text:
    A94A0699.
    COLEVINS v. FEDERATED DEPARTMENT STORES, INC.
    (443 SE2d 871)
   Birdsong, Presiding Judge.

Ann Colevins brought suit against appellee Federated Department Stores, Inc. (Rich’s) after slipping and falling on a leaf allegedly in a puddle of water on the store floor. The trial court granted defendant’s motion for summary judgment. On the day of her alleged injury, appellant was employed by Cardeaux Cosmetics to work at Rich’s. On the date of the incident, appellant was walking around Rich’s soliciting customers to participate in a cosmetic makeover; additionally, she was doing some shopping for herself. Held:

1. To state a cause of action where plaintiff alleges that due to an act of negligence by defendant she slipped and fell on a foreign substance on defendant’s floor, plaintiff must show: (a) defendant had actual or constructive knowledge of the foreign substance and (b) plaintiff was without knowledge of the substance or for some reason attributable to defendant was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). Further, “ ‘an invitee must exercise ordinary care for her own safety, and must by the same degree of care avoid the effect of the owner’s negligence after it becomes apparent to her or in the exercise of ordinary care she should have learned of it.’ ” (Emphasis omitted.) Souder v. Atlanta Family Restaurants, 210 Ga. App. 291 (2) (435 SE2d 764). Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) expresses the appropriate summary judgment standard where movant is defendant.

2. We find that a genuine issue of material fact does not, under the posture of this record, exist as to appellee’s actual knowledge of the foreign substance. By way of deposition in this proceeding (hereinafter “trial deposition”), appellant testified that immediately after her fall a group manager/employee of the store informed her that he was aware of the existence of the water and leaf at the time she fell. The group manager has denied by way of affidavit either having any knowledge of. the existence of water and the leaf prior to appellant’s fall or having made the statement attributed to him by appellant. The testimony of appellant generally would constitute admissible evidence regarding the group manager’s knowledge of the foreign substance, within the meaning of OCGA § 9-11-56 (e), either as an admission against interest by an employee-agent (OCGA § 24-3-33) or as a res gestae exception (OCGA § 24-3-3). Compare Brown v. Piggly Wiggly &c., 210 Ga. App. 459, 460 (436 SE2d 513); see generally Lau’s Corp., supra. However, the record further reveals that, in a deposition taken as to appellant’s workers’ compensation claim, she unequivocally testified when asked whether anyone saw her fall that “there [were] two customers at Rich’s that saw me”; when asked if any store employees saw her fall, appellant testified “one lady heard the fall.” To the extent appellant’s trial deposition testimony contradicted her workers’ compensation deposition testimony and when offered without reasonable explanation of such contradiction, there results the invocation of the rule of contradictory testimony set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). Moreover, the mere fact that the conflicting testimony arose from appellant’s depositions in two separate proceedings does not preclude a Prophecy-type rule from being invoked; testimony is testimony. Hudgens v. Broomberg, 262 Ga. 271 (416 SE2d 287). Construing appellant’s unexplained contradictory testimony against her under Prophecy, we find the record does not support appellant’s claim that appellee or its agent either had actual knowledge of the foreign substance or was within the immediate area and could easily have seen the substance and removed it before appellant’s fall.

“ ‘There are two different classes of premises liability cases which may be based on constructive knowledge. The first is that type where liability of the defendant is based on the fact that an employee of the defendant was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard. The second type of case is that based on the duty of the defendant to exercise reasonable care in inspecting and keeping the premises in safe condition. To sustain plaintiff’s cause of action in the latter case it is necessary that [s]he prove a period of time the dangerous condition has been allowed to exist. Without such proof it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.’ ” (Emphasis supplied.) Brown, supra at 459-460. The record reveals by way of deposition that appellant admitted she had no knowledge how long the alleged water or the leaf had been on the floor prior to her fall. Any inconsistent testimony by appellant as to how long the foreign substance had been on the floor and not reasonably explained also would invoke the rule of Prophecy, supra.

After invoking Prophecy as to the various inconsistencies in appellant’s testimony given in her two depositions, we find no viable evidence which would create a genuine issue of material fact either as to the existence of actual or constructive knowledge on the part of appellee. Appellant’s claim that a genuine issue of material fact as to appellee’s knowledge is established by appellee’s response to appellant’s Interrogatory No. 11. Appellant attached a copy of her first Interrogatories, containing Interrogatory No. 11, to her appellate brief; this document is not contained in the official record before us on appeal. Facts asserted in appellate briefs unsupported by the record, will not be considered on appeal (Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223)); a brief or a documentary attachment thereto cannot be used as a procedural vehicle for adding evidence to the record. Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33). Without the first interrogatories of appellant/ plaintiff being in the record, we must, as to this issue, affirm the trial court. Nodvin v. West, 197 Ga. App. 92, 97 (3c) (397 SE2d 581). Applying the standard of Lau’s Corp., supra, as to the remaining viable evidence of record, where the favorable portion of a party’s self-contradictory testimony is the only evidence giving rise to genuine issues of material fact, the movant/defendant is entitled to a grant of summary judgment. Cf. Kroger Co. v. Barentine, 210 Ga. App. 795 (437 SE2d 629), citing Prophecy, supra.

Decided April 19, 1994.

Freeman & Hawkins, Edward M. Newsom, Kevin J. Bahr, for appellant.

Carter & Ansley, Robert A. Barnaby II, Thomas E. Magill, Keith L. Lindsay, for appellee.

3. Additionally, when asked why she did not see the foreign substance on the floor, appellant by way of deposition testified: “I wasn’t looking down on the floor to see. I was looking straight so I wouldn’t bump into anybody.” (Emphasis supplied.) When asked if she had looked down at the floor could she have seen the alleged puddle of water, appellant testified that she did not know. Thereafter, appellant speculated that she could not have seen the foreign substance because the leaf was almost the same color as the floor and the water was clear. But, she later admitted that “nothing was in the way,” which would have obscured her view of the floor area where she fell. “Appellant admitted that she was not looking at the floor ahead; she was looking [straight so she would not bump into people]. She did not exercise ordinary care for her own safety. . . . Whatever appellee’s knowledge of the peril, there is no genuine issue that the cause of appellant’s fall was her own failure to exercise ordinary care.” Minor v. Super Discount Markets, 211 Ga. App. 123, 124-125 (438 SE2d 384); compare Souder, supra.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A0697.
    WHEELER v. THE STATE.
    (443 SE2d 691)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of theft by receiving stolen property, possession of a firearm by a convicted felon, carrying a concealed weapon and carrying a pistol without a license. This appeal followed the denial of defendant’s motion for new trial. Held:

In his sole enumeration, defendant contends the trial court erred in failing to make a clear determination at the hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), that admissions he made while in police custody were freely and voluntarily made.

At a hearing conducted pursuant to Jackson v. Denno, supra, Detective Sergeant Flanders Williamson of the Dublin Police Department affirmed that he interviewed defendant with “regard to some charges concerning a burglary or theft by receiving, possession of a firearm by [a] convicted felon, possession of a pistol without a license and carrying a concealed weapon.” Detective Williamson also affirmed that he advised defendant of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), before questioning and that defendant indicated that he understood his rights via execution of a form entitled, “Statement of Miranda Rights” and “Waiver of Rights.” This one-page form includes a statement of rights afforded under Miranda v. Arizona, supra, and the following testimonial: “I have read the above statement of my rights and I understand each of those rights, and having these rights in mind I waive them and willingly make a statement.” Detective Williamson affirmed that defendant did not “ask for any further explanation of [his Miranda v. Arizona, supra,] rights[; that defendant seemed] to have the mental ability and education to understand what [the detective was] advising him of [and that he advised defendant] of the nature of the charges against him[.]” Detective Williamson testified that defendant had not been in jail “too long . . .” before questioning and affirmed that defendant was not “threatened in any fashion or intimidated in any fashion to cause him to waive his rightsf; that defendant was not] promised anything, any hope of benefit or anything at all to induce him to waive his rights [and that, to] the best of [his] knowledge!, defendant’s] waiver of those rights [was] voluntary and knowingly and freely given[.]” Detective Williamson testified that he talked with defendant “[j]ust a few minutes [before defendant waived his Miranda v. Arizona, supra, rights] and gave ... a statement.”

On cross-examination, Detective Williamson indicated that he did not know the specific nature of the charges against defendant at the time he questioned defendant. However, the trial court clarified this point via questions from the bench which revealed that the detective was aware that defendant was under investigation at the time of questioning for possession of certain (presumably stolen) items. Finally, defense counsel called Officer Tim Chatman who testified that he advised defendant of his rights under Miranda v. Arizona, supra, and that he “was talking with [defendant] about a specific burglary at that time.”

After the close of evidence, the following transpired: “[DEFENSE COUNSEL:] Judge, we heard from two witnesses, one of which the State called, Detective Flanders Williamson and I think the Court can refer to its own memory as to what the testimony was, but I specifically recall that Detective Williamson was somewhat unclear as to why the Defendant had been brought in for investigation. Detective Williamson was not the arresting officer and therefore, Your Honor, I think there is some confusion as to what charges this Defendant was under at the time this alleged statement or alleged confession was made. It’s clear that at least later in the day that he was being investigated ... for burglary. The statement which is the subject of this Jackson Denno hearing is one that allegedly occurred immediately after his arrest or at least immediately after his being brought into the police station. Your Honor, I would submit that we heard some rather vague testimony from Detective Williamson again as to what this Defendant was being investigated for at the time the statement was given. As we know that it is a very important element of whether a confession is voluntary as to whether the Defendant is made aware of what he’s being arrested for or under investigation for.

“THE COURT: ... It would seem to me that the evidence indicates that there was a receiving charge which the Detective who took the statement stated to the Defendant he was questioning him about. There is absolutely no question, no confusion about that and his statement made was with reference to that and the fact that some other office [r] suspected him of burglary wouldn’t have anything to do with the statement.

“Jackson-Denno hearing terminates in favor of the State. The statement may be submitted to the Jury and is admitted into evidence.”

“In Jackson v. Denno, [supra,] the United States Supreme Court held that a defendant is entitled to a fair hearing and a reliable determination on the issue of the voluntariness of statements made by him. In Sims v. Georgia, 385 U. S. 538, 544 (87 SC 639, 17 LE2d 593) (1967), the Court stated: ‘Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity.’ See Cofield v. State, 247 Ga. 98 (4) (274 SE2d 530) (1981).” Spivey v. State, 253 Ga. 187, 205 (15b), 206 (319 SE2d 420). In the case sub judice, the trial court failed to make such a specific finding with regard to defendant’s custodial statement. However, it is clear from the hearing transcript that the trial court’s sole concentration was whether defendant’s custodial statement was free and voluntary. Specifically, the trial court clarified facts relevant to defendant’s contention that he was not advised of the charges against him via questioning Detective Williamson and the trial, court considered defense counsel’s argument and clearly and unmistakably ruled on the sole issue raised therein, i.e., that defendant’s statement was not free and voluntary because he was not advised of the nature of the charges which prompted police investigation. Under these circumstances, it is unnecessary to remand the case to the trial court for another hearing conducted pursuant to Jackson v. Denno, supra. See Spivey v. State, 253 Ga. 187, 205 (15b), 206, supra. Compare Jordan v. State, 207 Ga. App. 710, 713 (3) (429 SE2d 97).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

Decided April 22, 1994.

Joe H. Thalgott, for appellant.

Ralph M. Walke, District Attorney, Peter F. Larsen, Assistant District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A94A0889.
    JONES v. SAULS.
    (443 SE2d 693)
   Birdsong, Presiding Judge.

Denny Thomas Jones has filed a direct appeal of the order of the superior court denying his petition of adoption.

Appellant is married to Vanessa Lynn Jones, the biological and legal mother of the child whom appellant seeks to adopt. Appellee, Andrew Hamilton Sauls, is the biological father of the child; he was divorced from Vanessa Jones in February 1982. Appellee has refused to surrender his parental rights voluntarily and has challenged the adoption proceeding. Appellant and Mrs. Jones were married in June 1984; the child has continuously resided with his mother and appellant since that time. The child was born in June 1980, and was 13 years old at the time of the hearing on the adoption petition. The child testified that he was close to appellant and wanted the court “to allow the adoption to take place.”

Vanessa Jones was awarded custody of her son in the 1982 divorce proceeding; by superior court order, entered in February 1982, and modified in April 1988, appellee was ordered to pay monthly child support. Since 1989, appellee has been incarcerated following his conviction, pursuant to a guilty plea of burglary, kidnapping, simple battery, obstructing law enforcement, and aggravated assault with intent to rape. Prior to his incarceration, appellee was already $3,850.90 in arrears in child support payments, an arrearage in excess of a year. At the time appellee was incarcerated, he owned a 1979 Toyota; he elected to transfer the title of this car to his mother, rather than selling the car and using the proceeds toward payment of a portion of his child support arrearage. By October 1993, the time of hearing of the adoption petition, appellee’s child support arrearage had increased to $14,800. However, after appellee’s mother filed a petition to obtain grandparent’s visitation rights (which was denied), she made 12 child support payments in the amount of $20 per month on appellee’s behalf. In July 1993, appellee received a $117 refund from the state Employees’ Retirement System which he applied toward his child support obligation. Also, using money provided by his mother, appellee made child support payments in the amount of $23.75 for the one-year period preceding the date the adoption petition was filed; since the filing of petition, appellee, again using money provided by his mother, has made monthly child support payments of $41. Appellee has had no income while in prison, except for money sent to him by his mother. Appellee has made frequent attempts to communicate with his son and to maintain a close father/son relationship, including the sending of weekly letters (only two of which were delivered to the child; appellant and his wife testified they had retained all letters, but did not give them to the child because the letters upset him). Appellee does not anticipate parole until June 1996.

In denying the adoption petition, the trial court found that, although appellee had significantly failed to provide for the care and support of his child, his incarceration prevented such failure being without justifiable cause. Held:

1. OCGA § 19-8-10 (b) pertinently provides that: “Surrender of rights of a parent pursuant to subsection (a) of Code Section 19-8-6 of 19-8-7 shall not be required as a prerequisite to the filing of a petition for adoption of a child of that parent pursuant to Code Section 19-8-13, if that parent, for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed: (1) To communicate or to make a bona fide attempt to communicate with that child; or (2) To provide for the care and support of that child as required by law or judicial decree.” (Emphasis supplied.)

As there appears sufficient evidence in the record to support a finding that appellee had not significantly failed, for a period of one year or longer immediately prior to the filing of the adoption petition, to communicate or make a bona fide attempt thereat with his child, the ultimate question remains whether the trial court erred either in its application of law or fact in determining whether appellee significantly failed, without justifiable cause, to provide for the care and support of his child as required by law or judicial decree.

2. “In construing a legislative act, a court must first look to the literal meaning of the act. [Cit.] If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry.” Diefenderfer v. Pierce, 260 Ga. 426, 427 (396 SE2d 227). Statutory construction “must square with common sense and sound reasoning.” Tuten v. City of Brunswick, 262 Ga. 399, 404 (418 SE2d 367).

OCGA § 19-8-10 (b) on its face requires that a substantial failure of either of the requirements listed in subsections (1) and (2) thereof must be “without justifiable cause.” It is not enough that a substantial failure be shown to have existed for the requisite statutory period; unless it can also be shown that such failure was without justifiable cause, surrender of parental rights under OCGA § 19-8-6 (a) or § 19-8-7 (a) would still be required. Moreover, strictly construing the current provisions of OCGA § 19-8-10 (b) (Johnson v. Eidson, 235 Ga. 820, 821 (221 SE2d 813)), if justifiable cause is found to exist, the issue of best interest of the child need not be determined. To the extent any precedent, resulting from prior cases “decided during the ten-year period from 1979 to 1989,” implies no showing is required that the failure under OCGA § 19-8-10 (b) was “without justifiable excuse,” such cases are distinguishable and are not controlling in this case. Appellant’s first enumeration, as crafted, is without merit. OCGA § 19-8-6 (b); see also Thorne v. Padgett, 259 Ga. 650 (386 SE2d 155).

3. (a) Notwithstanding evidence by way of the child’s mother’s deposition of appellee’s past physical and mental abuse of the child, like the trial court we are not here called upon to adjudicate the sufficiency of the evidence to support a termination of appellee’s parental rights. Compare In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344), citing In the Interest of S. K. L., 199 Ga. App. 731 (1) (405 SE2d 903) and cases therein cited. At issue is whether, pursuant to OCGA § 19-8-6 (c), surrender or termination of parental rights is a prerequisite to the filing of appellant’s adoption petition.

(b) The trial court concluded that appellee “has significantly failed to provide for the care and support of his son.” Evidence of record supports this finding. The trial court thereafter concluded that such failure “has not been without justifiable cause.” If applicable statutes operated to permit a trial court to sever a parent’s right in his child even in the face of the requisite degree of evidence that the parent had justifiable cause for not supporting the child, it would circumvent “the constitutional requirement that a natural parent’s rights in his child may not be terminated absent a showing, by clear and convincing evidence, of [parental] unfitness.” Thorne v. Padgett, supra at 651.

In this case, the trial court elected to cast the issue of justifiable cause, in light of the holding in Thorne v. Padgett, supra, as follows: “whether incarceration is a ‘justifiable cause’ for failing to communicate with or provide support for the child.” At the outset, we find Moore v. Butler, 195 Ga. App. 1 (392 SE2d 285), which involves an interpretation of the then existing provisions of OCGA § 19-8-6 (b), to be distinguishable and not controlling as to the disposition of appellant’s second enumeration of error.

Appellant’s second enumeration is as follows: “The evidence does not support the trial court’s finding that because of the appellee’s imprisonment and resultant inability to produce income, his failure to support his child was not without justifiable cause.” We find that the evidence is sufficient in the requisite degree to support the trial court’s findings either under an abuse of discretion test or under the standard of review set forth in In the Interest of J. A. B., 189 Ga. App. 79 (374 SE2d 839). Accordingly, appellant’s second enumeration, as crafted, is without merit.

Decided April 22, 1994.

Katherine M. Kalish, for appellant.

Westmoreland, Patterson & Moseley, Bradley G. Pyles, Roxanne M. Wood, for appellee.

(c) Appellant, however, in essence argues the trial court erred by concluding that incarceration per se creates “justifiable cause.”

“Adoption laws are to be strictly construed in favor of natural parents, for the application thereof results in the severance forever of the paternal relation.” Griffith v. Brooks, 193 Ga. App. 762, 766 (389 SE2d 246). For purposes of determining the existence of “justifiable cause,” within the meaning of OCGA § 19-8-10 (b), incarceration is merely one relevant factor to be considered by the trial court; incarceration does not per se give rise to justifiable cause, although in certain circumstances, justifiable cause can be shown to arise therefrom. Each case must be decided on its own circumstances. Further, the incarceration issue here is not the same as that posed by incarceration in aggravated circumstances for purposes of termination of parental rights. See generally In the Interest of S. H., 204 Ga. App. 135 (2) (418 SE2d 454); In the Interest of L. F., supra; In the Interest of S. K. L., supra.

We decline to address whether the trial court erred allegedly by concluding that incarceration per se constituted justifiable cause under OCGA § 19-8-10 (b), as that issue was not reasonably contained within appellant’s enumerations of error. Krebsbach v. State, 209 Ga. App. 474 (433 SE2d 649). “An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration.” (Punctuation omitted.) Sentry Ins. v. Majeed, 194 Ga. App. 276 (1) (390 SE2d 269).

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0734.
    McINTYRE v. PIC & SAVE DRUG COMPANY, INC.
    (443 SE2d 874)
   Birdsong, Presiding Judge.

Ira Lee McIntyre appeals the order granting appellee/defendant Pic & Save Drug Company’s motion for summary judgment in this slip and fall suit.

Appellant McIntyre, a 72-year-old retiree with advanced diabetes who was able to walk without assistance, was shopping with two friends; appellant was not pushing a shopping cart. She asked an employee standing in the aisle where bathmats were located; the employee gave her the general direction and location of the item. Appellant started toward the aisle when she slipped and fell on grapes. At the time of her fall appellant was not looking at the floor in front of her but was looking up at an aisle sign, apparently trying to find the aisle number to which she had been directed. Held:

1. The summary judgment standard where the motion is made by movant/defendant is set forth in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. To state a cause of action in a case where plaintiff alleges that due to a negligent act of defendant she slipped and fell on a foreign substance on defendant’s floor, plaintiff must show that: (1) defendant had actual or constructive knowledge of the foreign substance and (2) plaintiff was without knowledge of the substance or for some reason attributable to defendant was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327).

By way of deposition, appellant testified to the following: she asked a store employee where bathmats were located and “was going to . . . find that aisle” when she fell; she does not know how many steps she took after she turned away from the employee to find the bathmat aisle before she fell; “there [was] nobody around [her]” when she fell; appellant saw no employee of appellee store in the vicinity of where she fell; the grapes on which she fell were “in the aisle,” they were not hidden from her view; she observed no shelves or anything which would obstruct her vision of the aisle; the store was well lighted; and she “couldn’t tell” whether the grapes, by their appearance, were smashed when she fell or before her fall. Additionally, by way of affidavit, the store manager stated under oath and without contradiction of the record, that “Pic N’ Save company policy dictates that store aisles should be inspected on a regular basis. It is my normal routine to inspect the aisles of the store premises every twenty (20) minutes,” and that he had neither personal knowledge nor had he received the report of any employee that a grape was seen on the store’s floor prior to appellant’s fall.

Any evidence offered by appellant, without reasonable explanation therefor, which contradicts in whole or part any of her above recounted deposition testimony results in an application of the rule of contradictory testimony of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). In view of the evidentiary posture in this case, the trial court did not err in granting in favor of appellee. Compare Minor v. Super Discount Markets, 211 Ga. App. 123 (438 SE2d 384) with Queen v. Kroger Co., 191 Ga. App. 249 (381 SE2d 413) (appellant slipped on grapes).

Decided April 25, 1994.

Benjamin Smith, Jr., Leon A. Wilson II, for appellant.

Walker & Sweat, Forrest W. Sweat, Jr., for appellee.

3. However, appellant further argues that the rule of distraction should apply as she was looking at the aisle sign to try to determine the aisle number to which she had been directed by the store employee. The evidence fails to create a genuine issue of material fact based on a claim of distraction. Appellant of her own volition elected to look at the aisle sign as she walked rather than stopping to read the sign; she admits she was not looking where she was walking at the time of her fall. “Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence.” (Punctuation omitted.) Sullenberger v. Grand Union Co., 201 Ga. App. 194, 195 (410 SE2d 381); see also Wal-Mart Stores v. Hester, 201 Ga. App. 478 (411 SE2d 507).

We find appellant’s various contentions without merit.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Beasley, Presiding Judge. Pope, Chief Judge, Blackburn, Judge, Smith, Judge,

text:
    A93A1788.
    A & P TRANSPORTATION et al. v. WARREN.
    (443 SE2d 857)
   Beasley, Presiding Judge.

Warren’s claim for workers’ compensation benefits based on a disabling heart attack was granted by the ALJ, and the board affirmed. Employer A & P Transportation and its insurer applied for a discretionary appeal from the superior court’s judgment affirming the board. We granted that application.

As found by the ALJ, claimant, who was 51 years old at the time of the events in question in October 1991, had been employed as a long-haul truck driver for approximately 20 to 25 years. For the last five years, he drove 18-wheel trucks for A & P Transportation. He would make trips primarily from Calhoun, Georgia, to Los Angeles, California. His normal schedule was that he would pick up a tractor and trailer on Friday afternoon or evening and drive to California, taking breaks of an hour or two every five to six hours. The trips would take 40 to 48 hours. After arriving in California, he would sleep two or three hours and then repeat the trip, usually with a return haul, to various cities in Florida, Georgia, and North Carolina.

Generally, he would get back to Calhoun on Thursday night or Friday morning and then leave again on Friday afternoon. Although there was some evidence of logbook violations in 1989 and 1990, any failure of Warren to keep accurate logbooks, which he was criticized for, or any violations in those years did not cause his 1991 heart attack. In addition, according to Warren, his schedule necessitated violation of ICC regulation. The employer knew his schedule, was charged with knowing the ICC regulations, and may reasonably be inferred to know the distance traveled. It could calculate the time involved in these assignments. Warren also testified that the employer did not require him to stop these violations.

He would normally eat greasy and “junk” food at truck stops. He testified that there is no such thing as low-calorie and low-fat food around truck stops. He was 5'8" and weighed 212 pounds. He also smoked about two or three packs of cigarettes each day for 40 years, sometimes at home but mostly at work to relieve tension and boredom. He was already on medication for high blood pressure and a hiatal hernia when he began employment with A & P Transportation. He testified that driving was physically demanding and mentally stressful. Family history included the fact that his mother had had a heart attack.

On this particular trip, he was returning to North Carolina. On Tuesday his chest began hurting when he got to Gordon, Texas, and he thought it was his hernia. His brother-in-law was with him and asked if he wanted to go to the doctor. He said no and kept taking the hernia medication. He called A & P dispatcher Jones from Texas and Alabama and advised of persistent pains in his chest and stomach. He arrived in Rome, Georgia, where he resides, at approximately 9:00 p.m. on Thursday. At Jones’ instruction he took the rig to Calhoun and turned it over to another driver to complete the delivery to North Carolina. He then returned to Rome and went to bed.

The next day, he was seen by his family physician who erroneously diagnosed the pain as attributable to the hernia and prescribed medication accordingly. Claimant returned home, slept for a short period, arose at noon, and collapsed. He was taken to the hospital emergency room and admitted with a massive heart, attack, resulting in his total disability.

Dr. Young, claimant’s cardiologist, testified that the risk factors for heart disease and heart attack include high-fat/high-cholesterol diet, cigarette smoking, and lack of exercise. Dr. Young also testified that when he initially saw claimant in 1982, he would have explained to him the significance of his risk-factor profile and would have warned him against continuing to smoke. Dr. Young’s opinion was that if claimant smoked, ate the wrong foods, and got no exercise due to his job, the job would have contributed to his heart attack.

The ALJ found that the medical evidence reveals that Warren was “virtually destined” to have a heart attack because of certain factors, i.e., cigarette smoking, lack of exercise, and an unhealthy diet of high-cholesterol food, which put him at great risk. He further found that the preponderance of evidence was that the existence of two of these factors was at least in part attributable to the lifestyle he led as a long-haul truck driver, which made it difficult for him to exercise on any regular basis or to obtain healthy, low-cholesterol food. He concluded that claimant established the necessary causal nexus between his employment and heart attack to render the claim compensable. The board adopted the ALJ’s award, by a vote of two to one, concluding that the employee’s proof comported with OCGA § 34-9-1 (4).

The superior court affirmed the award under the “any evidence” rule, to which we are also bound. Regardless of what our findings would be if we were the factfinders, “ ‘[u]pon appeal, the evidence will be construed in a light most favorable to the party prevailing before the board, and every reasonable factual inference and presumption of validity of award should be indulged in by the reviewing court. (Cits.) Neither the superior court nor this court has any authority to substitute itself as a fact-finding body in lieu of the board; an appellate body is bound by the “any evidence” standard of review, and is not authorized to substitute its judgment as to weight and credibility of witnesses. (Cits.)’ [Cit.]” Impress Communications v. Stanley, 202 Ga. App. 226, 229 (1) (414 SE2d 238) (1991). See also Ero Indus. v. Phillips, 207 Ga. App. 432, 433 (1) (428 SE2d 396) (1993).

We also review this case in the context of the Workers’ Compensation Act. Its purpose is “to protect a worker against unexpected personal injuries arising out of, and in the course of, his employment. [Cits.] . . . The claimant has the burden of demonstrating that his claim falls within the Act’s coverage. [Cits.] He must prove that the injury for which he seeks workers’ compensation benefits arose out of, and in the course of, his employment; an injury that occurred in the course of his employment but did not also arise out of the employment does not come within the Act. [Cit.]” Universal &c. Ins. Co. v. Ga. Auto. &c. Fund, 182 Ga. App. 595, 596-597 (1) (356 SE2d 686) (1987).

“An accident ‘arises out of’ employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. But it excludes an injury which can not fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work. It must be incidental to the character of the business, and not independent of the relation of master and servant. [Cit.]” Davis v. Houston Gen. Ins. Co., 141 Ga. App. 385, 386 (233 SE2d 479) (1977).

“[OCGA § 34-9-1 (4)] . . . provides that ‘injury’ and ‘personal injury’ under the [Workers’] Compensation Act shall not include ‘heart disease, heart attack . . ., unless it is shown by preponderance of competent and creditable evidence that it was attributable to the performance of the usual work of employment.’ ” Guye v. Home Indem. Co., 241 Ga. 213, 214 (244 SE2d 864) (1978); see Southwire Co. v. Eason, 181 Ga. App. 708, 709 (353 SE2d 567) (1987). Where the ALJ and board find that the performance of claimant’s work activities precipitated or contributed to his heart injury, the award will not be set aside on appeal if there is any evidence to support the finding. The question of what evidence preponderates rests with the factfinders. Guye, supra at 218. See Zippy Mart v. Fender, 170 Ga. App. 617 (317 SE2d 575) (1984).

The rule is that where a previously diseased condition of a claimant for compensation is aggravated by an injury or accident arising out of and in the course of the employment, and this results in disability, there is a compensable injury. Griggs v. Lumbermen’s Mut. Cas. Co., 61 Ga. App. 448, 450 (6 SE2d 180) (1939). Consequently, in Guye, supra, where the employee suffered a heart attack while performing strenuous manual labor which his job required, it was held that the heart injury was compensable even though the employee was a smoker with heart disease and there was no medical evidence as to causation. The natural inference from human experience was enough to satisfy the preponderance of evidence statutory requirement. Similarly in Southwire Co., supra, the employee’s heart attack was held compensable, where her work was physically and emotionally stressful and there was medical evidence that this could have been a precipitating factor in the heart attack, even though the employee was obese, smoked, and had a family history of heart disease. In Zippy Mart, supra, bypass surgery for coronary heart disease was held to constitute a compensable injury, where there was medical evidence that occupational stress suffered by the employee after being promoted to a supervisory job position could have been the precipitating cause of his developing the condition which necessitated the surgery. As stated in Ga. Elec. Co. v. Rycroft, 259 Ga. 155, 159 (378 SE2d 111) (1989), “there is a presumption that an employer takes an employee as he finds him . . .,” that is, with his existing health conditions.

In this case, a heart attack has been adjudged compensable by the administrative agency because of a causal nexus between the claimant’s employment and risk factors relating to nutrition and exercise. These factors fall into the realm of personal habits arrived at by personal choice and are not normally occupational hazards. Cultivating a routine of lack of exercise, poor nutrition, smoking, and being overweight constitutes a hazard to which people are exposed apart from employment. However, the nature of the employment may, as in this case of long-haul truck driving, require long periods of stress without physical exercise, and without the availability of a healthy diet, all exacerbated by time constraints. “It is well recognized in ‘heart attack’ cases that it is often difficult for the trier of fact to find the line between a noncompensable heart injury that is a symptom of an existing disease merely manifested during job exertion, and a compensable heart injury to which the job exertion was a contributing precipitating factor. [Cit.]” Guye, supra at 215.

Applying the test set out in Davis, supra, there is evidence that these were “conditions” of the work, and they were causally connected to the heart attack which had its onset when claimant was driving and which fully matured after he got the truck to someone who could complete the delivery on time.

Judgment affirmed.

Birdsong, P. J., und Cooper, J., concur. Pope, C. J., concurs and also concurs specially. Blackburn, J., concurs specially. McMurray, P. J., Andrews, Johnson and Smith, JJ., dissent.

Pope, Chief Judge,

concurring specially.

While I fully concur with the majority’s decision, I write separately to emphasize why the superior court’s order must be affirmed in this case. The dissenters in this case seek to substitute themselves as the factfinders in this workers’ compensation case in lieu of the board. In so doing the dissenters ignore the “any evidence” standard of review by which this court is bound in workers’ compensation cases. “ ‘ “[T]his court is [not] authorized to reverse an award because in its opinion the prevailing party did not carry the burden of proving a fact necessary to sustain its position [,] if such fact is nevertheless supported by some competent evidence.” (Cit.)’ [Cit.]” Ero Indus. v. Phillips, 207 Ga. App. 432, 434 (428 SE2d 396) (1993).

In this case the claimant’s doctor testified that if the claimant smoked, ate the wrong foods and got no exercise due to his job, the job would have contributed to his heart attack. Based on the claimant’s testimony, the ALJ found that he had shown by a preponderance of the evidence that his job as a long-distance truck driver made it difficult for him to exercise or maintain a healthy diet. This was sufficient evidence for the ALJ and later the board to conclude that claimant had established the necessary causal nexus between his employment and heart attack to render the claim compensable. Regardless of whether members of this court would have reached the same conclusion if sitting as the finder of fact or whether we sanction certain of the claimant’s “lifestyle choices,” our standard of review in workers’ compensation cases requires us to affirm the superior court in this case.

Blackburn, Judge,

concurring specially.

I disagree that there exists any causal connection, for workers’ compensation purposes, between Warren’s heart injury and his lifestyle by which he increased his risk of developing heart disease. However, the record contains evidence that supports a finding that the conditions of his employment contributed to or aggravated his heart injury, thus rendering the heart injury compensable in this case.

“It is well recognized in ‘heart attack’ cases that it is often difficult for the trier of fact to find the line between a noncompensable heart injury that is a symptom of an existing disease merely manifested during job exertion, and a compensable heart injury to which the job exertion was a contributing precipitating factor. [Cit.]” Guye v. Home Indem. Co., 241 Ga. 213, 215 (244 SE2d 864) (1978).

In the instant case, Warren testified that he continued driving the truck after he developed chest pain, because he wanted to deliver his load. Further, at one point he called the company dispatcher and informed him of his chest pain, and was instructed to keep driving the truck until he reached a certain destination where another driver would complete the job. The record contains medical evidence that Warren’s heart attack actually commenced several days prior to his collapse, when he first developed the chest pain, and that if Warren had received medical treatment then, the severity of the heart attack and damage to his heart could have been lessened. This evidence authorized a finding that Warren’s employment contributed to his heart injury.

In workers’ compensation cases, this court is not authorized to disturb the Board’s award where there is any evidence to support it. Inasmuch as there is evidence to support the award in this case, we must affirm the superior court’s affirmance of the Board’s award.

Smith, Judge,

dissenting.

I respectfully dissent. OCGA § 34-9-1 (4) provides that “injury” or “personal injury” within the meaning of the Workers’ Compensation Act shall not include heart disease or heart attack “unless it is shown by a preponderance of competent and credible evidence that any of such conditions were attributable to the performance of the usual work of employment.” There is no contention that Warren’s heart attack was brought on by exertion required by his employment, and the claim that his employment required a lifestyle which predisposed him to heart attack is unsupported by the evidence. I would find that there was no evidence to support the finding of the Board and that the evidence in the record, particularly the testimony of Warren’s cardiologist, demands a reversal.

The majority correctly states that Warren’s cardiologist initially saw Warren in 1982 with a suspected heart attack. The cardiologist additionally noted: “[a]t that time we had long discussions about risk factors and he has totally ignored them for the last nine years. . . . He has been totally noncompliant with regard to risk factors and even seeking help during his acute illness.” In his deposition, the cardiologist expressly declined to make a connection between Warren’s work and his heart attack: “that’s something that a medical doctor can’t really comment on as an expert witness because that’s a subjective choice by an individual. A person who smokes cigarettes and eats high cholesterol food and doesn’t exercise has a higher risk of heart disease, unquestionably.” (Emphasis supplied.) “I can certainly establish the link between cigarette smoking and heart disease. But as the smoking relates to his job — or not his job — or working at home or working on the road, I can’t make that association.” He testified that Warren had all but one of the known “risk factors” for heart attack, including family history of heart disease, obesity, hypertension, and smoking. He testified that these risk factors were well known: “they’re on television every night.” Finally, he agreed that Warren, with all his risk factors, would have had a heart attack whether he worked at all or not.

There is no evidence of a causal connection between Warren’s employment and his heart disease. While Warren contends that he was “forced” by his employment to smoke, eat unhealthy foods, and take no exercise, the record does not support this contention. There is no showing that smoking, diet, or lack of exercise formed part of the usual duties of Warren’s employment, or that his employer controlled his personal habits. Warren testified that he had smoked two to three packs of cigarettes a day for forty years, approximately fifteen years before he became an over-the-road truck driver and thirty-five years before he began working for this employer. There was no evidence that Warren’s employer controlled his diet; he could have eaten at the salad bars which have appeared recently in many chain restaurants, or he could have carried healthful low-cholesterol food and drink from home in the refrigerator installed in his truck. Sedentary employment for long hours does not inevitably foreclose opportunities to exercise, and the record indicates that Warren did not exercise even when he was at home.

Finally, the Interstate Commerce Commission has enacted comprehensive regulations intended to prevent excessive fatigue and stress in motor carrier drivers by limiting the number of hours they may drive, and requiring that drivers keep an elaborate logbook showing their hours of service. 49 CFR 395.1 et seq. It is apparent from the record that Warren’s employer reprimanded him repeatedly for logbook violations, including failure to total his hours and driving in excess of the maximum number of hours permitted. Like Warren’s decision to smoke up to three packs of cigarettes a day, eat excessive amounts of fatty foods, and take no exercise, this was a personal choice, and it was in fact counter to the express instructions of his employer. In short, there was no evidence that Warren’s personal habits and resulting heart attack were “attributable to the performance of the usual work of employment” within the meaning of OCGA § 34-9-1 (4).

Contrary to the assertion in Judge Blackburn’s special concurrence, the transcript does not support a finding that Warren’s employment contributed to his injury. When Warren began feeling ill, he believed that it was a hernia. His brother-in-law was running with him at the time, and urged him to go to the hospital, but he refused. When he called his dispatcher from Alabama his first report was that a water pump had started leaking on his truck. He also told the dispatcher that “my chest and stomach was hurting.” Asked why he reported the pain to the dispatcher, he responded, “Well, it really didn’t serve no purpose, except for me to tell him and let him know that I was hurting. Because I was still thinking it was a hernia hurting. And I was intending to try and go ahead and deliver my load of freight that I had.”

The dispatcher attempted to arrange another truck to take Warren’s load in Alabama, but that truck did not show up. Only then did the dispatcher direct Warren to Calhoun, Georgia. Warren went home and went to sleep. The next morning he went to his doctor, who misdiagnosed his condition as “the hernia acting up again.” He filled his doctor’s prescription, which he felt “eased me a little bit,” went home and went back to bed, got up several hours later and then collapsed.

There is no evidence that Warren’s heart attack was “attributable to the performance of the usual work of employment” within the meaning of OCGA § 34-9-1 (4). The dispatcher made two attempts to accommodate Warren’s request for another driver, which was based at least in part on Warren’s report of a leaky water pump. Warren ignored his brother-in-law’s appeals to seek medical assistance and continued to drive. Short of requiring a dispatcher to make a medical diagnosis over the telephone which Warren’s own doctor was apparently unable to make in person, we cannot construe the employer’s attempts to accommodate Warren as instructions to him to continue “working through” a heart attack. Warren’s injury was not attributable to his usual work, but to his being “totally noncompliant with regard to risk factors and even seeking help during his acute illness,” as his cardiologist observed. Therefore, I believe that the record does not support a finding that Warren’s employment contributed to his heart attack.

Decided April 1, 1994

Reconsideration denied April 27, 1994

Irwin, Bladen, Baker & Russell, B. A. Bladen, Ed Russell, for appellants.

Mundy & Gammage, E. Lamar Gammage, Jr., for appellee.

For these reasons, I would reverse the award of the Board. I am authorized to state that Presiding Judge McMurray, Judge Andrews and Judge Johnson join in this dissent.

       The recognition by the medical profession of adverse consequences from improper diet and lack of exercise is not of recent origin. See Benjamin Rush, Sermons to Gentlemen Upon Temperance and Exercise (1772).

       An observant traveler on the interstate highways will have noted that many roadside restaurants now provide both salad bars and truck parking.

       Exercise manuals for the sedentary and desk-bound have proliferated in recent years. See, e.g., Time-Life Books, Quick Workouts: Fitness Anytime, Anywhere (1987).


author: Pope, Chief Judge.

text:
    A94A0001.
    BRADLEY v. BRADLEY et al.
    (443 SE2d 863)
   Pope, Chief Judge.

The sole issue on appeal is what effect, if any, the slayer statute, OCGA § 53-4-6, should have on a bequest to the slayer under a valid will when the testator/victim has provided for alternative beneficiaries to take the slayer’s portion of the estate in the event the slayer predeceases the testator.

The facts pertinent to this appeal are not disputed by the parties. On or about February 16, 1992, Howard Quinton Bradley was killed by his son, defendant Benjamin Lee Bradley. He died testate. At the time of his death, the deceased had only one other lineal descendent, another son named James Bradley, the plaintiff in this case. In his will he left James a bequest of only $100 because he had given that son an advancement on his inheritance in a certain land deal. He left the majority of his estate to his other son Benjamin. The will further provided, however, that if Benjamin was not alive at the time of his death and had no issue, his portion of the estate should pass to four alternative beneficiaries. Benjamin had no issue at the time he killed his father.

On appeal, neither James nor Benjamin contend that Benjamin should be able to take under the will. James argues that because Benjamin killed their father the slayer statute, OCGA § 53-4-6, must be applied to Benjamin’s portion of the estate with the effect of removing the portion of the estate that Benjamin would have otherwise been entitled to from the will and instead passing that portion of the estate through the laws of intestacy, resulting in James receiving that portion. In support of this argument, James relies upon our decision in McGhee v. Banks, 115 Ga. App. 155 (154 SE2d 37) (1967). The trial court correctly distinguished that case from this one. In McGhee, the victim was killed by her husband. Under the terms of the victim’s will, her estate was to pass to her husband and, in the event he was not alive, then to her husband’s daughter (who was not also the deceased’s natural child). As we recently held in Keith v. Johnson, 211 Ga. App. 678, 681 (440 SE2d 230) (1993), “the sole purpose of the statute is to disinherit the murderer, and the murderer’s heirs, from any property interest of the victim so that neither benefits . . . from the criminal act.” Because in McGhee, the only two people designated to take under the will were specifically denied the ability to inherit under the slayer statute, this court properly passed the estate through the laws of intestacy instead. That decision, however, should not be read, as plaintiff argues, to provide that the slayer statute defeats the provisions of a valid will when the testator has provided for the portion of the estate that would have otherwise gone to the slayer to be distributed to alternative beneficiaries other than the slayer or his heirs.

Decided April 11, 1994

Reconsideration denied April 29, 1994

Clifford S. Lancey, for appellant.

The trial court correctly held that the plain language of OCGA § 53-4-6 requires that the slayer’s portion of the victim’s estate passes to alternative beneficiaries when a valid will so provides and alternative beneficiaries, who are not prohibited by law from taking from the victim, are named in the will. After denying the slayer and his heirs the right to take from the victim, OCGA § 53-4-6 provides in pertinent part: “All right, interest, and estate in and to the property shall go to such other heirs as may be entitled thereto by the laws of descent and distribution or by will, deed, or other conveyance duly executed by the decedent in his lifetime.” (Emphasis supplied.) As plaintiff James Bradley is not one of the alternative beneficiaries designated in his father’s will to take Benjamin’s portion of the estate in the event Benjamin should predecease their father, the trial court correctly granted Benjamin partial summary judgment concerning plaintiff’s claim for the portion of their father’s estate bequeathed to Benjamin.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

William L. Reilly, Aurett & Withrock, John T. Avrett, for appellees.


author: Cooper, Judge.

text:
    A94A0107.
    A94A0108.
    WILLIAMS v. THE STATE. YOUNG v. THE STATE.
    (443 SE2d 696)
   Cooper, Judge.

Defendants Williams and Young were charged jointly with the offense of sale of cocaine. Defendant Young was also charged separately with a second offense of sale of cocaine. The defendants were tried jointly before a jury and convicted of all charges. Both defendants now appeal their convictions. Their cases have been consolidated on appeal.

The evidence, viewed in a light most favorable to the jury verdict, shows that on July 26, 1991, defendant Young met undercover police officer Hank H. Davis at a residence and sold him six pieces of crack cocaine worth $100. Officer Davis’ next contact with Young was on August 12, 1991, when Young sold the officer three pieces of crack cocaine for $40. This second transaction between Young and the police officer took place in the middle of an intersection while Young was a passenger in the front seat of a car driven by defendant Williams.

Case No. A94A0107

1. Defendant Williams raises as his sole enumeration of error the trial court’s denial of his motion for a mistrial after Lieutenant Tom Kile, a witness for the State, improperly commented that he had known Williams for a while because he had arrested him on prior occasions. Instead of granting defendant’s motion for a mistrial, the trial court gave curative instructions to the jury cautioning them not to consider the police officer’s remark. Defendant did not object nor renew his motion for mistrial following these curative instructions.

We need not address the substantive issue of whether defendant’s motion for mistrial should have been granted because defendant has not properly preserved this ground for appellate review. In order to preserve an issue for appeal after curative instructions are given, a motion for mistrial must be renewed, or else review of the motion will be barred. Jackson v. State, 248 Ga. 480 (2) (284 SE2d 267) (1981); Mobley v. State, 198 Ga. App. 497 (5) (402 SE2d 100) (1991). Accordingly, this enumeration of error is without merit.

Case No. A94A0108

2. In his first three enumerations of error, Young attacks the sufficiency of the evidence raising the general grounds. Specifically, Young argues that insufficient evidence was presented to convict him because testimony at trial indicated that the evidence had been tampered with and the police “bungled” the chain of custody of the suspected crack cocaine. However, our review of the record reveals that defendant failed to raise any objections to the admission of the crack cocaine at trial on this or any other grounds. The evidence, having been admitted, “its weight, credit and effect are to be determined by the jury. [Cit.]” Dempsey v. State, 162 Ga. App. 390, 392 (4) (291 SE2d 449) (1982). See also Thomas v. State, 208 Ga. App. 476 (1) (430 SE2d 849) (1993). After a careful review of the transcript in this case, we find that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the offense of selling cocaine. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. In his fourth enumeration of error, Young argues the trial court erred by admitting into evidence the statement made by co-defendant Williams because the statement also implicated Young. We disagree. Prior to Williams’ statement being submitted to the jury, all references to Young were edited out and the words “another person” and “him” were substituted in their places. Furthermore, the trial court specifically instructed the jury that any statement made by one of the defendants was admissible only against the defendant who made it and could only be considered against such person. Therefore, Young’s constitutional rights were adequately protected. See Mays v. State, 198 Ga. App. 402 (2) (401 SE2d 597) (1991).

4. In his fifth enumeration of error, Young argues the trial court erred by allowing Williams’ statement to be read to the jury without first furnishing Young a copy of the statement. However, defendant has presented us with no authority that would require the State to furnish a defendant with a copy of a co-defendant’s inculpatory statement prior to trial. Young further attempts to argue that Williams’ statement should not have been admitted into evidence because Williams’ name was not included on the list of witnesses furnished to him pursuant to OCGA § 17-7-110. “[S]uch claim may not be considered because enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration.” (Citations and punctuation omitted.) Loyd v. State, 202 Ga. App. 1, 2 (1c) (413 SE2d 222) (1991). Accordingly, this enumeration is without merit.

Judgments affirmed.

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

Decided April 29, 1994.

Henderson & Henderson, David C. Walker, for Williams.

George A. Waters, for Young.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for State.


text:
    A94A0155.
    DRAKE v. KROGER COMPANY.
    (443 SE2d 698)
   Cooper, Judge.

Plaintiff Yoaneena Drake filed suit against the Kroger Company (“Kroger”) for injuries she sustained when she slipped and fell while shopping at a Kroger supermarket. The trial court granted Kroger’s motion for summary judgment, and plaintiff appeals.

Our review of the record reveals that plaintiff was walking down an aisle of a Kroger store with her niece and young daughter when she suddenly slipped and fell backwards injuring herself. In her deposition, plaintiff gave conflicting testimony as to whether she actually saw a wet substance on the floor after her fall, although she was certain her pants were wet when she got up from the floor. Plaintiff also testified in her deposition that she did not notice any Kroger employees on the aisle at the time of her fall.

Three Kroger employees, including the store’s co-manager Anthony Frazier, submitted affidavits in support of Kroger’s motion for summary judgment. All three employees testified that they had completely searched the aisle for the presence of any foreign substance or liquid following plaintiff’s fall and found the floor to be clean, dry and free of any foreign substance. One employee testified that he asked plaintiff to show him the substance she fell on, but when he went to the area she pointed out, he could neither see nor feel anything when he slid his hand and shoes around the floor. Mr. Frazier and the other employees stated in their affidavits that they did not see any wetness or other evidence of a foreign substance on plaintiff’s clothing. Mr. Frazier also alleged that it was his responsibility to patrol the entire store, including the aisle where plaintiff fell, on the average of once every 30 minutes to check for spills and foreign substances on the floor. He testified that on the day in question he performed his duties and patrolled the store on the average of once every 30 minutes and saw no spills or evidence of a foreign substance or liquid on this particular aisle the entire day. Mr. Frazier further stated that all employees were required to look for any debris or spills in the store and report or clean them up if they were discovered.

After Kroger filed its motion for summary judgment, plaintiff submitted her affidavit and her niece’s affidavit in which they both allege they saw liquid on the store floor following plaintiff’s fall. The affidavits also allege that plaintiff and her niece saw Mike Kidd, a Kroger employee, in the immediate area prior to plaintiff’s fall. Relying on these affidavits, plaintiff now contends the trial court erred by ruling that no genuine issues of material fact existed for determination by a jury with regard to Kroger’s knowledge, actual or constructive, of the existence of a foreign substance on the floor of the store. Plaintiff also argues the trial court erred by finding the supermarket floor where plaintiff fell to be completely clean, dry and free of any foreign substance.

1. In order to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the plaintiff must show the proprietor had actual or constructive knowledge of the foreign substance and the plaintiff was without knowledge of the presence of such substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Because no evidence has been presented that Kroger had actual knowledge of the existence of a foreign substance on the floor, the issue presented in this case is whether Kroger had constructive knowledge of the allegedly hazardous condition.

Plaintiff may establish Kroger’s constructive knowledge by showing “that a foreign substance had been on the premises for such a time that ordinary diligence by the defendant should have effected its discovery; or that an employee of the defendant was in the immediate area of the hazardous condition and could have easily seen the substance.” (Citation omitted.) Jester v. Ingles Market, 206 Ga. App. 327, 328 (425 SE2d 323) (1992).

In this case, plaintiff cannot establish constructive knowledge under the first theory because “a lack of actionable constructive knowledge may be established by presenting conclusive evidence that a customary inspection and cleaning program was in place and had been complied with on the day in question. [Cit.]” Foodmax v. Terry, 210 Ga. App. 511, 512 (1) (436 SE2d 725) (1993). There being no question in this case that Kroger had a reasonable inspection program in place that had been adhered to on the day plaintiff fell, plaintiff cannot establish that Kroger failed to exercise reasonable care in inspecting the premises. See generally Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428 (1) (408 SE2d 443) (1991). Moreover, “[t]o sustain plaintiff’s cause of action [under this first kind of] case it is necessary that [s]he prove a period of time the dangerous condition has been allowed to exist. Without such proof it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.” (Citation and punctuation omitted.) Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 345 (4) (226 SE2d 142) (1976).

Decided April 29, 1994.

Waymon Sims, Janise L. Miller, for appellant.

Plaintiff does attempt, however, to establish Kroger’s constructive knowledge based upon the second theory set forth above. Specifically, plaintiff contends that because the two affidavits she submitted in opposition to Kroger’s motion for summary judgment contain allegations that she and her niece saw a Kroger employee in the immediate area prior to plaintiff’s fall, plaintiff has established a prima facie case that Kroger had constructive knowledge of the liquid or foreign substance on the floor.

Pretermitting the issue of what weight plaintiff’s affidavit should be afforded in that the allegations contained therein directly contradict her deposition testimony, we note that “there never has been a rule in this state that liability can be shown by nothing more than the fact that the defendant’s employee was in the immediate area of the hazardous substance.” (Punctuation omitted.) Rush v. Food Giant, 183 Ga. App. 388, 392 (1) (358 SE2d 919) (1987). Constructive knowledge can only be inferred where there is evidence that an employee was in the immediate vicinity of the dangerous condition and could have easily discovered and removed the hazard. Food Giant v. Cooke, 186 Ga. App. 253 (1) (366 SE2d 781) (1988). In this case, the two affidavits submitted by plaintiff contain only the bare allegation that a Kroger employee was in the immediate area where plaintiff fell. Plaintiff has failed to present any evidence that would show that the employee had been in a position to see or remove the alleged liquid or foreign substance from the floor. Nor has plaintiff presented any evidence as to how long the alleged substance was on the floor so it could be determined if “the hazard existed for a length of time sufficient for the defendant to discover the hazard and remove it.” Mitchell v. Food Giant, 176 Ga. App. 705, 709 (337 SE2d 353) (1985). “Under the circumstances, the mere proximity of the [store employee] to the spot where plaintiff fell presents no issue of constructive knowledge. [Cit.]” Queen v. Kroger Co., 191 Ga. App. 249, 250 (1) (381 SE2d 413) (1989). The trial court correctly determined that no genuine issue of material fact existed for determination by a jury with regard to Kroger’s knowledge, actual or constructive, of the alleged foreign substance on the floor.

2. Having determined that plaintiff cannot establish an essential element of her prima facie case against Kroger, we need not address plaintiff’s claim that the trial court erred in making the factual determination that the floor was found to be completely clean, dry and free of any foreign substance.

Judgment affirmed.

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

Webb, Carlock, Copeland, Semler & Stair, James T. Brieske, Douglas W. Smith, for appellee.


text:
    A94A0333.
    MORELAND v. THE STATE.
    (443 SE2d 701)
   McMurray, Presiding Judge.

Defendant was indicted for selling cocaine. On December 3, 1992, the second day of defendant’s jury trial, a mistrial was declared. He was retried before another jury the following week. In the State’s evidence, undercover agents with the Bibb County Sheriff’s Department described the circumstances of a controlled buy. Agent Platt identified defendant as the man who approached Platt’s car and accepted $20 in exchange for two small chunks of an off-white powdery substance subsequently identified as crack cocaine. A videotape of the sale and a photographic line-up provided additional identification evidence. Defendant took the stand and raised the defense of alibi, testifying that he had been in Alabama on the day of the alleged sale. Following the denial of his motion for new trial, defendant appeals from the judgment of conviction entered by the trial court on the jury’s verdict of guilty. Held:

1. In his first enumeration, defendant enumerates the general grounds. “On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the adjudication of guilt is supported by sufficient competent evidence. [Cit.]” Belins v. State, 210 Ga. App. 259 (1) (435 SE2d 675). In the case sub judice, the in-court identification of defendant as the seller, corroborated by the contemporaneous videotape of that seller, is sufficient to authorize the jury’s finding that defendant is guilty beyond a reasonable doubt of selling crack cocaine as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Rauls v. State, 209 Ga. App. 101, 102 (2) (432 SE2d 677).

2. Defendant’s second enumeration complains of the denial of his motion for continuance in order to obtain a transcript from the mistrial the previous week. On December 9, 1992, the morning of his scheduled retrial, defendant filed a written motion repeating an earlier oral request for a copy of the transcript of the first trial and further requesting a continuance in order to obtain that transcript from the court reporter. The trial court denied this motion, concluding that, while defendant would be entitled to a free transcript as an indigent, due to the straightforward nature of the State’s case in that recent trial coupled with the availability to the defense of the witnesses and other State’s evidence, defendant’s bare assertion of the desire to cross-examine and impeach the State’s witnesses did not justify a continuance.

On appeal, defendant urges that he has been denied equal protection, relying on Walker v. State, 156 Ga. App. 478 (274 SE2d 680). In Walker, this court quoted favorably from Britt v. North Carolina, 404 U. S. 226 (92 SC 431, 30 LE2d 400) for the proposition that “as a matter of equal protection an indigent defendant must be provided with a transcript of prior proceedings when the transcript is needed for an effective defense or appeal and the court rejected the suggestion that ‘counsel must have a perfect memory or keep exhaustive notes of the testimony given at trial.’ [Cit.] Further, the defendant did not have to show a particularized need for the transcript of the first trial, since ‘it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in the preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.’ [Cit.]” Walker v. State, 156 Ga. App. 478 (2), 479, supra. Compare Hammonds v. State, 157 Ga. App. 393, 394 (2) (277 SE2d 762). However, our Supreme Court has held that a motion for continuance in order to obtain the transcript of an earlier trial is addressed to the sound discretion of the trial court. Felts v. State, 244 Ga. 503, 506 (6) (260 SE2d 887). See also OCGA § 17-8-5 (b). “[T]he ruling of the trial judge in denying a motion for a continuance will not be interfered with unless the court has abused its discretion in denying the motion. [Cits.]” Burnett v. State, 240 Ga. 681, 683 (1), 684 (242 SE2d 79).

In the case sub judice, we find no abuse of discretion in the denial of a continuance on the ground that the transcript of the earlier hearing was vital as a discovery device. The defense had pretrial access to the State’s file under the standing order of the Bibb County Superior Court and, as the trial court correctly observed, the State’s evidence against the lone defendant was straightforward. The sole contested evidentiary issue was that of the identity of the seller. Recognizing the impeachment value of the transcript with regard to the cross-examination of the undercover agent, we find the denial of the continuance to obtain that transcript to be harmless error, if error. When cross-examined about his earlier testimony, Agent Platt explained one apparent inconsistency and admitted making another statement, so that there was nothing to impeach. See Gann v. State, 190 Ga. App. 82, 85 (3), 87 (378 SE2d 369). Moreover, judging from the request of the jurors in defendant’s trial to view the videotape of the seller again, they gave the greatest weight to the objective photographic evidence while discounting defendant’s alibi testimony. Accordingly, in the absence of actual prejudice, the harm alleged from the inability to cross-examine and impeach the live witness with the transcript of his previous testimony is only speculative. “Where no harm is shown, there is no reversible error. [Cits.]” Gann v. State, 190 Ga. App. at 87.

Decided April 29, 1994.

L. Elizabeth Lane, for appellant.

Willis B. Sparks III, District Attorney, Kirby H. Wincey, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A94A0379.
    TURNER v. THE STATE.
    (443 SE2d 703)
   Smith, Judge.

Marvin Turner was convicted of possession of cocaine with intent to distribute. OCGA § 16-13-30 (b). His motion for new trial was denied.

1. Turner contends the trial court erroneously denied his motion to suppress because no probable cause existed to stop the car or to arrest or search him without a warrant. We do not agree.

The evidence at the hearing on the motion showed that a car driven by Sherman Dickey, in which Turner was a passenger, was stopped by Crawford County law enforcement officers on Highway 341. Sheriff Kerry Dunaway testified that about an hour before the stop, a confidential informant had telephoned him from Atlanta. The informant told him he had seen cocaine in the possession of Turner and Dickey, who had left Atlanta about twenty or thirty minutes before the call and were headed to Crawford County on one of two routes. He described the car and named the occupants. Dunaway testified to the reliability of the informant, and stated that information from this informant had resulted in narcotics arrests and convictions.

Dunaway relayed the information given by the informant to Captain Leon Brown and Deputy Samuel Smith. The three officers then proceeded to various locations in the vicinity to wait for the described car. About an hour after the informant’s call, Brown radioed Dunaway that he had spotted the car, and the officers converged on the car and stopped it. They approached and asked the occupants, who were known to Dunaway, to step out. The occupants were patted down. Dunaway informed Dickey that he suspected drugs were being concealed in the car. He asked Dickey for permission to search the car, and Dickey consented. No contraband was found. Because of the information Dunaway had and his confidence in the reliability of the informant, he summoned a drug dog. The dog searched around the car and “alerted,” indicating that there were, or had recently been, drugs in the car. Dunaway observed that during the search Dickey and Turner became increasingly nervous and were sweating despite the cold weather. Dunaway then instructed other officers to search the occupants more closely.

Brown, the only other witness at the hearing, testified that after the dog “alerted,” he and Smith took Turner to a building next to the car and asked him to remove his jogging suit. As Turner rolled down the pants, a brown paper bag fell out. The bag contained 49 separately wrapped “hits” of crack cocaine.

The sufficiency of information obtained from a confidential informant to determine probable cause is to be judged by the totality of the circumstances surrounding both the basis of the informant’s knowledge and the informant’s reliability. Rucker v. State, 199 Ga. App. 854, 855 (406 SE2d 277) (1991). As in Williams v. State, 208 Ga. App. 737 (431 SE2d 731) (1993), we find the information from the confidential informant in this case “was sufficiently detailed and adequately predicted the defendant’s future behavior.” Id. at 739. Even if no probable cause existed before the car was stopped, the officers certainly had an articulable suspicion that a crime was being committed sufficient to authorize them to stop the car. West v. State, 194 Ga. App. 620 (391 SE2d 673) (1990).

Once the car was stopped, Dickey, who was the driver, gave his consent to a search of the car. No evidence in the record indicates that Turner made any objection. Based on the information they possessed, the officers were also authorized to summon the drug dog to investigate further. They were not required simply to walk away when they found no contraband. Stiggers v. State, 151 Ga. App. 546, 547 (1) (260 SE2d 413) (1979).

The warrantless search of Turner’s person was justified on two grounds. First, Brown knew the City of Roberta was holding an escape warrant on Turner, authorizing a search incident to a lawful arrest. Second, the dog alerted to the passenger seat of the car, giving probable cause to search Turner, who had been seated there. Boggs v. State, 194 Ga. App. 264 (390 SE2d 423) (1990). Consequently, the trial court correctly denied Turner’s motion to suppress.

2. Turner also enumerates the general grounds. Contrary to Turner’s argument, this case is not analogous to Claybrooks v. State, 189 Ga. App. 431 (375 SE2d 880) (1988). In Claybrooks, we held the evidence insufficient to support a conviction for trafficking in cocaine because it was based on the uncorroborated testimony of an accomplice. Here, the evidence was uncontroverted that Turner was in possession of the cocaine. Both Brown and Sergeant Michael Deems of the Macon Police Department, who handled the drug dog, testified they saw the bag of cocaine fall from inside Turner’s pants. Further, in his own testimony, Turner conceded the cocaine had been on his person.

Decided April 29, 1994.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Wayne G. Tillis, Assistant District Attorneys, for appellee.

The only conflict in the evidence concerned Turner’s knowledge that what he was holding was cocaine. Turner testified at trial that when the car was stopped, Dickey tossed the bag to him without informing him of its contents and told him to hide it. However, in response to a defense question, Dunaway testified that Dickey had given the officers a statement in which he maintained he did not know Turner was holding cocaine. The fact question created by this conflict was resolved by the jury against Turner. The jury was authorized to do so, and the evidence was sufficient to support the conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A94A0552.
    PEAVY v. THE STATE.
    (443 SE2d 705)
   Johnson, Judge.

Anthony Peavy did not directly appeal his 1990 burglary conviction, but was granted an out-of-time appeal in a habeas corpus proceeding. After the out-of-time appeal was granted, Peavy did not file a motion for a new trial, but instead filed the instant appeal, in which his sole claim is that his trial counsel was ineffective. “[A] claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing. [Cit.]” Ponder v. State, 260 Ga. 840, 841-842 (1) (400 SE2d 922) (1991); see also Maxwell v. State, 262 Ga. 541, 542-543 (3) (422 SE2d 543) (1992). Because Peavy’s appellate counsel failed to pursue a motion for a new trial after the grant of the out-of-time appeal, the issue of ineffective assistance of trial counsel is waived and cannot be asserted on appeal. Snell v. State, 203 Ga. App. 27, 28 (1) (416 SE2d 360) (1992); compare King v. State, 208 Ga. App. 77 (430 SE2d 640) (1993).

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.

Decided April 29, 1994.

Karen E. Beyers, for appellant.

Thomas J. Charron, District Attorney, Don T. Phillips, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


text:
    A94A0216.
    A94A0217.
    GALBREATH v. THE STATE. CRAFT v. THE STATE.
    (443 SE2d 664)
   Birdsong, Presiding Judge.

Dale Kendall Galbreath and Greg Felton Craft were jointly tried before a jury and found guilty of manufacturing marijuana in violation of OCGA § 16-13-30 (j) (1). Each appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdicts of guilt. Their separate appeals arising out of that joint trial are hereby consolidated for disposition in this single opinion.

Toombs County police received an anonymous tip that Galbreath and Craft were growing marijuana in the woods off Toombs County Road 90. Aerial surveillance confirmed the existence of what appeared to be marijuana plants growing on either side of that road. On the ground, police left the road and entered the woods, discovering therein numerous marijuana plants in various stages of development: trays of seedlings in yellow paper cups notable for a floral pattern; young plants in five-gallon plastic buckets with “Texaco” labels; and mature plants of up to four feet in height growing in the ground. Police walked up to Galbreath’s trailer and received his permission to search the grounds. Sixteen paper cups with a floral pattern identical to those found in the woods were in Galbreath’s truck. Six of these cups contained marijuana seedlings two inches tall. In a utility shed, police discovered more paper cups and a five-gallon plastic bucket with a Texaco label exactly like those found in the woods containing marijuana plants. GBI Agent Evans thereafter went to Craft’s trailer, in adjoining Montgomery County. No one answered Evans’ knock at the door. Evans walked around toward the back to make certain no one was home. He noticed numerous red plastic lids with Texaco labels scattered on the ground and also saw a Texaco five-gallon plastic bucket capped with one of the red lids. Evans also noticed and seized several floral-patterned paper cups containing small sprouting plants of what appeared to Evans to be marijuana.

Case No. A94A0216

1. Galbreath’s sole enumeration of error complains of the trial court’s refusal to give his written request to charge on possession of less than one ounce of marijuana as a lesser-included offense to the charge of manufacturing marijuana. The evidentiary support for this request to charge is the fact that six seedlings in paper cups, identical to the seedlings discovered in the woods, were found in the back of Galbreath’s truck. These six were identified at trial as weighing less than one ounce.

In State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550), the Georgia Supreme Court expressly disapproved of that line of authority which had held that a lesser-included offense need not be charged unless the evidence showed that the defendant was guilty only of the lesser crime, and held that “[t]he correct rule is that a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser offense.” (Emphasis supplied.) However, Galbreath’s contention that the trial court erred in refusing his written request on misdemeanor possession assumes that possession of the marijuana found in his truck is in fact a lesser offense included within the indicted crime of manufacturing the marijuana found in the woods.

“The term, ‘manufacture’ is defined by the Code section to mean ‘the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from [controlled] substances of natural origin, or independently by means of chemical synthesis. . .,’ OCGA § 16-13-21 (15); while ‘production’ is defined to include ‘the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.’ OCGA § 16-13-21 (24). Thus, the Code section [proscribing the manufacture of marijuana] applies by its express terms to the cultivation or planting of marijuana. [Cits.]” State v. Hunt, 201 Ga. App. 327 (411 SE2d 273). Possession of marijuana is not a necessary element of the crime of knowingly manufacturing marijuana by cultivating or planting, and so misdemeanor possession is not a lesser offense included in the crime of manufacturing as a matter of law, within the meaning of OCGA § 16-1-6. Nor, in this case, are the marijuana seedlings found in Galbreath’s truck proof of a lesser offense included as a matter of fact in the indicted crime of manufacturing the marijuana growing in the woods. “The evidence showed only that [Galbreath] either grew the marijuana or he did not. It would not support a third legal alternative, that he merely possessed [the seedlings] but did not [at the same time] grow [them].” Holland v. State, 205 Ga. App. 695, 699 (5) (423 SE2d 694). Accordingly, Galbreath’s request to charge on misdemeanor possession as a lesser-included offense to the crime of manufacturing marijuana was not adjusted to the evidence and the trial court did not err in refusing to give this inapplicable instruction.

Case No. A94A0217

2. Craft moved to suppress from evidence a red plastic Texaco bucket lid and several small marijuana plants in floral-patterned paper cups seized from his home, claiming that the police conducted a warrantless search. The trial court determined that these items were admissible within the “plain view” exception to the requirement of a search warrant. The denial of this motion to suppress is enumerated as error. On appeal, Craft contends that the “plain view” exception to the requirement of a search warrant is inapplicable here because the GBI agent was in a position to view the lids and marijuana seedlings only by pretext.

Only Agent Evans of the GBI testified at the suppression hearing. After the consensual search of Galbreath’s trailer, Evans went to Craft’s trailer. When no one answered his knock at the front door, Evans walked around toward the back to make certain no one was home. On his way, he saw the lids and marijuana plants in plain sight.

The Georgia constitutional provisions regarding search and seizure, Art. I, Sec. I, Par. XIII, are substantially the same as the Fourth Amendment provisions of the U. S. Constitution. Sears v. State, 262 Ga. 805, 807 (3) (426 SE2d 553). “[I]t is the general rule that a warrant is required to search the curtilage. The yard immediately surrounding one’s dwelling is well within the curtilage. [Cit.]” (Emphasis supplied.) Black v. State, 119 Ga. App. 855, 857 (2) (168 SE2d 916). However, “ ‘[i]t has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.’ [Cit.]” Peek v. State, 239 Ga. 422, 426 (2) (238 SE2d 12). The “plain view” exception to the warrant requirement is based on the analysis that the particular item of incriminating evidence has not been discovered as the result of a search. “Plain view” is best understood not as an independent exception to the Warrant Clause but simply as an extension of whatever prior justification might exist for an officer’s access to an object or situation. State v. Echols, 204 Ga. App. 630, 631 (420 SE2d 64). The “plain view” doctrine “does not give an officer carte blanche to pick up any article his eyes may light upon, but where he is [lawfully on the] premises and while properly there sees in plain view what may be evidence relating to, and instrumentalities of, a crime in the immediate vicinity of [contraband], the preservation of the evidence may be justified under the ‘exigent circumstances’ rule.” Gainey v. State, 132 Ga. App. 870, 871 (2) (209 SE2d 687).

Horton v. California, 496 U. S. 128 (110 SC 2301, 110 LE2d 112) modified the criteria that must exist before the “plain view” doctrine is applicable to authorize a warrantless seizure of evidence under the Fourth Amendment to the U. S. Constitution and perforce Art. I, Sec. I, Par. XIII of the Ga. Const. of 1983. Compare State v. Brooks, 160 Ga. App. 381 (287 SE2d 95) and Mooney v. State, 243 Ga. 373, 383 (1) (254 SE2d 337), applying an element of “inadvertence” to the discovery and warrantless seizure of contraband or incriminating evidence. Those modified criteria are: (1) that there must be a prior valid intrusion onto a person’s property before evidence is observed and seized; (2) discovery of the evidence must be the result of its being in plain view and not the result of an investigatory search; and (3) it must be immediately apparent that the item seized is evidence or contraband. Horton v. California, supra at 136. See also State v. Almand, 196 Ga. App. 40 (395 SE2d 609), holding that the “[inadvertence” requirement has been abolished. “All three criteria have been met in the instant case.” State v. Brooks, supra. “ ‘The [GBI agents and police] officers were perfectly entitled to go to appellant’s [front] door, ring the bell, and inquire as to his whereabouts. They were not trespassers in so doing.’ [Cit.]” Gilreath v. State, 247 Ga. 814, 820 (1) (279 SE2d 650). Nor did Agent Evans become a trespasser merely by walking around to the back of the house to determine whether anyone was home, after receiving no response at the front door. State v. Lyons, 167 Ga. App. 747, 748 (307 SE2d 285). [S]uch an officer is merely taking the same route as would any guest or other caller. [Cits.]” State v. Zackery, 193 Ga. App. 319, 320 (387 SE2d 606). The discovery of the contraband in plain view would not violate appellant’s rights under the federal or Georgia Constitutions even though the officer might have suspected that he would find incriminating evidence when he walked around to check at the back door. See State v. Echols, supra at 631. The evidence authorized the determination that the contraband and red plastic Texaco lids corresponding to the plastic Texaco bucketsful of marijuana previously found in the woods were in plain view and were discovered without resort to an investigatory search, while the officer was in a lawful vantage point. The incriminating character of the lids which corresponded to the buckets holding marijuana in the woods was immediately apparent as was the contraband nature of the marijuana plants. Accordingly, the trial court’s determination is not clearly erroneous and is affirmed. Johnson v. State, 233 Ga. 58 (209 SE2d 629).

3. After GBI Agent Evans testified about the suspected marijuana discovered at Craft’s home, Craft moved for a mistrial on the basis that Evans’ testimony was evidence of a separate crime because it occurred in a different county than that in which the marijuana was found growing in the woods. Craft argued that a mistrial was demanded because the State failed to seek pretrial permission to introduce such “separate crimes” evidence, in compliance with Uniform Superior Court Rule 31.3 (B), and that the unauthorized introduction of such “separate crimes” evidence impermissibly placed his character in issue. The denial of his motion for mistrial is enumerated as error.

Decided April 15, 1994

Reconsideration denied May 2, 1994.

Nathan B. Deaton, for Galbreath.

Alan P. Layne, for Craft.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.

Evidence discovered at Craft’s home, implicating him in the ongoing scheme to plant and cultivate numerous marijuana plants, was evidence of the res gestae and as such is expressly excluded from the procedural requirements applicable to separate but similar crimes. Uniform. Superior Court Rule 31.3 (E); Grace v. State, 262 Ga. 746, 747 (1) (425 SE2d 865). Substantively, the State is entitled to present evidence of the entire res gestae and such evidence is not rendered inadmissible despite the fact that the character of the accused is incidentally implicated. Chambers v. State, 250 Ga. 856, 859 (2) (302 SE2d 86). The trial court did not err by overruling Craft’s motion for mistrial.

Judgments affirmed.

Cooper and Blackburn, JJ., concur.