclusion, we will not disturb it.

Third, the court found that Collins had maintained the road. This finding is supported by Collins’ testimony that he has had the roadway scraped, has had gravel put on it, has replaced a drainage gutter, and has removed limbs and rocks.

Because there was evidence to support the trial court’s findings, we find no error.

4. Finally, Lee contends that the case should be remanded for the court to enter findings of fact and conclusions of law. This enumerated error is without merit.

OCGA § 9-11-52 (a) provides that in all nonjury trials, “the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.” Parties may also file a request for such findings of fact and conclusions of law within 20 days after entry of judgment. OCGA § 9-11-52 (c). Lee filed a request, and he contends on appeal that the court failed to adequately state its findings of fact and conclusions of law.

We conclude that the superior court’s judgment fully complies with the requirements of OCGA § 9-11-52. The court separately articulated its findings of fact and corresponding conclusions of law. Therefore, Lee’s argument presents no basis for remand.

Decided March 5, 2001 —

Reconsideration denied May 23, 2001

Robert E. Lee, pro se.

Little & Drost, Bryan C. Drost, for appellee.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.


author: Miller, Judge.

text:
    A01A0648.
    REDDICK v. THE STATE.
    (549 SE2d 151)
   Miller, Judge.

Indicted as a recidivist, Richard Lee Reddick was tried before a jury and found guilty of possession of cocaine, possession and use of drug-related objects, and simple battery. On appeal, he challenges the sufficiency of the evidence regarding the cocaine possession charge and contends the trial court erroneously failed to merge the two drug violations. We conclude the second enumeration has merit and so affirm in part and vacate in part.

1. Viewed in the light most favorable to the jury’s verdicts, the evidence showed that on the night in question, Reddick and Deborah Plemons argued after a night of drinking beer and liquor. Reddick slapped Plemons with his hand, bruising her eye. In a contemporaneous written statement, Plemons told police the two fought when she initially refused Reddick’s demand for $60 to buy drugs, because she did not want him to do drugs anymore. Reddick was taken into custody for battery. At the jail, police discovered that Reddick had a crack pipe on his person. The pipe residue tested positive for cocaine. “Regardless of the amount, however minute, if it is enough for the officers to recover, as small as it may be, and capable of being identified by expert chemical analysis, such testimony would be sufficient when considered with other evidence as to possession.”

Here, the forensic evidence that the pipe residue contained cocaine coupled with Plemons’s plea that Reddick not do drugs anymore is sufficient under the standard of Jackson v. Virginia to authorize the jury’s verdict that Reddick knowingly possessed cocaine as alleged in Count 1 of the indictment.

2. Reddick enumerates the denial of his motion to vacate the conviction on Count 2 for possession of drug-related objects, arguing it merged as a matter of fact into Count 1, the felony conviction for possession of cocaine. We agree.

A person may not be convicted of more than one crime if one crime is included in the other. A crime is so included when it is established by proof of the same or less than all the facts (or a less culpable mental state) than is required to establish the commission of the other crime.

Possession and use of objects intended to introduce controlled substances into the human body are punishable as misdemeanors under OCGA § 16-13-32.2. Here, Count 2 alleged that Reddick possessed “a pipe for the purpose of inhaling cocaine into the human body. . . .’’No one testified from personal knowledge that Reddick himself had used or would use this pipe for the purpose of inhaling cocaine. The booking officer recognized the pipe as a straight shooter, one that could be used to smoke crack cocaine or methamphetamine. Yet the only evidence, in our view, that Reddick possessed this pipe for the purpose of inhaling cocaine as alleged in the indictment is the circumstantial evidence relied upon by the State to prove that he knowingly possessed cocaine residue. Specifically, the proof that the residue was in fact cocaine, that Reddick used unspecified drugs in the past, and that he wanted money to buy unspecified drugs that evening was used up to establish the possession of cocaine charge. Consequently the trial court erred in failing to merge the two convictions and further erred in sentencing Reddick separately on the charge for possession of drug-related objects. The judgment of conviction and sentence as to Count 2 are vacated.

Judgment affirmed in part and vacated in part.

Andrews, P. J., and Eldridge, J., concur.

Decided May 7, 2001 —

Reconsideration denied May 23, 2001

Michael R. McCarthy, for appellant.

Kermit N. McManus, District Attorney, Dixon A. Lackey III, Forest L. Miles, Assistant District Attorneys, for appellee.

       (Punctuation omitted.) Rogers v. State, 155 Ga. App. 685, 687 (4) (272 SE2d 549) (1980). Accord Scott v. State, 216 Ga. App. 692, 697 (7) (455 SE2d 609) (1995).

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

        McGhee v. State, 223 Ga. App. 123, 124 (476 SE2d 853) (1996); Knox v. State, 216 Ga. App. 90, 92 (3) (453 SE2d 120) (1995); Mize v. State, 173 Ga. App. 327, 329 (3) (326 SE2d 782) (1985) (cocaine residue on scales found in defendant’s bedroom sufficient to support possession conviction).

       OCGA § 16-1-7 (a) (1).

       OCGA § 16-1-6 (1). See also Corbitt v. State, 169 Ga. App. 739, 740 (1) (315 SE2d 25) (1984) (possession of drug paraphernalia not included in sale of drugs as a matter of law nor in fact where the two offenses did not arise out of the same conduct).

       See generally State v. Estevez, 232 Ga. 316, 320 (1) (206 SE2d 475) (1974).

       See Jones v. State, 237 Ga. App. 847, 851 (4) (515 SE2d 841) (1999) (presence of cocaine residue on pipe, while not essential, tends to prove the “intent to use” element under OCGA § 16-13-32.2).

       See Green v. State, 240 Ga. App. 377, 382 (9) (523 SE2d 581) (1999).