author: Eldridge, Judge. Andrews, Chief Judge,

text:
    A98A0745.
    JOHNSON v. THE STATE.
    (504 SE2d 8)
   Eldridge, Judge.

A Chatham County jury found Edward Devoun Johnson guilty of two counts of selling cocaine. On appeal, Johnson challenges the sufficiency of the evidence introduced against him, as well as the admission of similar transaction evidence and impeachment evidence. We affirm Johnson’s conviction.

1. The evidence was sufficient to support the guilty verdict. The State produced testimony from two undercover police officers who identified Johnson as the person who sold them suspected cocaine on two occasions. A chemist from the State Crime Lab testified that he tested the substance involved in each sale, and the substances tested positive for cocaine. Further, the State produced similar transaction evidence that Johnson had previously sold cocaine to another undercover police officer about a block away from the present sales.

In considering an appeal from a criminal conviction, this Court does not weigh the evidence or determine the credibility of witnesses but only determines whether the evidence viewed in the light most favorable to the guilty verdict was sufficient to support the conviction. Parker v. State, 220 Ga. App. 303 (469 SE2d 410) (1996). The evidence was sufficient for the jury to conclude beyond a reasonable doubt that Johnson was guilty of both sales of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. As evidence of a prior similar transaction, the trial court admitted testimony from a former undercover police officer that in December 1987, Johnson sold cocaine to him about a block from the present sales. As part of the similar transaction evidence and over defense counsel’s objection, the trial court admitted documentary evidence of Johnson’s first offender guilty plea to the 1987 offense.

After the evidence was presented to the jury, the trial court subsequently reversed its ruling on the admissibility of the first offender plea and ruled that it was not admissible into evidence. At the request of defense counsel, the trial court gave curative instructions to the jury explaining the nature of first offender treatment and instructing the jurors that Johnson’s first offender plea to the offense was not a conviction and that it was not to be considered by the jury in any way in connection with the case. The trial court told the jurors that they could consider the testimony relating to the circumstances of Johnson’s prior conduct. After giving the requested curative instruction, the trial court asked defense counsel if any further instruction was requested and defense counsel responded in the negative.

Johnson contends on appeal that the trial court’s curative instruction was insufficient to cure the error and ensure him of a fair trial.

Testimony concerning the circumstances of the prior similar transaction was properly admitted; however, it was error to admit Johnson’s first offender guilty plea as evidence that he committed the prior similar offense. Tilley v. State, 197 Ga. App. 97 (397 SE2d 506) (1990); Davis v. State, 269 Ga. 276 (496 SE2d 699) (1998). Nevertheless, the trial court corrected the error and gave the jury curative instructions requested by defense counsel. No motion for a mistrial was made, and defense counsel indicated satisfaction with the curative instructions. Because defense counsel acquiesced in the curative instructions, made no renewed objection or mistrial motion, and stated no other action he desired the court to take, this enumeration presents nothing for appellate review. Fann v. State, 254 Ga. 514, 517 (331 SE2d 547) (1985).

3. Johnson challenges as reversible error the introduction for impeachment purposes of a 1975 guilty plea for the offense of misdemeanor theft by shoplifting. Johnson contends that the State failed to prove that he is the “Edward Johnson” named in the prior guilty plea. This enumeration of error is meritless for the following reasons.

(a) When asked if he had objection to the introduction of the shoplifting conviction for impeachment purposes, the defense attorney stated “I do, Your Honor. I don’t believe there’s been a proper foundation laid.” That was all. The trial court reserved ruling, and the defense attorney did not raise further objection at the time of ruling.

It has long been the law that “ ‘[objection on the ground of a lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal.’ ” (Emphasis supplied.) Gordon v. State, 206 Ga. App. 450, 455 (4) (b) (425 SE2d 906) (1992); Adams v. State, 264 Ga. 71, 74 (440 SE2d 639) (1994). Here, the defense attorney never stated why the foundation was allegedly defective and “what the proper foundation should be” so as to preserve this issue for appeal. Accordingly, under the law, Johnson’s enumeration of error regarding the introduction of his prior conviction for shoplifting presents nothing for our consideration on appeal. Id.

(b) However, even assuming arguendo that this claim of error is properly before us, it remains meritless. The rule with regard to the introduction of a prior conviction for impeachment purposes is that “[if] the witness testifies positively and unequivocally under oath that he was never indicted, tried, convicted, or sentenced for the offense therein charged in the county from which the certified record comes, [then] the presumption arising solely from the identity of names is overcome,” and the State must offer further proof. (Emphasis supplied.) Robinson v. State, 209 Ga. 650, 651 (4) (75 SE2d 9) (1953).

At trial, Johnson testified that he had serious memory problems due to “anxiety reaction” stemming from the Vietnam war. Accordingly, under such facts, Johnson’s assertions “I don’t know anything about this” and “Shoplifting? No, I never shoplift before[,]” can hardly be considered a “positive and unequivocal” denial of his identity as the “Edward Johnson” named in the 1975 Chatham County indictment, guilty plea, and sentence for shoplifting so as to rebut the State’s prima facie showing. In that regard, Johnson also denied any knowledge of: the incident for which he was on trial; his 1987 prior conviction for selling drugs (introduced as a similar transaction); and the prior 1975 conviction for shoplifting. Such blanket denials in the face of purported memory loss made the issue of Johnson’s identity one for the jury, not a basis for reversal by this Court.

Further, concordance of name was not the sole proof of identity so as to trigger the rule in Robinson v. State, supra, as cited above. There was also concordance of location between the prior offense and Johnson’s locale at the time of the offense (Savannah), and similarity of age in 1975 (27-28 years old). Thus, Johnson’s mere denial that he was the person named in the indictment did not rebut the State’s prima facie showing. Under the circumstances of this case, there must be a denial and proof to the contrary. Hammond v. State, 139 Ga. App. 820, 822-823 (229 SE2d 685) (1976); Hill v. State, 162 Ga. App. 637, 638 (292 SE2d 512) (1982); Glass v. State, 181 Ga. App. 448 (352 SE2d 642) (1987). Without such proof, there was no error in the admission of the prior conviction for whatever weight the jury wished to assign it.

(c) Finally, “[t]he proper test to determine whether error is harmless (due to overwhelming evidence of guilt) is not whether there is sufficient other evidence to convict but whether it is highly probable that the error did not contribute to the judgment. Ragan v. State, 264 Ga. 190, 192 (3) (442 SE2d 750) [(1994)].” (Citations and punctuation omitted.) Letlow v. State, 222 Ga. App. 339, 343 (474 SE2d 211) (1996).

Here, the State presented the testimony of two undercover police officers to whom Johnson had made the 1994 hand-to-hand crack cocaine sales that are the subject of the instant appeal. The officers positively identified Johnson as the seller. In addition, the State presented similar transaction testimony from an undercover police officer who positively identified Johnson as the person who sold him crack cocaine in 1987. Both the 1987 sale and 1994 sales occurred at the same location, next to Johnson’s home at 263 Ferrell Street in Savannah, and, in both instances, intermediaries took the undercover officers to Johnson, who was holding the crack cocaine.

At trial, the defense was alibi. Johnson called as witnesses three men who work as mechanics for Johnson in the backyard of his home, which also serves as a car servicing lot; they each testified that they worked in the car yard on the date of the cocaine sales and that Johnson was at home with a “bad back” on that day. However, factually, the record shows that the alibi could not be sustained.

Witness Harry Mitchell could not remember for which day he was supposed to provide the “bad back” alibi: “October 15? Is that the day that I was supposed to been in the yard, that day?” He also testified that “I don’t exactly know what happened that day. I was under the car.” Witness Frank Hayes testified that he left Johnson’s house at dusk because he could not work on cars in the dark and that it would have been dark by 9:45 p.m. The cocaine sales occurred at 9:45 p.m. Johnson’s last witness, James Cohen, stated that he, too, left Johnson’s car yard at approximately 8:30 to 9:00 p.m., well before the 9:45 p.m. cocaine sales occurred.

Johnson took the stand, as well, and testified on his own behalf. He testified only that “in the middle of September,” 1994, he suffered a muscle spasm in his back; no other time frame in relation to the incident date was given, and Johnson did not testify that his bad back incapacitated him. Johnson further stated that all of the officers who testified against him lied on the stand under oath and committed perjury. He testified that he “couldn’t say why” the officers were lying and that he had no evidence of a police conspiracy against him, but that “sometime it happens.”

In light of the overwhelming evidence of Johnson’s guilt, including eyewitness testimony regarding Johnson’s sale of cocaine to undercover police officers, his prior conviction for sale of cocaine to an undercover police officer, as well as the lack of a viable defense, the admission of a 20-year-old misdemeanor shoplifting conviction, if error at all, was harmless. Morrison v. State, 225 Ga. App. 710 (484 SE2d 762) (1997); Letlow v. State, supra at 343. A review of the record shows that Johnson’s own testimony and that of his witnesses did more to undermine his credibility than the admission of limited evidence of a 1975 misdemeanor conviction which was totally unrelated in any fashion to the charges against him. It is highly probable that such misdemeanor conviction did not contribute to the judgment. Id.

Judgment affirmed.

McMurray, P. J., Johnson, P. J., Blackburn, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., dissents.

Andrews, Chief Judge,

dissenting.

Because I conclude the admission of the prior shoplifting conviction as impeachment evidence was reversible error, I respectfully dissent.

Johnson testified on direct examination that, other than the 1987 drug offense admitted as a similar transaction, he had never been convicted of a crime. Based on this statement, the State sought to impeach him with evidence that he had a prior conviction for shoplifting. Where a defendant testifies in his own behalf and falsely denies a past criminal conviction, the State is entitled to impeach the defendant by producing rebuttal evidence establishing the prior conviction. Jones v. State, 257 Ga. 753, 759 (363 SE2d 529) (1988). Although under the “best evidence” rule, a prior conviction must be proved by a certified copy rather than by cross-examination, defense counsel made no objection to the State’s initial attempt to prove the prior conviction by cross-examination of Johnson. See McIntyre v. State, 266 Ga. 7, 10 (463 SE2d 476) (1995).

On cross-examination, the State confronted Johnson with a certified copy of an October 1975 misdemeanor shoplifting conviction of an “Edward Johnson.” The conviction showed that the Edward Johnson who was convicted of the offense was 28 years of age at the time of the offense and resided at an address in Fort Lauderdale, Florida. The defendant in the present case was indicted under the name “Edward Devoun Johnson.” The 1975 shoplifting conviction showed that it was prosecuted in the State Court of Chatham County. The present charges were tried in the Superior Court of Chatham County where Johnson currently resided.

In response to questions posed by the prosecutor, Johnson gave his social security number and testified that he was born on April 28, 1948. It follows that at the time of the October 1975 shoplifting offense, Johnson was 27 years old. Johnson further testified that in 1975, he graduated from Savannah State College and took a teaching job in Albany, Georgia. After Johnson reviewed the shoplifting conviction at the prosecutor’s request, he said, “I don’t know anything about this.” The prosecutor then stated to Johnson, “[This] [a]ppears to be a shoplifting conviction you pled guilty to, isn’t it?” Johnson responded, “Shoplifting? No, I never shoplift before.” Thereafter, the prosecutor stated to the trial court that, “[W]e’re going to offer this into evidence even though he’s contesting it” and submitted to the court for impeachment purposes an exhibit containing a certified copy of the warrant and plea on the prior conviction and what appeared to be a copy of criminal records kept by the district attorney’s office. The prosecutor also informed the trial court that the' State found the shoplifting conviction during “a records check” on the defendant and that “it [came] up under his records for the social security number and date of birth he’s given.” Defense counsel objected to admission citing the lack of a proper foundation.

Although in making the objection defense counsel did not specify that Johnson was not identified as the person convicted of shoplifting, it was clear from the context of the proceedings that the objection was made on the basis of Johnson’s immediately preceding denial that he was the person convicted and the prosecutor’s immediately preceding statement to the trial court that the conviction was being offered into evidence even though Johnson had just denied that he was the person convicted. Moreover, in ruling to admit the certified copy of the conviction, the trial court showed that it understood the specific basis of the objection by stating that, “I don’t know that it satisfactorily identifies him, but that doesn’t go to the admissibility of it, it goes to the weight and credit of it.”

The general rule as to preservation of an objection to admission of evidence has been stated as follows: “[T]he burden is upon the objecting party to state at the time some reason why it should not be admitted. It will not be sufficient for him to say, T object,’ or T object because the evidence is not competent’ or ‘is inadmissible.’ The attention of the [trial] court must be called to the specific ground of objection at the time the evidence is offered, and a failure [to do so] will be considered as a waiver.” (Punctuation omitted.) Perkins v. Edwards, 228 Ga. 470, 473 (4) (186 SE2d 109) (1971), quoting from Andrews v. State, 118 Ga. 1, 3 (43 SE 852) (1903); King v. State, 151 Ga. App. 762 (261 SE2d 485) (1979). The record demonstrates that in the context in which it was made, the trial court clearly understood the basis for the objection made by defense counsel and ruled on that specific basis. Under these circumstances, there is no reason to conclude that this issue was not sufficiently preserved for appellate review.

In considering whether to admit the exhibit submitted by the State, the trial court noted that it not only contained the certified copy of the shoplifting conviction but also had attached what appeared to be “a copy of the D.A.’s criminal record-keeping system.” The record-keeping system contained information apparently compiled by the district attorney’s office showing that an “Edward Johnson” was sentenced on a shoplifting charge in October 1975. Under a separate listing, the record-keeping system also showed an “Edward D. Johnson” with the same social security number and birthday as the defendant. The trial court properly refused to admit the copy of the D.A.’s criminal record-keeping system. But the trial court admitted into evidence the certified copy of the shoplifting conviction for impeachment purposes.

I disagree with the majority’s conclusion that Johnson did not sufficiently deny he was the person convicted in the 1975 shoplifting conviction. Any fair construction of the record shows that when Johnson was confronted by the prosecutor with the certified copy of the 1975 shoplifting conviction, he clearly denied he was the person convicted. Other evidence that Johnson had memory problems did not change his testimony on this point. Johnson also gave testimony on cross-examination indicating that at the time of the 1975 shoplifting, he was 27 years old and resided in Albany, Georgia — not 28 years old and a resident of Fort Lauderdale, Florida, the age and residence of the convicted shoplifter. Moreover, contrary to the State’s contention, no evidence was admitted showing that Johnson’s age and social security number coincided with the age and social security number of the “Edward Johnson” convicted of shoplifting.

There was no question that if Johnson was the person convicted of the prior shoplifting, the conviction was relevant and admissible for impeachment purposes. Jones, 257 Ga. at 759. Under these facts, the function of the trial court in considering the admissibility of the prior shoplifting conviction for impeachment purposes was to first determine whether the evidence was sufficient to make a prima facie case to submit the factual issue to the jury of whether Johnson was identified as the convicted shoplifter. OCGA § 24-4-40 (a); Wyley v. State, 169 Ga. App. 106, 109 (311 SE2d 530) (1983); see Plummer v. State, 200 Ga. 641, 645 (38 SE2d 411) (1946); Stembridge v. State, 82 Ga. App. 214, 215 (60 SE2d 491) (1950); Green, Ga. Law of Evidence (4th ed.), § 9. Concordance of name is some evidence of identity and is generally sufficient to establish prima facie evidence of identity of persons, but it is not conclusive. OCGA § 24-4-40 (a); Mullery v. Hamilton, 71 Ga. 720, 724-725 (51AR 288) (1884); Shuler v. State, 125 Ga. 778, 782 (54 SE 689) (1906); Hicks v. Simpson, 229 Ga. 214, 218 (190 SE2d 73) (1972). Where concordance of name is established, “in the absence of any denial by the defendant and no proof to the contrary[,] this concordance of name is sufficient to show that the defendant and the [individual] previously convicted were the same person.” (Citations and punctuation omitted.) Hammond v. State, 139 Ga. App. 820, 822-823 (229 SE2d 685) (1976); Hill v. State, 162 Ga. App. 637, 638 (292 SE2d 512) (1982); Glass v. State, 181 Ga. App. 448 (352 SE2d 642) (1987).

Applying these principles, the record shows that the only evidence submitted by the State establishing that Johnson and the individual previously convicted of shoplifting were the same person was the concordance of name, which established prima facie evidence of identity. The majority concludes that there was more than concordance of name, finding that “[t]here was also concordance of location between the prior offense and Johnson’s locale at the time of the offense (Savannah), and similarity of age in 1975 (27-28 years old).” The record does not support this conclusion. Although the October 1975 shoplifting occurred in Savannah, Johnson testified that he left Savannah when he graduated from college in 1975 and took a teaching position in Albany. Moreover, the certified copy of the 1975 shoplifting conviction shows that the “Edward Johnson” convicted of the offense was a resident of Fort Lauderdale, Florida, and was 28 years of age at the time. The record shows that Johnson was 27 years old in October 1975. The only evidence produced by the State to establish a prima facie case that Johnson was the person convicted of the 1975 shoplifting was concordance of name.

Johnson’s testimony denying that he was the convicted shoplifter rebutted the State’s prima facie case and shifted the burden to the State to produce additional evidence of identity. Since the State produced no additional evidence, the evidence was not sufficient for the trial court to admit the prior shoplifting conviction and submit it to the jury. Accordingly, the trial court erred in doing so.

The question remains whether the error can be found harmless. Under the test set forth in Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976), the error can be deemed harmless if it is highly probable the error did not contribute to the guilty verdict. Although on cross-examination of Johnson, the jury had already been made aware of the State’s contention that Johnson had a prior shoplifting conviction, Johnson denied the allegation and at that point, the prior conviction had not been admitted into evidence. Thereafter, the trial court erroneously admitted the prior conviction into evidence and charged the jury that a witness may be impeached by proof of the prior conviction and that “to impeach a witness is to prove the witness is unworthy of belief.” Johnson’s defense was that he did not sell the cocaine to the police officers. He produced testimony from friends that he was sick and could not get out of bed on the day of the alleged cocaine sales. Johnson testified in his own defense that he did not sell the cocaine and that the police officers were lying. Given that Johnson’s defense was to directly challenge the credibility of the police officers, who were the State’s only witnesses to his alleged sale of cocaine, his own credibility was crucial. Accordingly, I cannot conclude that the trial court’s erroneous admission of this impeachment evidence and its charge to the jury that an impeached witness is unworthy of belief was harmless. Beasley v. State, 204 Ga. App. 214, 218 (419 SE2d 92) (1992); see Wilson v. State, 254 Ga. 473, 477 (330 SE2d 364) (1985).

Decided June 19, 1998

Reconsideration denied July 8,1998

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, George R. Asinc, Assistant District Attorney, for appellee.

       Generally, this Court does not cobble together the trial testimony of the defendant, an insufficient objection raised by the defense attorney, and the subjective understanding of the trial court in order to fashion a preserved issue for appeal based upon “the context of the proceedings,” as advocated by the dissent herein.

       But see Wyley v. State, 169 Ga. App. 106, 109 (3) (311 SE2d 530) (1983), where an unusual name may provide a sufficient basis for admission, even when the defendant “positively and unequivocally” denies he is the person named in the prior conviction.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A0749.
    HSU’S ENTERPRISES, INC. v. HOSPITALITY INTERNATIONAL, INC.
    (502 SE2d 776)
   Judge Harold R. Banke.

Hsu’s Enterprises, Inc. (“Hsu”) and Hospitality International, Inc. (“Hospitality”) entered into a franchise agreement under which Hsu, as franchisee, would operate a Red Carpet Inn motel in Knoxville, Tennessee. The franchise agreement required the payment of monthly royalty fees based on the “gross room revenue” for ninety-four rooms located in two separate buildings. Several years later when motel revenues declined, Hsu wanted to convert one building into studio apartments not subject to royalty fees. Although Hsu was unsuccessful in obtaining permission from Hospitality to have the monthly payments calculated on the basis of only 47 rooms, Hsu, nevertheless, unilaterally reduced the monthly payments on that basis. After the ensuing negotiations proved unavailing, Hospitality notified Hsu that it was terminating the franchise. Hospitality filed the underlying action seeking past due fees and to enforce post-term obligations set forth in the franchise agreement.

The agreement required any modification to be made in writing, and it is undisputed that no such change was made. Under the agreement, Hsu was obligated to pay monthly franchise fees equal to three and one-half percent of gross room revenues, and a $2 fee per motel room. The contract specified a complex formula for calculating liquidated damages in the event of default. Also, in the event of litigation, the prevailing party was entitled to be reimbursed for “all [its] costs and expenses including legal fees and expenses in connection therewith.”

Hospitality’s evidence of attorney fees relied on the testimony of two witnesses. An attorney, Michael Warshauer, testified that a reasonable amount of attorney fees in a collection case would typically be 45 percent of the recovery. However, Warshauer admitted that the 45 percent fee assumed hard-fought, expensive litigation and collection problems, facts not in evidence here. Jeffrey Gilbert, the attorney who prosecuted the case, stated that he had accepted it on a contingency fee basis and that he felt that a fee of 45 percent was a reasonable value for his services. Gilbert declined to make an estimate of his hours and admitted he had prepared a minimal amount of discovery and conducted no depositions.

The trial court refused to award attorney fees on the basis of the contingency fee contract which would have resulted in attorney fees of $27,000 and instead embraced the method for computing fees authorized by OCGA § 13-1-11 (a) (2), resulting in $6,025. The court also awarded $60,000 in damages to Hospitality. Hsu contests the propriety of that judgment as well as the mathematical calculation of the amount of damages and attorney fees. Held:

1. Hsu contends that the trial court erred in denying the motion for involuntary dismissal under OCGA § 9-11-41 (b) because Hospitality failed to prove its damages and attorney fees with a reasonable degree of certainty. In a nonjury trial, where the trial court acts as the factfinder, the court’s findings are analogous to the verdict of a jury and will not be disturbed if there is any evidence to support them. Safeway Ins. Co. v. Holmes, 194 Ga. App. 160, 161 (1) (390 SE2d 52) (1990).

Without question, Hsu breached the express written terms of the franchise agreement. The only issues requiring resolution were the amount of damages and attorney fees. Andrew Shuler, Hospitality’s vice president, testified, without contradiction, that the unpaid past due fees, interest, audit fee, late charges, and liquidated damages totaled $62,565. A certified public accountant, Robert Clark, conducted an independent audit of Hsu’s business records. Clark testified that at all times he used generally accepted auditing procedures when he reviewed Hsu’s books and records. To compute the balance due, Clark employed a random sampling technique adjusted for seasonal fluctuations in the business. Based on his audit, Clark determined that daily rentals had been underreported and calculated the amount of unpaid additional fees.

Decided June 16, 1998

Reconsideration denied July 8, 1998.

Chesnut & Livingston, Tom Pye, for appellant.

Jeffrey S. Gilbert, for appellee.

Hsu presented no expert testimony to contradict Hospitality’s computations or any rebuttal evidence to controvert the amount due. In fact, Hsu did not provide all the underlying records as part of the appellate record. In these circumstances, because the evidence did not demand a contrary finding, the trial court’s ruling must be affirmed. Ivey v. Ivey, 266 Ga. 143, 144 (1) (465 SE2d 434) (1996).

2. Hsu contends the attorney fee award was erroneously calculated. He claims that Hospitality failed to adhere to the notice provisions of OCGA § 13-1-11. Pretermitting whether OCGA § 13-1-11 (a) (3) had any application to this case, the award must be set aside because no concrete evidence supports it.

The franchise agreement indisputably granted reimbursement for costs and legal expenses to Hospitality as the prevailing party. But Hospitality offered no evidence that it had paid any legal expenses. Evidence of the existence of a contingent fee contract, without more, is not sufficient to support the award of attorney fees. Cornelius v. Wood, 223 Ga. App. 339, 342 (5) (477 SE2d 595) (1996). An attorney cannot recover for professional services without proof of the value of those services. Hercules Automotive v. Hayes, 194 Ga. App. 135, 136-137 (4) (389 SE2d 571) (1989). A naked assertion that the fees are “reasonable,” without any evidence of hours, rates, or other indication of the value of the professional services actually rendered is inadequate. Id. We, therefore, remand this case to the trial court for further proceedings solely on the issue of attorney fees. Cornelius, 223 Ga. App. at 342 (5).

3. In light of the above holding, we need not consider Hsu’s remaining enumeration of error.

Judgment affirmed in part, reversed in part, and case remanded with direction.

Johnson, P. J., and Smith, J., concur.


text:
    A98A0456.
    DAVIS v. ALBANY AREA PRIMARY HEALTH CARE, INC.
    (503 SE2d 909)
   Judge Harold R. Banke.

In November 1994, Grace V. Davis, M.D., and Albany Area Primary Health Care, Inc. (“AAPHC”), entered into an agreement which prohibited Davis from practicing medicine within a 20 air-mile radius of AAPHC’s medical centers for a period of two years. The parties stipulated that before the expiration of the Agreement, Davis opened a pediatric practice in Sylvester, Georgia, which was located within a 20 air-mile radius of the AAPHC clinic where she had worked most of the time. Davis worked one-half day per week at a second clinic. AAPHC operated four clinics when Davis signed the contract, and opened a fifth during Davis’ term of employment.

AAPHC successfully sought an interlocutory injunction enforcing the non-compete clause. Davis challenges that decision in her sole enumeration of error. Held:

A contract in general restraint of trade or which tends to lessen competition is against public policy and is void. W.R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992) (citing 1983 Ga. Const., Art. Ill, Sec. VI, Par. V (c); OCGA § 13-8-2). However, “a restrictive covenant contained in an employment contract is considered to be in partial restraint of trade and will be upheld if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interest of the public.” Id. In evaluating its reasonableness, the contract’s duration, territorial coverage, and scope of activity must be considered. Id. “Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court. . . . [Cit.]” Id. This Court strictly scrutinizes the trial court’s determination of reasonableness. Delli-Gatti v. Mansfield, 223 Ga. App. 76, 78 (1) (477 SE2d 134) (1996).

Covenants not to compete in employment contracts are reasonable only if they are strictly limited in time and territorial effect. Orkin Exterminating Co. v. Pelfrey, 237 Ga. 284, 285 (1) (227 SE2d 251) (1976). Such covenants generally can restrict competition only in the specific area in which the employee actually did business for the employer prior to termination. W.R. Grace & Co., 262 Ga. 466 (2). A noncompete covenant forbidding a physician from engaging in the practice of medicine for two years within a fifty mile radius of any office operated by the contracting multi-office clinic was deemed unenforceable and overbroad because no matter where the physician located a practice, the clinic could move within fifty miles of the physician. Osta v. Moran, 208 Ga. App. 544, 547 (2) (430 SE2d 837) (1993).

This same defect exists in the Agreement at issue here. The Agreement’s non-compete clause states in pertinent part: “[T]he Physician agrees that upon termination of this agreement and the employment and the employment relationship created thereby, he/ she will not engage in the practice of medicine for a period of two years thereafter within a 20 air-mile radius of AAPHC’s centers thereof either as an employee of another, in association with another, or as an individual unless AAPHC consents thereto in writing.”

Decided July 8, 1998.

Norman J. Crowe, Jr., Earl McCall, for appellant.

Langley & Lee, Carl R. Langley, for appellee.

In effect, this Agreement prohibited Davis from practicing medicine in any form within a 20 air-mile radius of any of AAPHC’s centers for a period of two years upon termination of the Agreement, barring her from working within 20 miles of the existing clinics where she never worked or even the new clinic opened during her tenure. No matter where Davis chose to open a medical practice, AAPHC could open a clinic within 20 air-miles and require Davis to move pursuant to the Agreement. “Such a contract is overly broad, and the result is that it is not enforceable in even the smallest area specified, though that smaller area would be a legitimate and enforceable restricted area standing alone.” Wulfhorst v. Hudgins & Co., 231 Ga. 170, 172 (200 SE2d 743) (1973); Rita Personnel Svcs. v. Kot, 229 Ga. 314, 317 (191 SE2d 79) (1972) (declining to apply the “blue pencil theory of severability” to a restrictive covenant).

As expressly stated in the Agreement, AAPHC seeks to avoid competition through this covenant. The avoidance of competition is not a legitimate business interest sufficient to justify such an uncertain geographic limitation as to where Davis may practice medicine. Osta, 208 Ga. App. at 547 (2).

Notwithstanding AAPHC’s contention to the contrary, Delli-Gatti v. Mansfield, 223 Ga. App. at 79 (3), is distinguishable. The non-compete clause at issue there only prevented the physician from practicing in one particular county for 12 months. Id. at 78-79. It did not impede her ability to determine with certainty the area in which her post-employment activities were restricted.

Judgment reversed.

Johnson, P. J., and Smith, J., concur.

       We believe the consolidation provisions of OCGA § 9-11-65 (a) (2) apply to this case. Thus, the standard of review used in Chambers v. Peach County, 268 Ga. 672, 673 (1) (492 SE2d 191) (1997), is inapplicable.


author: Ruffin, Judge.

text:
    A98A0484.
    TUCKER v. THE STATE.
    (504 SE2d 250)
   Ruffin, Judge.

A jury found Keith Edward Tucker guilty of disorderly conduct in violation of OCGA § 16-11-39 (a) (3). Tucker appealed, asserting that there was insufficient evidence to support the jury’s verdict and that the trial court erred in overruling his “General and Special Demurrer” to the accusation. For reasons which follow, we affirm.

Viewed in a light most favorable to support the verdict, the evidence shows that on the evening of July 6, 1996, Tucker was seated at the bar of Norman’s Landing Restaurant in Forsyth County. The restaurant, which seats approximately 200 people, was crowded and 15 to 20 customers were waiting at the bar for a table. Tucker was drinking at the bar and became loud and disruptive.

According to John Grayborn, a customer who was seated with his wife at the bar in close proximity to Tucker, Tucker was making comments of a highly sexual nature regarding women who were working at the bar. Grayborn testified that Tucker was being so obscene that people in the bar were leaving. Grayborn recalled that on one instance Tucker said “ ‘[t]hese f — ing c-ts in here, I don’t care what they think, I can say whatever I want.’ ” Grayborn testified that he asked Tucker on numerous occasions to refrain from this offensive conduct. According to Grayborn, Tucker responded “T can say whatever the f— I want to say.’ ” Grayborn testified that if Deputy Sheriff Gene Hodge, who was providing security for the restaurant that evening, had not placed Tucker under arrest, “I was going to escort him outside myself. And, uh, if I may be frank, slap the taste out of his mouth.”

Deputy Hodge testified that when he arrived at Norman’s Landing at approximately 9:00 p.m., the bar manager advised him that Tucker was being loud and obnoxious. According to Hodge, Tucker grew increasingly louder and used words and phrases like “ ‘f — in,’ ” “ ‘f— you,’ ” “ ‘d~n,’ ” and’ “ ‘g--d~n.’ ” Hodge noticed several female customers moving away from the bar and so decided to speak with Tucker. Hodge tapped Tucker on the shoulder, at which time Tucker turned around and placed his hand on Hodge’s shoulder. Tucker would not remove his hand, despite Hodge’s requests, and stated several times to Hodge, “ ‘Buddy, we need to talk about this.’ ” According to Hodge, Tucker became hostile, loud and argumentative, telling Hodge that he had not been doing anything wrong and he was not going to leave. After this conversation, Deputy Hodge went to the hostess station to see if Tucker would calm down. But, according to Hodge, Tucker continued to be loud and curse. Hodge testified that at that time, he noticed that Grayborn “was about ready to deck [Tucker],” and he felt he needed to act to stop a fight. Accordingly, Hodge asked Tucker to leave the bar and then placed Tucker under arrest for disorderly conduct.

1. Tucker asserts that the trial court erred in overruling his “General and Special Demurrer” to the State’s amended accusation. We disagree.

The record shows that the State filed an amended accusation on January 17, 1997. The amended accusation charged that on July 6, 1996, Tucker engaged in disorderly conduct. The accusation alleged that Tucker violated OCGA § 16-11-39 (a) (3), which provides that a person commits the offense of disorderly conduct when such person “[w]ithout provocation, uses to or of another person in such other person’s presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person’s presence, naturally tend to provoke violent resentment, that is, words commonly called ‘fighting words[.]’ ”

Tucker submitted his “General and Special Demurrer” on January 29, 1997, after the trial had commenced and the jury was impaneled. In the demurrer, Tucker alleged that the amended accusation “fails adequately to charge [him] with any offense against the laws of the State of Georgia[,]” and “fails to adequately notify [him] that he could be convicted of disorderly conduct under the laws of the State of Georgia.” In support of his demurrer, Tucker argued at trial that the accusation did not adequately specify the subsection of OCGA § 16-11-39 with which he was charged. These assertions in the demurrer and at trial relate to the validity of the accusation and thus were properly raised by general demurrer. See Dillard v. State, 147 Ga. App. 587, 588 (2) (249 SE2d 640) (1978) (“ ‘[a] general demurrer challenges the very validity of the indictment and may be raised anytime[.]’ ”).

“Every [accusation] which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may be easily understood by the jury shall be deemed sufficiently technical and correct. [Cit.] The true test of the sufficiency of an [accusation] that will withstand a general demurrer is as follows: [i]f all the facts which the [accusation] charges can be admitted, and still the accused be innocent, the [accusation] is bad. . . .” (Punctuation omitted.) Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993).

We find Tucker’s claims at trial and in his general demurrer meritless. “The [accusation] follows the statutory language, and so is sufficient in substance. Moreover, [Tucker] could not admit to these allegations and still be innocent. [Accordingly, t]he trial court did not err in overruling his timely general demurrer to the [accusation.]” Id.

As stated above, the record further shows that Tucker orally argued at trial that the accusation did not specify to whom the fighting words were made. By raising this issue, Tucker is either attacking the form of the accusation or is seeking more information. See Dillard, supra. “ ‘Exceptions which go to the form of an [accusation] must be made by special demurrer or motion to quash [Cits.]’ [Cit.]” State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977). A special demurrer must be in writing and must “ ‘put its finger on the exact point of weakness.’ ” Boatwright v. State, 26 Ga. App. 67, 68 (105 SE 381) (1920); Wilcox v. State, 229 Ga. App. 227 (2) (493 SE2d 724) (1997). Furthermore, “ ‘a demurrer raising special objections to an [accusation] should be strictly construed against the pleader.’ [Cit.]” McElmurray v. State, 76 Ga. App. 604, 606 (1) (47 SE2d 139) (1948).

Here, notwithstanding the title of Tucker’s demurrer as a “General and Special Demurrer,” he did not specifically assert that the form of accusation was improper because it did not state to whom the fighting words were uttered. Tucker’s written demurrer, while raising general grounds, did not “put its finger on the exact point of weakness” as to the form of the indictment. See Boatwright, supra. Accordingly, Tucker did not properly raise this claim with proper specificity in a written, special demurrer. See id.; Wilcox, supra.

2. Tucker asserts on appeal that the evidence was insufficient to find him guilty of disorderly conduct in accord with OCGA § 16-11-39 (a) (3). We disagree.

Fighting words are defined as those words “by which their very utterance tend to incite an immediate breach of the peace.” Davenport v. State, 184 Ga. App. 214 (361 SE2d 219) (1987). Fighting words include statements that injure or offend a particular audience and tend to provoke a retaliatory response. Cunningham v. State, 260 Ga. 827, 828 (400 SE2d 916) (1991). “[T]he use of‘fighting words’ does not constitute protected speech under the First and Fourteenth Amendments to the United States Constitution or under Art. I, Sec. I, Par. V of the Georgia Constitution. Fighting words constitute one of those narrow speech areas not constitutionally protected.” (Emphasis in original.) State v. Klinakis, 206 Ga. App. 318, 319 (1) (b) (425 SE2d 665) (1992); Cunningham, supra. Fighting words “ ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ [Cit.]” Cunningham, supra at 828. “The justification for regulating . . . fighting words is to preserve the peace in society.” Id.

“In determining if words uttered are such as to incite an immediate breach of the peace, it is not necessary that the State prove the effect of the words upon a particular individual; that is, whether the individual to whom the words were addressed or in whose presence the words were spoken was incited to hostile action. [OCGA § 16-11-39 (a) (3)] makes no distinction between the types of persons to whom the words are uttered.” Davenport, supra at 214-215; see also Brooks v. State, 166 Ga. App. 704, 705 (305 SE2d 436) (1983). “The jury is required only to determine that the words uttered would, as a matter of common knowledge, naturally tend to provoke a violent response. [Cit.]” Evans v. State, 188 Ga. App. 347 (1) (373 SE2d 52) (1988).

Moreover, in determining whether words constitute fighting words, “[t]he circumstances surrounding the words can be crucial, for only against the background of surrounding events can a judgment be made whether these words had ‘a direct tendency to cause acts of violence’ by [others]. ‘Constitutional enforcement of even facially valid laws applied to “fighting words” now appears to depend as much on the factual circumstances surrounding a word’s utterance as on the character of the word uttered.’ [Cits.]” Lamar v. Banks, 684 F2d 714, 719 (11th Cir. 1982).

There is sufficient evidence in the instant case to find Tucker guilty of disorderly conduct under OCGA § 16-11-39 (a) (3). While seated at a crowded bar, Tucker, in a loud and boisterous voice, thrust obscenities upon innocent bystanders. He called women in the bar “f — ing c-ts” in conjunction with stating that the women could not prevent him from saying what he wanted to say. He utilized the phrase “f— you” several times, and became hostile and argumentative when Deputy Hodge asked him to calm down. Given these surrounding circumstances, Tucker’s response to Grayborn that he could say whatever the “f — ” he wanted to say could constitute “fighting words” in accordance with OCGA § 16-11-39 (a) (3). Tucker’s abusive and opprobrious words not only tended to provoke violent resentment, but in fact provoked Grayborn such that he was preparing to physically escort Tucker from the bar, and in Grayborn’s words, “slap the taste out of his mouth.”

“[T]he words used were likely to and did provoke violence and raised hostility in the minds of other customers in the [bar]. This reaction meets the test required to sustain a conclusion the words were indeed ‘fighting’ words. [Cits.]” Davenport, supra at 215. Accordingly, “[t]he evidence adduced at trial was sufficient to enable a rational trier of fact to find the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)].” Evans, supra at 347 (defendant’s actions of calling police officer at traffic stop a “g-d— liar” and telling other officers to “f— o — ” was sufficient to convict defendant of former version of OCGA § 16-11-39 (a) (3)). See also Davenport, supra (woman’s language towards K-Mart security guard amounted to fighting words as they “invoked violence against herself and provoked passions in bystanders”); Johnson v. State, 143 Ga. App. 826 (240 SE2d 207) (1977) (defendant’s statements to police officer in which he called her “bitch” and told her “ 1 don’t give a damn about you. I don’t respect any m— f— women, especially policewomen’ ” amounted to “fighting words”); Person v. State, 206 Ga. App. 324 (1) (425 SE2d 371) (1992) (evidence supported conviction under former version of OCGA § 16-11-39 (1) where defendant cursed at officer and screamed in his face “I’m not going to any g-d — n jail and I’m not wearing any mother-f — g handcuffs.” (Punctuation omitted.)) In so holding, we do not address whether a person’s use of obscenities while talking to another in a normal voice which an eavesdropping bystander overhears and finds objectionable amounts to “fighting words” in violation of OCGA § 16-11-39 (a) (3).

Decided July 8, 1998.

Bruce F. Morriss, Daniel Shim, for appellant.

Leslie C. Abernathy, Solicitor, Laura A. Janssen, Assistant Solicitor, for appellee.

Judgment affirmed.

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

       On appeal, Tucker also claims that the accusation was faulty in that it did not state where the crime occurred or specify the language that allegedly amounted to fighting words. However, he failed to raise these issues below. “As this is a court for the correction of errors, we will not consider any issues raised on appeal that were not raised and preserved in the trial court. [Cit.]” Cheesman v. State, 230 Ga. App. 525, 526 (2) (497 SE2d 40) (1998).


author: Smith, Judge.

text:
    A98A0647.
    EVANS TOYOTA, INC. v. CRONIC.
    (503 SE2d 358)
   Smith, Judge.

Evans Toyota, Inc. appeals from the entry of judgment on a jury’s verdict in favor of Glenn Cronic in an action brought by Cronic against Evans seeking rescission of his purchase of a used Toyota truck based upon a theory of fraudulent inducement. Evans raises ten enumerations of error. Upon review, we conclude that none of the ten is meritorious, and we affirm the judgment below.

Construed to support the jury’s verdict, the evidence presented at trial showed that Cronic visited Evans’s dealership in November 1995, when he was shopping for a pickup truck. He wanted a new truck and was interested in a Toyota but had a ceiling price of $20,000. A salesman, Harold Davis, showed Cronic a used ’94 truck with 28,000 miles and explained that because the Toyota manufacturer’s warranty covered the truck for 36 months or 36,000 miles, whichever was greater (60 months or 60,000 for the drive train), the ’94 truck would still be covered by the manufacturer’s warranty. At that point, Cronic was not interested and still wanted to purchase a new truck. But after looking elsewhere and finding that the cost of a new truck would exceed his ceiling, he returned to Evans to look again at the used ’94 Toyota pickup truck. Although Cronic had no particular automotive experience or training, he test drove the truck and looked under the hood to check fluid levels.

Davis told Cronic he would be “fully covered” under the manufacturer’s warranty, “just like a brand new vehicle.” He assured Cronic that “if anything happened, everything on this vehicle was covered under the manufacturer[’s] warranty.” The repeated touting of complete manufacturer’s warranty coverage was, for Cronic, the “selling feature” that induced him to purchase the used truck. Jeffrey Masters, Evans’s Used Car Manager, and Edward Federmann, its Vice President and General Manager, both conceded that this full warranty coverage was used as a “sales feature” in marketing the pickup, regardless of the existence of significant limiting language within the warranty. And in this case, such significant limitations did exist: the manufacturer’s warranty provided that the “use of add-on parts/ materials are not covered.” Federmann testified that if non-Toyota parts are installed in the vehicle and something goes wrong, that would not be covered under the Toyota warranty. A significant difference in quality exists, and “[sjomebody else’s parts, of course, can’t be covered by Toyota, somebody else’s fenders, paint systems, whatever.” Similarly, if a repair is improperly performed by a non-Toyota-authorized repair person and a problem arises, that would void the warranty.

Terry Prickett, the original owner of the used truck purchased by Cronic, testified that the truck had been wrecked and repaired by non-Toyota-authorized repair persons, using non-Toyota parts. In fact, the only Toyota-authorized part used in the repair was the radiator. When Prickett traded in the truck to Evans in October 1995, he told Evans “up front” that the truck had been wrecked and repaired. And Masters admitted that Evans had knowledge, when the truck was traded in, that it had been wrecked and repaired, but it did not inform Davis, its salesman, of this fact.

The jury awarded Cronic compensatory damages in the amount of $22,402, attorney fees in the amount of $16,944, and punitive damages in the amount of $25,000.

1. In four enumerations, Evans contends the trial court erred in denying its motion for directed verdict.

(a) The essential elements of fraud are: (1) a representation by the defendant; (2) made with the knowledge it was false; (3) with the intention of deceiving the plaintiff; (4) reasonable reliance upon the representation by the plaintiff; and (5) loss by the plaintiff as a proximate result of the representation. Simpson Consulting v. Barclays Bank, 227 Ga. App. 648, 650 (1) (490 SE2d 184) (1997). Evans first argues that Cronic completely failed to present evidence with regard to the essential element of reasonable reliance. We do not agree.

Evans’s argument focuses on Cronic’s failure to question Davis about the truck’s damage history or read the manufacturer’s warranty before buying the truck, despite the presence on the truck’s window of a federally mandated “Buyer’s Guide” cautioning prospective buyers to be diligent in examining a used vehicle and listing many defects that could be present in used vehicles.

But Cronic’s claim for misrepresentation is not based upon a concealment of a defect in the truck; it is based upon Davis’s clear, unambiguous, and repeated statement to him that the truck was “fully” covered under the manufacturer’s warranty notwithstanding the dealership’s knowledge that it had been wrecked and repaired with non-Toyota-authorized parts and labor. The evidence showed that Davis himself was not told of this, preventing him from disclosing it to Cronic; the evidence also showed that Davis was encouraged to use this complete warranty coverage, and did intentionally use it, as a selling feature. We must conclude that this was intentional misrepresentation by Evans. See Rivers v. BMW of North Am., 214 Ga. App. 880, 884 (2) (449 SE2d 337) (1994). Under these circumstances, whether Cronic’s reliance upon Davis’s repeated statements about “full” warranty coverage was reasonable was a question for the jury. Brown v. Techdata Corp., 238 Ga. 622, 625 (234 SE2d 787) (1977).

(b) Evans also asserts that Cronic failed to show the essential element of damage caused by the salesman’s misrepresentation, which Evans contends should have been shown by presenting evidence of the difference in value of the truck with and without the “defect.” This is simply incorrect; that measure is used when the plaintiff affirms the contract, keeps its benefit, and sues on the contract for damages. Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 75 (441 SE2d 421) (1994). In this case, Cronic elected to rescind the contract rather than affirm it. Cronic’s actual damages therefore must be measured by the amount it would take to restore him to the status he held before the transaction. See generally OCGA § 13-4-60.

(c) Evans maintains that a directed verdict should have been granted because Cronic’s tender was incomplete and thus insufficient to support rescission of the sales contract. Evans claims that Cronic refused to permit it to inspect the car to determine whether frame damage existed or to repair it if problems existed, and that Cronic therefore had no basis for rescission. The record belies Evans’s assertion of an incomplete tender. Evans cites no authority for the proposition that Cronic had an obligation to allow Evans to repair the truck before rescinding, and we find none. Further, a rescission notice was sent to Evans by Cronic’s counsel on November 21, 1995, setting forth an unconditional and unequivocal continuing tender of the truck. Thereafter, Cronic did not drive the truck, kept up payments to the lender, and paid for insurance on the truck. He did nothing inconsistent with his rescission.

(d) Evans contends the trial court erred in denying its motion for directed verdict because Davis’s statements about “full” coverage under the manufacturer’s warranty were merely an expression of opinion regarding the legal effect of that document. Relying on Brown v. Mack Trucks, 111 Ga. App. 164 (141 SE2d 208) (1965), Evans argues that such an expression' of opinion cannot serve as a basis for a claim of fraud. In Brown, the alleged misrepresentation was that a vendor’s single-interest insurance policy would cover the truck’s purchaser. Id. This Court held that this was a question of law; the truth of the representation depended upon the interpretation of the policy. Id. at 166.

The representation attributable to Evans is not similar. Evans was not simply mistaken in its opinion of the legal effect of the manufacturer’s warranty; it had actual knowledge that the truck had been wrecked and repaired so as to remove those repairs from warranty coverage. Its representation of “full” coverage “bumper to bumper” was, in fact, false; it was not an expression of opinion.

2. In two enumerations, Evans challenges the award of attorney fees.

(a) Contrary to Evans’s contention, the award of attorney fees was adequately supported by evidence. Evans concedes that Cronic’s attorney testified regarding her hourly rate and the number of hours she spent on the case. Evans argues, however, that only “conclusory” testimony was presented showing that the costs were reasonable. We do not agree. The testimony of Cronic’s attorney is distinguished from that presented in Hughes v. Great Southern Midway, 265 Ga. 94 (454 SE2d 130) (1995), on which Evans relies. In Hughes, the attorney testified only to the total amount of the fee and that he had done “a lot of research” and had consulted specialists. Id. at 95 (1). He did not offer any evidence concerning the number of hours, his hourly rate, or reasonableness, and no accounting was made of the amounts paid the specialists consulted. The Supreme Court held this evidence to be conclusory and insufficient. Id. at 96.

Here, in contrast, the attorney detailed the services she performed, including pleadings, depositions, and correspondence, and on cross-examination testified that her hourly rate was considered not only reasonable but low for an attorney with 20 years experience. The jury had sufficient information from which to decide this issue. See Campbell v. Bausch, 195 Ga. App. 791, 793 (2) (b) (395 SE2d 267) (1990).

(b) Evans also maintains the trial court erred in sustaining the objection of Cronic’s attorney to a question seeking to have her state whether she had a contingent fee contract with Cronic. The trial court ruled it was not relevant and refused to rule that the attorney must answer the question. None of the cases cited by Evans supports its argument that this was error and we have found no other authority holding that this information is relevant. In Southern Cellular Telecom v. Banks, 209 Ga. App. 401 (433 SE2d 606) (1993), this Court held that an award of attorney fees may be based upon a contingent fee contract. Id. at 403 (1). But we also reiterated that the court is not bound by such a contract because an award of attorney fees must be determined “upon evidence of the reasonable value of the professional services which underlie the claim for attorney fees. [Cit.]” Id. And the existence of a contingent fee agreement does not bear any relationship to the value of the professional services. The trial court did not err in refusing to rule that the attorney must disclose whether a contingent fee contract was involved.

3. The rest of Evans’s enumerations of error involve the trial court’s charge to the jury.

(a) In three enumerations, Evans contends the trial court erred in failing to give certain charges. But Evans failed to object properly to this failure before the jury returned its verdict, as required by OCGA § 5-5-24 (a). At the conclusion of the jury charge, Evans’s objection was merely: “I object to every charge that I tendered for you to consider that you didn’t give.” This was insufficient. We note as well that the record contains no requests to charge from Evans covering the areas about which Evans now maintains the trial court failed to charge. Under these circumstances, we find no reversible error. Feifer v. Reliance Kitchens, 189 Ga. App. 653, 654 (3) (377 SE2d 28) (1988).

(b) Evans argues that the trial court erred in its charge to the jury on expenses of litigation. The court charged the jury on OCGA § 13-6-11. In explaining “bad faith,” the court stated that the term “refers not only to the negotiation and formulation of a contract, but also includes the performance of the contractual provisions. ... If there is bad faith in the making or performance of a contract, litigation expenses . . . are authorized.” Evans objected, on the ground that this charge “appeared to apply to a contractual situation, and I think it was misleading to the jury.” The court declined to recharge the jury, since neither party had submitted a charge on this point.

OCGA § 13-6-11 applies when a “contract was procured or transacted in bad faith or was induced by fraud and deceit. [Cit.]” Country Pride Homes v. DuBois, 201 Ga. App. 740, 741 (2) (412 SE2d 282) (1991). That is exactly the situation in this case. We find no error.

Decided June 26, 1998

Reconsideration denied July 9, 1998

Paul S. Liston, for appellant.

Carol D. Sweet, for appellee.

Judgment affirmed.

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


text:
    A98A0759.
    CRAWFORD v. THE STATE.
    (504 SE2d 19)
   Smith, Judge.

Tony Anthony Crawford was indicted by a Worth County grand jury for possession of less than one ounce of marijuana, OCGA § 16-13-30 (j) (1), and possession of a firearm by a convicted felon, OCGA § 16-11-131. He was convicted by a jury, his motion for new trial as amended was denied, and he appeals. Finding no error, we affirm.

1. Crawford asserts the general grounds. Construed in favor of the jury’s verdict, the evidence shows that a narcotics investigator for the Worth County sheriff’s office obtained a search warrant for Crawford’s residence. The investigator and sheriff’s deputies went to the residence the same evening to execute the warrant. Crawford answered the door, and one of the deputies found a bag containing suspected marijuana in Crawford’s left rear pocket. A chemist with the State Crime Lab identified the substance as marijuana. The deputies continued the search and found a .22 magnum revolver on the headboard of the bed. The cylinder for the revolver was found, loaded, in a dresser drawer containing men’s underwear, socks, and other clothing.

(a) With respect to the conviction for possession of marijuana, Crawford contends the State failed to prove the date of possession as alleged in the indictment. Because the indictment alleges the date of the offense as material, the proof must correspond to the date alleged. Price v. State, 247 Ga. 58, 59, n. 1 (273 SE2d 854) (1981). But “[circumstantial evidence may be used to ascertain the date in question. [Cits.]” Decker v. State, 139 Ga. App. 707, 710 (5) (229 SE2d 520) (1976). While the officers’ testimony refers only to November 1995 without a specific date, the narcotics investigator also testified that the search of Crawford’s residence was made on the “same evening” the warrant was obtained. The search warrant itself and the inventory sheet filled out by the investigator after the search were admitted into evidence without objection; both documents are dated November 22, 1995. In presenting the direct testimony of Crawford’s girlfriend, defense counsel also referred to the date of November 22, 1995. Taken as a whole, the testimony and evidence adduced at trial were sufficient for a rational trier of fact to find beyond a reasonable doubt that Crawford possessed marijuana on November 22, 1995. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(b) Crawford also contends the State failed to prove that he possessed the firearm, which was found in two pieces, one on the headboard of the bed and the other in a dresser drawer. Crawford’s live-in girlfriend testified that she had borrowed the revolver from a friend and that Crawford never handled or exercised control over it. But the girlfriend’s testimony as to where she left the revolver on the night of the search was inconsistent with the officers’ testimony as to where it was found. She testified that she placed the revolver and cylinder on top of the dresser before she left for work that evening. She also testified that the cylinder was unloaded when she left the house. When the officers executed the search warrant, however, they found the revolver on the headboard, the cylinder in a dresser drawer containing men’s clothing, and four cartridges in the cylinder. A jury is authorized to find constructive possession of a firearm by one occupant of a shared bedroom when the firearm is found in a dresser drawer containing clothing appropriate to that occupant’s sex. Cantrell v. State, 204 Ga. App. 330, 331-332 (419 SE2d 141) (1992). Constructive possession is sufficient to prove a violation of OCGA § 16-11-131. Simpson v. State, 213 Ga. App. 143, 145-146 (444 SE2d 115) (1994). The jury weighed the evidence and judged the witnesses’ credibility; the evidence was clearly sufficient to prove beyond a reasonable doubt that Crawford possessed the firearm found in his headboard and dresser drawer. Jackson v. Virginia, supra.

2. The trial court did not err in returning two jurors to the jury panel after Crawford exercised his peremptory strikes to remove them. “The principles of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) [(1986)] apply equally to the defense as to the prosecution. [Cits.]” Ellerbee v. State, 215 Ga. App. 312, 315 (6) (450 SE2d 443) (1994). Peremptory jury strikes may not be based upon race or gender, and claims of racial or gender-based discrimination are evaluated under the same standard. McGlohon v. State, 228 Ga. App. 726, 727 (492 SE2d 715) (1997) (physical precedent only). Crawford, an African-American, exercised all eleven of his peremptory strikes against white prospective jurors; nine were used against white male jurors. This established a prima facie case of discriminatory use of peremptory challenges. Gamble v. State, 257 Ga. 325, 327 (6) (357 SE2d 792) (1987); Osborne v. State, 263 Ga. 214, 215 (3) (430 SE2d 576) (1993).

“To evaluate claims that the state or defendant used peremptory challenges in a racially discriminatory manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent.” (Footnotes omitted.) Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996). The trial court’s findings are entitled to great deference and will be affirmed unless clearly erroneous. Gamble, supra at 327 (5).

While the trial court’s use of the three-step process is not crystal clear, it is apparent, viewing the voir dire transcript as a whole, that the trial court first determined that a prima facie case had been made, listened to Crawford’s reasons for all the challenged strikes, then allowed the State to respond before making a decision. This indicates that the trial court accepted Crawford’s explanations as race-neutral under the second step of the test, but at the third step chose to disbelieve them following the State’s response. Russell v. State, 230 Ga. App. 546, 548 (2) (497 SE2d 36) (1998).

To rebut a prima facie case of discrimination in the use of peremptory strikes, the proponent of the strikes must explain each one. “The explanation need not rise to the level justifying exercise of a challenge for cause, but it must be neutral, related to the case to be tried, and a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges.” (Citation and punctuation omitted.) Gamble, supra at 327 (5). But “rubber stamp approval of all nonracial explanations, no matter how whimsical or fanciful, would cripple Batson’s commitment to ensure that no citizen is disqualified from jury service because of his race.” (Citations and punctuation omitted.) Id.

The explanation offered for striking each challenged juror must be evaluated in light of the explanations offered for Crawford’s other peremptory strikes and the strength of the prima facie case. Explanations for other strikes may affect the trial court’s decision: “A court charged with the duty of determining whether the [proponent] has rebutted a prima facie case may be less troubled by one relatively weak explanation for striking a . . . juror when all the remaining explanations are persuasive than where several of the [proponent’s] proffered justifications are questionable. Similarly, a weak prima facie case may be rebutted more readily than a strong one.” Id.

Here, Crawford employed virtually the same words in explaining his peremptory challenges to seven of the nine white male jurors challenged. Counsel repeatedly stated as an explanation that a white male juror was “very conservative,” “very hard-headed” or “hotheaded,” and “impulsive” or “quick to make decisions ” Seven times, counsel simply stated that a white male juror was challenged “for the same reason” or “reasons” or “the same theory.” He acknowledged, “I realize I’m repeating myself a lot, but it’s the same theory we’ve used.”

Viewing the record on voir dire as a whole, it is clear that the trial court concluded the “conservative, impulsive, hot-headed (or hard-headed)” explanation, either repeated verbatim or in the shorthand form of “same reason,” was pretextual under the third step of the relevant analysis. With respect to one of the jurors at issue here, Crawford’s counsel also stated, “we were trying to get down the list to get also some black people, which Mr. Crawford is African-American and try to get some more black people on the jury than we were able, to have a fair share.” In light of this candid acknowledgment that race formed a significant part of Crawford’s decision-making in striking one juror for whom the same explanation was given as for seven other white male jurors, we cannot say that the trial court’s rejection of this repetitive explanation was clearly erroneous.

3. Crawford next complains that the trial court erred in admitting into evidence a certified copy of his prior felony conviction, contending that the State failed to prove he was the same “Tony Crawford” named in that guilty plea and judgment of conviction. The narcotics investigator testified that he had known Crawford for six years. The investigator testified without objection that he verified through the crime information computer Tony Crawford’s name, address, and social security number on the prior felony conviction. Evidence was also presented that Crawford is known as “Tony Crawford.” “Concordance of name alone is some evidence of identity. Further, in the absence of any denial by [Crawford] and no proof to the contrary this concordance of name is sufficient to show that [Crawford] and the individual previously convicted were the same person. Accordingly, this enumeration is without merit.” (Citations and punctuation omitted.) Mincey v. State, 186 Ga. App. 839, 841 (4) (368 SE2d 796) (1988).

4. Finally, Crawford enumerates as error the denial of his motion to suppress. Without any statement of facts or argument, he contends that the warrant did not set forth sufficient facts from which the magistrate could independently determine the reliability of the information or the informant and that the information was insufficiently corroborated. We disagree.

Decided June 22, 1998

Reconsideration denied July 9, 1998.

Sims, Fleming & Spurlin, James M. Walker III, for appellant.

C. Paul Bowden, District Attorney, for appellee.

The narcotics investigator testified that a confidential informant had been inside Crawford’s house within 72 hours of the application for a search warrant and had seen a quantity of cocaine while in the house. The investigator also testified that he had used the confidential informant “probably eight to ten times,” and “pretty much everything that this informant had told me had led to an arrest.” The affidavit in support of the application for a search warrant stated that “this informant has proven to be reliable in the past by providing information which has led to the arrest of approx. 10-12 persons and the recovery of illegal drugs.” The officer also verified the description of the property as provided by the informant.

Under “common-sense” evaluation, a similarly worded affidavit has been held sufficient to demonstrate the informant’s reliability. Bowe v. State, 201 Ga. App. 127, 130-131 (410 SE2d 765) (1991). While Crawford contends the informant’s information was not sufficiently corroborated, corroboration is not uniformly required in every case involving a reliable informant. Under a “totality of the circumstances” approach, corroboration simply supplies an alternative “basis for finding probable cause, despite deficiencies in the showing of the informant’s veracity, reliability, or basis of knowledge. [Cits.]” Munson v. State, 211 Ga. App. 80, 82 (438 SE2d 123) (1993). Where, as here, these factors were established by other means, corroboration was not required in order for a warrant to issue.

Judgment affirmed.

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

       While Crawford enumerates as error the reinstatement of two jurors, in the body of his brief he discusses the reinstatement of three jurors. In this case, the discrepancy is insignificant, because Crawford offered the same explanation for all three peremptory strikes.

       Significantly, the trial court did not return prospective jurors to the panel when Crawford articulated other non-race- and gender-based explanations for his peremptory strike. For example, the trial court accepted strikes when the prospective juror had had disagreements in the past with others in defense counsel’s law firm and when the prospective juror had had personal dealings with Crawford.

       The hearing on the motion to suppress was held after the case was submitted to the jury; no explanation for this procedure appears in the record.


author: Blackburn, Judge.

text:
    A98A0088.
    WILSON v. THE STATE.
    (503 SE2d 924)
   Blackburn, Judge.

Johnny W. Wilson was charged with the failure to stop at the scene of an accident pursuant to OCGA § 40-6-270. After a mistrial was declared in the proceedings below, Wilson filed this appeal. For the reasons set forth below, we reverse.

1. Wilson contends that the trial court erred by denying his motion for directed verdict of acquittal at the close of the State’s case against him. “The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations, punctuation and emphasis omitted.) Noble v. State, 225 Ga. App. 470 (484 SE2d 78) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “A directed verdict of acquittal should be granted only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. OCGA § 17-9-1. In reviewing the denial of a motion for a directed verdict made at the close of the State’s case, an appellate court considers not only the evidence produced in the State’s case-in-chief, but also any evidence introduced subsequent to the motion by the defense.” (Punctuation omitted.) Tyler v. State, 198 Ga. App. 685, 687-688 (2) (402 SE2d 780) (1991).

Based on the evidence in this case, the trial court properly denied Wilson’s motion for a directed verdict. The record shows that, on the night of February 14, 1995, the Honda being driven by Kimberly Mendez was struck head on by a car which crossed over the centerline of the road. Mrs. Mendez’ husband, Robert Mendez, was riding in the passenger’s seat. Mrs. Mendez described the car which hit her as a light blue LTD or Crown Victoria. Mr. Mendez described the car as a light blue, late 1980s model Ford which was either a Crown Victoria or LTD.

After the collision, the Mendezes pulled into a driveway, and the car which struck them pulled into an adjacent driveway. After his car came to a stop, Mr. Mendez jumped out to get a better look at the other car. While standing six or seven feet away, Mr. Mendez watched the car which struck his car being reversed out of the driveway in which it had been driven. Mr. Mendez stated that he got a good look at the driver of the car whom he later identified as Wilson. Although he was standing toward the rear of the car, Mr. Mendez testified that he nonetheless got a good look at Wilson’s face because he had turned his face to the rear of the car to see where he was backing up.

Mr. Mendez also read the tag number of the car, and, although he had no way to write it down, he remembered that “it was something to the effect of BTJ 136 or 186,” which he told the police officer at the scene of the accident. Wilson, an employee of the family-owned business of Wilson Welding Service, Inc., is the registered owner of a light blue 1987 Ford Crown Victoria with the tag number BJT 186. Although Wilson argues that he could not have been the hit-and-run driver because there was no damage to his car, his own expert testified that it was possible that a Ford Crown Victoria could be involved in an accident with a Honda without being damaged. Furthermore, Officer Britman of the City of Atlanta Police Department testified that he inspected Wilson’s car and that he believed the car had been damaged and repaired. Under the standard of Jackson v. Virginia, supra, any rational trier of fact could have found Wilson guilty of the crime of hit and run beyond a reasonable doubt. Accordingly, Wilson’s motion for a directed verdict of acquittal was properly denied.

2. Wilson also contends that the trial court erred by denying his motion for directed verdict of acquittal notwithstanding the mistrial. However, “[n]o statutory provision for judgment n.o.v. exists in the statutory criminal law of Georgia[,] and the Supreme Court, in Wilson v. State, 215 Ga. 775 (1) (113 SE2d 607) (1960), declined to create such a remedy judicially. In State v. Bilal, 192 Ga. App. 185 (384 SE2d 253) (1989), this court noted that the legislature’s creation, in 1971, of a right to move for directed verdict during trial, codified at OCGA § 17-9-1, ‘did not affect the holding in Wilson, supra, for the legislature did not create a right to judgment notwithstanding the verdict in a criminal case.’ Bilal, 192 Ga. App. at 186. OCGA § 17-9-1 permits a defendant to seek a directed verdict of acquittal only during trial. By contrast, the Federal Rules of Criminal Procedure permit a defendant to seek such relief not only after the return of a verdict of guilty (F.R.Cr.P. 29 (b)) but also after mistrial (F.R.Cr.P. 29 (c)). If the Georgia legislature wishes to create the right to seek post-conviction or post-mistrial judgment of acquittal it may, following the lead of federal statutory law, do so. At this time, however, the law of Georgia provides for neither a motion for judgment of acquittal notwithstanding the verdict nor a motion for judgment of acquittal notwithstanding mistrial.” Rhyne v. State, 209 Ga. App. 548, 550-551 (1) (434 SE2d 76) (1993). As such, this enumeration of error must be rejected.

3. In his third enumeration of error, Wilson contends that the trial court erred in denying his plea of double jeopardy, since the mistrial was the direct result of intentional prosecutorial misconduct designed to bring about a mistrial. We must agree.

“As a general rule, a post-conviction reversal or grant of a motion for new trial which is not based on insufficiency of the evidence does not preclude retrial. See Burks v. United States, 437 U. S. 1, 14-17 (98 SC 2141, 57 LE2d 1) (1978). There is an exception to this general rule, however: The defendant cannot be retried if the retrial is necessitated by prosecutorial misconduct which was ‘intended to subvert the protections afforded by the Double Jeopardy Clause.’ Williams v. State, 258 Ga. 305, 312 (369 SE2d 232) (1988). See also Oregon v. Kennedy, 456 U. S. 667 (102 SC 2083, 72 LE2d 416) (1982).” State v. D’Auria, 229 Ga. App. 34, 35 (492 SE2d 918) (1997). Furthermore, “[i]n the context of a granted motion for mistrial, this means the prosecutor intended to goad or provoke the defendant into moving for a mistrial.” Id. at 36. If the record does not show that the prosecutor’s conduct was for these improper purposes, the defendant may be retried. Dinning v. State, 267 Ga. 879, 881 (485 SE2d 464) (1997).

Decided July 9, 1998.

Robert P. Wilson, for appellant.

June D. Green, Solicitor, Wanda L. Dallas, Assistant Solicitor, for appellee.

In this case, the prosecutor improperly asked Wilson during cross-examination: “Mr. Wilson, did you try to negotiate a nolo contendere plea in this charge?” As a result, the trial judge granted Wilson’s immediate motion for a mistrial. We find it impossible to believe that an error which is so blatant and so contrary to the most basic rules of prosecutorial procedure and conduct could have been simply a negligent act. To allow this prosecutor’s action to be categorized as a mistake would require this Court to assume that this prosecutor was totally lacking the foundational knowledge for prosecutorial conduct in a courtroom. Based on the prosecutor’s conduct in this matter, including the attempt to preclude the evidence introduced at trial from becoming a part of the record for our review, and necessitating an order from this Court to get such evidence, we can only attribute the question to an attempt to bring about a mistrial. State prosecutors are generally knowledgeable and well trained — too knowledgeable and well trained not to know the consequences of a question such as that asked by the prosecutor in this case. Accordingly, we find that, under the facts in this case, the prosecutor must have intended that her inappropriate question would result in a mistrial and, concomitantly, the mistrial was intended by her. Therefore, we reverse, and we find that the trial court erred in denying defendant’s plea in bar of double jeopardy.

Judgment reversed.

Eldridge, J., concurs. McMurray, P. J., concurs in the judgment only.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A98A1415.
    SELF et al. v. HALL.
    (503 SE2d 918)
   Blackburn, Judge.

Debra Self, Sue M. Elder, and Kathy M. Cutshaw, the daughters of Olin Stark McGowan, appeal the denial of a summary judgment motion in which they asked the trial court to rule that S. Mark Hall had no right to inherit any portion of McGowan’s estate as his illegitimate son. For the reasons set forth below, we affirm.

On October 25, 1995, Hall filed a motion to intervene in a case brought by Sylvia McGowan, who claimed to be the common law wife of Olin McGowan, against Self as administratrix of her father’s estate. In her application to the probate court for letters of administration, Self listed only herself and her two sisters as Olin McGowan’s heirs, and Sylvia McGowan claimed that she was improperly excluded from that list. In support of his application to intervene, Hall claimed that, as the illegitimate son of Olin McGowan, he had also been improperly excluded from the list of heirs. Hall’s motion to intervene was granted on October 18,1996. On October 25, 1996, Hall filed a motion for summary judgment, asking the trial court to rule that he was an heir of Olin McGowan. On December 11, 1996, appellants filed a motion for summary judgment, asking the trial court to rule that Hall had no right to inherit from Olin McGowan. On April 4, 1997, the trial court denied both motions. The case proceeded to a jury trial, and the jury found that Hall was an heir of Olin McGowan.

In their sole enumeration of error, appellants argue that the trial court erroneously denied their motion for summary judgment, contending that Hall was estopped from arguing that he was the son of Olin McGowan. However, it is well settled that “[a]fter verdict and judgment, it is too late to review a judgment denying a summary judgment for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” Phillips v. Abel, 141 Ga. App. 291 (1) (233 SE2d 384) (1977). Thus, as appellants’ case went to trial and a jury entered a verdict against them which was accepted by the trial court, the propriety of their motion for summary judgment is a moot issue. Moreover, appellants elected not to file a trial transcript with this appeal. “Where a trial transcript is necessary for review and [an] appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.” First Financial Ins. Co. v. Mathis, 214 Ga. App. 537, 539 (448 SE2d 87) (1994).

Under the circumstances and given the clear state of the law, Self’s attorney could not reasonably have believed that this appeal would result in a reversal of the trial court’s decision. Therefore, we grant Hall’s motion to assess damages for a frivolous appeal, and we impose a $1,000 frivolous appeal penalty on appellants and their attorney pursuant to Court of Appeals Rule 15 (b).

Judgment affirmed.

Eldridge, J., concurs. McMurray, P. J., concurs specially.

Decided July 9, 1998.

Law Offices of John F. Lyndon, Walter R. Finch III, for appellants.

Timmons, Haggard & Carney, Cynthia E. Call, for appellee.

McMurray, Presiding Judge,

concurring specially.

Although I agree the case sub judice should be affirmed, I cannot say that plaintiffs’ arguments were entirely frivolous or interposed for the purpose of delay. Defendant’s motion for frivolous appeal sanctions, pursuant to Court of Appeals Rule 15 (b), should be denied.