text:
    A89A1289.
    WHITE v. THE STATE.
    (387 SE2d 921)
   Pope, Judge.

Defendant Johnny F. White was tried and convicted by a jury of two counts of aggravated child molestation in Lee County, Georgia. He appeals from the trial court’s denial of his motion for new trial. We affirm.

1. Defendant contends that the State failed to prove venue as to both counts. Count one of the indictments concerned an incident that allegedly occurred on April 7, 1988, when the defendant, against medical advice, removed the victim, his eight-year-old daughter, from Southwest Regional Hospital, where she had been placed because of severe behavioral problems. According to the statement of the defendant, which was entered into evidence at trial, and the videotaped testimony of the victim, the defendant and the victim were travelling from the hospital in Thomas County, Georgia, to their home in Lee County, when the defendant left the main road and went behind a barn where he instructed the victim to undress. Defendant stated that he fondled the victim while masturbating. The victim told hospital workers that the defendant fondled her and placed his mouth on her genitals while masturbating. Neither the victim nor the defendant could identify which county they were in when these acts took place.

In general, criminal actions shall be tried in the county where the crime was committed. OCGA § 17-2-2 (a). However, “[i]f a crime is committed upon any . . . vehicle . . . within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the . . . vehicle . . . has traveled.” Here the evidence shows that the defendant traveled with the victim from Thomas County, where the hospital was located, to Lee County where the defendant lived with the victim and her siblings. Consequently, the evidence of venue as to count one was sufficient. See Polk v. State, 142 Ga. App. 785 (2) (236 SE2d 926) (1977).

The second count of the indictment concerned acts of molestation which allegedly occurred between January and April of 1988, after defendant moved from Cussetta, Georgia, in Chattahoochee County to Lee County. Defendant admitted to molesting his daughter on three occasions while the family was residing in Cussetta. The victim told workers at the hospital that the molestation had been occurring for approximately two years, and that the father had attempted penetration when they were living in Cussetta, but since that time the acts had consisted of fondling and oral sodomy. Evidence was also presented that the victim had a history of behavior problems and that these problems were most severe when the victim was living with her father and less severe when she was living with her grandmother. A social worker testified that the victim’s behavioral problems had increased in severity after the victim had moved back in with her father while he was living in Lee County. Testimony was also presented that the victim’s behavioral problems and test results were consistent with a child who had been sexually abused. “Circumstantial, as well as direct evidence, may be used to establish venue. Loftin v. State, 230 Ga. 92, 94 (2) (195 SE2d 402) (1973). Where there is no conflicting evidence, slight evidence is sufficient. Aldridge v. State, 236 Ga. 773, 774 (1) (225 SE2d 421) (1976). Since venue is a question for the jury, its decision will not be set aside if there is any evidence to support it. [Cits.]” Taylor v. State, 176 Ga. App. 567 (1) (a) (336 SE2d 832) (1985). See also Woodruff v. State, 191 Ga. App. 338 (381 SE2d 582) (1989).

2. Defendant also contends that he was rendered ineffective assistance of counsel' at trial. Specifically, defendant argues that trial counsel was unprepared, that he failed to conduct a thorough cross-examination of the State’s witnesses, that he failed to put the defendant on the stand, that he failed to call certain witnesses who would have given testimony beneficial to the defendant, and that he failed to pursue vigorously certain challenges to the evidence and motions made on the defendant’s behalf.

Pursuant to the two-prong test enunciated in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), defendant must meet two tests in order to prevail on his ineffective assistance of counsel claim: “1) he must show that trial counsel’s performance was deficient in that he made errors so serious that he was not functioning as the ‘counsel’ guaranteed defendant by the Sixth Amendment; 2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable. [Cit.]” Hosch v. State, 185 Ga. App. 71, 72 (363 SE2d 258) (1987). As to the first prong, the Supreme Court has approved the “reasonably effective assistance” standard adopted in Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974). “Thus ‘(t)he reasonableness of counsel’s performance is then considered in light of the totality of the circumstances, viewed from counsel’s perspective at the time of trial, thereby eliminating the possible distortions of hindsight analysis. (Cit.) The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.’ Brogdon [v. State, 255 Ga. 64, 68 (335 SE2d 383) (1985)]. As to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. [Cit.]” Thompson v. State, 188 Ga. App. 508, 509 (373 SE2d 292) (1988). “ ‘Regarding the second prong of the test, the defendant must show that the deficient performance actually prejudiced the defense. In other words he must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s unprofessional errors. [Cits.]’ ” Gainer v. State, 188 Ga. App. 314, 315 (372 SE2d 848) (1988).

Our review of the trial transcript reveals that in the instant case defense counsel was, contrary to defendant’s assertions, versed in both the law and the facts of the case, that he conducted a thorough cross-examination of the State’s witnesses, that he made a pre-trial motion in limine and that he moved for a directed verdict at the close of the case. Although counsel did not place the defendant on the stand or present any witnesses in his behalf, the record discloses that counsel attempted, through his cross-examination of other witnesses, to show both that the defendant’s statement was involuntarily given and that the statements made by the victim should not be believed.

“Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate. [Cits.] Even if trial counsel’s strategy was flawed, it was not sufficient to render his representation ineffective under the [standard enunciated above.]” Hosch, supra at 72. Consequently, we find defendant’s allegations of ineffective assistance of counsel to be without merit. See Thompson, supra; Gainer, supra; Ray v. State, 183 Ga. App. 57 (357 SE2d 877) (1987).

3. We have examined defendant’s enumerations concerning the admission of his in-custody statement and find them to be without merit. Specifically, the record does not support defendant’s contentions that the statement was the product of duress or that he made the statement because he was in “pain and anguish due to paint and chemical substances upon his body.”

4. Defendant enumerates as error the admission into evidence of similar transactions, to wit, evidence that the defendant had molested the victim while they were residing in Cussetta, Georgia. Again we find no error. “Evidence of other similar crimes by a defendant is admissible if there is sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. Such evidence may be admitted to show state of mind or intent of a defendant. In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the testimony of the victim as to the act charged. [Citations and punctuation omitted.] Felts v. State, 154 Ga. App. 571 (2) (269 SE2d 73) (1980).” Meier v. State, 190 Ga. App. 625, 627-628 (379 SE2d 588) (1989). Here the similar offense consisted of on-going acts of molestation perpetrated by the defendant on the victim while they were living in another county. Defendant admitted prior to trial that he had molested the victim on four previous occasions while the family resided in Cussetta. This enumeration affords no basis for reversal. Tucker v. State, 191 Ga. App. 648 (382 SE2d 425) (1989); Butler v. State, 191 Ga. App. 620 (3) (382 SE2d 616) (1989).

5. We have examined the videotape of the victim describing the acts of molestation, as well as the testimony presented at trial concerning the circumstances under which the videotape was made, and find that it was properly admitted into evidence at trial. Newberry v. State, 184 Ga. App. 356 (2) (361 SE2d 499) (1987).

6. Relying on Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987), defendant enumerates as error the trial court’s failure to place the victim on the stand to testify. “[T]he court is required to have the victim testify only ‘at the request of either party,’ [Sosebee at 299] . . . .” In the Interest of B. H., 190 Ga. App. 131, 133 (378 SE2d 175) (1989). Here, neither party requested that the victim testify, and the defendant specifically agreed that the child could be released from trial during the course of the proceedings. This enumeration is without merit.

7. Defendant asserts the general grounds, and argues that the trial court erred in denying his motion for directed verdict on the basis that the State failed to prove the elements of the charges against him. However, we have examined the evidence adduced at trial and find it more than sufficient to enable any rational trier of fact to find defendant guilty of the offenses of aggravated child molestation. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Thus, the trial court did not err in denying defendant’s motion for directed verdict of acquittal. See Westbrook v. State, 186 Ga. App. 493 (3) (368 SE2d 131) (1988).

Decided November 7, 1989.

Robert H. Reeves, for appellant.

John R. Parks, District Attorney, Barbara A. BeCraft, Assistant District Attorney, for appellee.

8. Likewise, for the reasons stated in Divisions 1 through 7 of this opinion, the trial court did not err in denying defendant’s motion for new trial.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    A89A1429.
    LEE v. XEROX CORPORATION.
    (387 SE2d 653)
   Benham, Judge.

This is an appeal from the grant of summary judgment to appellee, who sued Richard C. Lee individually and d/b/a Lee Realty Company in the State Court of Cobb County for payment due on an account. Appellant alleged in his answer that the court lacked jurisdiction over him because he resided in Fulton County. In response to appellee’s motion for summary judgment, appellant attached an affidavit setting forth that he is the sole proprietor of Lee Realty Company. The trial court granted appellee’s motion for summary judgment.

1. In his first enumeration of error, appellant contends that it was error for the trial court not to dismiss or transfer the action for lack of personal jurisdiction over him. Appellant contends that he should have been sued in the county where he resides, not the county where his sole proprietorship is located.

It is clear from the record that appellant has raised improper venue as a defense to the complaint. The Georgia Constitution provides that civil cases shall be tried in the county where the defendant resides. Ga. Const. 1983, Art. VI, Sec. II, Par. VI. Appellant resides in Fulton County. The uncontroverted affidavit of appellant establishes that Lee Realty Company is a sole proprietorship of which appellant is the sole proprietor. “The county of residence of a sole proprietorship is the county of residence of its proprietor. [Cit.]” Dowis v. Wat son, 161 Ga. App. 749 (1) (289 SE2d 558) (1982). Thus, the correct venue for Richard C. Lee and Lee Realty Company is in Fulton County. The proper remedy for improper venue is not dismissal, but transfer of the case to the appropriate forum. Shannon v. Allen &c. Transmission, 172 Ga. App. 88 (322 SE2d 99) (1984). Accordingly, the order granting summary judgment to appellee is vacated and remanded to the trial court for transfer to the proper court.

Decided November 7, 1989.

John C. Tyler, for appellant.

Clark, Mascaro & Associates, Karen Mascaro, Jeffrey L. Hersh, for appellee.

2. Our holding in Division 1 renders moot the issue raised in appellants’ second enumeration of error.

Judgment vacated and case remanded with direction.

Deen, P. J., and Birdsong, J., concur.


author: Banke, Presiding Judge.

text:
    A89A1750.
    DOVER et al. v. DOVER.
    (388 SE2d 35)
   Banke, Presiding Judge.

The appellee executed a release form purporting to surrender her parental rights with respect to her minor child to the appellants, who are the appellee’s natural father and his wife. The appellee thereafter filed a motion to rescind this release after the appellants petitioned to adopt the child. The trial court entered an order dismissing the adoption petition based on a finding that the purported surrender of parental rights was invalid due to a technical defect, and this appeal followed.

At the hearing on the motion to withdraw her surrender, the appellee maintained that the form which she had signed was defective because it was the one set out at OCGA § 19-8-4 (c) (2), pertaining to adoption by non-relatives, rather than the one set out at OCGA § 19-8-4 (c) (1), pertaining to adoption by relatives. She argues that use of the “relative” form would have been more appropriate in this case because her father is one of the petitioners. The appellants, on the other hand, argue that because the father’s wife has no blood relationship to the child, use of the “non-relative” form was more appropriate. Held:

The appellee relies on Tyson v. Dept. of Human Resources, 165 Ga. App. 414 (301 SE2d 485) (1983), in support of her contention that use of the “non-relative” form in this case rendered her purported surrender of parental rights invalid. In Tyson, the natural mother had signed the surrender form pertaining to adoption by relatives, but neither of the individuals to whom she purported to surrender her rights were in fact relatives. These individuals thereafter attempted to assign their rights under the surrender form to two other persons who also were not related to the child, and those persons in turn commenced adoption proceedings. We held that the surrender was invalid under the circumstances, both because “[a] different form is required where the child is being surrendered to third persons than is necessary where the surrender is to relatives,” and because “there is nothing in the adoption statute which authorizes an assignment of adoption rights from one third party to another.” Id. at 415. Cf. Nelson v. Taylor, 244 Ga. 657 (1) (261 SE2d 597) (1979) (holding that use of the surrender form pertaining to relatives was proper in the case of an adoption petition brought by the paternal grandparents of an illegitimate child.)

Decided November 7, 1989.

Billy R. Right, for appellants.

Judson L. Green III, for appellee.

In the present case, neither of the two surrender forms would have been entirely appropriate, since one of the adoption petitioners is a relative and the other is not. The appellants chose to use the “non-relative” form under these circumstances undoubtedly because the class of persons encompassed by it is broader than the class encompassed by the “relative” form. In this situation, we conclude that it was error for the trial court to dismiss the adoption petition solely on the technical ground that the wrong form had been used. However, in making this decision, it is not our intention to preclude or to prejudge any contention by the appellee that the surrender was invalid for some other reason, such as because it was not freely and voluntarily given. See generally Ritchie v. Dillon, 103 Ga. App. 7 (2) (118 SE2d 115) (1961).

Judgment reversed.

Sognier and Pope, JJ., concur.


text:
    A89A1778.
    BOSS v. FOOD GIANT, INC.
    (388 SE2d 37)
   Banke, Presiding Judge.

The appellant sued to recover for personal injuries which he allegedly sustained when he slipped and fell while exiting a grocery store owned and operated by the appellee. He brings this appeal from the grant of the appellee’s motion for summary judgment.

The appellant testified in his deposition that upon leaving the store with his grocery bags in hand, he slipped in the doorway and fell on the pavement just outside the automatic door. He stated that he had not noticed any foreign substance on the pavement prior to his fall but that he observed some egg spillage there afterwards. The store co-manager who had been on duty at the time testified that immediately upon being notified of the incident, he went to the scene and observed a small amount of egg on the concrete approximately 3 to 4 feet outside the door. Neither he nor the appellant observed any egg shells. The co-manager testified that it was store policy to have an employee “survey” the walkways both inside and outside the store every two hours. However, this witness further testified that such inspections were not conducted at regularly scheduled times and that no store records were kept to document them, with the result that he could not say how long before the appellant’s fall the last such survey had occurred. Indeed, he did not even testify that the inspection policy had been followed on the day in question. Approximately five employees were working in the store at the time of the incident, including three cashiers stationed just inside and to the right of the exit door. Held:

An owner or occupier of land is liable for damages to invitees caused by his failure to exercise ordinary, care in keeping the premises safe. OCGA § 51-3-1. “[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). It is apparent without dispute from the evidence of record in the present case that the appellee had no actual knowledge of the presence of the egg spillage on the sidewalk before the appellant’s fall. Although the appellant asserts that it may be inferred from the absence of any egg shell in the spillage that the appellee’s employees had made an attempt to remove the hazard, we cannot agree that any such inference reasonably arises from the evidence.

“ ‘Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. [Cit.] Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. (Cits.)’ ” (Emphasis supplied.) Food Giant v. Cooke, 186 Ga. App. 253, 254 (366 SE2d 781) (1988). See also Rush v. Food Giant, 183 Ga. App. 388 (1) (358 SE2d 919) (1987).

Decided November 7, 1989.

Goldstein & Schatten, Lee S. Goldstein, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, J. Franklin Burns, for appellee.

It is apparent without dispute from the evidence of record in the present case that there was no employee in the immediate area of the egg spillage at the time of the appellant’s fall. “ ‘Thus, [the appellant’s] sole avenue of possible recovery is one in which constructive knowledge on the part of [the appellee] is premised upon [the appellee’s] failure to exercise reasonable care in inspecting and keeping the premises in [a] safe condition. [Cit.]’ ” Food Giant v. Cooke, supra at 254-255. The burden was, of course, on the appellee as movant on motion for summary judgment to negate this theory of liability by presenting evidence that it had in fact exercised reasonable care in inspecting the premises. Inasmuch as the evidence submitted by the appellee on this issue failed to establish that any inspection at all had been made on the day in question, we must conclude that this burden of proof was not met. Thus, the burden never shifted to the appellant to produce evidence that the egg spillage had been present on the pavement outside the door for a period of time sufficient to have been discovered by a reasonable inspection procedure. Accord Food Giant v. Cooke, supra. See also Hilsman v. Kroger Co., 187 Ga. App. 570 (370 SE2d 755) (1988). Although the burden would be on the appellant to present such evidence at trial in order to establish a prima facia case based on the constructive knowledge theory, “[o]n a motion for summary judgment, the burden of establishing the non-existence of any genuine issue of fact is upon the moving party . . . even as to issues upon which the opposing party would have the trial burden. . . .” Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973). Therefore, we hold that the trial court erred in granting the appellee’s motion for summary judgment.

Judgment reversed.

Sognier and Pope, JJ., concur.


author: Sognier, Judge.

text:
    A89A1835.
    JENGA et al. v. DEVEAUX.
    (388 SE2d 361)
   Sognier, Judge.

Chimurenga K. S. Jenga and his wife, Natsu Saito Jenga, appeal from the superior court’s dismissal of their appeal from an interlocutory order of the City Court of Atlanta.

Decided October 24, 1989.

Rehearing denied November 8, 1989

Chimurenga Jenga, pro se.

Natsu Jenga, pro se.

Raines F. Carter, for appellee.

Clinton E. Deveaux, pro se.

1. The record reveals that the order appealed from was one continuing the probable cause hearing of appellants on various charges and prohibiting appellants from exhibiting certain symbols and books on their clothing or in the courtroom. The superior court dismissed the appeal because “the evidence discloses no final appealable order.” An appeal to the Superior Court from an order of the city courts may be taken only by petition for certiorari pursuant to OCGA § 5-4-3, and only from a “decision or judgment.” “ ‘The writ of certiorari does not lie to correct a judgment of an inferior judicatory until after a final determination of the cause. . . .’ (Cit.)” Attwell v. Sears, Roebuck, 159 Ga. App. 811, 812 (2) (285 SE2d 199) (1981). Appellants neither appealed from a final decision or judgment nor filed a petition for certiorari pursuant to OCGA § 5-4-3, and accordingly we find no error by the superior court in dismissing the appeal.

However, even if we assume, arguendo, that appellants’ appeal was correctly filed in superior court despite their failure to avail themselves of proper procedure, review by this court may be had of the superior court’s order only by filing an application for leave to appeal. See OCGA § 5-6-35 (a) (1). As appellants have not filed such an application, we are without jurisdiction to consider the appeal, and it is accordingly dismissed. Crawford v. Goza, 168 Ga. App. 565 (310 SE2d 1) (1983).

We note, without commenting on the merits of the contention, that even if the original order is viewed as an injunction, as urged by appellants, and is thus directly appealable from the city court pursuant to OCGA § 5-6-34 (a) (4), the appeal is directly to the Supreme Court, and the time for such an appeal expired long before the appeal at bar was dismissed by the superior court.

2. We find without merit all other contentions made by appellants.

Appeal dismissed.

Banke, P. J., and Pope, J., concur.


author: Deen, Presiding Judge.

text:
    A89A1936.
    LATTANY v. THE STATE.
    (388 SE2d 23)
    Decided November 1, 1989
    Rehearing denied November 8, 1989

      Randall M. Clark, for appellant.

      Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.
   Deen, Presiding Judge.

Clarence Lattany appeals from his conviction of aggravated assault, contending that the trial court erred in failing to disqualify a juror on voir dire. Held:

Lattany contends that the juror in question testified that she could not be fair and impartial because of the nature of the case. Further questioning revealed that her father had been assaulted “and for that reason I think that I am somewhat biased.” An examination of the entire transcript of the voir dire reveals that appellant has taken the venireman’s words out of context. When the assistant district attorney questioned the juror as to what the evidence might show, i.e., that the person on trial did not do the shooting, or that the shooting was justified, she stated that she could be fair and impartial. The court questioned her as to her ability to set aside any prejudices or preconceived notions, listen to the evidence, and determine the guilt or innocence of the accused solely upon the basis of the evidence presented at trial. She responded that she could do that, and the court denied the motion to excuse her for cause.

While a venireman may initially express doubt as to his or her ability to be impartial, this fact alone does not demand that the prospective juror be excused for cause. When the venireman indicates that he can render a fair and impartial verdict based solely upon the evidence presented at trial, he is prima facie competent to serve. Durham v. State, 185 Ga. App. 163, 165 (363 SE2d 607) (1987). The trial court has the discretion as to whether to strike a juror for cause. Davis v. State, 187 Ga. App. 517, 520 (370 SE2d 779) (1988); Durham v. State, supra. We find no abuse of the trial court’s discretion. The court followed the provisions of OCGA § 15-12-164 for setting aside a juror for cause and found that the juror in question could render a fair and impartial verdict.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Birdsong, Judge.

text:
    A89A0140.
    STEPHO v. ALLSTATE INSURANCE COMPANY.
    (389 SE2d 274)
    Decided November 8, 1989.

      Edgar L. Crossett III, for appellant.

      Chambers, Mabry, McClelland & Brooks, Clyde E. Rickard III, Thomas E. Brennan, for appellee.
   Birdsong, Judge.

This case initially came before us as an appeal from an order of the trial court granting summary judgment to Allstate Insurance Company. In Stepho v. Allstate Ins. Co., 191 Ga. App. 494 (382 SE2d 154), we held that the permissibility of inter-sibling suit under the family immunity doctrine did not make the family exclusionary clause in the contract of insurance void as against public policy, and affirmed the judgment of the trial court. In Stepho v. Allstate Ins. Co., 259 Ga. 475 (383 SE2d 887), the Supreme Court reversed our decision concluding the exclusion in question “is against public policy and must not stand.”

The Supreme Court further held that Georgia’s compulsory insurance law does not establish public policy as to sums greater than those required by such law; thus in the case sub judice “Allstate’s liability is limited to the mandatory $15,000 coverage.”

Accordingly, we must reverse the judgment of the trial court and remand this case with direction to apply the holding of the Supreme Court that the exclusion while violative of public policy was so only to the extent of the mandatory insurance amount of $15,000.

Judgment reversed and case remanded with direction.

Deen, P. J., and Benham, J., concur.


text:
    A89A1426.
    SIMPSON v. THE STATE.
    (388 SE2d 39)
   Birdsong, Judge.

Lamar Simpson appeals his conviction for armed robbery. He contends on appeal that the in-court identification of him by a witness was “based on impermissibly suggestive procedures that led to the misidentification of Lamar Simpson”; and that the evidence was insufficient to support the verdict of guilty beyond a reasonable doubt. Held:

1. The basis of appellant’s contention as to “impermissibly suggestive” procedures that led to misidentification by witnesses in court, is that the photograph of Simpson shown to two witnesses in a photo lineup was, because of its unusual lightness of exposure, markedly distinguishable from the other photos presented.

We find no merit in these contentions. Appellant has not suggested that there was any actual physical misrepresentational prejudice against him in the fact that his photograph exposed lighter than the others. That is, for example, there is no suggestion on appeal that the description given of the robber was that of a light-skinned person whereas appellant was a darker-skinned person, with a result that a photograph misrepresenting appellant as light-skinned would actually tend to mislead the witness, and “impermissibly suggest” appellant was the robber because his photograph showed a light complexion.

No such misleading suggestibility is proposed here; appellant contends only that because his photo was different from the others shown, it “stood out” and impermissibly suggested he was the robber or that his photo should be chosen. We find no logic in this proposal, and it would be sheer speculation, and dangerous, to agree that the mere fact that a photo is in some depictive way different from the others automatically gives rise to a claim for impermissible suggestiveness. The point of the line-up, in fact, is that hopefully all such photos will be somewhat different; some will be taken with different cameras under differing circumstances. Therefore, “[t]he variance in size and texture in the pictures used does not render the procedure impermissibly suggestive. [Cits.]” Graham v. State, 171 Ga. App. 242, 253 (319 SE2d 484).

We conclude there is no basis for appellant’s contentions that the in-court identifications of him were tainted by the “impermissibly suggestive” fact that his photograph exposure was lighter than the others shown. See generally Sparks v. State, 185 Ga. App. 225, 226 (2) (363 SE2d 631).

2. The evidence in court showed that as he was being robbed, and before, the store employee witness viewed appellant under bright-light conditions for some five minutes at close range, across the counter. He observed a gap in the robber’s teeth; appellant has a gap in his teeth, but also has a broken tooth which apparently the witness did not notice. The height of the robber described by the employee was generally consistent with that of appellant; if his weight varied in any degree from what the witness described, this element addresses the witness’ credibility or the jury’s estimation of his powers of observation and calculation. The weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness, or others, for it is the function of the triers of fact to determine to what evidence it gives credence. See Chappel v. State, 183 Ga. App. 706, 707 (359 SE2d 686). It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. (See Devane v. State, 183 Ga. App. 60, 61 (357 SE2d 819). Rather, on appeal, we indulge every contingency in favor of the verdict. Drake v. State, 241 Ga. 583, 585 (247 SE2d 57).

Decided November 8, 1989.

James A. Yancey, Jr., for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assistant District Attorney, for appellee.

In addition to the identification of appellant as the robber, there was particular evidence placing appellant at the scene at or about the time of the robbery. A suspicious neighbor wrote down the vehicle license tag of a “foreign” car which let out a man at the store; the neighbor thereafter saw a man similar in height run to another car and leave. The tag number of the “foreign” car was traced to its owner, who admitted that the man he had let out of his car was appellant Lamar Simpson.

All of the evidence in this case was sufficient to enable a rational trier of fact to find proof of guilt beyond a reasonable doubt, under the standard laid down in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

We find no merit in this appeal.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Pope, Judge.

text:
    A89A1479.
    KIMBLE v. BHM CONSTRUCTION COMPANY, INC.
    (388 SE2d 40)
   Pope, Judge.

Plaintiff/appellant Richard Kimble instituted the present action against defendant/appellee BHM Construction Company, Inc. (hereinafter BHM) under a theory of respondeat superior for injuries he received while delivering materials to a construction site on which BHM was constructing a house. As alleged in plaintiff’s complaint, a saw horse thrown off the roof by one of the carpenters framing the house landed on him causing him serious injury. Defendant subsequently filed a motion for summary judgment, contending that the carpenters were independent contractors, not employees, and therefore it should not be liable for their alleged negligence. The trial court granted defendant’s motion and plaintiff appeals. We affirm.

The evidence shows that BHM is in the sole business of constructing residential real estate. BHM purchases the land, obtains the plans, and purchases the materials necessary to build its homes. The actual labor of building the homes is performed by subcontractors who are retained by Rex Burch, the president and majority shareholder of BHM. Burch testified that he obtained the subcontractors as needed, based on the progress at the work site. On this particular project BHM had contracted with David Wetzel, a carpenter, to frame the house. Wetzel averred in his affidavit that he agreed to frame the house for a set price based on the specifications provided by BHM, but that BHM did not have the right to direct his work on a step-by-step basis. BHM furnished Wetzel the materials necessary to frame the house but did not provide Wetzel or his workers with tools or equipment. Burch visited the site several times a week to see how the work was progressing. Defendant also paid Wetzel a weekly “draw” against the contract price based on the amount of work that had been completed that week. Wetzel employed his own workers on the job and Burch testified that he assumed the workers were paid an hourly wage by Wetzel. Although the record shows that BHM had liability and workers’ compensation insurance which arguably provided coverage for the subcontractors on the job, Burch testified he expected Wetzel to provide his own insurance for his workers. Burch also testified that based on industry custom, he would have been free to dismiss Wetzel if he failed to work at the job site for a period of one week or longer.

“The issue in determining whether one was an employee or an independent contractor is whether the employer retained the right to exercise control over the time, place or manner of the work performed. Swift & Co. v. Alston, 48 Ga. App. 649 (173 SE 741) (1934).” Mason v. Gracey, 189 Ga. App. 150, 151 (375 SE2d 283) (1988). Plaintiff argues that the relationship between BHM and Wetzel was that of employer and servant as opposed to employer and independent contractor because BHM had the right to demand that the work was done in compliance with the plans and specifications provided to its subcontractors, and because Burch visited the project site on a frequent basis to ensure that the work was being performed according to plan and to check on the progress of the work. “The fact that an employer continuously checks the work of an independent contractor to see that the work is being done according to the specifications of the job is thoroughly consistent with the relationship of employer and independent contractor and with the mere right of the employer to insist on a certain specific result. There is nothing in the [record] to indicate that [BHM] either had or assumed the right to control the time, manner and method of doing the work. The fact that. . . plans and specifications [were given to Wetzel] is . . . thoroughly consistent with the existence of the relationship of employer and independent contractor. So was the right to change the work [if it did not meet the plans and specifications provided] and the right to dispense with the independent contractor’s services if, during the performance of the job, it appeared that he either was incapable or unwilling to do the job according to the plans and specifications. This was not a case of an indefinite employment of [Wetzel] by [BHM]. Under the evidence, [Wetzel] was employed to do a specific job which contemplated a definite beginning, continuance and ending. While no time for the performance of the contract was expressly stipulated, it was mutually understood that the job was to be done within a reasonable time and without unnecessary delay. Such an agreement does not render the contract one of general employment. [Cit.] The right to control the time of doing the job means the right to control the hours of work. The right to control the manner and method means the right to tell the employee how he shall go about doing the job in every detail, including what tools he shall use and what procedures he shall follow. None of these elements was present in this case. . . . What [Wetzel] used to do the job and how he went about it and how much time he spent were matters solely for his determination, so long as he produced the required results.” Employers Mut. &c. Ins. Co. v. Johnson, 104 Ga. App. 617, 619-620 (122 SE2d 308) (1961).

Plaintiff also contends that the relationship of employer-servant was shown by the fact that Wetzel was paid on a weekly basis. “[T]he mode of payment is not decisive of the issue. [Cit.] Moreover, [Burch] testified [Wetzel] received a weekly draw in accordance with the amount of work completed for that week. The method of payment does not establish [Wetzel] was paid wages but is consistent with periodic payment according to the percentage of completion of a contract.” Mason v. Gracey, supra at 151.

We also reject plaintiff’s argument that the fact that BHM purchased liability and workers’ compensation insurance which arguably covered its subcontractors on the project was sufficient, without more, to establish that the relationship between BHM and Wetzel was that of employer-servant rather than that of employer-independent contractor. Although the existence of insurance is one factor to be considered in determining the relationship between the parties, this factor standing alone is not sufficient to raise an issue as to the nature of the relationship between BHM and Wetzel. The uncontroverted evidence in this case shows that BHM did not have the right, nor did it assume the right, to control the time, method and manner of executing the work of Wetzel or his workers. Consequently, the trial court correctly concluded that BHM was entitled to summary judgment on the basis that it was not liable to plaintiff under the theory of respondeat superior. See Mason v. Gracey, supra; Tanner v. USA Today, 179 Ga. App. 722 (1) (347 SE2d 690) (1986); Piggly Wiggly Southern v. Hercules, Inc., 151 Ga. App. 238 (259 SE2d 219) (1979); Farmers Mut. Exchange &c. v. Sisk, 131 Ga. App. 206 (205 SE2d 438) (1974).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Decided November 8, 1989.

William R. Waldrop, for appellant.

Thomas E. Magill, Cheri D. McLeod, for appellee.


text:
    A89A1539.
    SPEIR v. NICHOLSON et al.
    (388 SE2d 42)
   Pope, Judge.

Plaintiff Elzie D. Speir, Sr., brought suit against defendants Carol Lea Nicholson and Debra Louise Nicholson Arnold (and others who are no longer parties in this case) alleging that defendants had defaulted on the terms of a contract to pay an amount of money for the purchase of certain assets of Speir Insurance Agency, Inc. The trial court granted a directed verdict in favor of defendants at the conclusion of the jury trial. On August 24, 1988, plaintiff filed a timely notice of appeal. On December 20,1988, defendants filed a motion to dismiss the appeal on the ground that no transcript had been filed within thirty days as required by OCGA § 5-6-42, nor had the plaintiff requested an extension of time for filing the transcript. Plaintiff responded to the motion to dismiss the appeal by filing the affidavit of plaintiff’s attorney stating that he had called the court reporter within thirty days of the judgment and requested the transcript be prepared and that all bills submitted by the court reporter and clerk of the court had been promptly paid. The record shows the transcript was filed on January 20, 1989. Nevertheless, the trial court issued an order on January 25, 1989, reciting that the transcript was never filed and dismissing plaintiff’s notice of appeal pursuant to OCGA § 5-6-42. Plaintiff now appeals the order dismissing its original notice of appeal from the directed verdict.

1. “Failure of the appellant to request an extension for the filing of the transcript is not in itself a ground for dismissal of the appeal absent a judicial determination that the resulting delay was both unreasonable and inexcusable. Young v. Jones, 147 Ga. App. 65 (2) (248 SE2d 49) (1978).” Glen Restaurants v. BLDG. 5 Assoc., 189 Ga. App. 327, 328 (375 SE2d 492) (1988). In this case, the order dismissing the appeal simply recited that the transcript had not been timely filed but did not include the requisite finding that the resulting delay was both unreasonable and inexcusable. Consequently, we must reverse the order and remand with instruction that a finding be made on the issues of whether the delay was unreasonable and inexcusable.

2. Plaintiff’s remaining enumerations of error relate to the propriety of the trial court’s order of directed verdict, the subject of plaintiff’s original notice of appeal. Since we cannot conclude as a matter of law that the dismissal of appeal was improper, we need not address the remaining enumerations of error. Those enumerations of error are not properly before us at this time.

Decided November 8, 1989.

Bannister & Black, Charles C. Black, for appellant.

Swift, Currie, McGee & Hiers, Jane C. Barwick, James W. Dilz, for appellees.

Judgment reversed and case remanded with instructions.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1566.
    JAY GLEASON ADVERTISING SERVICE, INC. v. GLEASON.
    (388 SE2d 43)
   Pope, Judge.

Plaintiff Thomas W. Gleason sued defendant Jay Gleason Advertising Service, Inc., on a promissory note for $10,500. Defendant answered asserting the defenses of fraud and failure of consideration. After the deposition of the sole shareholder of defendant corporation was taken and defendant had responded to certain discovery requests, plaintiff moved for summary judgment. Defendant did not respond to the motion by affidavit or by brief of law. The trial court granted summary judgment to plaintiff and defendant appeals.

1. Defendant argues summary judgment was improper because the record does not reflect all the facts necessary in order for the plaintiff to be entitled to judgment. “When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” OCGA § 11-3-307 (2). The evidence in the record shows the promissory note was duly executed and that defendant is in default. Thus, a prima facie right to judgment by plaintiff is established and the burden is on the defendant to establish an affirmative defense to plaintiff’s claim. See Citizens Bank v. Wix, 154 Ga. App. 249 (267 SE2d 856) (1980).

2. Defendant also argues the evidence of record creates genuine issues of material fact. We disagree. We have examined the transcript of the deposition of defendant’s sole shareholder and defendant’s written responses to discovery requests and conclude that no genuine issue was raised in defense to plaintiff’s claim on the promissory note. Generalized arguments amounting to mere conclusions have no probative value to pierce the facts presented by the movant for summary judgment. Booker v. Eddins, 183 Ga. App. 449 (359 SE2d 211) (1987).

Decided November 8, 1989.

Daniel W. Latimore, Jr., for appellant.

Joseph Gardner III, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1933.
    WALKER v. THE STATE.
    (388 SE2d 44)
   Sognier, Judge.

Jimmy Walker was convicted by a jury of criminal attempt to commit armed robbery and pleaded guilty to a charge of possession of a firearm by a convicted felon. He appeals the attempt conviction, enumerating the general grounds.

The trial transcript discloses that on the night of September 21, 1988, Moses Howard was working as a cashier at Sal’s Stop and Shop in College Park when a man he identified as appellant came into the store and purchased two packs of cigarettes. Howard testified appellant returned to the store a few minutes later, and as Howard began to walk toward the front where appellant had entered, appellant called out “yo, chump, this is it.” Howard stated that when he saw appellant lift a shotgun toward him, he grabbed from the counter a pistol that belonged to the store owner and fired five shots, hitting appellant once in the shoulder. The investigating officer testified that when he arrived he found appellant lying in a pool of blood inside the door with a shotgun beside him, and that when he asked appellant what had happened, appellant responded, “I tried to rob the home boy.”

Appellant testified that he had known Howard for over a year and on a number of occasions had purchased cocaine from Howard, which he then sold to others, and had acted as a drug courier for Howard. He stated that on the night in question he had gone to the store earlier in the evening and bought seven grams of cocaine from Howard, and upon testing the drugs discovered they were of poor quality. When he returned to the store to demand either a refund or replacement drugs, Howard fired at him as soon as he entered the premises. Appellant denied owning a shotgun or having one with him that night when he entered the store. Howard testified on rebuttal that he had never met appellant before and had never sold drugs.

We find the evidence sufficient to authorize a rational trier of fact to convict appellant of criminal attempt to commit armed robbery, OCGA §§ 16-4-1; 16-8-41 (a), under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Although there were sharp differences between the testimonies of appellant and Howard, “[t]he jury apparently chose to disbelieve [appellant] after weighing [his] credibility, and it was within its province to do so. [Cit.]” Schofill v. State, 183 Ga. App. 251, 252 (358 SE2d 651) (1987).

Decided November 8, 1989.

James S. Purvis, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Lyn K. Armstrong, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A2040.
    JACOBS v. SPANO.
    (387 SE2d 924)
   Sognier, Judge.

C. Jay Jacobs brought suit against Nicholas Spano seeking actual and punitive damages for Spano’s alleged intentional destruction of Jacobs’ property. The trial court granted Spano’s motion for summary judgment and Jacobs appeals.

The record reveals that appellant played keyboard in a band which performed on New Year’s Eve 1986 at the Officer’s Club at Fort Benning. When appellant departed the club shortly after midnight, he left his equipment (consisting, apparently, of keyboard, synthesizer, speaker, mixer, power amplifier, and support stand) on the stage at the club. Appellee testified by deposition that he was involved in an altercation with two soldiers who had been harassing appellee’s date and that in the course of the altercation one of the soldiers shoved him into some equipment on the stage. Appellee’s version of the events was corroborated for the most part by the deposition testimony of Ron Anderson, a soldier who had assisted in stopping the altercation.

In rebuttal, appellant presented affidavits by Warren Evans and Kenny Townsend. Evans averred that in the early hours of January 1, 1987 while working at the Officer’s Club, he saw a man kicking and pushing the band equipment on the club’s stage and when he asked the man what he was doing, the man referred to a lost coat. Evans described the man as a white male in his late thirties or early forties, between five foot nine inches and five foot eleven inches, approximately 155 pounds, wearing a gray suit with a red tie. He stated that he observed the man leave in a white car, possibly a Camaro. The record reveals that at the time of the incident in issue here, appellee, a white male in his mid-forties who is five foot eight inches tall and weighs 175 pounds, was wearing a white jacket and a gray tie and departed the Officer’s Club in his dark gray 1985 Mercedes.

Townsend averred he knew appellee and that on the night in issue, appellee became upset while at the Officer’s Club because the club’s coat-check had closed and appellee could not find his date’s coat. Townsend retrieved the coat from the manager’s office, and averred that while he “gathered from the conversation that some disturbance had taken place,” he made no inquiry at the time but asked appellee when he went to appellee’s home later that night what had happened and that appellee “admitted that he had torn up the band’s musical equipment by turning it over and throwing it off the stage. He said that he had done this because of the club’s removal of his date’s coat.”

Although the trial court’s order granting summary judgment in favor of appellee recites that the trial court considered “the entire record, including pleadings, depositions, interrogatories and affidavits,” both parties reference in their briefs and oral argument statement by the trial court to the effect that it would not consider the affidavits of Evans and Townsend for failure to comply with the requirements of OCGA § 9-11-56 (e). That statute provides in pertinent part that “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” It is not controverted that the affidavits were properly signed and sworn to by Evans and Townsend and that they were timely filed with the court. Rather it is asserted that the affidavits fail to show affirmatively that the affiants were competent to testify to the matters stated in the affidavits and that the evidence set forth therein would not be admissible at trial.

Both affidavits include as the initial paragraph the affiant’s name and the statement that “I have personal knowledge of the facts contained herein.” This statement clearly evinced compliance with the “personal knowledge” requirement of OCGA § 9-11-56 (e). Compare Morris-Bancroft Paper Co. v. Coleman, 188 Ga. App. 809, 810 (374 SE2d 544) (1988). We do not agree with appellee that the affiants were required to state that they were “competent” to testify to the matters in the affidavits where, as here, the affidavits show affirmatively that the affiants were competent. Although appellee argues the affidavits are inadequate because neither states that it was prepared for the purpose of introduction on a motion for summary judgment, nothing in OCGA § 9-11-56 requires such a statement to be made and we decline to append such a requirement to the statute.

As to Townsend’s affidavit, we cannot agree with appellee that the contents of the affidavit constitute inadmissible hearsay. In his affidavit Townsend averred that appellee admitted to him that appellee had acted intentionally to damage the musical equipment on the Officer’s Club stage to vent his anger over the club’s removal of his date’s coat. It is well established that “[e]xtrajudicial statements by an opposing party inconsistent with the position of that party are positive evidence of the fact asserted and are admissible as an exception to the hearsay rule. [Cit.]” Petty v. Folsom, 229 Ga. 477, 478 (192 SE2d 246) (1972). See also OCGA § 24-3-31. Such extrajudicial admissions are properly before a trial court on motion for summary judgment, see generally Hardee’s Food Systems v. Bowers, 121 Ga. App. 316, 318 (1) (173 SE2d 439) (1970), and were not subject to exclusion on the basis that they constitute inadmissible hearsay. Id. Accordingly, Townsend’s affidavit was admissible and, as positive evidence of the fact asserted, see Petty, supra, it set forth specific facts showing that there is a genuine issue for trial as to appellant’s intentional tort claim. See OCGA § 9-11-56 (e). Thus, the trial court erred by granting summary judgment in favor of appellee. See generally Yaeger v. Canadair, Ltd., 189 Ga. App. 207, 208-209 (375 SE2d 469) (1988).

Decided November 8, 1989.

Russell T. Duraski, for appellant.

Patrick J. Araguel, Jr., for appellee.

As to Evans’ affidavit, appellee asserts the affidavit was properly excluded because of the disparity between appellee’s appearance and the description given by Evans of the man he saw damaging the equipment. However, in view of our reversal of the trial court’s order above, it is not necessary to determine whether Evan’s affidavit created a genuine issue of material fact for jury determination, but we note that upon trial of this issue, “ ‘[t]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.’ [Cit.]” Turner &c., Inc. v. Europe Craft Imports, 186 Ga. App. 286, 290 (367 SE2d 99) (1988).

Judgment reversed.

Banke, P. J., and Pope, J., concur.


author: Birdsong, Judge. Benham, Judge,

text:
    A89A0932, A89A0933, A89A0934.
    GIBSON v. THE STATE (three cases).
    (388 SE2d 45)
   Birdsong, Judge.

Appellant Clement H. Gibson was indicted on violation of the Georgia Controlled Substances Act, in that he did, on May 17, 1988, “unlawfully possess cocaine.” The subject of the violation was a tote bag of eleven zip-lock packets of cocaine found in the passenger’s side of the vehicle he had parked in front of the motel where he was arrested.

Appellant, pro se, ultimately pleaded guilty to the offense and was sentenced to five years, two to serve and the remainder on probation. In three appeals, pro se, he challenges the “judgment of conviction and the sentence” (case no. A89A0932), the trial court’s denial of his motion to suppress the evidence (case no. A89A0933), and the trial court’s denial of his motion to appoint a special investigator. Held:

Case No. A89A0932

The sentence imposed upon him is well within the maximum limit set by statute for the offense charged (see OCGA § 16-13-30) and is therefore legal and not subject to review by this court. Lanzo v. State, 187 Ga. App. 616, 619 (7) (371 SE2d 119).

Case No. A89A0933

The trial court did not err in denying appellant’s motion to suppress, on any ground he argued or raised below. The evidence showed that on May 13, 1988, Riverdale Police Investigator Hugh Brown was called to the Hometown Inn in Clayton County by the hotel security guard. Hotel employees had found what they believed to be drug paraphernalia in a guest room; they were removing items for storage because the patron was being “evicted,” since he had registered to stay from March 30 to April 5, but had apparently abandoned the room, without paying in full. Investigator Brown was shown these items by the hotel employees: two glass tubes containing white powder residue; one Ace of Spades playing card with white powder residue; and one short plastic straw with white powder residue. Based on his experience, Investigator Brown believed the items were used in illegal drug activity, specifically use of cocaine, and seized the items. He ascertained that this room had been registered to Clement H. Gibson of Tampa, Florida; he then sent the seized items to the State Crime Lab.

On May 17, Brown received a call from a hotel employee who indicated the subject Clement H. Gibson had returned. Brown went to the Hometown Inn and confronted appellant in the manager’s office. He arrested appellant at that time with probable cause for violation of the Georgia Controlled Substances Act by possession of cocaine: although the test reports had not returned confirming as cocaine the white powder residue on the items seized May 13 from appellant’s hotel room, Brown from his experience believed the items, particularly the short plastic straw with white powder residue, proved possession and use of cocaine. After arresting appellant, Brown discovered a knife in appellant’s pocket. Incident to the arrest, Brown impounded the Toyota vehicle parked directly in front of the hotel, and believing it contained additional contraband as indicated by the knife he had found, he inventoried its contents, whereupon he discovered a tote bag containing eleven zip-lock type bags of a white powder.

In finding that the May 17 arrest of appellant was based upon probable cause arising from the discovery by hotel employees of what Brown believed to be drug paraphernalia, and that the incident impoundment and inventory of appellant’s vehicle were proper, the trial court aptly remarked that since the officer reasonably believed it contained cocaine or other drugs, it would have been inappropriate to leave it at the hotel and in hotel custody, particularly since a certain liability might attach if the vehicle were stolen or the probable drugs were removed from it (in hotel custody) and used. We have held constitutionally valid the impoundment of a vehicle with inventorying of its contents, even though the defendant was not in “immediate control” of the vehicle, so long as he was a “recent occupant” of the automobile, State v. Watkins, 182 Ga. App. 431, 432-433 (356 SE2d 82); see New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768), and State v. Hopkins, 163 Ga. App. 141 (293 SE2d 529).

To find the impoundment valid, it is not necessary that the defendant have possible access to the vehicle so as to abscond, or to destroy or conceal its contents. Watkins, supra. Appellant was not, as he suggested, entitled to be allowed to get in the vehicle and move it to a safer location or to arrange to have it removed; to say he was so entitled would be to give him the access which would per se authorize the impoundment and search. The only reasonable thing to be done here upon the appellant’s valid arrest was to impound the vehicle, for the police had no authority, and were not required, to leave it at the hotel. On his arrest and detention, the defendant has no more need of it, and if he was a “recent occupant” there is reasonable cause to believe it may contain more of the accoutrements of the crime. In some such circumstances the police might be remiss to fail to remove it. See Jones v. State, 187 Ga. App. 421, 424 (370 SE2d 784). For these reasons, impounding and inventory search of this vehicle incident to a lawful arrest were constitutionally valid. Hopkins, supra.

We thus find no merit to appellant’s objections to the refusal to suppress evidence.

Case No. A89A0934

The trial court did not abuse its discretion in denying appellant’s request for a special investigator, prior to his plea of guilty. Appellant’s request was on grounds generally that he needed to find witnesses and evidence that would support his defense. Nothing was suggested as to what such a special investigation might reveal, and no basis or explanation was given as to how appellant would be prejudiced without one. On appeal, no suggestion is made that this denial of a special investigator deprived him of any specific exonerating evidence and thus prejudiced his defense. As to the trial court’s discretion in the conduct of criminal trials, see Baxter v. State, 254 Ga. 538 (2) (331 SE2d 561); Cantrell v. State, 184 Ga. App. 384 (361 SE2d 689). No grounds whatever are shown here, either below or on appeal, to criticize the trial court’s exercise of discretion in this matter or find any error or harm in it.

We have reviewed the entire record relating to these appeals, and find no errors, and nothing prejudicial to the substantive rights of the appellant. See Archer v. State, 190 Ga. App. 285 (380 SE2d 91) (physical precedent only).

Judgments affirmed.

Deen, P. J., concurs. Benham, J., concurs specially.

Benham, Judge,

concurring specially.

Although I concur fully with the holdings in Case Nos. A89A0932 and A89A0934, and with the judgment in Case No. A89A0933, I cannot agree fully with everything said with regard to the latter case, and in particular with what I view as an unwarranted extension of the holdings in State v. Watkins, 182 Ga. App. 431 (356 SE2d 82) (1987), and State v. Hopkins, 163 Ga. App. 141 (293 SE2d 529) (1982). The majority relies on those cases for the proposition that it was permissible to impound appellant’s vehicle and inventory its contents because he was a “recent occupant” of the vehicle. It is the application of the phrase “recent occupant” to the present case which concerns me. In both the cited cases, the arrestee was taken from the car and arrested. In the present case, appellant had parked the car and entered a building before the arresting officer arrived. Under those circumstances, I could not agree that appellant’s status as a recent occupant of the vehicle warranted its search and seizure.

However, another case cited in the majority opinion, Jones v. State, 187 Ga. App. 421 (370 SE2d 784) (1988), provides a valid reason, under the factual circumstances of this case, to uphold the impoundment and inventory search of appellant’s car. The arresting officer testified that it was in the ordinary course of business in such circumstances to impound an arrestee’s vehicle and to inventory the contents for the purpose of protecting the police from liability for loss thereof. Here, as in Jones, appellant was alone and the car was parked on commercial premises in which the arrestee hád no interest. Impounding the car and inventorying its contents were legitimate, and the denial of appellant’s motion to suppress the evidence recovered in the search was proper. For that reason, I concur in the majority’s affirmance in Case No. A89A0933.

Decided November 9, 1989.

Clement Gibson, pro se.

Robert E. Keller, District Attorney, for appellee.


text:
    A89A1043.
    HAMLIN v. THE STATE.
    (388 SE2d 48)
   Benham, Judge.

Based upon two separate incidents, appellant was convicted of trafficking in cocaine and possession of cocaine with intent to distribute. On appeal he cites as error the trial court’s denial of his motion for a directed verdict of acquittal on the trafficking charge.

Appellant’s motion was premised on an alleged fatal variance between the allegata and probata. The indictment charged appellant “with having committed the olfense of TRAFFICKING IN COCAINE. For that [appellant], on the 9th day of November . . . 1987, at approximately 2:30 p.m., in [Bibb County, Georgia], was then and there knowingly in actual possession of more than 28 grams of a mixture with a purity of more than 10 percent of cocaine and did distribute said cocaine to Undercover Agent Bill Malarney. . . .” At trial, the State presented evidence that appellant, at the time and place alleged, had in his possession 140.25 grams of a mixture that was 76 percent pure cocaine which he distributed to Frank Perez, an informant used by Agent Malarney. Appellant maintains that the State’s failure to prove that he distributed the cocaine to Malarney, as alleged in the indictment, vitiates his conviction for trafficking in cocaine. We disagree.

The trafficking statute, OCGA § 16-13-31 (a) (1), as it existed in 1987, made it illegal for any person to knowingly sell, manufacture, deliver, bring into Georgia, or to be in actual possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine. There is no requirement in the trafficking statute that the State allege and prove that the defendant distributed the cocaine. Thus, the inclusion by the State in the indictment of language concerning the distribution of cocaine to a certain individual was “mere surplusage,” “unnecessary to constitute the offense, need not be proved, and may be disregarded. [Cits.]” Garvey v. State, 176 Ga. App. 268 (5) (335 SE2d 640) (1985). See Moran v. State, 170 Ga. App. 837 (2) (318 SE2d 716) (1984).

Decided November 9, 1989.

Reinhardt & Whitley, Robert C. Wilmot, for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Thomas J. Matthews, Assistant District Attorneys, for appellee.

Assuming, arguendo, that the distribution of cocaine (not mentioned in OCGA § 16-13-31) is tantamount to the delivery of cocaine (listed in OCGA § 16-13-31) and thereby becomes a means of trafficking, appellant’s motion was correctly denied. “The proof of the first part of the [indictment] alone, namely, that of [possessing more than 28 grams of a mixture containing at least 10 percent cocaine] is sufficient ... to establish a violation of OCGA § [16-13-31], and the remainder [the distribution allegation] can be stricken as surplusage.” West v. State, 178 Ga. App. 550 (1) (343 SE2d 759) (1986). The trial court did not err in denying appellant’s motion for a directed verdict of acquittal.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A1050.
    O.P.D.I.-U.S., INC. v. COLLINS et al.
    (388 SE2d 49)
   Carley, Chief Judge.

Appellant-plaintiff purchased real property and gave a deed to secure debt to the Bank of Montreal. When appellant subsequently sold the real property to Atlanta Biltmore Associates, Ltd. (ABAL), ABAL gave to appellant a wraparound deed to secure debt. This wraparound deed to secure debt provided, in relevant part, that “[t]he indebtedness secured [here]by . . . represents and is expressly inclusive of the outstanding principal balance plus accrued interest thereon of the indebtedness owed to the Bank of Montreal and secured by Deeds to Secure Debt [given by appellant] . . . arid although [ABAL] has acquired the Property subject to said Deeds to Secure Debt, [appellant] shall continue to make all payments of principal, interest, and other amounts due thereunder or pursuant to the Note or Notes secured thereby from payments received from [ABAL], which payments shall be made payable jointly to [appellant] and the Bank of Montreal until such underlying indebtedness is paid in full and satisfied of record.”

When ABAL defaulted, appellant initiated foreclosure proceedings and, acting under the power of sale contained in the wraparound deed to secure debt, it conducted a public sale of the real property. Appellant was the highest bidder and, according to the deed under power, it purchased the real property for the sum of “Seven Million ($7,000,000.00) Dollars (including assumption of indebtedness secured by the property by liens set forth in [ABAL’s Wraparound] Deed to Secure Debt). . . .” As payment of the real estate transfer tax for ABAL’s conveyance to appellant, appellant tendered a check in the amount of $1,000 to appellee-defendant Clerk of the Superior Court of Fulton County. This amount of $1,000 was based upon appellant’s representation that the net taxable value of the conveyance was $1,000,000, the difference between the $7,000,000 that it had paid and the $6,000,000 pre-existing indebtedness owed to the Bank of Montreal that it had assumed. This tender of $1,000 was rejected and appellant was informed that the net taxable value of the conveyance was $7,000,000 and that the real estate transfer tax would be $7,000. Appellant paid the full $7,000 under protest and then filed a claim for a $6,000 refund from the appellee-defendant State Revenue Commissioner. See OCGA § 48-6-7 (a). When appellant’s claim for a refund was denied, it filed this legal action to recover the $6,000. See OCGA § 48-6-7 (b). Cross-motions for summary judgment were filed. The trial court granted appellees’ motion and denied appellant’s. Appellant appeals from the grant of summary judgment in favor of appellees and from the denial of its motion for summary judgment.

1. Appellees urge and the trial court found that the full consideration given by appellant for the real property, as disclosed in the deed under power, was $7,000,000. However, appellant has never contended otherwise. Appellant has always acknowledged that $7,000,000 is the total amount of consideration that it gave for the real property but it has consistently urged that this nevertheless does not represent the taxable amount of the conveyance. OCGA § 48-6-1 imposes a tax “when the consideration or value of the interest or property conveyed (exclusive of the value of any lien or encumbrance existing prior to the sale and not removed by the sale) exceeds $100.00.” (Emphasis supplied.) If the Bank of Montreal’s deed to secure debt existed prior to appellant’s sale of the real property under power and if the Bank of Montreal’s deed to secure debt was not removed by that sale, it follows that, under the clear and unambiguous language of the relevant statute, the value of the Bank of Montreal’s pre-existing encumbrance must be deducted from the total amount of the consideration so as to derive the taxable amount of the conveyance. Accordingly, the trial court erred in granting summary judgment in favor of appellees. Although we reach this decision based upon the clear and unambiguous language of OCGA § 48-6-1, our holding is consistent with the interpretation of a similar Florida tax provision. See Department of Revenue v. Brookwood Assoc., 324 S2d 184 (Fla. App. 1976).

2. The trial court did not, however, err in denying appellant’s motion for summary judgment. Appellees’ answer contains no admission that, on the date of the sale under power, the value of the Bank of Montreal’s pre-existing deed to secure debt was $6,000,000 as had been represented by appellant and, in support of its motion for summary judgment, appellant adduced no evidence showing that, on the date of the sale under power, $6,000,000 was in fact the value of that pre-existing encumbrance. Accordingly, although no genuine issue of material fact may remain as to appellant’s entitlement to a refund of some portion of the $7,000 that it paid as the real estate transfer tax, such an issue does remain as to the exact amount of the refund that appellant is entitled to recover.

3. The trial court’s grant of summary judgment in favor of appellees, holding that the taxable amount of the conveyance was correctly based upon the full $7,000,000 consideration given by appellant, is reversed. The trial court’s denial of summary judgment as to appellant’s entitlement to a refund of $6,000, based upon an exclusion of $6,000,000 as representing the value of the Bank of Montreal’s preexisting and unsatisfied encumbrance, is affirmed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

This case involves a construction of the Georgia Real Estate Transfer Tax, which “is not a property tax; it is an excise tax on transactions involving the sale of property. It is paid by the transferor each time he sells a parcel of real estate for the privilege of selling that particular property.” City of Columbus v. Ronald A. Edwards Constr. Co., 155 Ga. App. 502, 503 (271 SE2d 643) (1980).

With respect to Division 1, the question is whether the term “removed” in the statute means removed from the realty as part of the transaction, as appellant contends, or removed from the transferor, as the taxing authorities contend.

In this case the transferor was relieved of liability from paying the indebtedness on the realty, by the terms of the sale whereby the transferee assumed the debt; the debt was not extinguished by the transferee’s paying it as part of the sale terms, and thus it remained as an encumbrance on the realty after the transfer was completed. While it is true that liability for the debt underlying the encumbrance was “removed by the sale” from the transferor, that is not what is meant by the provision in the statute. The “encumbrance” is on the realty, not on the owner.

Decided November 9, 1989.

Leslie J. Bryan, Richard D. Ellenberg, for appellant.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Harrison W. Kohler, Deputy Attorney General, Verley J. Spivey, Senior Assistant Attorney General, Grace E. Evans, Assistant Attorney General, for appellees.

Thus, I agree that the continuation of the encumbrance after the sale worked an exclusion of its value from the taxable amount.


text:
    A89A1280.
    ARRINGTON et al. v. HAND.
    (388 SE2d 52)
   Benham, Judge.

Appellants, allegedly the paternal grandparents of the child they sought to adopt, appeal from the denial of their motion for new trial on their petition for adoption. The trial court denied the petition after concluding that in the year preceding the filing of the petition, the child’s mother had not failed to communicate with the child, and that while the mother had not made financial contributions to the child’s support, it would not be in the best interests of the child to terminate his relationship with his natural mother. See OCGA § 19-8-6 (b).

1. Appellants contend that the trial court erred in failing to accept, as a matter of law, that they were the child’s paternal grandparents. Since OCGA § 19-8-6 (b) is only applicable to adoption proceedings brought by a stepparent or relative, (Curde v. Matson, 190 Ga. App. 782 (1) (380 SE2d 71) (1989)), and since the trial court found that even if appellants were the child’s grandparents, they had failed to make the necessary showing for an adoption under OCGA § 19-8-6 (b), even if the trial court erred, as appellants contend, the error was harmless.

2. Appellants also take issue with the trial court’s failure to grant their petition for adoption after finding that the child’s mother had not made financial contributions to the child’s support. However, failure to support the child financially is not dispositive of the issue of adoption. OCGA § 19-8-6 (b) (2) requires the trial court to determine prior to the grant of an adoption whether, where a natural parent has failed to support his/her child, adoption is in the best interests of the child. The trial court, having concluded that adoption was not in the best interest of the child, did not err in denying the adoption.

3. Appellants also contend the trial court erred in finding justification for the mother’s failure to support the child financially. While the legislative enactment of the current version of OCGA § 19-8-6 (b) omits the former requirement that a trial court make a specific finding that a parent’s failure to support was without justifiable cause, “the legislature intended that in adoption proceedings any issue of a natural parent’s justification for his ‘significant failure’ to support or communicate with his child be subsumed into and resolved in the context of whether the severance of the parental relationship would be in the ‘best interest of the child.’ ” Kirkland v. Lee, 160 Ga. App. 446, 449 (287 SE2d 365) (1981). Thus, the trial court’s consideration of the natural parent’s reasons for failing to provide support was not erroneous.

4. Appellants enumerate as error the trial court’s failure to appoint an attorney to represent the child pursuant to OCGA § 15-11-85, which provides that “[in] any proceeding for terminating parental rights . . . the court shall appoint an attorney to represent the child. . . .” The proceeding in the trial court was not for the termination of parental rights under OCGA § 15-11-81, but was for the adoption of a child under OCGA § 19-8-6, where surrender or termination of parental rights is not required. Although the effect of a decree of adoption relieves the natural parents of all parental rights and terminates all legal relationships between the adopted child and his natural parents (OCGA § 19-8-14 (a) (1)), there is a difference in the effect between a termination of parental rights and an adoption. “The termination of parental rights is designed to protect a child who has been abandoned, deprived, or unsupported. An adoption does more. A new relationship between the child and the adopting, parents is created.” Menard v. Fairchild, 254 Ga. 275 (1) (328 SE2d 721) (1985). In an adoption proceeding, “the rights and obligations of a natural parent, and those of an adopting parent, to a child are not conclusively altered until the date of the final order of adoption.” Johnson v. Parrish, 159 Ga. App. 613 (1) (284 SE2d 111) (1981). Since in a proceeding to terminate parental rights the child will effectively be without a parent, it is understandable that the legislature would see the need to protect the child by requiring that an attorney be appointed to represent the child. However, in an adoption proceeding the child is not without a parent, because a new parental relationship is created simultaneously with the termination of the old relationship. Since the adoption statutes do not require the appointing of an attorney for the child, the trial court did not err in failing to appoint an attorney pursuant to OCGA § 15-11-85.

5. Appellant’s remaining enumerations of error require a review of the evidence presented at the hearing. That hearing was not transcribed and no acceptable substitute for a transcript was submitted. See OCGA § 5-6-41 (g) and (i). In the absence of a transcript, we must assume that the trial court’s findings were supported by the evidence and that the trial court’s actions taken during the hearing were appropriate. Baugh v. Robinson, 179 Ga. App. 571, 572 (346 SE2d 918) (1986).

Decided November 9, 1989.

Burkett, Wydro & Schneider, Gene Burkett, for appellants.

Carey M. Cameron, for appellee.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Banke, Presiding Judge. Pope, Judge.

text:
    A89A1345.
    AMATO v. THE STATE.
    (388 SE2d 54)
   Banke, Presiding Judge.

On appeal from his conviction of trafficking in cocaine, the appellant contends that the trial court erred in denying his motion to suppress the contraband on which his conviction was based.

The appellant was stopped by trooper Rick Ogden of the Georgia State Patrol for traveling six miles per hour in excess of the posted speed limit on 1-95 in Glynn County, Georgia. At the officer’s request, the appellant produced his Colorado driver’s license, as well as a New York vehicle registration receipt in the name of Clara Amato. He explained that he had borrowed the car from his mother and was on his way to New York to return it. The patrolman issued the appellant a “courtesy warning” for speeding, returned his license and registration to him, and asked him “if he had any objection to opening the trunk of his car.” The appellant responded that he did not and opened the trunk. Without explaining the purpose of his investigation, the patrolman then asked the appellant for permission to “look in” a cooler and several other items contained in the trunk, and again the appellant agreed. However, no contraband was found inside these items. The patrolman testified that he thereupon asked the appellant “if he had any objection to [his] looking in the passenger compartment, and the things in the passenger compartment.” The appellant again responded that he had no objection and stood at the back of the car at the patrolman’s request while the latter opened the driver’s door and looked inside. Again finding nothing of interest, the patrolman then removed a. pen from his pocket and placed it inside a vent located on the door frame. Upon doing so, he “felt something inside the vent moving around,” whereupon he obtained a screwdriver from his patrol car and removed the screws securing the vent cover. However, the cover continued to adhere to the door frame, so the patrolman pried it off with the screwdriver, breaking it. When asked at the suppression hearing what he had expected to find in the vent, the patrolman stated, “Well, I really had no idea. Without getting a closer look, I really wasn’t sure what was in there.”

After pulling off the vent cover, the patrolman was able to see a package inside the opening which he suspected might contain cocaine. On the basis of this belief, he immediately arrested the appellant for trafficking in cocaine, locked him in the patrol car, and administered the Miranda warnings to him. In order to gain access to the package inside the vent, the patrolman ultimately had to remove the lower portion of the back seat of the automobile and pull out some insulation.

The appellant denied that he had given the patrolman permission to “search” the passenger compartment of the vehicle, testifying that he had only been asked and had only agreed to allow him to “look in[side]” the vehicle, not to look through the “things” contained therein. The appellant further testified that upon observing the patrolman obtain the screwdriver, he had told him, “I don’t want you taking nothing apart or breaking anything,” and that the officer had responded by telling him to “go stand behind the car and stay there.” While the patrolman admitted that the appellant had told him not to “tear [his] car up,” he asserted that this admonition had come only after he had already removed the vent cover. Held:

1. The appellant contends that the trial court erred in denying his motion to suppress the contraband seized from the vehicle because the scope of the search exceeded the consent given. We agree. Even accepting the patrolman’s testimony that he asked for and received permission to look in “the things in the passenger compartment,” he clearly did not ask for or receive consent from the appellant to disassemble the vehicle. Compare Steward v. State, 182 Ga. App. 659 (356 SE2d 890) (1987). Where the validity of a search is dependent upon the consent of the defendant and the evidence shows without dispute that the scope of the search exceeded the scope of the consent, the search is unlawful. See State v. Diaz, 191 Ga. App. 830 (383 SE2d 195) (1989). The state having failed to establish in the present case that the removal of the vent cover inside the appellant’s vehicle was supported either by probable cause or by the appellant’s consent, we hold that the motion to suppress should have been granted. See generally State v. Slaughter, 252 Ga. 435, 436 (315 SE2d 865) (1984); OCGA § 17-5-30.

2. In view of the foregoing, we do not reach the merits of the appellant’s remaining enumeration of error.

Judgment reversed.

Sognier, J., concurs. Pope, J., concurs specially.

Pope, Judge.

I agree that the search in this case exceeded the scope of the consent given by the driver. But the practical problem for the patrolman is how far the consent given by the driver of an automobile extends. The answer, as reflected in this and other opinions (see State v. Diaz, 191 Ga. App. 830 (383 SE2d 195) (1989); Love v. State, 144 Ga. App. 728 (242 SE2d 278) (1978)), is that consent extends only so far as it was expressly given. When an officer simply requests permission to “look in” a vehicle without explaining his intent to seize and examine the contents of any items found therein, it cannot be said that he has sought consent for a full-scale search. See State v. Diaz, supra at (2). When an officer seeks consent to search he should avoid use of euphemistic or ambiguous terms such as “look in.” The language of the standard written consent form issued by the Georgia Department of Public Safety (Form 1193) clearly informs the signatory that he is consenting to “a complete search” of the vehicle and that he is granting permission to the officer “to take from the . . . vehicle any property or contraband that is present, which violates State or Federal law.” Likewise, a request for oral consent should also convey the officer’s intent to search the vehicle and its contents for illegal substances or other evidence, as may fit the case, and to seize and examine the items found.

Decided November 9, 1989.

Grayson P. Lane, for appellant.

Glenn Thomas, Jr., District Attorney, Clifford K. Higgins, Assistant District Attorney, for appellee.


text:
    A89A1349.
    SMITH et al. v. HOBBS et al.
    (388 SE2d 68)
   Benham, Judge.

Appellants filed an action in quia timet, seeking to establish title to 39.76 acres of land. Adopting the report of the special master, the trial court entered a judgment adverse to appellants on February 27, 1987. Appellants’ motion for rehearing, filed June 15, 1988, was denied on June 28, 1988, and appellants filed a notice of appeal to the Supreme Court and a motion for out-of-time appeal on December 19, 1988. Appellees sought dismissal of appellants’ appeal on the ground that the notice of appeal was untimely and, after a hearing, the trial court dismissed the appeal, having determined that there was no justifiable reason for appellants’ delay in filing the notice of appeal. Appellants appealed to the Supreme Court from the trial court’s dismissal of their appeal, and the Supreme Court transferred the case to this court.

“A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of. . . .” OCGA § 5-6-38 (a). Appellant’s original notice of appeal, filed December 19, 1988, was not filed within 30 days of the February 27, 1987, judgment of which appellants sought review. Even if a motion for rehearing extended the time for filing a notice of appeal (but see OCGA § 5-6-38 (a)), appellant’s original notice of appeal was not filed within 30 days of June 28, 1988, the date of the denial of appellants’ motion for rehearing. Appellants’ contention that an out-of-time appeal may be entertained, under proper circumstances, to prevent the denial of due process is without merit since “[s]uch appeals are allowed only in criminal cases under certain circumstances. ...” American Druggists Ins. Co. v. Harris, 253 Ga. 535, n.1 (322 SE2d 496) (1984). See also Carpets ‘N Colors v. Hollycraft Carpets, 177 Ga. App. 534 (339 SE2d 793) (1986). The trial court did not err in dismissing appellants’ untimely notice of appeal.

Decided November 9, 1989.

B. W. Smith, pro se.

Betty Smith, pro se.

Wallace K. Askew, for appellees.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A1366.
    THE STATE v. WILLIAMS.
    (388 SE2d 55)
   Benham, Judge.

The State appeals from the grant of appellee’s motion to suppress the cocaine seized from him in a warrantless search. We affirm the trial court’s ruling.

It is well established that in a motion to suppress the trial judge sits as the trier of fact, and that holds true even when there is a conflict in the evidence presented. The credibility of the witnesses and the weight to be accorded their testimony rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony. The factfinder may accept part of a witness’ testimony and reject another part, and “[i]n the absence of evidence of record demanding a finding contrary to the judge’s determination, this court will not reverse the ruling sustaining a motion to suppress. [Cit.]” State v. Betsill, 144 Ga. App. 267 (2) (240 SE2d 781) (1977). We have reviewed the transcript of the suppression hearing, and based on the conflicting testimony of the officers and the appellee and on the inconsistencies in the various reports and testimony of the officers, the trial court was authorized to find that the arresting officers were part of an eight-man team assigned to arrest an armed robbery suspect (not appellee); that while the team was exiting the police vehicle in which they arrived at the scene, a number of people gathered to watch the activity; that appellee, who resided in the other apartment in the duplex apartment building where the suspect lived, had just left his apartment and gotten into a friend’s car to go to work; and that when appellee got into the vehicle, he closed the door and moved to put a soft drink can he had had in his pocket on the floorboard of the vehicle, placing the can to the inside of his legs so that his legs were between the can and the door. The officers saw appellee’s actions, drew their weapons, approached the car, and ordered appellee out of the car. One of the officers admitted that at that point appellee was under arrest. The officers requested identification and appellee complied. Appellee testified that one of the officers told appellee he saw him “put something down on the seat” and that when the officer opened the door, he saw the soft drink can. The officer then handcuffed appellee, searched him, and found a matchbox containing cocaine in his pocket.

The trial court concluded that appellee’s warrantless arrest was without probable cause; that appellee’s actions prior to his being seized by the officers did not constitute criminal activity; and that there was no reason to conclude that a failure of justice would have occurred for lack of a warrant. See OCGA § 17-4-20. The trial court rejected the State’s argument that there was no arrest until after the alleged plain viewing of the soft drink can and that the viewing supplied probable cause to arrest, finding that contention to be inconsistent with the facts presented that appellee was restrained when the officers went to the vehicle with drawn weapons and ordered appellee out of the vehicle. Under the facts found by the trial court, it properly held that appellee’s Fourth Amendment rights regarding search and seizure were violated. Compare Sultenfuss v. State, 185 Ga. App. 47 (1) (363 SE2d 337) (1987), in which the police officers were acting on information obtained from a “known confidential informant who had given reliable information in the past.” Compare also Yocham v. State, 165 Ga. App. 650 (1) (302 SE2d 390) (1983). In the absence of “specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct [cits.] . . . [of] some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity [cits.]” (Tarwid, v. State, 184 Ga. App. 853, 854 (363 SE2d 63) (1987)), the trial court did not err in granting appellee’s motion to suppress the evidence seized from him upon his arrest.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.

Decided November 9, 1989.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Assistant District Attorney, for appellant.

Renee S. Schwartz, for appellee.


text:
    A89A1484.
    GREEN v. THE STATE.
    (388 SE2d 57)
   Benham, Judge.

The sole issue on appeal is whether the trial court, in sentencing appellant, properly considered matters not in evidence as aggravating circumstances. In exchange for appellant’s plea of guilty to the charge of incest, the State agreed not to prosecute him on any crimes related to the victim’s older sister, and to submit a letter in the presentence investigation stating that since the victim and her older sister were out of the home, there was no likelihood that the crimes would occur again. Prior to imposing a sentence of 6 years, the trial court stated: “Well, of course, if it’d just been a one incident situation it might be something to think about. The information I have is, is that it’s not a single incident. It involves more than this one particular daughter. And that sort of conduct is not going to be tolerated, Mr. Green. You know that. It just is not going to be.”

“[I]f a pre-sentence report contains any matter adverse to the defendant and likely to influence the decision to suspend or probate the sentence, it should be revealed to defense counsel by the trial judge in advance of the pre-sentence hearing. . . .” Munsford v. State, 235 Ga. 38, 45 (218 SE2d 792) (1975), Appellant had notice that information relating to prior similar conduct with the victim’s older sister was included in the presentence investigation, since its inclusion was, at his request, part of the plea agreement.

Although “a presentencing report cannot be used in aggravation in determining sentence [cit.]” (Rampley v. State, 166 Ga. App. 521 (4) (304 SE2d 574) (1983)), “where the transcript does not affirmatively show that the trial court used the pre-sentence reports for the unlawful purpose of increasing the sentence, rather than for the lawful purpose of determining whether to grant probation, no cause for reversal is shown. [Cit.]” Jones v. State, 165 Ga. App. 180 (5) (300 SE2d 534) (1983). The trial judge’s comments regarding similar conduct by appellant with the victim’s older sister are consistent with his decision not to give appellant a probated sentence, and we cannot conclude that he improperly used the reports to extend the length of appellant’s sentence, particularly when the sentence was only 6 out of a possible 20 years. See Williams v. State, 165 Ga. App. 553 (3) (301 SE2d 908) (1983). This case is unlike Almon v. State, 151 Ga. App. 863 (2) (261 SE2d 772) (1979), relied on by appellant, in which this court held that it could not conclude that the presentence report had not been used to increase the length of the sentence where the defendant received 15 out of a possible 20 years. The trial court was authorized to use the information for the lawful purpose of determining whether to grant probation.

Decided November 9, 1989.

J. Bennett Threlkeld, for appellant.

H. Lamar Cole, District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.