text:
    A98A1005.
    LEMON v. MARTIN.
    (502 SE2d 273)
   Eldridge, Judge.

On August 13,1994, Carl A. Lemon, deceased, was a social guest at rental property owned by John Martin, defendant-appellee. The deceased and his wife, Alice Johnson-Lemon, plaintiff-appellánt, were guests of plaintiff’s sister, Wanda Gatrell and her husband, John, the defendant’s tenants, and had been invited to a barbeque there and to swim in the pool maintained on the rental property. The home was at 6827 Rockbridge Road, Stone Mountain, DeKalb County, and the pool was subject to DeKalb County regulation. The deceased dove into the pool, which had no depth markings, and received what appeared to be a head injury prior to drowning. All the people present were non-swimmers, and the deceased drowned because the non-swimmers had no way to rescue or to assist the deceased before he drowned. The pool had not been maintained with appropriate rescue equipment, i.e., safety flotation devices, shepherd’s hook, or life line, which could have saved the deceased or allowed the non-swimmers to enter the pool safely to save the deceased prior to his drowning. Despite the efforts of the plaintiff to reach her drowning husband, without safety equipment he sank to the bottom of the pool and drowned before he could be reached.

Defendant had the pool built in 1979, while he lived there, and knew that the pool had no visible depth markings. Defendant later moved to Walton County but kept the home as rental property. When the Gatrells rented the property, they asked defendant for the depth of the pool; however, defendant did not know the depth and told them that he would have the depth measured. He never did. However, defendant testified that he told Mr. Gatrell the depth of the pool. As such, there is a conflict with testimony. Defendant never furnished the pool with appropriaté safety equipment, either during his residency or during the rental of the property. Under the terras of the lease, defendant expected that the pool would be used by the tenants and their guests.

Mr. Gatrell testified that he discussed with the deceased where the deep end began just prior to leaving for work that day and showed him which was the deep end of the pool, but did not tell him the depth of the pool prior to the deceased’s diving into the pool. Mr. Gatrell was uncertain as to the depth of the pool in the deep end. He just estimated the depth at six to eight feet. The deceased did not know how deep the pool was. The deceased had never been in the pool prior to the time that he died. On the day that the deceased drowned, Mr. Gatrell had to suddenly leave his guests because of a work emergency and was not present when the drowning occurred. No one was in the pool when he left, nor had they been that day. The drowning occurred four or five hours after Mr. Gatrell left.

Defendant was sued on August 1, 1996, for wrongful death and recoverable administratrix’s damages. Defendant was personally served on August 6, 1996. Defendant timely answered on September 5, 1996. On October 2, 1997, defendant filed a motion for summary judgment. Plaintiff filed a response along with the affidavit of expert witness Theodore R. Boyette in opposition on October 29, 1997.

Mr. Boyette, from his curriculum vitae, qualified as an expert witness as to water safety and proper pool management. Based upon the facts stated in the complaint, he gave the expert opinion that the defendant breached the standard of care, which caused injury to the deceased by: “1. [flailing to have safety equipment around the swimming pool or upon the property for others to aid a drowning victim; 2. [flailing to have adequate warnings to place probable users on notice of the dangers associated with swimming and diving; 3. [flailing to conform a leased public pool to the swimming pool regulations of DeKalb County.” He went on to testify that “[w]hen a swimming pool is in operation for profit upon a commercial property, even if it is leased as a private residence, it should at least have a safety line, a light but strong pole or shepherd’s crook and a throwing buoy with length equal to the width of the pool so that swimmers might be aided in a drowning situation. Furthermore, numbers should be tiled or painted on the side and top of the pool edge to warn swimmers and divers of the depth of the pool in various locations. . . . Had the swimming pool devices and warnings been available, the average user would have notice of the dangers associated with swimming and diving and would have been capable of being rescued in the event of drowning. . . . Defendant’s omission in providing warnings and safety equipment deviate from the ordinary care necessary to protect swimmers and non-swimmers from the hidden dangers associated with swimming and diving.”

After oral argument, the trial court granted summary judgment. Plaintiff filed a timely notice of appeal.

The plaintiff’s enumeration is that the trial court erred in granting defendant’s motion for summary judgment. We agree.

1. The first issue that must be addressed is whether or not the DeKalb County pool rules and regulations have been judicially determined for purposes of negligence per se. OCGA § 9-11-43 (c) states: “[a] party who intends to raise an issue concerning the law of another state or of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining such law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence. The court’s determination shall be treated as a ruling on a question of law.” In the complaint, plaintiff pled the DeKalb County pool regulations, which satisfied the requirements of notice to the court and opposite party. See P. G. L. & C. C. Employees Credit Union v. Kimball, 221 Ga. App. 108, 109 (470 SE2d 501) (1996); Samay v. Som, 213 Ga. App. 812, 814-815 (2) (a), (b) (446 SE2d 230) (1994); Wade v. Crannis, 209 Ga. App. 501, 503 (2) (433 SE2d 669) (1993); Fortson v. Fortson, 204 Ga. App. 827, 828 (1) (421 SE2d 106) (1992).

“A party intending to rely upon a foreign law is not required to provide the court with copies of that law; rather, they must only provide notice of their intent to do so in the pleadings or otherwise.” Fortson v. Fortson, supra at 828. “We therefore conclude that notice of intent to rely on foreign law is required before a party can establish such law in accordance with any of the three statutory methods or place a duty on the trial court to judicially recognize foreign law as published by authority.” (Emphasis in original.) Samay v. Som, supra at 814. “[WJhere a party gives reasonable notice of intent to rely on foreign law, the trial court has a duty, as well as the right, to refer to and consider the foreign law ‘as published by authority,’ whether or not the party produced it.” Meeker v. Eufaula Bank &c., 208 Ga. App. 702, 704 (2) (431 SE2d 475) (1993); see also P. G. L. & C. C. Employees Credit Union v. Kimball, supra at 109; Swafford v. Globe American Cas. Co., 187 Ga. App. 730 (371 SE2d 180) (1988). “There exist three separate Code sections (OCGA §§ 9-11-43 (c), 24-1-4, and 24-7-24) pertaining to the methods by which foreign law can be judicially determined. [Cit.]” Samay v. Som, supra at 814.

While a municipal or county ordinance, for purposes of proof, is treated as foreign law, such law cannot be judicially noticed by any court other than the court of such jurisdiction, because the ordinance is not “published by authority.” See generally Oliver v. City of Macon, 241 Ga. 306 (245 SE2d 280) (1978); Leger v. Ken Edwards Enterprises, 223 Ga. 536 (156 SE2d 651) (1967); Poole v. State, 229 Ga. App. 406, 409 (2) (494 SE2d 251) (1997); Dudley v. State, 161 Ga. App. 310, 311 (1) (287 SE2d 763) (1982); Dix v. State, 156 Ga. App. 868 (275 SE2d 807) (1981); Owens v. State, 153 Ga. App. 525, 527 (2) (265 SE2d 856) (1980) (physical precedent only); Livingston v. Schneer’s Atlanta, 61 Ga. App. 637 (7 SE2d 190) (1940); Slaughter v. City of LaGrange, 60 Ga. App. 555 (4 SE2d 410) (1939). Likewise, rules and regulations of a state agency, county, municipality, or private agency, unless “published by authority,” cannot be judicially noticed. Joel Properties v. Reed, 203 Ga. App. 257 (416 SE2d 570) (1992); Beall v. Dept. of Revenue, 148 Ga. App. 5 (251 SE2d 4) (1978); Staggers v. State, 119 Ga. App. 85 (166 SE2d 411) (1969); Davis v. General Gas Corp., 106 Ga. App. 317 (126 SE2d 820) (1962); Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252 (76 SE2d 536) (1953). The rules, regulations, and ordinances stand in the same status as private acts so that they must be pled and proved. Childers v. Richmond County, 266 Ga. 276 (467 SE2d 176) (1996); Mayor &c. of Savannah v. TWA, Inc., 233 Ga. 885 (214 SE2d 370) (1975); Knutzen v. O’Leary, 210 Ga. App. 590 (437 SE2d 347) (1993). If the ordinance or regulations are set forth verbatim in the pleadings or an uncertified copy is attached to the complaint and the defendant admits the ordinance or regulations in the answer, the uncertified copy or the verbatim pleading of the ordinance or regulations are part of a verified complaint, or certified copies were part of the complaint, then the ordinance or regulations have been proven. See Leger v. Ken Edwards Enterprises, supra at 539; Slaughter v. City of LaGrange, supra. In this case, no certified copy of the county rules and regulations was tendered into evidence; no admissible copy of the rules and regulations was tendered into evidence; and no stipulation as to the rules and regulations was made. See OCGA § 24-7-24; Dudley v. State, supra at 311; Beall v. Dept. of Revenue, supra at 8. Under OCGA § 9-11-43 (c), the trial judge may consider testimony or other relevant material or source to prove the rules and regulations; however, plaintiff introduced none of these. Therefore, the trial court properly excluded consideration of the regulations of DeKalb County, which were pled but not proved. For this reason, too, the portion of the expert’s affidavit that states: “[flailing to conform a leased pool to the swimming pool regulations of DeKalb County,” was properly excluded from consideration.

2. However, the trial court should have considered the affidavit of plaintiff’s expert witness, because this evidence created factual issues as to the deceased’s knowledge of a latent defect and as to the landlord’s liability for his allegedly negligent creation and maintenance of latent defects, which arose from his construction of the pool and his failure to properly equip the pool perpetuated. See OCGA § 44-7-14; Colquitt v. Rowland, 265 Ga. 905 (463 SE2d 491) (1995); Robertson v. Liggett Drug Co., 81 Ga. App. 850 (60 SE2d 268) (1950); Oglesby v. Rutledge, 67 Ga. App. 656 (21 SE2d 497) (1942); Monahan v. Nat. Realty Co., 4 Ga. App. 680 (62 SE 127) (1908). The affidavit of plaintiffs expert witness in opposition to the motion for summary judgment satisfied the burden of coming forward with some evidence that created material issues of fact for jury determination as to a breach of duty by the landlord, causation, and the deceased’s exercise of ordinary care for his own safety. See OCGA § 9-11-56 (e); Paulin v. Okehi, 264 Ga. 604 (449 SE2d 291) (1994); McGinnis v. Admiral Moving &c. Co., 223 Ga. App. 410 (477 SE2d 841) (1996); Butler v. Huckabee, 209 Ga. App. 761 (434 SE2d 576) (1993); Coates v. Mulji Motor Inn, 178 Ga. App. 208 (342 SE2d 488) (1986). Since plaintiff failed to prove the DeKalb County regulations, then Holbrook v. Exec. Conference Center, 219 Ga. App. 104 (464 SE2d 398) (1995) is not controlling as to the existence of negligence per se. However, plaintiff’s expert stated that the failure to have depth markings and safety equipment was a latent defect as a failure to exercise ordinary care ■under common law negligence. Causation is an essential element of both negligence per se and common law negligence. Therefore, Holbrook v. Exec. Conference Center, supra at 107-108, controls as to the creation of a jury issue as to causation under the similar facts and circumstances of this case.

Decided April 23, 1998

Reconsideration denied May 20, 1998

A. Russell Blank, for appellant.

Gray & Hedrick, L. Bruce Hedrick, for appellee.

“An expert may give his opinion merely because he is an expert [OCGA § 24-9-67], and any witness may give his opinion if he testifies to the facts on which such opinion is based [OCGA § 24-9-65], but in no case where the facts are before the trior of facts can it be said that a judgment is demanded as a matter of law based upon the opinions expressed, for the trior of facts may arrive at a different conclusion based upon the evidence introduced and is not bound by the opinion testimony. [Cits.] . . . [O]pinion evidence adduced by the respondent is sufficient to preclude the grant of a summary judgment[.] [Cit.]” Harrison v. Tuggle, 225 Ga. 211, 212-213 (167 SE2d 395) (1969); see also Dickson v. Dickson, 238 Ga. 672 (235 SE2d 479) (1977); Aetna Cas. &c. Co. v. Cowan Supply Co., 125 Ga. App. 155 (186 SE2d 556) (1971). Therefore, the trial court erred in granting summary judgment when there existed material issues of fact for jury determination.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A98A0343.
    RICHARDS v. THE STATE.
    (502 SE2d 519)
   Ruffin, Judge.

A jury found Steven Donlon Richards guilty of two counts of burglary, armed robbery, criminal attempt of theft by taking a motor vehicle, possession of a firearm during the commission of a crime, and simple assault. Richards appeals, asserting that the trial court improperly commented on the evidence, denied him the right to final argument at closing, and failed to charge impeachment based on the conviction of a crime. Richards further claims on appeal that the prosecution made improper comments during closing argument and that he was denied effective assistance of counsel. We affirm.

Viewed in a light most favorable to uphold the verdict, the evidence shows that in November 1993, Richards and his friend Brittney Tyler Harvey decided to move to Atlanta from Tampa, Florida. They loaded their belongings into a Ryder truck and drove to Atlanta. Upon their arrival, Harvey and Richards stayed in a motel off Fulton Industrial Boulevard. After a few days, their money began to run out, and Harvey and Richards discussed stealing. On November 8, 1993, Harvey and Richards burglarized a home in Douglasville and an apartment home off 1-20 and Thornton Road.

Harvey testified at trial that they chose the first home because it was away from the street surrounded by trees. Richards gained entry into the house through a kitchen window, while Harvey waited in the Ryder truck. According to Harvey, Richards returned with a VCR and a remote control. While the owner of the home testified that a watch and some clothing were stolen in addition to the VCR and remote control, Harvey testified that she saw Richards remove only the VCR and remote from the home. Harvey further testified that after stealing the VCR, she and Richards pawned the VCR for $40 at a pawn shop two to three miles from the burglarized home.

Harvey said that she and Richards purchased some food with the $40 and then realized that they needed to commit another burglary to obtain more money. They drove around in their truck and stopped at the Crestmark Extended Stay Suites near 1-20. According to Harvey, they chose Crestmark because it was away from the road and there were woods behind it. They searched the complex looking for an unoccupied apartment, and upon finding one, Richards broke into the back door of the apartment with a screwdriver. Harvey said she operated as a lookout while Richards gained entry. After he entered the apartment, Richards opened the front door for Harvey, at which time they began rummaging through the apartment. They took jewelry, a watch, a gun, a camera, keys to a Ford automobile, and a make-up luggage case. Harvey testified that she found a laundry basket which they used to carry the stolen items. However, during the burglary, one of the occupants of the apartment, Furman Boyd, came home and heard noises coming from the kitchen. Harvey testified Richards confronted Boyd with Boyd’s gun. Richards directed Boyd to lie down on the floor and hand over his wallet. Boyd complied. After Richards grabbed the wallet, Harvey testified that she and Richards ran from the apartment carrying the other stolen items and drove off in the truck. Harvey testified that they looked through the wallet and found credit cards, Boyd’s Texas driver’s license, and approximately $200 in cash.

Harvey further testified that after the second burglary, she and Richards decided to return to steal Boyd’s Ford, because they had to return the Ryder truck and they needed transportation. Before dawn on November 9, 1993, Richards and Harvey returned to the Crest-mark apartment complex and first tried the keys on a Ford in the parking lot with Texas license plates. When these keys did not work on the car, they began looking around for other Fords in the lot.

Karen Mims, the assistant manager of the Crestmark who lived in one of the apartments, testified at trial that around 6:30 a.m. she noticed a young man and a young woman looking into the windows and checking the locks of parked cars in the Crestmark parking lot. She contacted the police. When police arrived, Harvey and Richards ran in an attempt to elude them.

The police apprehended Harvey in the apartment complex after approximately 15 minutes, and Boyd confronted her about the burglary of his home. According to Boyd, Harvey told him that she was sorry and she did not realize that Richards was going to pull a gun on him. Additionally, according to Douglas County deputy sheriffs, Harvey signed a consent form, confessed to the crimes and advised officers that she and Richards pawned the VCR at a pawn shop several miles from the first burglary. The officers retrieved the VCR from the pawn shop. The deputy sheriffs also searched Harvey and Richards’ motel room and found the stolen camera, gun and luggage case. Harvey pled guilty to two counts of burglary and criminal attempt to commit theft by taking a motor vehicle in connection with the events of November 8 and 9. The armed robbery count was dropped against Harvey in return for her testimony against Richards.

In addition to Harvey’s testimony at trial, Boyd testified regarding his confrontation with Richards and the burglary of his home. Boyd stated that Richards was apprehended by police on the morning of November 9, 1993, and that Richards acted violently toward the officers. Boyd identified Richards as the burglar who threatened him with his gun and forced him to hand over his wallet.

The homeowner whose home was burglarized first by Richards and Harvey testified regarding the manner in which it appeared the burglars gained entry and the items taken from her home.

Several deputy sheriffs from the Douglas County Sheriff’s Department who responded to Mims’ call regarding Harvey and Richards in the Crestmark parking lot testified concerning apprehending Richards. One deputy sheriff stated that Richards was captured and taken into custody at approximately 10:30 a.m. Several other deputy sheriffs testified that after Richards was captured, he spit and cursed at them.

According to one deputy sheriff, after Richards was taken to the sheriff’s department, Investigator Hayes and other officers asked Richards to take off his hat. When he failed to comply, the deputy sheriff said, Hayes reached out to remove the hat and “Richards drew back as if he was going to strike or . . . was fixing to fight with Sgt. Hayes.” Hayes testified that when he reached for Richards’ hat, Richards slapped Hayes’ arm and drew back as if he was planning to strike Hayes. This was the basis of Richards’ simple assault charge.

We find that there is sufficient evidence for a rational trier of fact to find Richards guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

1. Richards argues on appeal that he did not introduce any evidence at trial and thus the trial court erred in denying him the right to final argument.

“ ‘ “Which party is entitled to open and close is oftentimes unclear, based on whether or not any admissible testimony or documentary evidence has been introduced by the accused. It is beyond question in this state that where an accused offers no testimony or evidence into the trial of a case, other than his own testimony, he has the right to the opening and closing arguments.” [Cit.]’ [Cit.]” Seavers v. State, 208 Ga. App. 711, 713 (3) (431 SE2d 717) (1993).

In this case, a portion of Richards’ defense was that the deputy sheriffs beat him and broke one of his fingers. In response, the State introduced photographs of Richards’ hands that showed that his fingers were not broken. As the prosecution addressed this issue during its closing argument, Richards’ attorney held up Richards’ hand and looked at the jury. The trial court immediately stopped the prosecution’s closing and concluded that the defense attorney had introduced evidence into the case by intentionally showing the jury Richards’ hand. Based on the defense attorney’s actions, Richards lost his right to final closing argument. His defense attorney did not object to the trial court’s decision.

Pretermitting whether Richards introduced evidence during closing arguments and thus lost the right to final argument, Richards’ “failure to object to the court’s ruling and limitation act[ed] as a waiver of any possible error. [Cit.] A party cannot during the trial ignore what he thinks to be an injustice, take his chances on a favorable verdict, and complain later.’ [Cit.] Matters not objected to at trial cannot be raised for the first time on appeal. [Cit.]” Maxwell v. State, 170 Ga. App. 831, 835 (3) (318 SE2d 650) (1984).

Even assuming Richards timely objected and his argument that he did not forfeit his right to final argument has merit, “in view of the overwhelming evidence of [Richards’] guilt, ‘we find it highly probable that any error in this regard did not contribute to the verdict. [Cit.]’ [Cit.]” Seavers, supra at 713 (3).

2. Richards asserts that the trial court improperly commented on the evidence in violation of OCGA § 17-8-57. This Code section provides that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” OCGA § 17-8-57.

During defense counsel’s closing argument in this case, he stated that the police had beaten Richards and they were attempting to cover it up. The State objected, arguing that defense counsel’s claims were unsupported by the evidence. Defense counsel maintained that the photographs of Richards showed a broken finger and a beating. In ruling on the objection, the trial court stated “[t]here is no evidence of a broken finger. The only evidence of a broken finger is a question [defense counsel] had to one of the [witnesses]. And I’ll charge the jury that questions of counsel and statement of counsel are not evidence. So, there is no evidence of that except for the evidence you attempted to put before the jury by raising his hand in front of them. So, you want to do it again [via the closing argument] and that is not evidence and the jury will not consider it as evidence.” Defense counsel did not object at trial, claiming that the trial court’s comments constituted a violation of OCGA § 17-8-57.

“ ‘ “The question of whether (OCGA § 17-8-57) has been violated is not reached unless an objection or motion for mistrial is made.” Therefore this enumeration is without merit.’ [Cits.]” Baker v. State, 263 Ga. 79, 80 (2) (428 SE2d 340) (1993).

Even if Richards timely objected, we find there was no error. “ ‘Remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.’ [Cit.]” Stubbs v. State, 220 Ga. App. 106, 109 (4) (469 SE2d 229) (1996).

3. Richards maintains that the trial court should have charged the jury on impeachment by conviction of a crime of moral turpitude. “Notwithstanding that the record does not reveal any request for such a charge, it does not appear that any witness was impeached by introduction of a certified copy of a prior conviction. Accordingly, the charge was not authorized by the evidence. [Cit.]” Powell v. State, 210 Ga. App. 409, 412 (4) (437 SE2d 598) (1993). See Howard v. State, 204 Ga. App. 743 (1) (420 SE2d 594) (1992) (“To impeach a witness by a prior conviction, the conviction must be proved by the record of the conviction itself. [Cits.]”).

4. Richards asserts that the prosecution made various improper comments during its closing argument.

First, Richards claims that the prosecution violated OCGA § 17-8-76 by stating in closing to the jury that “[i]t’s for you to . . .go back in the jury room and be weak and say . . . if we convict [Richards] of armed robbery he is going to prison for five years and I just can’t have that on my conscience. . . .” Additionally, Richards maintains that the prosecution erred in utilizing the “golden rule” argument by inviting the jurors to place themselves in the victim’s place in regard to the crimes. See Horne v. State, 192 Ga. App. 528 (2) (385 SE2d 704) (1989). Finally, Richards believed that the prosecution improperly argued that “[y]ou say that you would rather have the Steven Richards and the [defense attorneys] protect you from burglars, murderers, killers, thieves, child molesters and rapists than the [prosecutors and police officers].” However, the prosecution continued, when someone needs help or protection, he or she will be turning to the prosecutors and police officers.

Richards failed to object at trial to any of the prosecutor’s comments. “ ‘The time to object to improper closing argument is when the impropriety occurs at trial, when the trial judge may take remedial action to cure any possible error. . . . When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial.’ [Cit.]” Hopkins v. State, 227 Ga. App. 567, 568 (2) (489 SE2d 368) (1997).

“Pretermitting the question of whether the prosecutor’s statements were] improper, in light of the overwhelming evidence of [Richards’] guilt, it is not reasonably probable that such statements] changed the result of the trial.” Id.

5. Richards asserts that he was denied effective assistance of counsel. He maintains that his counsel was deficient in failing (1) to object to the prosecutor’s improper arguments during closing, (2) to object to the trial court’s ruling on Richards’ right to final argument, (3) to raise as error during trial the court’s commenting on the evidence, and (4) to request a jury charge on impeachment based on the conviction of a crime.

“A defendant claiming ineffective assistance of counsel must show (1) that his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.” Stephens v. State, 224 Ga. App. 184, 185 (3) (480 SE2d 235) (1997).

Decided May 20, 1998.

Jill L. Anderson, Virginia W. Tinkler, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

“The decisions on which witnesses to call, whether and how to conduct cross examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (Citations and punctuation omitted.) Austin v. Carter, 248 Ga. 775, 779 (2) (c) (285 SE2d 542) (1982). Here, defense counsel’s decisions did not result from inadequate preparation but from choices of trial strategy and tactics. Id.

Furthermore, Richards has failed to show that, despite the overwhelming evidence of his guilt, there is a reasonable probability that but for his counsel’s actions the results of the trial would have been different. Stephens, supra. Accordingly, we conclude that Richards was not denied effective assistance of counsel.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A98A0349.
    CLYDE v. PETERSON.
    (502 SE2d 524)
   Beasley, Judge.

Eleanor Clyde appeals an adverse verdict by the jury in her personal injury action against Michael Peterson arising out of a vehicle collision. She was a passenger in a truck driven by her husband which collided with Peterson’s car when he attempted a left-hand turn while the traffic light was yellow. She did not sue her husband but contends the court erred in failing to charge the jury on joint proximate cause and concurrent negligence. Her position is that the evidence presented a jury question of whether the proximate cause of her injuries was at least in part Peterson’s negligence, even if her husband was also negligent and contributed to the cause. In her view, the absence of the instruction in the jury deliberation constituted a gross injustice and deprived her of a fair trial.

“On the trial of all cases it is the duty of the judge to charge the jury the principles of law applicable to all issues raised by the pleadings and the evidence, even without a request for such an instruction. [Cits.]” “ ‘ “From an early date the Supreme Court has uniformly held that the law of the case must be given the jury to the extent of covering the substantial issues made by the evidence, whether requested or not, or attention be called to it or not; otherwise the verdict will be set aside.” [Cits.]’ ”

The principle of law is well settled that “if the separate and independent acts of negligence of several persons or corporations combine naturally and directly to produce a single, indivisible injury, and a rational basis does not exist for an apportionment of damages, the actors are joint tortfeasors.” Recovery may be had against one or both of the responsible parties. Accordingly, in a case against only one of several joint tortfeasors, the one defendant may be held responsible for all damages.

Clyde requested the court to instruct: “Ladies and gentlemen of the jury, I charge you that where two or more causes operate directly or happen together in bringing about an injury, there can be a recovery against one or all of the responsible parties. The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself prevent or limit the other act from constituting the proximate cause. If all acts of negligence contributed directly and concurrently or together in bringing about the injury, they together constitute the proximate cause.”

“In order to reverse for failure to give a requested charge, the charge so requested must be entirely correct, accurate and adjusted to the pleadings, law and evidence, and not otherwise covered in the general charge. [Cits.]” “The refusal of a request to charge is not error unless the charge requested is itself correct and perfect. [Cits.]”

Plaintiffs requested charge is written as if there were more than one defendant and each was potentially liable. The pattern charge is based on Tallman v. Green and Gosser v. Diplomat Restaurant, each of which involved two allegedly negligent defendants.

Decided May 20, 1998.

Beauchamp & Associates, Robert M. Beauchamp, Mark G. Pitts, for appellant.

Perry & Walters, Richard W. Fields, for appellee.

In Dept. of Transp. v. Blair the surviving parent of the deceased passenger sued the DOT for negligent maintenance of a stop sign. This Court held that the DOT’s requested charge that damages should be apportioned between the DOT and the driver of the vehicle in which the deceased was killed was not appropriate because the driver was not a co-defendant.

As stated in Fields v. Jackson, “The true rule in cases like this is . . . that the negligence of the host driver is not imputable to the guest, and unless the negligence of the host driver constituted the sole proximate cause of the guest’s injuries, a recovery by the guest against the driver of the other automobile whose negligence constituted a proximate cause of the guest’s injuries, is not barred nor reduced under the comparative negligence rule by the mere fact that the host was also negligent.”

Because the requested charge was not “entirely correct, accurate and adjusted to the pleadings, law and evidence,” omission of it did not constitute reversible error.

Judgment affirmed.

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

       Appellant relies on OCGA § 5-5-24 (c), but that stopgap measure is not apt as such. She does not need it because she made the request in writing and objected to the court’s rejection of it. See OCGA § 5-5-24 (a) and (b).

        Claxton v. Claxton, 214 Ga. 715, 719 (2) (107 SE2d 320) (1959). Accord Clarke v. Cotton, 263 Ga. 861, 862 (440 SE2d 165) (1994).

        King v. Luck Illustrating Co., 21 Ga. App. 698, 699 (94 SE 890) (1918); Hager v. O’Neal, 147 Ga. App. 808 (250 SE2d 555) (1978); Tempo Mgmt. v. Lewis, 210 Ga. App. 390, 391 (1) (436 SE2d 98) (1993).

        Smith v. McLendon, 142 Ga. App. 608, 609-610 (236 SE2d 692) (1977). See also Johnson v. Landing, 157 Ga. App. 313, 317 (2) (277 SE2d 307) (1981); Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421) (1974), aff’d, Mitchell v. Gilson, 233 Ga. 453 (211 SE2d 744) (1975); City of Atlanta v. Harris, 52 Ga. App. 56 (182 SE 202) (1935).

        Peggy Ann of Ga., Inc. v. Scoggins, 86 Ga. App. 109, 114 (71 SE2d 89) (1952).

       See Fields v. Jackson, 102 Ga. App. 117, 131-132 (7) (115 SE2d 877) (1960).

        Ga. Kraft Co. &c. v. Laborers’ Intl. Union &c., 170 Ga. App. 581, 585 (3) (317 SE2d 602) (1984).

        Parrott v. Fletcher, 113 Ga. App. 45, 46 (3) (146 SE2d 923) (1966); Durand v. Reeves, 219 Ga. 182, 183 (3) (132 SE2d 71) (1963); Barham v. Levy, 228 Ga. App. 594, 596 (3) (492 SE2d 325) (1997).

       74 Ga. App. 731, 734 (41 SE2d 339) (1947).

       125 Ga. App. 620, 624 (188 SE2d 412) (1972).

       220 Ga. App. 342 (469 SE2d 446) (1996).

       Id. at 345 (2). Compare Jiles v. Peters, 216 Ga. App. 288 (454 SE2d 178) (1995) (charge on concurrent negligence allowed in suit by passenger against driver of other vehicle).

        Fields v. Jackson, 102 Ga. App. at 132.

        Ga. Kraft Co. &c. v. Laborers’ Intl. Union &c., 170 Ga. App. at 585 (3).


text:
    A98A0596.
    PAYNE v. THE STATE.
    (502 SE2d 526)
   Beasley, Judge.

Payne appeals his convictions of driving under the influence of alcohol to the extent that it is less safe to drive, OCGA § 40-6-391 (a) (1), and driving with an alcohol concentration of 0.10 grams or more, OCGA § 40-6-391 (a) (5). Since the same incident gave rise to both charges, the court merged the verdicts in sentencing.

1. Payne charges the trial court with error in denying a motion to suppress evidence which he filed before trial and then renewed at trial. He maintains that a roadblock stop that culminated in his DUI arrest “violated his right to be free from unreasonable searches and seizures under the Fourth Amendment as adopted in Georgia law.” He also challenges the sufficiency of the evidence to show that the decision to implement the roadblock was made by supervisory law enforcement officers.

As to the constitutional ground, the Fourth Amendment stands on its own to protect the rights it expresses. It is not “adopted in Georgia law” but rather must be applied in Georgia, as in every jurisdiction within the United States, directly. Payne’s argument is founded on federal constitutional law alone, so we will address only that. Georgia law construing it, following and in harmony with pronouncements of the United States Supreme Court, governs.

“ ‘ “It has been held that police officials may set up highway roadblocks for the purpose of requiring motorists to display their driver’s license, and that such a practice does not invade their right to use the public ways free from unreasonable and unwarranted interception. Nor does such a practice constitute an unlawful arrest or restraint or an illegal search contrary to the United States Constitution.” (Cit.)’ ”

The applicable factors to be considered in determining the validity of a roadblock are whether (1) the decision to implement the roadblock was made by supervisory personnel; (2) all passing vehicles were stopped, leaving no discretion to the officers as to which vehicles to stop; (3) the delay experienced by passing motorists was minimal; and (4) the operation was well identified as a police checkpoint. “These factors are ‘not absolute “bright-line, black-letter” requirements, but (are) factors to consider in deciding whether there was a valid routine roadblock or the kind of isolated vehicle stop rejected by Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660).’ [Cit.]” The totality of the circumstances surrounding the roadblock governs whether the factors listed are satisfied.

At the hearing on Payne’s motion to suppress, the arresting officer testified that the roadblock in this case was established by various uniformed City of Lawrenceville police officers after they had responded to a disturbance call in the area, and that the purpose of the roadblock was to check driver’s licenses. Payne was stopped at approximately 1:20 a.m. The officer’s testimony, though contradicted by evidence submitted by Payne, was that the roadblock was conducted in a well-lit area, all passing motorists were stopped, there was minimal delay for the motorists, and patrol cars were positioned adjacent to the roadblock with their lights flashing.

The officer further testified that City of Lawrenceville police officers establish such roadblocks at random but departmental regulations require supervisory approval. According to the officer, approval is obtained from the on-duty supervisor unless another supervisory officer is present on the scene. At trial, the officer testified that there were two supervisory officers on duty at the time in question, and one of them was present at the roadblock. The officer acknowledged he did not personally know which of these two supervisors gave approval for the roadblock. Nevertheless his testimony concerning what transpired and how it came about, as well as its regulation base, authorized the court to infer that approval was given by the supervisory officer on the scene.

Construed most favorably to uphold the trial court’s findings and judgment, the evidence supports the determination that the roadblock in this case satisfied the four factors set out in Golden and Evans, was a valid routine license check rather than the type of isolated vehicle stop condemned in Prouse, and was not being used as a subterfuge to detain citizens for the purpose of searching their automobiles.

Instructive also is that the protective aspects of the circumstances in this case differ from the factors identified as troublesome in LaFontaine (unfettered discretion; arbitrary or oppressive nature of roadblock; whimsical decision to stop; arbitrary scheme).

It was not error to deny either Payne’s original or his renewed motion to suppress.

Decided May 20, 1998.

R. C. Cougill, for appellant.

2. Payne contends the court erred in allowing breath test results and Intoxilyzer 5000 certificates to be admitted in evidence as business records over his hearsay objection. Payne’s argument that admission of the certificates violated his rights under the confrontation clause was rejected in Brown v. State, which distinguished Miller v. State (the decision relied on by Payne).

The arresting officer testified that such certificates are made in the ordinary course of business of the Lawrenceville Police Department, that it is the ordinary course of business of the department to maintain such records, and that the witness is familiar with the methods by which such records are kept. The certificates of inspection were prepared on the dates the inspections were conducted. Unpersuasive is Payne’s argument that the State did not lay a proper foundation for admission of the certificates as business records. The requirements of OCGA § 24-3-14 were met.

The results of the breath test were admitted in evidence over an objection by Payne based on grounds not argued on appeal, so this issue is not addressed.

3. Finally, Payne contends that testimony elicited from a defense witness on cross-examination by the State improperly placed his character in issue. The witness’ testimony as to the manner in which the roadblock was conducted conflicted with that given by the arresting officer. Both the defense witness and Payne were employed as corrections officers by the State of Georgia. In cross-examining the witness, the State sought to show that a DUI conviction would adversely impact Payne’s employment. The court overruled Payne’s objection, accepting the State’s argument that this line of questioning would show motive for the witness’ testimony. The ruling was not an abuse of discretion.

Judgment affirmed.

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

Gerald N. Blaney, Jr., Solicitor, Scott A. Drake, Assistant Solicitor, for appellee.

       Par. XIII of Sec. I of the Georgia Bill of Rights is referenced as the “primary” basis of reliance near the end of appellant’s argument in support of the enumeration. But this independent ground is not before us. Although the Georgia Constitution in general was asserted in tandem with the United States Constitution during the hearing on the motion, no rationale was developed and the trial court did not rule on this as an independent basis. It simply was not raised or ruled on in the trial court. Nor is it properly presented on appeal. It will not be considered. See, e.g., Marr v. Dept. of Ed., 264 Ga. 841 (452 SE2d 112) (1995) (party must elicit specific ruling or question to preserve it for appellate review); Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997).

        Sapp v. State, 188 Ga. App. 700, 701 (374 SE2d 114) (1988). Cf. Michigan Dep. of State Police v. Sitz, 496 U. S. 444 (110 SC 2481, 110 LE2d 412) (1990) (reasonableness of roadblock sobriety checkpoints).

       See LaFontaine v. State, 269 Ga. 251, 252 (3) (497 SE2d 367) (1998), citing State v. Golden, 171 Ga. App. 27, 29 (2) (318 SE2d 693) (1984); see also Evans v. State, 190 Ga. App. 856, 857 (380 SE2d 332) (1989).

        Ledford v. State, 221 Ga. App. 238, 240 (2) (470 SE2d 796) (1996).

        Mims v. State, 201 Ga. App. 277, 279 (2) (410 SE2d 824) (1991), overruled on other grounds, Hooten v. State, 212 Ga. App. 770 (442 SE2d 836) (1994).

        Barrett v. State, 212 Ga. App. 745, 746 (443 SE2d 285) (1994), and cits.

       See Brisbane v. State, 233 Ga. 339, 343 (211 SE2d 294) (1974).

       268 Ga. 76 (485 SE2d 486) (1997).

       266 Ga. 850 (472 SE2d 74) (1996).

       See Oldham v. State, 205 Ga. App. 268 (1) (422 SE2d 38) (1992); compare Daniel v. State, 227 Ga. App. 92 (488 SE2d 129) (1997). The Supreme Court of Georgia’s recent decision in Fantasia v. State, 268 Ga. 512, 514 (3) (491 SE2d 318) (1997), which held that photocopies of the inspection certificates were admissible under OCGA § 24-5-4 (a), implied that inspection certificates as such qualify as business records.


author: Blackburn, Judge.

text:
    A98A0743, A98A0744.
    CHEN v. TAI et al.; and vice versa.
    (502 SE2d 531)
   Blackburn, Judge.

Kevin Kou Ken Tai (Tai) and KOK Trading, Inc. (KOK) sued David Po De Chen (Chen) for breaching a construction contract. Chen, by original action and counterclaim, sued Tai and KOK for breaching the same contract and for malicious prosecution. The trial court denied Tai and KOK’s motion for partial summary judgment as to the breach of contract claims and granted such motion as to Chen’s claim of malicious prosecution. Both parties appeal. For the reasons set forth below, we affirm the findings of the trial court.

On June 28, 1993, Tai and KOK Trading, Inc. filed suit against Chen, alleging, among other things, that Chen, a general contractor, breached a contract to construct an office building to house KOK’s import business. On June 29, 1993, Chen filed a separate action against Tai, alleging, in relevant part, that Tai breached the same construction contract by inappropriately firing him and that Tai was guilty of maliciously prosecuting Chen for converting funds. In his answer and counterclaim to Tai and KOK’s complaint, filed August 2, 1993, Chen made the same claims as in his original complaint and asserted them against KOK as well as Tai. By a consent order dated August 25, 1993, these actions were consolidated.

On May 1, 1997, Tai and KOK filed a motion for partial summary judgment, as to liability, for Chen’s breach of the contract. In addition, Tai moved the court for summary judgment on Chen’s claim of malicious prosecution of criminal conversion of real estate payments charges. The trial court granted KOK and Tai’s motion for summary judgment as to Chen’s malicious prosecution charges and denied the remainder of their partial summary judgment motion. KOK and Tai now appeal the trial court’s denial of their motion for summary judgment regarding the breach of contract issues, and Chen appeals the trial court’s grant of summary judgment with regard to his claim for malicious prosecution.

“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). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

On August 10,1992, Chen entered into a contract with KOK and Tai to construct a warehouse and office building to house KOK’s import business. The cost of construction contemplated by the contract was $260,000 “which sum [was] the total amount due to [Chen], including profits.” However, this sum was subject to modification as a result of additions or change orders which might be requested during the course of the project. Chen contends that several such change orders actually were made, including the construction of certain office space inside the planned warehouse. Chen claims that, as a result of such change orders, KOK and Tai now owe him compensation for additional work.

The construction contract provided in part: “If [Chen] . . . persistently or repeatedly refuses to or fails[ ] to supply properly skilled workmen or proper material, or [if] he fails to make prompt payment to Subcontractors or for materials or labor . . ., then [KOK and Tai], upon certification by the Architect that sufficient cause exists to justify such action, may, . . . after giving [Chen] notice, terminate the employment of [Chen] . . . [and] may finish [construction]. ... In such case, [Chen] shall not be entitled to receive any further payment whatsoever, until [construction] is finished. Only if the unpaid balance of the Contract Price exceeds the costs of finishing [construction] . . ., such excess shall be paid to [Chen]. If such costs exceed the unpaid balance, [Chen] shall pay the difference to [KOK and Tai].” On January 14, 1993, Chung C. Chang, the architect on the project, executed a document certifying that sufficient cause existed to terminate Chen. According to Chen, however, he continued to work on the project until January 29, 1993, at which time he was fired and told not to return to the construction site.

1. The exact reasons behind Chen’s ultimate dismissal remain uncertain, raising an issue of fact for jury determination. Although KOK and Tai contend that Chen was fired for numerous reasons set out in Chang’s certification, including failure to pay subcontractors, Tai testified that Chen was fired because Chen stated that he did not want to finish the job. When asked whether he would have fired Chen if Chen had not told him that he did not want the job, Tai replied: “No, I wouldn’t. We have waited for so long and he has like delayed it for so long. We want to have the job done well, but he doesn’t want the job himself.” Chen, however, continued to work on the project following the meeting described by Tai, and, according to Chen’s testimony, following the certification of Chang. In addition, Chen continues to maintain that he fulfilled his duties under the contract and that he was inappropriately fired in spite of the fact that he had substantially completed the project. As such, the reason for Chen’s ultimate dismissal is a question of fact which a jury must resolve. Therefore, the trial court did not err in denying KOK and Tai’s motion for summary judgment with regard to the breach of contract issue.

2. Any rights which Chen may have to further compensation under the contract also must be determined by a jury. Chen argues that, in addition to the work explicitly described by the contract, he completed certain other construction work for which he was not compensated, including the construction of office space within KOK’s warehouse. As the contract clearly contemplates the possibility of such additional work, the trial court appropriately preserved the issue of whether Chen was entitled to additional compensation under the contract for jury determination.

3. As to Chen’s claim of malicious prosecution for conversion, it is undisputed that Chen submitted vouchers to KOK and Tai in October, November, and December 1992 for funds to prepay State Sprinkler Company, Inc., a subcontractor on the project. According to Chang, Chen told him that State Sprinkler would not begin work until it was paid in advance. Chen, however, did not attempt to pay State Sprinkler until late February 1993. This February check was returned twice and ultimately refused by the bank for insufficient funds. State Sprinkler informed KOK and Tai that the invoice was outstanding in February 1993. In the first week of March of that year, State Sprinkler faxed a copy of Chen’s returned check to KOK and Tai’s lawyer. State Sprinkler had no further contact with KOK or Tai prior to the issuance of the warrant for Chen’s arrest.

After State Sprinkler notified Chen of the returned check, Chen wrote good checks to State Sprinkler on March 11, 1993 and March 18,1993. Chen was subsequently fired by Tai and KOK, and, on April 19, 1993, Chen filed a lien against them for monies he believed that he was owed from the project. In May 1993, Tai took out a warrant for the arrest of Chen for conversion of funds pursuant to OCGA § 16-8-15. In his application for a warrant on Chen, Tai stated: “On information and belief State Sprinkler has never been paid.”

OCGA § 16-8-15 provides: “Any . . . contractor . . . who with intent to defraud shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose than to pay for labor or service performed on or materials furnished by his order for this specific improvement while any amount for which he may be or become liable for such labor, services, or materials remains unpaid commits a felony. ... A failure to pay for material or labor furnished for such property improvements shall be prima-facie evidence of intent to defraud.”

“Among the essential elements of a claim for malicious prosecution are (1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff.” (Punctuation omitted.) Marriott Corp. v. Allen, 218 Ga. App. 877 (463 SE2d 716) (1995). Here, Tai’s bad check prosecution terminated favorably to Chen, as the State ultimately dismissed the charges. In addition, viewing the facts and inferences therefrom most favorably to Chen, there is evidence that Tai acted maliciously by taking out a warrant in response to the lien filed by Chen.

The only remaining factor, then, is whether Tai had probable cause to believe that conversion had been committed at the time of the application for the warrant. It is undisputed that Chen received funds from which creditors were to be paid. It is also undisputed that Chen failed to have such funds available in the bank when he wrote bad checks to the creditors for whom he had received such funds. Chen thus converted the funds to his own use. Tai had probable cause that a crime had been committed at the time the warrant was issued. Therefore, Chen’s claim of malicious prosecution is untenable.

“Probable cause is absent when the circumstances are such as to satisfy a reasonable person that the accuser had no ground for proceeding but his desire to injure the accused. The determination is dependent upon whether the facts as they appeared at the time of instituting the prosecution were such as to lead a person of ordinary caution to entertain a belief that the accused was guilty of the offense charged.” (Citation and punctuation omitted.) Marriott Corp., supra at 878. In this case, the conversion complained of by Tai and KOK would have occurred the moment that Chen deposited the funds earmarked for State Sprinkler into his personal account without first paying the subcontractor in spite of his representation that State Sprinkler had to be paid in advance. Furthermore, the fact that the initial check to State Sprinkler bounced shows that the funds had already been used for purposes other than those for which they were intended. Contrary to Chen’s arguments, Chen’s subsequent payments to State Sprinkler can erase neither the initial act of conversion committed by him nor the probable cause which Tai and KOK possessed at the time a warrant was sought by them.

“Malicious prosecution suits are not favored. It is public policy to encourage citizens to bring to justice those who are apparently guilty. The courts have always distrusted malicious prosecution actions, and have retained a strong hand over them. For this reason the existence of probable cause, which involves only the conduct of a reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court.” (Citation and punctuation omitted.) Farmer v. Dillard, 171 Ga. App. 321, 322 (319 SE2d 515) (1984). Accordingly, we find that Tai had probable cause to believe that Chen had converted funds in this matter. As such, the trial court appropriately dismissed Chen’s allegation of malicious prosecution.

Decided May 20, 1998.

Chesnut & Livingston, Tom Pye, for appellant.

Shapiro, Fussell, Wedge, Smotherman & Martin, Richard A. Kaye, for appellees.

Judgments affirmed.

McMurray, P. J, and Eldridge, J., concur.

       A complaint to foreclose on this lien was later dismissed by Chen.


text:
    A98A0766.
    A98A0767.
    TANNER et al. v. LARANGO et al. CHEEK et al. v. LARANGO et al.
    (502 SE2d 516)
   Beasley, Judge.

Larango was an invitee of a furniture store when she tripped and fell. Asserting that her fall was caused by a defect in the premises, she and her husband brought this action for personal injuries and loss of consortium against the owner and operator of the store (Cheek) and the lessor of the real property on which the store is located (the estate of Tanner). An interlocutory appeal brings to this Court the denial of summary judgment to defendants. In Case No. A98A0766, the estate of Tanner appeals. In Case No. A98A0767, Cheek appeals.

Larango testified that as she was exiting the store, she fell as a result of the toe of her shoe getting caught in a moss-filled gap between a sidewalk which served as the entrance to the store and the store’s parking lot. Larango acknowledged she saw the moss before stepping on it but testified it covered the gap. Photographs show that although green moss growing in the separation concealed the depth of the gap between the light-colored, mottled cement sidewalk and the black asphalt parking lot level with it, the gap itself was plainly visible.

1. The decisive issues in such premises liability cases are (1) fault on the part of defendant and (2) ignorance of the danger on the part of plaintiff. Powell v. Woodridge Condo. Assn. The law in this case , called for summary judgment because the evidence cannot support a finding of fault or negligence by defendants and shows indisputably that plaintiff knew of the danger.

2. The pavement gap was at most a regularly occurring irregularity, and its obviousness relieved defendants of any duty to warn invitees of the risk posed.

“ ‘ “Occupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities and trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel.” . . . (Cit.) “It is common knowledge that small cracks, holes and uneven spots often develop in pavement; and it has been held that where there is nothing to obstruct or interfere with one’s ability to see such a static defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved.” . . . (Cit.)’ [Cits.]” To hold defendants liable for injuries resulting from such a risk “ ‘would make [them insurers] of the safety of [their invitees] and that is not and should not be the law in this State.’ [Cit.]”

3. That Larango’s shoe could get caught in the gap if she stepped on it was as obvious as were the dangers in Powell, supra, Dunn v. Gourmet of Macon, and Bloch v. Herman’s Sporting Goods, wherein the defendants were entitled to summary judgment.

In Powell, the plaintiff fell on a set of stairs made of railroad ties. She acknowledged that prior to her fall, she knew the stairs were cracked but testified she had no knowledge or appreciation of the danger that the heel of her shoe would sink into the crack. In Dunn, the plaintiff fell after she stepped off a sidewalk into a depression in the pavement creating a hole with a depth of one and one-half inches in which leaves, sand, and discarded cigarette butts had accumulated. She maintained that the presence of the debris prevented her from knowing the steepness and extent of the hole’s declivity. Bloch held that a plaintiff, who knowingly put her foot in a puddle of water surrounded by ice in freezing temperature, knew the risk of the puddle being icy.

Contrary to plaintiffs’ arguments, affirmance of the denial of defendants’ motion for summary judgment is not required by the recent Supreme Court decision in Robinson v. Kroger Co., supra. The reason is that Larango’s act of stepping on the separation between the two surfaces rather than stepping over it was one “ ‘ “which the common sense of mankind pronounces want(s) of such prudence an ordinarily careful person would use in a like situation.” ’ [Cit.]” Her act constituted “voluntary negligence.”

Decided May 20, 1998

Webb, Tanner & Powell, Ralph L. Taylor III, for appellants (case no. A98A0766).

Killorin & Killorin, Robert W. Killorin, for appellants (case no. A98A0767).

Johnny N. Panos, Robert C. Koski, for appellees.

4. Plaintiffs’ motion to dismiss this appeal on the ground the appeal application was improvidently granted in view of Robinson is denied.

Judgments reversed.

Pope, P. J., and Ruffin, J., concur.

       206 Ga. App. 176 (424 SE2d 855) (1992); see Robinson v. Kroger Co., 268 Ga. 735 (1) (493 SE2d 403) (1997).

        Freyer v. Silver, 227 Ga. App. 253, 256 (2) (488 SE2d 728) (1997).

        King v. King, 226 Ga. App. 791, 793 (487 SE2d 510) (1997).

       207 Ga. App. 826 (429 SE2d 282) (1993).

       208 Ga. App. 280 (430 SE2d 86) (1993).

       Compare Lawless v. Sasnett, 200 Ga. App. 398 (408 SE2d 432) (1991); Newell v. Great A & P Tea Co., 222 Ga. App. 884 (1) (476 SE2d 631) (1996).

        Robinson v. Kroger Co., supra, 268 Ga. at 741 (1).

       See id. at 737, citing Bloch, supra, with approval.


text:
    A98A0783.
    A98A0784.
    BOONE v. SHERIFF OF LOWNDES COUNTY. BOONE v. STATE OF GEORGIA.
    (502 SE2d 535)
   Blackburn, Judge.

In these consolidated cases, Relaford Boone appeals orders finding that $54,055 in cash which he claimed to own but which was seized by and in the custody of the Lowndes County Sheriff was “abandoned” within the meaning of OCGA § 17-5-54 (a) (1). For the reasons set forth below, we reverse.

On June 28, 1995, Lowndes County Sheriff’s deputies stopped a vehicle that was speeding on Interstate 75. During that traffic stop, the deputies discovered small amounts of marijuana on the driver, Frederick Griffin, and his passenger, Cedric Boone. Cedric is the appellant’s son. The deputies also seized $54,055 in cash found within the vehicle. Cedric Boone said the money belonged to Griffin. Griffin denied the money was his.

On July 25,1995, the State through the district attorney brought an in rem forfeiture action seeking to condemn the cash pursuant to OCGA § 16-13-49. Relaford Boone filed an answer, asserting an interest in the cash pursuant to OCGA § 16-13-49 (o) (3). He also asserted counterclaims alleging due process violations and an action in trover pursuant to OCGA § 44-12-150. On September 5, 1995, the State filed a dismissal and moved to dismiss the counterclaims, arguing that counterclaims are not permitted in forfeiture actions.

On September 6,1995 — the day after the State filed its dismissal in the forfeiture action — the Sheriff of Lowndes County filed an application for an order permitting his office to keep the cash pursuant to OCGA § 17-5-54 (a) (1). The sheriff averred the cash seized was not the subject of a forfeiture proceeding in accordance with OCGA § 17-5-54 (d). Boone answered and counterclaimed on October 2, 1995. He asserted as a defense that the sheriff’s action was barred by OCGA § 17-5-54 (d) because the State’s forfeiture action was still pending. He also moved for summary judgment on this basis, but the motion was denied. On October 2, 1995, Boone also filed a motion for the return of the cash. The court set both motions for hearing on November 20, 1995. Prior to the hearing, Boone withdrew his counterclaims, demanding only the return of money pursuant to his claim of interest, which rendered the State’s motion on the counterclaims moot. On January 16, 1996, the court, without a hearing, entered an order and final decree dismissing the forfeiture action and ordering the cash returned to Boone.

When the forfeiture court entered its order and final decree, the sheriff moved to stay the enforcement of that order pending the outcome of his case. He also amended his application, asking for a declaratory judgment determining the validity of Boone’s claim to the cash. On January 24, 1996, the forfeiture court entered an order enjoining the enforcement of its final order and decree based on the pendency of the sheriff’s suit. After a year-long period of discovery, the sheriff’s case was set for a bench trial on January 27, 1997. On October 22, 1997, the trial court issued an order invalidating Boone’s claim to the cash, finding the cash “abandoned” within the meaning of OCGA § 17-5-54, and releasing the cash to the sheriff. Based upon the outcome of the sheriff’s case, on November 24, 1997, the forfeiture court entered an order vacating both its order and final decree and previous order enjoining the enforcement of the order and final decree.

Case No. A98A0783

OCGA § 17-5-54 (d) provides that OCGA § 17-5-54 “shall not apply to [any] personal property which is the subject of forfeiture proceedings as otherwise provided by law.” Although “personal property” is not defined in this Code section, the term is broad enough to include cash. See OCGA § 16-13-49 (a) (9) (“ ‘[property’ means anything of value . . . including . . . currency”). The cash at issue in the sheriff’s case was the subject of a pending forfeiture proceeding when the sheriff’s suit was filed. The State’s filing of a dismissal did not terminate the forfeiture proceeding because Boone’s claimed interest in the cash remained to be adjudicated.

Because a forfeiture proceeding “is a special statutory proceeding, we are required to strictly construe the forfeiture statute. In interpreting the statute, we look to the intent of the legislature and construe the statute to effect that intent. We are also required to give words, except those of art, their ordinary significance.” (Citations and footnote omitted.) State v. Henderson, 263 Ga. 508, 509 (436 SE2d 209) (1993). OCGA § 16-13-49 (o) (3) provides that “[a]n owner or interest holder in the property may file an answer asserting a claim against the property in the action in rem.” By asserting a right to the property in this manner, the claimant commences an action concerning the validity of its interest in the property. This action, whether denominated a claim or counterclaim, is specifically authorized under the forfeiture statute. OCGA §§ 16-13-49 (o) (3); 16-13-49 (x) (4). Moreover, when the complaint for forfeiture is contested by a proper answer asserting a claim of interest, the trial court is required to adjudicate that claim of interest. For example, a hearing on the answer “must be held within 60 days after service of the complaint unless continued for good cause and must be held by the court without a jury.” OCGA § 16-13-49 (o) (5). The hearing is mandatory and is intended “to ensure a speedy resolution of contested forfeiture cases in the courts, as well as a speedy resolution of property rights.” State v. Henderson, supra at 511. Also, a court must, as the forfeiture court did in its order and decree of January 16, 1996, resolve any pending claims to the property at issue and dispose of the property according to the statute. OCGA § 16-13-49 (t). The court must also direct a losing claimant to pay reasonable costs and attorney fees incurred by the State in disproving the claim or any portion of the claim. OCGA § 16-13-49 (t) (3).

Because the forfeiture court was required to resolve Boone’s claim to the cash, the forfeiture proceeding remained pending despite the State’s dismissal. Therefore, the sheriff was not authorized to apply for an order disposing of the property pursuant to OCGA § 17-5-54. OCGA § 17-5-54 (d). The sheriff’s application should have been dismissed.

Case No. A98A0784

As set forth above, the State’s dismissal did not terminate the forfeiture proceeding. Because a claim remained to be adjudicated, the State’s dismissal acted only to dismiss any claim to the cash it would have had if the cash had been declared forfeited. See OCGA § 16-13-49 (t) (1). Upon entry of the dismissal, Boone’s claim of ownership was all that remained pending before the court. Moreover, that claim was uncontested because the district attorney did not show that the cash was evidence or remained subject to any future forfeiture proceeding. Because the claim was uncontested, the trial court did not err in ordering, without a hearing, that the property be returned to Boone. See OCGA § 16-13-49 (h) (3) and (t) (2).

Decided May 20, 1998.

James N. Finkelstein, for appellant.

J. David Miller, District Attorney, Robert T. Gilchrist, Assistant District Attorney, Elliott & Blackburn, James L. Elliott, for appellees.

Finally, because the sheriff’s suit was unauthorized, neither the pendency of that suit nor the final judgment entered in it afforded a basis for staying or vacating the forfeiture court’s order and final decree of January 16, 1996. Consequently, we reverse the forfeiture court’s order of November 24, 1997 to the extent that it vacates the January 16,1996 order and final decree.

Judgments reversed.

McMurray, P. J., and Eldridge, J., concur.


author: Johnson, Judge.

text:
    A98A0993.
    JACKSON v. THE STATE.
    (502 SE2d 529)
   Johnson, Judge.

Charles Jackson, Sr. appeals his convictions for sale of marijuana and cocaine. We affirm.

1. Jackson alleges the evidence was insufficient to support his convictions. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that two GBI agents and a confidential informant drove to a house where Jackson was working on a vehicle in the front yard. The informant left the vehicle and approached Jackson. Jackson then approached the agents’ vehicle, produced marijuana and handed the marijuana to one of the agents. When the agent asked how much it cost, Jackson told him $20, and the agent handed Jackson $20.

An hour after the first transaction with Jackson, the three returned to purchase more drugs. Again the informant left the vehicle and approached Jackson, then Jackson and the informant approached the agents’ vehicle. Jackson took off a baseball cap and produced crack cocaine from inside the hat. Jackson then handed the cocaine to one of the agents and stated that the price was $25. The agent handed Jackson $25.

The agents testified that in addition to buying drugs from Jackson on these two occasions, they saw Jackson on numerous occasions while they were trying to make drug purchases from other dealers. Jackson was in the same yard as in the present case and would try to flag, the agents down. Both agents identified Jackson in a photographic lineup and at the time of arrest.

Decided May 20, 1998.

John B. Cloy, for appellant.

Dupont K. Cheney, District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

Jackson testified that the informant was trying to get even and gave him the cocaine to carry to the agents’ vehicle. As for the marijuana sale, Jackson testified that another individual resembling him may have sold the drugs to the agent.

On appeal, we do not weigh the evidence or assess witness credibility. Grant v. State, 215 Ga. App. 10, 11 (449 SE2d 545) (1994). Based on the record, both agents had ample opportunity to view Jackson during the two sales, which occurred during daylight hours within arm’s reach of Jackson. The evidence was sufficient for a rational trier of fact to find Jackson guilty beyond a reasonable doubt of selling both marijuana and cocaine. See Sanders v. State, 226 Ga. App. 650, 651 (1) (487 SE2d 442) (1997).

2. Jackson also contends he was denied effective assistance of counsel because his trial counsel failed to object on two separate occasions to inadmissible character evidence. Specifically, Jackson asserts his trial counsel should have objected to the agents’ testimony that Jackson tried to sell them drugs on ten to fifteen different occasions while the agents were operating in the area. We disagree.

A review of the record shows that the agents did not testify that Jackson attempted to sell them drugs. Rather, the agents testified that on some occasions, Jackson attempted to flag them down. In addition, Jackson himself testified that one week before the sales for which he was convicted, he directed a police officer to a drug dealer in order to purchase drugs.

Evidence that the agents had seen Jackson on numerous occasions before they picked him out of a photographic lineup and before his arrest was admissible to prove identity. It did not place his character into evidence. See Gober v. State, 264 Ga. 226, 229 (5) (443 SE2d 616) (1994); Childs v. State, 202 Ga. App. 488, 489 (2) (414 SE2d 714) (1992). Moreover, if there is any legitimate basis for admitting evidence, it is to be admitted, even if the evidence might otherwise be inadmissible on other grounds. See Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298) (1989); Pugh v. State, 191 Ga. App. 394, 395 (382 SE2d 143) (1989). This enumeration lacks merit.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A98A1123.
    WACHOVIA BANK OF GEORGIA, N.A. v. MILLER et al.
    (502 SE2d 538)
   Blackburn, Judge.

Wachovia Bank of Georgia appeals from the trial court’s order confirming an arbitration award and ordering Wachovia to release certain frozen funds.

David and Janice Miller entered into an agreement with Section 1031 Services, Inc., pursuant to which Section 1031 Services agreed to serve as facilitator of a tax-free like-kind exchange of property pursuant to § 1031 of the Internal Revenue Code. The parties also entered into an escrow agreement providing that the Millers would deposit funds with Section 1031 Services to effect the tax-free exchange, which funds Section 1031 Services would hold in escrow in its account at Wachovia. The exchange agreement contained an arbitration provision requiring arbitration of any dispute between the parties.

On July 24, 1997, the Millers transferred $152,820.96 into Section 1031 Services’ Wachovia account, to be held pursuant to the escrow agreement. Subsequently, the Millers became concerned because they were repeatedly unable to contact James Gideon, the president of Section 1031 Services, whom they were told had left the country.

On September 4, 1997, the Millers made a demand for arbitration pursuant to the exchange agreement; They also filed a complaint in Cobb County Superior Court against Section 1031 Services and Wachovia, seeking to freeze the assets in Section 1031 Services’ account and also seeking an order staying the action pending arbitration. Following a hearing that afternoon, notice of which was provided to Wachovia, the trial court entered a temporary restraining order freezing the funds in the Wachovia account in the amount of $152,820.96 until further order of the court.

On September 12,1997, the arbitrator entered an award in favor of the Millers, finding that Gideon’s unavailability jeopardized the Millers’ ability to consummate the like-kind exchange and that the Millers were entitled to select a successor facilitator and to have the escrow funds transferred to such successor. The Millers filed an emergency motion to confirm the arbitration award and to direct Wachovia to release the escrow funds to the Millers. The trial court entered a rule nisi requiring the parties to appear for a hearing on the motion at 2:00 p.m. on September 12. The motion and rule nisi were served on Wachovia at 11:30 a.m. on September 12.

Neither Wachovia nor Section 1031 Services appeared at the hearing. After the hearing, the trial court entered an order confirming the arbitration award. The court also found that the funds deposited by the Millers remained on deposit in the Wachovia account for the benefit of the Millers. The court ordered Wachovia to release the funds to the Millers,to be paid over to the successor facilitator designated by them, Donald L. Mize, who was required to hold the funds in an escrow account for a period of 45 days.

Decided May 20, 1998.

Venema, Doherty & Delashmit, Paul T. Wright, for appellant.

1. Wachovia contends that the trial court erred in confirming the arbitration award because the Millers failed to obtain an order compelling arbitration and because Section 1031 Services did not participate in the arbitration proceeding. However, these objections, even if valid, are properly made by Section 1031 Services, not by Wachovia. The arbitration proceeding was a proceeding between the Millers and Section 1031 Services, and Wachovia was not in any way involved in that proceeding. No award was made by the arbitrator against Wachovia. Although Section 1031 Services might have been able to appeal the trial court’s ruling confirming the arbitration award, Wachovia has not in any way shown that it has standing to attack the validity of the award.

OCGA § 9-9-12 provides that “[t]he court shall confirm an [arbitration] award upon application of a party . . . unless the award is vacated or modified by the court as provided in this part.” OCGA § 9-9-13 (c) provides that, under certain specified conditions, an arbitration award “shall be vacated on the application of a party who neither participated in the arbitration nor was served with a demand for arbitration or order to compel arbitration.” It is clear that, in using the term “party,” the statute refers to a party to the arbitration agreement or to some other party whose rights the arbitration award purports to affect. Nothing in the statute allows a stranger to the arbitration, whose rights are not affected by the award, to attack the validity of the award.

2. In two enumerations, Wachovia contends that the trial court erred in ordering it to release the escrow funds to the Millers. However, the record reflects that, after the entry of the order, Wachovia voluntarily paid the funds in the account into the registry of the court. On December 31, 1997, the trial court entered an order disbursing $152,820.96 to Donald Mize as successor facilitator for the Millers. Nothing in the record indicates that Wachovia has appealed this ruling. Accordingly, Wachovia’s claims that the trial court erred in ordering it to disburse funds to the Millers is now moot.

Judgment affirmed.

McMurray, P. Jand Eldridge, J., concur.

Bentley, Bentley & Bentley, Fred D. Bentley, Jr., Veronica S. Jones, for appellees.


author: McMURRAY, Presiding Judge.

text:
    A98A1376.
    REHBERGER v. THE STATE.
    (502 SE2d 518)
   McMURRAY, Presiding Judge.

Defendant Robert L. Rehberger was tried before a jury and found guilty of false imprisonment (Count 1), sexual battery (Count 3), and simple battery (Count 4), for acts directed against Bronwyn Cherry without her consent. An order of nolle prosequi was entered on a charge of aggravated assault (Count 2). For felony false imprisonment and for sexual battery, a misdemeanor involving moral turpitude, defendant was disbarred from the practice of law in the State of Georgia. On June 19, 1997, the trial judge denied defendant’s motion for supersedeas bond pending motion for new trial and appeal. On November 20, 1997, defendant moved for bond pending appeal. The trial court’s response was to enter the following order, filed on December 10, 1997, and captioned “ORDER DENYING HEARING ON SECOND MOTION FOR SUPERSEDEAS BOND.” This order recites in its entirety: “The Defendant in the above-styled case having filed a second Motion for Supersedeas Bond Pending Appeal, and the Court having previously denied Defendant’s first Motion for Supersedeas Bond Pending Appeal[,] it is hereby ordered that Defendant’s request for a hearing on his second Motion for Supersedeas Bond Pending Appeal be denied.” Defendant filed a notice of appeal on January 8, 1998. From the December 10, 1997 order denying a hearing on defendant’s second motion for appeal bond, defendant brings this direct appeal, enumerating as error the ostensible denial of his renewed motion for bond pending appeal. Held:

We are without jurisdiction to consider the merits of this appeal as enumerated and briefed by defendant. The December 10, 1997 order denying defendant a hearing on his second motion makes no disposition on the merits thereof. Consequently, there is no final ruling on the merits of the second motion. The interlocutory ruling that this second motion will not be accorded a hearing is not a final order within the meaning of OCGA § 5-6-34 (a), and so there is no right to a direct appeal therefrom. The January 8, 1998 notice of appeal was filed more than 30 days after the June 19, 1997 order denying defendant’s first motion for supersedeas bond pending motion for new trial and appeal and so is ineffective to confer appellate jurisdiction to consider the correctness of that ruling. OCGA § 5-6-38 (a). The appeal in Case No. A98A1376 must be dismissed.

Appeal dismissed.

Blackburn and Eldridge, JJ, concur.

Decided May 20, 1998.

Joseph M. Todd, for appellant.

Robert L. Rehberger, pro se.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A98A0239.
    PARKER v. THE STATE.
    (502 SE2d 310)
   Smith, Judge.

A Union County grand jury indicted Rodney Dean Parker for the offenses of possession of methamphetamine, possession of methamphetamine with intent to distribute, possession of less than an ounce of marijuana, and obstruction of a law enforcement officer. He was found guilty by a jury on the charges of possession of methamphetamine and obstruction of a law enforcement officer and acquitted on the remaining charges. He appeals from the judgments of conviction and sentence following the denial of his motion for new trial. Finding no error, we affirm.

Construed to support the conviction, the evidence showed that Agent Robert Kern of the Appalachian Drug Task Force received information from two sources that caused him to begin investigating Parker. In the course of Kern’s investigation, an informant, Joey Murphy, planned to purchase approximately 3.5 grams of methamphetamine, known as an “eight-ball,” from Parker. Kern provided Murphy with $300 in task force funds to buy the drugs. At the appointed time, however, Parker did not have an “eight-ball” at his residence and barber shop in Union County, and Murphy, Parker, and Parker’s girlfriend, Marian Pendley, set out in Parker’s van for Stockbridge, where Parker knew someone from whom they could obtain the drugs. Murphy drove the van, Parker was in the front passenger seat, and Pendley was in the back.

At a restaurant in Stockbridge, they turned over the money — the $300 provided by Kern, plus an additional $100 furnished by Parker — to a woman named Paula. They later went to Paula’s apartment in a motel, and the drugs were given to them. According to Murphy, Pendley handed over the cash, and the drugs were later given to Parker. This was disputed by Parker, who testified that Murphy alone handed over the money and received the drugs. The three then headed back to Union County, in the same positions in the van as on the drive down. Murphy testified that he observed Parker and Pendley using the drugs both in the motel in Stockbridge and in the back seat of the van on the way home. He testified that the drugs were placed in a pocket on the back of the front passenger seat of the van.

As they turned into Parker’s driveway, Kern and other officers, who had been waiting, pulled in behind them. Parker immediately jumped out of the rolling van and fled into the woods. The officers identified themselves and ordered Parker to halt, but he ignored the command. The officers were unable to locate Parker and turned their attention to the two persons remaining in the van and the van itself. Their search of the van and its occupants revealed no drugs, but two syringes were found in the pocket on the back of the front passenger seat.

Officers then summoned the Union County 911 Center supervisor, who was female, to further search Pendley’s person. She initially found nothing on Pendley’s person. But she accompanied Pendley to the bathroom, where Pendley removed a plastic bag containing an off-white chunky material from her vagina and handed it over. Murphy testified he had seen Pendley hide the drugs on her person in the van. This bag was turned over to the officers, and a forensic chemist testified that the substance in the bag tested positive for methamphetamine. About one week later, Parker surrendered and was arrested.

1. Parker contends this evidence was insufficient to support his conviction for possession of methamphetamine because the State failed to prove that the offense was committed in Union County or that venue was proper there. We do not agree.

We note initially that it is easy to appreciate Parker’s confusion with regard to the proper measure of the State’s burden with regard to proving venue. See, e.g., Joiner v. State, 231 Ga. App. 61 (497 SE2d 642) (1998); Hall v. State, 226 Ga. App. 298 (1) (485 SE2d 800) (1997); Brinkworth v. State, 222 Ga. App. 288, 289-291 (474 SE2d 9) (1996) (Ruffin, J., dissenting). But in this case, it was not necessary for the State to prove that Parker held the drugs or that they were actually on his person in Union County. The State conceded at trial that it was not seeking to prove actual possession. The State sought to show only either (a) that Parker was in constructive possession of the methamphetamine, or (b) that he was a party to the crime of another person’s actual possession.

(a) To prove constructive possession, the State was required to show that although not in actual possession, Parker knowingly had both the power and the intention at a given time to exercise control over the drugs. Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989). We conclude that the State proved this beyond a reasonable doubt.

Testimony was presented, although it was also disputed by Parker, that Parker was handed the drugs in Stockbridge. It is undisputed that he arranged the buy. Evidence showed the drugs were in the pocket in back of the front passenger seat of the van and that Parker was sitting in that seat, in spatial proximity to the drugs. When Parker jumped out of the van in Union County, the drugs at issue were still located directly behind his seat. Evidence was also presented that Parker actually used a portion of the purchased drugs on the ride home, confirming the inference that Parker not only was near the drugs and had easy access to them, but that he exercised control over them along the way and intended to continue to exercise control over them in Union County.

Parker’s flight when the officers approached further confirms this intention. “[A]n accused’s flight, such as occurred in this case, is circumstantial evidence of consciousness of guilt; the fact that a suspect flees the crime scene points to the question of guilt in a circumstantial manner. [Cit.]” Agony v. State, 226 Ga. App. 330, 331 (486 SE2d 625) (1997). The State presented ample evidence, both direct and circumstantial, to prove beyond a reasonable doubt that Parker constructively possessed the methamphetamine in Union County.

(b) Our conclusion that the State presented sufficient evidence of constructive possession in Union County renders unnecessary an analysis of the State’s alternative theory of party to a crime.

2. After an overnight recess, Parker’s counsel called the trial court’s attention to a listing of pleas in the local weekly newspaper. The paper erroneously listed Pendley as having pled guilty to possession of methamphetamine and possession of methamphetamine with intent to distribute. Counsel requested that the court ask the jurors whether they read the listing.

The trial court properly refused to do so. We agree with the trial court that this inquiry was not relevant to the issues in the case being tried. The Supreme Court of Georgia has held that in this regard, the test for relevancy is whether the evidence offered renders the desired inference more probable than it would be without the evidence. White v. State, 257 Ga. 236 (356 SE2d 875) (1987). In this case, the inference desired by Parker is that he is not guilty. As the prosecutor pointed out, even if jurors read the listing, the information in the paper could as well inure to Parker’s benefit as to his detriment: the jurors could believe that Pendley pled guilty because the drugs were hers and that Parker therefore was not guilty. This test shows that the information was not relevant, and the trial court did not err in refusing to question the jurors about the newspaper listing.

Judgment affirmed.

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

Decided May 5, 1998

Reconsideration denied May 21, 1998.

Ann M. Vaughan, for appellant.

Albert F. Taylor, Jr., District Attorney, Mary E. Moore, Darrell E. Wilson, Assistant District Attorneys, for appellee.


text:
    A98A0574.
    FOSS v. PROBATE COURT OF CHATHAM COUNTY.
    (502 SE2d 278)
   Blackburn, Judge.

Gregory Foss appeals the denial by the Probate Court of Chat-ham County of his application to renew his permit to carry a pistol. For the reasons discussed below, we affirm.

On October 21, 1985, Foss was convicted for felony possession of a controlled substance, driving under the influence, and improper lane usage. Foss was given first offender status as part of a negotiated plea, and he was sentenced to probation. On November 14,1986, the Superior Court of Chatham County granted an order of discharge, terminating Foss’ probation early. Five years after the termination of his probation, Foss applied to the Probate Court for a pistol permit, which was granted on December 27, 1991. When Foss attempted to have his license renewed in 1996, however, the Probate Court denied his application based on OCGA § 16-11-129 (b) (5) (A).

This case presents an interpretation of two statutes: the first offender statute and the pistol permit statute. Georgia’s first offender statute provides: “Upon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. The discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.” OCGA § 42-8-62 (a).

OCGA § 16-11-129 (b) (5) (A), which became effective on April 16, 1990, provides that a license to carry a pistol shall not be granted to “[a]ny person . . . who has been convicted of an offense arising out of the unlawful manufacture, distribution, possession, or use of a controlled substance or other dangerous drug.” OCGA § 16-11-129 (b) (5) (B) (ii), in turn, explains that “convicted” means, among other things, “the affording of first offender treatment by a court of competent jurisdiction irrespective of the pendency or availability of an appeal or an application for collateral relief.” Thus, as a first offender for possession of a controlled substance, Foss falls into the class of persons to whom a permit may not be granted.

Decided April 29, 1998

Reconsideration denied May 21, 1998.

William O. Cox, for appellant.

Spencer Lawton, Jr., District Attorney, Lee, Black, Scheer & Hart, R. Jonathan Hart, Emily E. Garrard, for appellee.

Foss was extended first offender status in 1985, five years before the enactment of OCGA § 16-11-129 (b) (5). Foss completed his first offender prerequisites and was discharged in 1986. At the time Foss elected first offender status, the first offender statute provided that his successful discharge “shall not affect any of his civil rights or liberties.” Foss now argues that OCGA § 16-11-129 (b) (5) conflicts with the first offender statute and retroactively removes his vested right to have his first offender disposition “not affect any of his civil rights or liberties.” We disagree.

“The settled rule for the construction of statutes is not to give them a retrospective operation, unless the language so imperatively requires. . . . The legal presumption is against retroactively applying a statute to destroy vested rights and interests.” (Punctuation omitted.) Dept. of Corrections v. Hicks, 209 Ga. App. 154, 155 (433 SE2d 64) (1993). “Laws prescribe only for the future; they cannot impair the obligation of contracts nor, ordinarily, have a retrospective operation.” OCGA § 1-3-5.

The operation of OCGA § 16-11-129 (b) cannot be considered to be retroactive in its application to Foss. In essence, Foss argues that the right to renew a pistol license becomes a vested right once the original license has issued, and he cannot be denied a renewal thereof. The original license was issued for a specific term and such term expired. Foss was only entitled to a renewal license if he met the qualifications therefor at the time of renewal. Otherwise, the legislature would be unable to amend the statutory requirements for obtaining a license so as to deny such license to any present holder thereof upon renewal. Therefore, application of OCGA § 16-11-129 (b) to Foss was prospective in nature, not retrospective, and this statutory amendment did not impair Foss’ civil rights and liberties as they existed prior to the passage of the statute, with or without reference to the first offender statute, contrary to Foss’ contention.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A0023.
    RUFFIN v. THE STATE.
    (502 SE2d 551)
   McMURRAY, Presiding Judge.

Defendant Ruffin appeals his conviction of the offenses of kidnapping and armed robbery. Held:

1. Defendant’s first enumeration of error questions the sufficiency of the evidence to authorize his conviction. The evidence stated in the light most favorable to sustaining the verdict of the jury shows that the victim was paying a late night visit to an automobile sales lot to examine a vehicle in which he had some interest when he was approached by four individuals in a red compact car. The victim was soon ordered into the small red car at gunpoint, and was directed to lie down across the rear seat passengers. The victim saw one of the perpetrators enter his vehicle. The victim’s wallet and money were taken, and the. victim was driven to another location where he was left lying on the ground after a shot was fired into the ground beside his head. After the four perpetrators drove away, the victim got up and walked to a convenience store. Officer Franklin Ray Strickland heard a gunshot and drove around trying to find the source of the noise until he was dispatched to a convenience store with reference to an armed robbery. Officer Strickland had only a moment to speak to the victim before he received a request for assistance from Officer Mark Smith. While making a traffic stop of a vehicle occupied by four males, Officer Smith had been confronted with the four occupants jumping from the car. The driver fled on foot, but Officer Smith apprehended the remaining three occupants of the vehicle, including defendant. Police found two handguns along with credit cards and other property of the victim in the vehicle stopped by Officer Smith. Two of the four suspects gave incriminating statements which described defendant’s role in the commission of the crimes.

Defendant maintains that the evidence at trial was insufficient to authorize his conviction in view of evidence that the victim was unable to identify any of the perpetrators in a photographic lineup, that defendant denied having been in the car at the time of the crimes, and because the two perpetrators who had given statements implicating defendant attempted at trial to recant those portions of their statements implicating defendant. Nonetheless, these circumstances merely present issues for the jury who is charged with responsibility for resolving conflicts of evidence and questions of credibility. Bishop v. State, 223 Ga. App. 285, 286 (4), 287 (477 SE2d 422); Crawford v. State, 220 Ga. App. 786, 789 (2) (470 SE2d 323); Walsh v. State, 220 Ga. App. 514, 515 (3), 516 (469 SE2d 526); Royal v. State, 217 Ga. App. 459 (1) (458 SE2d 366); Howard v. State, 185 Ga. App. 215 (1), 216 (363 SE2d 621). The evidence presented at trial was sufficient to authorize a rational trier of fact to determine that defendant was guilty beyond a reasonable doubt of the offenses charged and of which he was convicted. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560).

Decided May 21, 1998.

Billy M. Grantham, for appellant.

2. Defendant’s remaining enumeration of error contends the trial court abused its discretion by denying defendant’s motion based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) as it related to the State’s allegedly improper use of peremptory strikes. “ ‘The trial court’s decision (on a Batson motion) rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.’ (Citations and punctuation omitted.) Hightower v. State, 220 Ga. App. 165, 166 (1) (469 SE2d 295) (1996). . . . The threshold issue of whether [defendant] established a prima facie case of discrimination is moot because the State offered purportedly race-neutral reasons for its strikes. See Byers v. State, 212 Ga. App. 110, 112 (2) (441 SE2d 290) (1994). In the light of such explanations, we must determine whether the State’s proffered reasons for striking the jurors in question were race-neutral. Jackson v. State, 265 Ga. 897, 898 (2) (463 SE2d 699) (1995). Under existing precedent, a race-neutral explanation need not be persuasive, plausible or make sense, but is an explanation ‘based on something other than the race of the juror. Unless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race-neutral.’ (Citations and punctuation omitted.) Id.” Byron v. State, 229 Ga. App. 795, 797 (5) (495 SE2d 123).

The State’s explanations for all of its strikes were race-neutral under these guidelines. Three of the potential jurors had been the subject of action by another State agency, the Department of Family & Children Services, while the fourth was a relative of an individual who was convicted of child molestation and this potential juror’s children had been arrested and been in trouble with the law. Three of the potential jurors were linked to defense counsel via their involvement with another attorney, while one juror had exhibited a propensity to violate traffic laws and had failed to appear at court. The trial court did not abuse its discretion in denying the motion because the State offered sufficient reasons for the exercise of its peremptory strikes.

Judgment affirmed.

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

J. Brown Moseley, District Attorney, John A. Warr, Assistant District Attorney, for appellee.