author: Beasley, Presiding Judge.

text:
    A93A1050.
    DOWDEN v. AMERICAN TELEPHONE & TELEGRAPH COMPANY.
    (438 SE2d 652)
   Beasley, Presiding Judge.

Dowden, as trustee for the bankruptcy estate of B. J. McAdams, Inc. (McAdams), an interstate common motor carrier, sued American Telephone & Telegraph Company (AT&T) to recover $29,855.22 in unpaid freight charges allegedly owed McAdams by AT&T on a commercial account. AT&T counterclaimed for negligence and breach of contract. We reverse the dismissal of the complaint for lack of subject matter jurisdiction.

A Chapter 7 petition for involuntary bankruptcy had been filed against McAdams in federal bankruptcy court. Dowden was appointed as trustee to replace the trustee initially named. Professional Truck Auditing, Inc. (PTA) was employed as the trustee’s collection agent for receivables of the estate. MNC Commercial (MNC) claimed a security interest in the McAdams’ accounts receivable. The bankruptcy court modified an automatic stay, authorizing MNC to collect the accounts receivable and apply those proceeds to the payment of the debt owed to MNC by the debtor. The receivables included the unpaid freight charges.

Thereafter, MNC, PTA and the original trustee entered into an initial agreement, approved by the bankruptcy court, in which PTA would collect the accounts receivable on behalf of MNC and the trustee. It provided that, “MNC and Trustee, to the extent of his interest . . . assign and convey to PTA all accounts receivable of McAdams. ...” PTA was authorized to file suit in the name of the debtor, the trustee, or its own name to collect the accounts. PTA would receive 45 percent from the collection of any accounts and MNC would receive 55 percent. Only funds received by MNC would be applied to the debt; the agreement would terminate if the debt to MNC was paid in full.

Later, MNC, PTA and Dowden, the present trustee, entered into a second agreement, also approved by the bankruptcy court, in which the accounts were not assigned to PTA. Instead, it provided that “[t]rustee hereby employs PTA as its agent to collect all accounts receivable of McAdams.” Unlike the first agreement, this one provided compensation to the trustee of two percent of the net balance of accounts collected.

The present complaint was filed against AT&T in the State Court of Fulton County under 49 USC § 10761 (a), which governs regulation of tariffs. The freight charges allegedly due arise from the accounts receivable that were the subject of the two agreements between the trustee, MNC and PTA.

AT&T moved for dismissal of the complaint on the basis that the trial court was divested of subject matter jurisdiction under 28 USC § 1359, which provides: “[a] district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.”

In its dismissal order, the trial court recognized that an action for collection of freight charges on interstate shipments of goods is governed by a three-year statute of limitation as provided by 49 USC § 11706 (a) (limitations on actions by and against common carriers). Under 11 USC § 108 (a), a trustee who steps into the shoes of the debtor is granted a two-year extension of the statute of limitation after the date of the order for relief for commencing an action by the debtor. The court found that: “MNC and the Trustee first assigned and otherwise conveyed out of the estate all of the B.J. McAdams receivables. Only when the two-year statute was about to expire was the second agreement reached, and then only in return for the trustee receiving 2% of the receivables previously conveyed outright. The Court finds this a ‘brokered’ transaction solely for the purpose of creating jurisdiction in this court, and as such [is] prohibited by 28 U.S.C. § 135[9].”

1. We first consider whether the original trustee maintained an interest in the accounts receivable or whether he had entered into a sale of his interest in those accounts to PTA. AT&T contends that the first agreement completely severed the trustee’s interest in the accounts receivable and his standing to sue. The trustee asserts that the original trustee did not completely divest himself or the estate of the receivables. He argues that the original trustee represented the residuary interest of the debtor, and since MNC could obtain only the amount required to satisfy the estate’s debt to it, the trustee retained an interest in the receivables of the estate. If the trustee retained an interest in the receivables under the original agreement, the present trustee is entitled to a two-year extension of the limitation period under 11 USC § 108 (a) (2), and the collusive joinder provision of 28 USC § 1359 would not apply.

The trustee’s interest in the property of the bankrupt estate extends only so far as the value of the claims of its secured and unsecured creditors. Any surplus is paid to the debtor. 11 USC § 726 (a) (6) (Bankruptcy Code provision governing distribution of property of the estate). Thus, if the accounts receivable in question generated sufficient proceeds to satisfy McAdams’ debt to MNC, the estate would receive any overage. In addition, the agreement by its terms would come to an end and the trustee would assume control of the accounts receivable. This is confirmed by the bankruptcy court’s “order approving [the first] agreement for collection of receivables” in which the rationale for the agreement with PTA is explained: “MNC and Trustee have reached an agreement with [PTA], a company engaged in the business of collecting unpaid or underpaid receivables for companies engaged in the commercial trucking and shipping business. The employment of [PTA] is the best and most economical method of locating the balance due receivables for the purpose of collecting and applying the proceeds to the debt owed MNC by the debtor.”

It is apparent from the bankruptcy court’s subsequent “order approving [the second] agreement for collection of receivables” that the modified agreement was necessitated to satisfy an objection filed by another unsecured creditor. Moreover, Coliseum Cartage Co. v. Rubbermaid Statesville, 975 F2d 1022 (3) (4th Cir. 1992), provides authority for a conclusion that the bankruptcy court’s approval of the second agreement was res judicata and not subject to collateral attack.

We do not construe the first agreement as a sale of the accounts receivable such that legal title passed to PTA, but rather as an assignment for purposes of collection for the benefit of the creditors. Accord Bankruptcy Estate of B.J. McAdams v. Ralston Purina Co., 154 B.R. 809 (N.D. Ga. 1993). This intention of the parties is further evidenced by the provision contemplating that suit for collection of the debt may be brought in the name of the trustee or the debtor, as such would not be authorized if the assignment constituted a sale of the assets. See generally Sullivan v. Curling, 149 Ga. 96 (2) (99 SE 533) (1919). Accordingly, the trustee was authorized under 11 USC § 108 to obtain a two-year extension in which to commence the present action.

Decided November 22, 1993.

Arthur B. Seymour, for appellant.

Mitchell & Hersh, Bruce E. Mitchell, for appellee.

28 USC § 1359 being inapplicable, we do not reach the trustee’s argument that the provision is a federal procedural statute which applies only to the jurisdiction of federal courts. Nor need we consider whether the trial court erroneously failed to consider certain affidavit testimony in opposition to AT&T’s motion.

2. AT&T has asserted that the original plaintiff, designated “the Bankruptcy Estate of B.J. McAdams, Inc.,” lacked standing to bring suit. It cites decisions of various other jurisdictions considering suits brought by McAdams’ bankruptcy estate to recover freight undercharges against other companies. Bankruptcy Estate of B.J. McAdams v. Ralston Purina Co., supra; Bankruptcy Estate of B.J. McAdams v. Berlin Packaging Co., Case No. 92-C-248B (C.D. Ut. 1993); Bankruptcy Estate of B.J. McAdams v. Intl. Paper Co., H-92-921 (S.D. Tx. 1992); Bankruptcy Estate of B.J. McAdams v. Shieldalloy Metallurgical Corp., Case No. 92-1575 (N.J. 1993); Bankruptcy Estate of B.J. McAdams v. Gray & Co., Case No 92-354-JU (Or. 1992).

An amendment to the complaint redesignated plaintiff as “Dowden, trustee for the Bankruptcy Estate of McAdams.” OCGA § 9-11-15 (a) provides: “A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” Where, as here, “no pretrial order was issued and . . . appellant’s amendment was filed and served prior to the commencement of trial, the amendment [is] permitted as a matter of right.” Jackson v. Paces Ferry Dodge, 183 Ga. App. 502, 503 (359 SE2d 412) (1987). Accord Nelson v. Zant, 261 Ga. 358, 359 (2) (405 SE2d 250) (1991). Leave of court was not required. The trustee was properly designated as plaintiff in the amended complaint and has standing to pursue the claim.

Judgment reversed.

Cooper and Smith, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A2175.
    ALLEN v. CRAWFORD.
    (438 SE2d 178)
   Birdsong, Presiding Judge.

Mary Allen, individually and next friend of Latosha Allen, an incapacitated minor child, sued Angela Crawford, Latosha’s special education teacher at Houston County High School, for damages arising from the beating or striking or spanking of Latosha Allen by Crawford’s aide, Irene Bender. The beating or spanking occurred when Bender was in the bathroom with Latosha Allen. Bender was indicted for a criminal offense for the act.

Mary Allen’s claims against Crawford are based on negligent supervision of Irene Bender, and res ipsa loquitur. The trial court granted summary judgment to Crawford. Held:

1. (a) In her appeal, Allen does not contend that appellee Crawford had ever seen Bender strike Latosha or any student. Appellant argues that there is evidence that Bender had seen appellee Crawford strike students and must have assumed she had permission to beat Latosha, or that it was acceptable to beat students. Adjudging the evidence most strongly in favor of appellant Allen on Crawford’s motion for summary judgment (see Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474)), we shall assume that at least one other teacher had seen Crawford hit or “pop” students, and that “pop” does not mean merely a light tap, as one witness attempted to explain; we shall assume that Bender did not merely “spank” Latosha but that she severely beat Latosha, as Allen claims; and we shall assume that Crawford had struck Latosha in the past.

Nevertheless, those assumed facts do not raise an inference that Crawford’s negligent supervision of Irene Bender resulted in Bender’s beating Latosha Allen. Appellant asserts that she had seen bruises and marks on Latosha’s legs in the past but until this incident occurred, she assumed these marks were caused in the course of child play. She contends Bender beat Latosha on this day because Bender had seen Crawford hit Latosha and this was “the example Bender had to go by.” However, we are cited to no actual evidence that Bender had seen appellee Crawford strike Latosha or another student. Another teacher deposed that she had seen Crawford “pop” Latosha or another student in the past and had told Crawford not to do this as there were visitors in the building. This teacher saw appellee Crawford “pop” Latosha on the leg when Latosha did not put an item in a basket as instructed. The teacher worked with other students at a nearby table in the “daily living center.” She assumed Crawford’s teacher’s aid, Irene Bender, had seen Crawford strike Latosha on some occasion because Bender and Crawford worked together in the same room; however, the teacher did not actually know that Irene Bender saw Crawford strike Latosha. Bender herself denied having seen Crawford strike a student. This other teacher did not hear or see anything “out of the ordinary” on the day Irene Bender struck Latosha in the bathroom and did not learn of the incident until later. She did not even know that Bender was in the bathroom with Latosha until she heard appellee Crawford tell another student not to go in the bathroom because someone else was in there.

From this we shall assume, in appellant’s favor, that appellee Crawford knew Irene Bender was in the bathroom with Latosha, but there is no evidence cited to us that Crawford knew Bender was beating or striking Latosha.

Indulging all inferences in appellant’s favor, including a general assumption that the teacher’s aide Irene Bender learned from Crawford’s examples, there is no causal connection between Crawford’s having “popped” Latosha in the daily living center on a previous occasion and Bender’s alleged “severe beating” of Latosha in the bathroom. There is no evidence that Bender’s act was triggered or influenced by her ever having seen Crawford “pop” Latosha or another student. There is no evidence that Crawford knew Bender was beating Latosha in the bathroom, and no evidence that Crawford could have foreseen that Bender would take Latosha in the bathroom and strike her secretly.

“ ‘One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable.’ Yarbrough v. Cantex Mfg. Co., 97 Ga. App. 438, 440 (103 SE2d 138) and cit. ‘The general test in such cases is not whether the injurious result or consequence was possible, but whether it was probable; that is, likely to occur according to the usual experience of persons.’ Whitaker v. Jones [&c.] Co., 69 Ga. App. 711, 716 (26 SE2d 545).” Covington v. S. H. Kress & Co., 102 Ga. App. 204, 205 (115 SE2d 621). There can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury. Knudson v. Lenny’s, 202 Ga. App. 85, 86 (413 SE2d 258). It cannot be speculated that if Crawford had never “popped” a student herself, Bender would not have struck or severely beat Latosha in the bathroom.

(b) Further, the claim is negligent supervision. Bender’s learning by Crawford’s example is not to be equated with Crawford’s supervision of Bender as teacher’s aide. Even if Crawford could reasonably foresee that Bender might inflict injury on a student because Crawford herself had “popped” a student or students in the past, there is no evidence that Crawford did not exercise ordinary care in the supervision of Bender on this occasion. “In the absence of allegations of fact supporting the specifications of negligence as to inadequate supervision, they are mere conclusions of the pleader. Furthermore, there is no showing that proper supervision could have prevented the occurrence of such an injury.” (Emphasis supplied.) Lincoln v. Wilcox, 111 Ga. App. 365, 368 (141 SE2d 765).

Decided November 22, 1993.

Lucas & Associates, Kenneth E. Lucas, Adams & Adams, Charles R. Adams III, for appellant.

Llewellyn & Swanson, Mark R. Swanson, Garland & Samuel, Donald F. Samuel, for appellee.

No genuine issue of material fact remains by which a jury could find Crawford liable for negligent supervision of Bender causing or resulting in Bender’s beating of Latosha Allen.

2. As to the theory of res ipsa loquitur, it must be shown that the injury was caused by an agency or instrumentality within the exclusive control of the defendant. Bridgestone Firestone v. Green, 198 Ga. App. 858, 861 (403 SE2d 442). Appellant contends the injuries arising out of Bender’s severe beating of Latosha could not have occurred at Latosha’s home or on the school bus, or anywhere except while Latosha was in Crawford’s control and supervision. However, the school bus driver stated in an affidavit that he had never seen anyone injure Latosha on the bus; he did not say Latosha could not possibly have been injured on the bus. In any case, it is not disputed that Irene Bender struck Latosha while they were in the bathroom, with the door closed. It therefore cannot be said that the injury occurred while Latosha was in Crawford’s exclusive control and supervision.

The trial court did not err in granting summary judgment to the defendant.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A2248.
    HENDERSON v. THE STATE.
    (438 SE2d 181)
   Birdsong, Presiding Judge.

Walter Lewis Henderson appeals his judgment of conviction and sentence of possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. The trial court denied appellant’s suppression motion. Subsequently, appellant was found guilty by the trial judge in a bench trial in which the parties stipulated to evidence and the trial court took judicial notice of the suppression motion hearing transcript at the parties’ joint request. Held-.

1. The case citations in appellant’s brief are not in compliance with Court of Appeals Rule 11 (c).

2. Appellant asserts the trial court erred in denying the suppression motion on the grounds appellant lacked standing to contest the search and that probable cause existed therefor. Pretermitting the issue of probable cause is whether appellant has standing to contest the search and subsequent seizure of the contents of the bag. We hold appellant does not have standing.

“[I]t is our obligation on appeal to construe the evidence most favorably to support the trial court’s ruling [on the suppression motion].” State v. Corley, 201 Ga. App. 320, 321 (411 SE2d 324) (physical precedent only); see Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428). At the suppression hearing, the evidence concerning the circumstances surrounding the search was conflicting regarding whether appellant claimed any legal or equitable interest in the car and bag. “ ‘Unless clearly erroneous, the trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted on appeal.’ ” State v. Davis, 261 Ga. 225, 226 (404 SE2d 100).

The trial court concluded that appellant “doesn’t have any standing to contest the search of a car that he says is not his.” Investigator Gresham of the county sheriff’s department testified that, although appellant had denied permission to retrieve the bag from the car unless the investigator obtained a warrant, appellant also denied ownership of the car claiming it was owned by his cousin. Appellant further told the investigator that he did not know where his cousin was; and in response to a question as to how long the car had been at its current location, replied: “I don’t know, like a few days.” The trial court could reasonably infer from this testimony that appellant was denying any legal or equitable interest in, or right of temporary possession of, the car. The investigator also testified that, when asked what he had thrown into the car, appellant replied “nothing.” When the investigator asked “what is in the bag,” appellant said, “what bag.” The trial court could reasonably infer from this testimony that appellant was, in fact, denying any legal or equitable interest in, or right of temporary possession of, the bag. Inherent in the trial court’s finding of appellant’s lack of standing is its determination that the investigator’s testimony was more credible than that of appellant and his third-party witness, and the court’s finding of fact that appellant denied any legal or equitable interest in, or right of temporary possession of, both the car and the bag at the time of the search and seizure.

“ ‘The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously.’ (Citations and punctuation omitted.) Randall v. State, 194 Ga. App. 153, 154 (390 SE2d 74). ‘When, as in the instant case, the accused disavows ownership of [or other legitimate possessory interest in] the item searched, he has no legitimate expectation of privacy in that item, and thus a search violates no right.’ (Citations and punctuation omitted.) Deych v. State, 188 Ga. App. 901, 902 (1) (374 SE2d 753). [Appellant] disavows any possessory or ownership interest in the [bag] in which the drugs were found. He therefore has no standing to complain of its [search and the] seizure [of its contents]. The trial court did not err in denying his motion to suppress.” Johnson v. State, 208 Ga. App. 747, 749-750 (3) (431 SE2d 737).

Decided November 22, 1993.

Franklin, Moran & Boyle, Brooks S. Franklin, for appellant.

Daniel J. Porter, District Attorney, Donald L. Johstono, Jr., Assistant District Attorney, for appellee.

This case is factually distinguishable from State v. Corley, supra, where appellee who was a legitimate passenger in the vehicle in question affirmatively asserted a legitimate interest in the item being searched — a drawstring bag apparently brought with appellee into the vehicle and placed on the front seat within arm’s reach.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Blackburn, Judge.

text:
    A93A2249.
    FULLER v. THE STATE.
    (438 SE2d 183)
   Blackburn, Judge.

Appellant Allen Harold Fuller was convicted of child molestation of his 12-year-old daughter. On appeal, Fuller asserts several enumerations of error.

1. In his first enumeration of error, Fuller contends that OCGA § 24-3-16 is unconstitutional as conflicting with the Confrontation Clause of the Sixth Amendment of the Constitution of the United States. Fuller contends that the Sixth Amendment conditions the admissibility of out-of-court statements made by a child upon the unavailability of the child to testify and, once the witness is shown to be unavailable, the statement is admissible only if it bears adequate indicia of reliability. Therefore, Fuller argues that the requirement of availability of the declarant in OCGA § 24-3-16 conflicts with the requirements of the Sixth Amendment.

Fuller asserts that in Rolader v. State, 202 Ga. App. 134 (413 SE2d 752) (1991) we indicated that OCGA § 24-3-16 conflicted with the Sixth Amendment. Our opinion in Rolader does not support Fuller’s enumeration. First, in Rolader, the constitutionality of OCGA § 24-3-16 was not reached. Id. at 140. Additionally, a special concurrence was issued expressly disagreeing with the dicta upon which Fuller seeks to rely. See Rule 35 (b) of the Rules of the Court of Appeals. Finally, Fuller’s argument was decided adversely to him by the Supreme Court of Georgia in Allen v. State, 263 Ga. 60 (428 SE2d 73) (1993). Therein, the Supreme Court determined that such constitutional concerns were not present in OCGA § 24-3-16 as it required “both the presence of the declarant and sufficient indicia of reliability.” (Emphasis supplied.) Id. at 61.

2. The trial court did not err in allowing the testimony of three witnesses regarding the child’s out-of-court statements. Fuller argues that this testimony improperly bolstered the victim’s testimony. However, this issue was decided adversely to Fuller in Knight v. State, 210 Ga. App. 228 (435 SE2d 682) (1993), where we determined that prior consistent out-of-court statements were admissible where the veracity of a witness was at issue. In the present case, the veracity of the victim was at issue; therefore, the admission of testimony regarding the victim’s prior statements was admitted properly.

3. In his third and fourth enumerations of error, Fuller asserts that his character was placed impermissibly in evidence by the State’s introduction of evidence of his abusive behavior toward his two sons, as well as the victim. However, Fuller failed to assert this argument below; therefore, it was not preserved for appellate review. Price v. State, 204 Ga. App. 288, 289 (419 SE2d 126) (1992).

4. Fuller contends that the trial court erred in its charge on child molestation by charging that the immoral and indecent acts could be performed with the intent to arouse or satisfy the sexual desires of either the child or the person, despite the language of the indictment which stated that the acts were done with the intent to arouse the accused. The trial court charged the entire Code section on child molestation. See OCGA § 16-6-4 (a). Fuller’s argument was decided against him in Potts v. State, 207 Ga. App. 863, 865 (429 SE2d 526) (1993), where we determined that “[a] charge on a code section in its entirety is not error where a part thereof is applicable and it does not appear that the inapplicable part misled the jury or erroneously affected the verdict.” (Citations and punctuation omitted.) Id. In the present case, as in Potts, supra, the trial court further charged that the defendant was on trial for the particular offense charged in the indictment. Therefore, Fuller’s enumeration of error is without merit.

5. In Fuller’s sixth enumeration of error, he contends that the trial court’s charge on intent was “confusing and failed to inform the jury that he could have touched the victim without any unlawful intent and be innocent.”

“The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.” (Citations and punctuation omitted.) Hill v. State, 205 Ga. App. 475, 476-477 (422 SE2d 564) (1992). The trial court charged that child molestation required intent to arouse or satisfy the sexual desires of either the child or the person and that intent was an essential element of the crime which required proof beyond a reasonable doubt. The trial court’s charge on intent was not misleading or confusing and was a correct statement of the law. Therefore, Fuller’s enumeration is without merit.

Decided November 22, 1993.

Ray B. Gary, Jr., for appellant.

Thomas J. Charron, District Attorney, Rose L. Wing, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

6. In his final enumeration of error, Fuller contends that the verdict was against the weight of the evidence. We disagree. “Although the evidence was in conflict and depends largely on the credibility of the [12]-year-old victim, the credibility of witnesses and the resolution of such conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to support that verdict.” (Citation and punctuation omitted.) Hall v. State, 201 Ga. App. 626 (1) (411 SE2d 777) (1991). We concluded that a rational trier of fact could have found Fuller guilty of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A2397.
    BATTLE v. SPARKS et al.
    (438 SE2d 185)
   Blackburn, Judge.

Appellant Terry Lee Battle submitted an affidavit of indigency and a pro se complaint to the clerk of the Superior Court of the Macon Judicial Circuit naming three defendants. Pursuant to OCGA § 9-15-2 (d), the clerk presented the pleading to a superior court judge who entered an order on July 23, 1993, refusing to allow the complaint to be filed against the defendants. This appeal followed.

When a civil action is instituted by an indigent party who is not represented by an attorney, the trial judge is required to “review the pleading and, if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading.” OCGA § 9-15-2 (d). “When examining a complaint, courts are compelled to determine whether the facts alleged state a claim for relief under which the plaintiff may recover.” (Citations and punctuation omitted.) Hawkins v. Rice, 203 Ga. App. 537 (417 SE2d 174) (1992).

Decided November 22, 1993

Terry Lee Battle, pro se.

Willis B. Sparks III, District Attorney, Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Neal B. Childers, Assistant Attorney General, for appellees.

The record reveals that Battle was indicted in Bibb County for the offense of rape in 1984. After a jury trial, Battle was convicted and sentenced to life in prison. We affirmed Battle’s conviction in an unpublished opinion in 1985. Battle v. State, 175 Ga. App. XXVIII (1985). Battle presently is incarcerated in the Georgia State Prison in Reidsville, Georgia.

In his somewhat convoluted complaint, Battle alleges that his 1984 indictment, conviction, and incarceration violate his constitutional rights and that he is being falsely imprisoned based on the illegal and improper conduct of the three defendants; two assistant district attorneys for the Macon Judicial Circuit in 1984, and the present district attorney for that circuit. Specifically, Battle alleges that the indictment charging him as an habitual offender was illegally obtained; that insufficient evidence existed for his conviction of rape; that unfounded statements concerning his conviction were made to the Macon Telegraph; and that perjured testimony was allowed to be introduced at his trial.

“Any person imprisoned by virtue of a sentence imposed by a state court of record who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of this state may institute [a writ of habeas corpus].” OCGA § 9-14-42 (a). Therefore, Battle’s constitutional claims which have not been heard previously must be brought in a habeas petition pursuant to OCGA § 9-14-41 et seq. Additionally, to the extent that Battle’s allegations are sufficient to support a possible violation of 42 USC § 1983, they are time barred. See Giles v. Garwood, 853 F2d 876 (11th Cir. 1988) and OCGA § 9-3-33. Furthermore, “[p]ursuant to Art. VI, Sec. VIII, Par. I (e) of the Georgia Constitution of 1983, district attorneys have immunity from private actions ‘arising from the performance of their duties.’ ” Robbins v. Lanier, 198 Ga. App. 592, 593 (402 SE2d 342) (1991). Therefore, Battle’s complaint failed to allege facts stating a claim for relief.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Pope, Chief Judge.

text:
    A93A0882.
    DAVID ENTERPRISES, INC. et al. v. KINGSTON ATLANTA PARTNERS.
    (438 SE2d 90)
   Pope, Chief Judge.

Tenant/defendant David Enterprises, Inc. operates a restaurant in an office building owned by landlord/plaintiff Kingston Atlanta Partners. The premises are leased pursuant to a written lease entered into between the tenant and the landlord’s predecessor in interest. The landlord filed an affidavit for distress warrant alleging the tenant owed rent. The tenant answered and denied the landlord’s claim and raised a counterclaim for damages for breach of certain terms of the lease. A bench trial was conducted and the trial court entered judgment in favor of the landlord in the amount of $8,000 for rent due, $5,000 accrued interest and $7,000 attorney fees. Judgment was entered against the tenant on its counterclaim. Tenant appeals.

1. The landlord’s claim is based on the allegation that in addition to the base rent, the tenant owes additional rent for consumption of electricity. Section 8.04 of the lease states: “Landlord, at its sole cost and expense, shall furnish and install a submeter in the Premises to measure Tenant’s consumption of electric energy (not including the heating and air conditioning that Landlord furnishes). The first 10,000 kilowatt hours per month of Tenant’s consumption of electric energy in the Premises shall be at no cost to Tenant. Tenant agrees to pay Landlord, as additional rent within ten days after being billed therefor, for all electric usage in the Premises in excess of 10,000 kilowatt hours per month, at rates equal to Landlord’s actual cost per kilowatt hour for such excess usage.” That phrase which was placed in parentheses was a typewritten addition to the pre-printed lease terms. The landlord’s claims for rent arise out of the additional rent it claims the tenant was obligated to pay pursuant to Section 8.04 of the lease.

The tenant argues that Section 8.04 must be construed in conjunction with Section 8.01 of the lease, the pre-printed portion of which states: “Landlord shall furnish electric energy to the Premises for lighting and for equipment requiring no unusual or extraordinary demands on, or usage of, the existing Building system.” To this section a typed footnote was added stating: “Landlord agrees to furnish necessary electric (Section 8.04 notwithstanding) for Tenant’s initial requirements as per the attached exhibit B.” No exhibit B was attached to the lease but the uncontroverted testimony at trial established that the intent of the footnote was to encompass the specific electric requirements necessary to operate tenant’s restaurant equipment. The tenant argues that the typewritten addition to Section 8.01 must be construed as overriding the electrical billing provisions of Section 8.04. We agree.

The trial court’s order of judgment addresses only the billing provisions of Section 8.04 and does not address Section 8.01. The comments of the trial judge at the hearing illustrate that the judge did not attempt to construe the phrase “Section 8.04 notwithstanding,” which was added to Section 8.01 and focused, instead, on construing the meaning of the word “furnish.” The word “furnish” appears several times in the five subsections of Section 8 of the lease, titled “Electric Energy and Water.” We agree with the conclusion of the trial court at the trial of the case that in all other instances but one, the only reasonable meaning of the term is “to supply the source of [electricity, water, etc.],” and does not mean the landlord will necessarily pay for the utility in question. To construe the phrase in the pre-printed portion of Section 8.01 “Landlord will furnish electric energy” as meaning that the landlord agrees to pay for electric energy would make the payment provisions of Section 8.04 meaningless.

To the pre-printed language of Section 8.01, however, was added the typewritten provision whereby landlord agreed to “furnish necessary electric (Section 8.04 notwithstanding). . . .” If this covenant had been made “notwithstanding Section 8.02” then we would agree with the trial court that the typewritten addition was intended merely to indicate landlord would “supply” the electric source for the special restaurant equipment necessary for the tenant’s operations. This is because immediately following the pre-printed provisions of Section 8.01 stipulating that the landlord will provide an electric source only for equipment requiring no unusual or extraordinary demands on the electrical system was Section 8.02, which stipulated that if the tenant had special electrical requirements the tenant could install additional electric supply equipment at its own expense. However, the typewritten addition to Section 8.01 indicated the covenant to “furnish” the necessary electric service for the tenant’s equipment was made notwithstanding the provisions of Section 8.04. Section 8.04 does not address the issue of which party is required to pay for the installation of additional electric supply equipment but addresses only the issue of who is to pay for electric service. Thus, to construe the typewritten addition to Section 8.01 as the trial court construed it makes the phrase “Section 8.04 notwithstanding” meaningless. This would be contrary to the accepted rules of construction of a contract, pursuant to which the written provisions of a contract are entitled to greater consideration than printed provisions. See OCGA § 13-2-2 (7); Fort Oglethorpe Assoc. II, Ltd. v. Hails Constr. Co., 196 Ga. App. 663 (2) (396 SE2d 585) (1990).

Our construction of Section 8.01 requires the term “furnish” in the typewritten addition to that section to mean “pay for.” As noted above, the trial court recognized that in one other instance in Section 8 of the lease, the term “furnish” was clearly meant to mean “pay for.” That other instance was also in a typewritten addition to the lease. To Section 8.04 was added a typewritten phrase indicating that despite the billing procedure set forth in that subsection for the tenant’s consumption of electricity, the landlord agreed to furnish, meaning “pay for,” the heating and air conditioning. Thus, in one other typewritten addition to the contract, the term “furnish” must be interpreted as meaning “pay for.” Likewise, we conclude that construing the provisions of Section 8.01 in the only manner that gives it logical meaning, the phrase “furnish necessary electric (Section 8.04 notwithstanding),” which was added to the contract, requires the landlord to “pay for” the tenant’s consumption of electrical energy despite the pre-printed provision for billing the tenant for that expense. The trial court erred in awarding judgment to plaintiff landlord on its distress claim for rent due.

2. The trial court did not err, however, in ruling against defendant tenant on its counterclaim. The lease contained a provision wherein the landlord represented that as of the date on which the tenant’s lease was signed it had entered into no other lease of space in the building which permitted the lessee to sell certain named food and beverages and also contained a covenant that, upon written notice to the landlord that another lessee was making such sales, the landlord would take such reasonable steps as necessary to prevent the activity, including legal proceedings. The lease also contained a provision wherein the landlord covenanted not to enter into any lease permitting the sale of the named items so long as tenant performed its duties under the lease. The record shows that, in fact, another lease was in effect as of the date on which the tenant’s lease was signed which permitted another lessee to sell certain of the named items. The record further shows that the other lessee sold several other food and beverage items which the landlord gave tenant the exclusive right to sell and that in August 1989 the tenant gave the landlord notice in writing of the infringement of his lease; yet the landlord took no steps to correct the situation.

The tenant’s counterclaim was based on the allegation that the landlord breached the terms of the lease by failing to perform its promise to protect the tenant’s exclusive right to sell the named items. At trial, the tenant presented evidence to support its claim that another lessee was selling some of the items the tenant had been given the exclusive right to sell as well as evidence of the average number of these items which the other lessee sold per day. The tenant then presented evidence concerning the profits it made on the sale of each of these items from which the judge, as the trier of fact, could calculate the tenant’s lost profits from these unauthorized sales. Nevertheless, the trial judge refused to grant judgment to defendant on its counterclaim on the ground, inter alia, that the tenant had failed to present evidence from which the proper measure of damages for its claim could be determined. We agree.

Decided August 27, 1993

Reconsideration denied November 23, 1993.

Graham G. McMurray, for appellants.

Pursley, Howell, Lowery & Meeks, John R. Lowery, for appellee.

“ ‘The measure of damages recoverable for a lessor’s breach of covenant not to rent other stipulated premises for a competing business is the difference in value between the [tenant’s] leasehold with the covenant against competition unbroken and the same leasehold with the covenant broken. The value of said leasehold is not controlled by the stipulated rental therefor, nor the profits which the tenant could have realized from the operation of his business without the adjacent competing business. However, allegations and evidence of loss of profits are material to show the damage sustained by the lessee, in accordance with the rule herein stated. (Cits.) . . . (E)vidence (of loss of profits) is admissible and pleadings in support thereof proper in order that the jury may properly estimate the value of the leasehold estate before and after the covenant is broken. Therefore, a recovery for loss of profits occasioned by a breach of contract where properly pleaded and proved may be indirectly had.’ [Carusos v. Briarcliff, Inc., 76 Ga. App. 346, 351-352 (2) (45 SE2d 802) (1947)].” Gilmore Intl. Travel v. Equitable Life Assur. Soc., 183 Ga. App. 116, 117 (1) (358 SE2d 279) (1987). Thus, while lost profits is evidence which may be presented in support of a claim for diminution of the value of the leasehold, and may be an element of the damages, it is not the direct measure of damages in such a claim. In this case, the tenant presented only evidence of lost profits and presented no evidence or argument from which the judge, as finder of fact, could determine the diminution of the leasehold value. “Where a party sues for specific damages he has the burden of showing the amount of loss claimed in such a way that the jury may calculate the amount of loss from the data furnished and will not be placed in a position where an allowance of the loss is based on guesswork.” (Citation and punctuation omitted.) Mathis v. Copeland, 139 Ga. App. 68, 69 (228 SE2d 23) (1976). Thus, insufficient evidence was presented from which damages could be awarded to the tenant on its counterclaim.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A1004.
    LEE v. THE STATE.
    (438 SE2d 108)
   Pope, Chief Judge.

Defendant appeals from the denial of his plea in bar.

The record shows that on November 13, 1992, a multi-count indictment was returned against the defendant, a correctional officer, charging him with one count of sodomy (Count 1) and eighteen counts of sexual contact with an inmate in violation of OCGA § 16-6-5.1. Counts 2 through 19 of the indictment charged defendant with crimes which were alleged to have been committed outside the applicable four-year statute of limitation contained in OCGA § 17-3-1 (c), but which the State alleged in the indictment were unknown to the “proper prosecuting officer” until August 26, 1992. See OCGA § 17-3-2 (2) which tolls the period of limitation during any period in which “[t]he person committing the crime is unknown or the crime is unknown.” The trial court agreed that the prosecution was not commenced untimely and denied defendant’s plea in bar on the basis that the victim could not be expected to report the crimes while incarcerated and thus the crimes did not become known to the State until the victim was “discharged from the custody of the Georgia Department of Corrections or the date of the actual report of the offense by the alleged victim, whichever occurred first.”

It is well settled that the knowledge of the victim of the crime is imputed to the State, and thus the crime becomes known to the State and the statute of limitation begins to run “after it is known to the prosecutor or to the one ‘injured by the offense.’ ” Sears v. State, 182 Ga. App. 480, 481 (1) (356 SE2d 72) (1987) (quoting Taylor v. State, 44 Ga. App. 64, 69-70 (160 SE 667) (1931) and State v. Brannon, 154 Ga. App. 285, 286-287 (267 SE2d 888) (1980)). See also State v. Lowman, 198 Ga. App. 8 (400 SE2d 373) (1990). Moreover, in Sears this court held that this rule applies even if there may be some reason why the victim did not report the crime, such as the victim’s age, her lack of awareness that defendant’s conduct was criminal and/or her purported fear of the defendant. We fail to see how the situation in this case is distinguishable; the reasons cited by the trial court as to why the inmate-victim might not report the crimes are, in our opinion, no more compelling than the reasons rejected by a majority of this court in Sears. Thus the trial court erred in this case by finding that the statute was tolled until the victim either reported the crime or was released from custody, whichever occurred first.

Decided October 19, 1993

Reconsideration denied November 23, 1993

O. Hale Almand, Jr., Roy W. Griffis, Jr., for appellant.

Joseph H. Briley, District Attorney, for appellee.

The State also argues that the order denying the plea should be affirmed because the victim in this case was a party to the crimes in that she aided and abetted the defendant in the commission of the offenses by willingly participating in the activities involved. However our Supreme Court has specifically rejected the “joint offense” or “victimless crime” exception in favor of the “better rule” enunciated in Sears. Womack v. State, 260 Ga. 21 (389 SE2d 240) (1990), rev’g 193 Ga. App. 186 (387 SE2d 336) (1989). “ ‘As a general rule, exceptions will not be implied to statutes of (limitation) for criminal offenses, and ordinarily the running of such a statute is not interrupted unless it contains an exception or condition that will toll its operation.’ (Cits.) . . . (T)here being no statutory basis for the exceptions to the statute espoused here by the State, we must give effect to the clear expression of legislative will that felony prosecutions must be commenced within four years after the commission of the crimes. . . .” Id. at 23 (quoting Sears v. State, 182 Ga. App. at 482).

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.

       The trial court based its ruling on the “unbelievable disparity in power” between an inmate and correctional officer, the control of the officer over the inmate, the ability of the officer to intimidate the inmate and the substantial restriction upon the inmate’s right to liberty.


text:
    A93A1153.
    BURLINGTON AIR EXPRESS, INC. v. GEORGIA PACIFIC CORPORATION et al.
    (438 SE2d 97)
   Pope, Chief Judge.

Plaintiffs Georgia Pacific Corporation (“GP”) and BTL Specialty Resins Corporation (“BTL”) are producers of formaldehyde. Silver is used as a catalyst in the production process and after use, the scrap silver may be refined and reused. In late 1989 and early 1990, plaintiffs contracted with defendant Burlington Air Express, Inc., a common air carrier, to transport five shipments of scrap silver to a refinery in Massachusetts. When these shipments were lost, defendant refused to pay plaintiffs the full declared value of the scrap silver, relying on provisions of its airbill and governing tariff which defendant said limited its liability. Plaintiffs then brought this action for compensatory damages, punitive damages and attorney fees, alleging breach of contract and conversion, and the parties filed cross-motions for partial summary judgment. The trial court denied defendant’s motion and granted plaintiffs’ motion for summary judgment with respect to defendant’s liability for compensatory damages, and defendant appeals.

1. Defendant contends the trial court erred in applying the provisions of the Interstate Commerce Act, 49 USCA § 101 et seq., to a case involving the transport of cargo by air. Specifically, defendant contends that since the air transport industry has been deregulated, it is not governed by the Act. In Ragsdale v. Airborne Freight Corp., 173 Ga. App. 48 (1) (325 SE2d 428) (1984), however, this court recognized (a) that since deregulation, federal law continues to govern the enforceability of limitation provisions in airbills and (b) that although deregulation took air cargo carriers outside the jurisdiction of any regulatory commission or agency, the body of laws and principles expressed in the Act continues to be applicable to air carriers as federal common law. See also First Pennsylvania Bank, N. A. v. Eastern Airlines, 731 F2d 1113 (3d Cir. 1984). Accordingly, the trial court did not err in looking to the Act to answer various questions raised in this case.

2. For each of the five shipments, the record contains an airbill and invoice. The airbills and invoices for the first and third shipments show a declared value of $8,000, a specific instruction to insure the shipment for $8,000 and a charge assessed by defendant for the extra value of the cargo. The documents for the second shipment also show a declared value of $8,000 and a specific instruction to insure for that amount, but the invoice does not show an extra value charge. For the fourth shipment the box on the airbill for declared value is left blank; however, there is a special instruction to “insure for $6,500” above the empty declared value box on the airbill. Moreover, the invoice for that shipment lists a declared value of $6,500 and assesses an extra value charge. The documents for the last shipment show a declared value of $6,500, a special instruction to insure for $6,500 and an extra value charge. The first three shipments were from BTL; the latter two were from GP.

The airbills, in small print on their reverse side, incorporate by reference the terms of defendant’s tariff. Defendant argues that these terms limit recovery for a lost shipment of precious metal to $500. Under federal common law as reflected in the Interstate Commerce Act, however, a carrier cannot limit his liability to less than the declared value of the shipment by the inconspicuous incorporation of a tariff provision “unless it is shown that the shipper was specifically aware of it.” Bio-Lab v. Pony Express Courier Corp., 911 F2d 1580, 1583 (11th Cir. 1990). Moreover, this rule that the carrier is liable for the full declared value applies even if, as appears to be the case with one of BTL’s shipments, the carrier fails to charge a higher rate to compensate for its higher risk. See id. at 1584. In this case, it is undisputed that plaintiffs were not specifically aware of the tariff provision defendant relies on; it follows, therefore, that it is not enforceable against them.

Defendant asserts that at least the recovery for the GP shipment for which the declared value box was left empty should be limited, asserting that “[b]y leaving the declared value section . . . blank, [plaintiff] limited its expectation of recovery to an amount [provided on the back of the airbill].” Uniden Corp. of Am. v. Federal Express Corp., 642 FSupp. 263 (M. D. Pa. 1986). However, this assertion is belied by the presence of the special instruction to insure for $6,500 above the empty declared value box, the declared value of $6,500 on the invoice and the payment of an excess value charge, all of which clearly show an understanding on the part of GP that the declared value was $6,500 and a willingness to pay a higher rate to obtain the carrier’s liability for this higher value.

3. Section 17 of the airbill provides that any action brought on a claim must be brought within one year of written notice that the claim is disallowed in full or in part. Defendant argues that it disallowed claims on four of the shipments more than one year (but less than two) before this suit was filed. As discussed in Division 1, however, the enforceability of this contractual limitation is controlled by federal common law as reflected in the Interstate Commerce Act, and the Act states that a carrier may not provide by contract for a period of less than two years from written disallowance of a claim for bringing an action against it. See 49 USCA § 11707 (e). Thus, the airbill provision requiring any action to be brought within a year of written disallowance is unenforceable, and defendant’s argument is without merit.

4. Defendant sent BTL two checks with the following language on the back: “Acceptance and endorsement of this check by the payee acknowledges full settlement and release of all claims against [defendant]. ...” Because BTL accepted the checks, defendant contends it was released from further liability on at least the two claims referenced on the checks. The record clearly shows, however, that BTL did not endorse the checks, as the signature line for endorsement if BTL chose to release defendant was left blank. Consequently, defendant was not released, and this contention is also without merit. The cases cited by defendant for the proposition that an actual endorsement is not required are inapposite because the checks in those cases simply stated that they represented full and complete settlement of a claim and did not have the language requiring endorsement quoted above — language that defendant itself drafted.

5. For these reasons, the trial court properly granted plaintiffs’ motion for summary judgment and denied defendant’s motion for summary judgment with respect to defendant’s liability for compensatory damages for breach of contract, including pre-judgment interest. See OCGA § 7-4-15. Additionally, the trial court did not err in ruling that questions of fact remained for the jury regarding whether an award of attorney fees was warranted. OCGA § 13-6-11 (expenses of litigation may be awarded plaintiff in contract action where defendant has acted in bad faith, has been stubbornly litigious, or has caused plaintiff unnecessary trouble and expense); see also Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80 (390 SE2d 31) (1990) (question of attorney fees under OCGA § 13-6-11 is question for jury). However, there is no evidence of conversion in the record and punitive damages cannot be awarded for breach of contract. See OCGA § 13-6-10. The trial court therefore erred in denying defendant’s motion for summary judgment with respect to punitive damages, and this portion of the trial court’s order must be reversed.

Decided September 27, 1993

Reconsideration denied November 23, 1993

Clark & Clark, Fred S. Clark, for appellant.

Parker, Johnson, Cooke & Dunlevie, Everett W. Gee III, G. William Long, for appellees.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A1188.
    GASTON v. THE STATE.
    (438 SE2d 107)
   Pope, Chief Judge.

Defendant was convicted by a jury of trafficking in cocaine. He appeals following the denial of his motion for new trial.

1. Contrary to defendant’s first and eighth enumerations of error, the evidence adduced at trial was sufficient to authorize a rational trier of fact to find defendant guilty of the crime charged beyond a reasonable doubt.

2. The defendant contends the trial court erred by allowing the prosecutor, over objection, to propound the following question to the jury on voir dire: “Is there any juror who holds the view that drugs should be decriminalized or made legal, either marijuana, cocaine, any drug.”

“ 'In Waters v. State, 248 Ga. 355, 363 (283 SE2d 238) (1981), (the Supreme Court of Georgia) noted that “(v)oir dire should allow both parties an opportunity to ascertain the ability of the prospective jurors to decide the case on its merits, with objectivity and freedom from bias and prior inclination. (Cit.) However, no question should require a response from a juror which might amount to a prejudgment of the case. (Cit.) Since the distinction between questions which ask jurors how they would decide issues of a case if and when such issues are presented and questions which merely inquire whether jurors can start the case without bias or prior inclination is not always crystal clear, the ‘control of the voir dire examination is vested in the sound legal discretion of the trial judge and will not be interfered with by this court unless the record clearly shows an abuse of that discretion.’ (Cits.)” ’ [Cits.] Because our review of the record reveals no manifest abuse of discretion in the case sub judice, we will not on review interfere with the trial court’s decision to allow the State to question potential jurors in the manner described above. Accordingly, this enumeration is without merit.” Kent v. State, 182 Ga. App. 592 (1) (356 SE2d 543) (1987). Accord Kirkland v. State, 206 Ga. App. 27, 28 (4) (424 SE2d 638) (1992).

Decided October 15, 1993

Reconsideration denied November 23, 1993

M. Kirby Wood, for appellant.

Clemmie Gaston, pro se.

John C. Pridgen, District Attorney, for appellee.

3. Contrary to defendant’s next four enumerations of error, the trial court did not err by allowing a GBI agent, who was the primary investigating officer in this case, to testify about certain statements that were made to him or in his presence by the confidential informant who arranged the drug transaction with the defendant inasmuch as these statements were part of the res gestae. See, e.g., Pierre v. State, 189 Ga. App. 364 (1) (375 SE2d 511) (1988). Moreover, any error in the admission of the testimony was harmless, in that it is highly probable it did not contribute to the jury’s verdict. Johnson v. State, 238 Ga. 59, 60-61 (230 SE2d 869) (1976); Chandler v. State, 204 Ga. App. 816, 819 (1) (421 SE2d 288) (1992); Baptiste v. State, 190 Ga. App. 451, 452-453 (1) (379 SE2d 165) (1989).

4. Defendant has failed to support his enumeration of error no. 7 by citation of authority or argument; consequently, it is deemed abandoned on appeal. Court of Appeals Rule 15 (c) (2); Langston v. State, 206 Ga. App. 874, 876 (5) (426 SE2d 609) (1992).

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A1291.
    THE STATE v. KINDBERG.
    (438 SE2d 116)
   Pope, Chief Judge.

Defendant/appellee Michael Kindberg was indicted for “making false statements in notice of candidacy” pursuant to OCGA § 21-2-565. The indictment alleged that Kindberg “in connection with qualifying as a candidate for the Republican Party to run for the office of State Senator for the 56th District of Georgia, . . . knowingly and willfully made a false statement about his being a resident for one year in the district and his eligibility to hold such office.” Kindberg moved to dismiss the indictment on the basis that OCGA § 21-2-565 does not create an independent offense “but rather designates the conduct therein described as False Swearing” and that the indictment failed to allege the essential elements of the crime of false swearing. The trial court granted defendant’s motion, and the State appeals.

The State essentially argues the trial court erred in dismissing the indictment because OCGA § 21-2-565 makes it a crime to make a false statement in connection with filing a notice of candidacy or qualifying as a candidate and the indictment sets out the specific false statement allegedly made. Kindberg, however, argues that since OCGA § 21-2-565 simply defines the offense of false swearing in the context of candidacy for election, the indictment was defective because it did not allege that he filed an affidavit containing statements to which he knowingly swore falsely.

OCGA § 21-2-565 provides: “Any person knowingly making any false statement in connection with filing a notice of candidacy under Code Section 21-2-132 or in connection with qualifying as a candidate for party nomination under Code Section 21-2-153 commits the offense of false swearing.” Section 21-2-153 (e), which governs the procedure for qualifying as a candidate for party nomination, requires each candidate to file an affidavit with the political party at the time of qualifying stating, inter alia, the candidate’s residence and eligibility to hold office.

“ ‘(I)t is an elementary rule of criminal procedure that an indictment should contain a complete description of the offense charged, and that there can be no conviction unless every essential element thereof is both alleged in the indictment and proved by the evidence.’ ” (Citations omitted.) State v. Howell, 194 Ga. App. 594, 595 (391 SE2d 415) (1990). As shown above, OCGA § 21-2-565 contemplates that one who makes a false statement in connection with filing a notice of candidacy or in qualifying as a candidate for party nomination commits the offense of false swearing. A person commits the offense of false swearing generally when he, having either taken a láwful oath or affirmation or executed a document knowing that it purports to be an acknowledgment of a lawful oath or affirmation, knowingly and wilfully makes a false statement. OCGA § 16-10-71; see also Holland v. State, 172 Ga. App. 444, 445 (1) (323 SE2d 632) (1984).

While the indictment did not expressly allege Kindberg had filed an affidavit at the time of his qualifying which stated his residence and eligibility to hold office, it did expressly allege that Kindberg knowingly and wilfully made a false statement about his being a resident for one year in the district and his eligibility to hold office in connection with qualifying as a candidate for the Republican Party to run for the office of State Senator. Since one cannot qualify as a candidate for party nomination other than by filing an affidavit which states, inter alia, one’s residence and eligibility to hold office, the indictment in effect incorporated the affidavit requirement of § 21-2-153 (e). See State v. Howell, supra at 595. Contrary to Kindberg’s assertion, he could not admit the allegation that he knowingly and wilfully made a false statement in connection with qualifying as a candidate and not be guilty of the offense of false swearing in connection with candidacy for election. See State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977).

Decided October 28, 1993

Reconsideration denied November 23, 1993

Lewis R. Slaton, District Attorney, Penny A. Penn, Carl P. Greenberg, Assistant District Attorneys, for appellant.

Guy E. Davis, Jr., for appellee.

“ ‘An indictment substantially in the language of the Code is sufficient in form and substance.’ ” (Citation omitted.) Wages v. State, 165 Ga. App. 587, 588 (2) (302 SE2d 112) (1983). Although the indictment does not track exactly the language of the statute inasmuch as it omits the specific reference to § 21-2-153 (e), the indictment is basically couched in the language of the statute. Although the indictment may not serve as a model of Code pleading, considering the factual allegations and the incorporation by reference to the affidavit requirement, it is clear that Kindberg was sufficiently apprised of the elements of the offense with which he was charged. The fact that the indictment described the offense as making a false statement in connection with notice of candidacy rather than the offense of false swearing in connection with candidacy for election is immaterial; the description and not the name given the criminal act characterizes the offense. See Eubanks, supra at 484. Accordingly, the trial court erred in dismissing the indictment.

Judgment reversed.

Birdsong, P. J.,. and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A1710, A93A1711.
    BOARD OF ZONING ADJUSTMENT OF THE CITY OF ATLANTA v. MURPHY; and vice versa.
    (438 SE2d 134)
   McMurray, Presiding Judge.

Thomas L. Murphy has owned and operated a restaurant in the Virginia-Highland business district of the City of Atlanta for many years. He wanted to move his restaurant to another location in the business district a block away. The new location was occupied by a retail store and required 27 parking spaces under the current Atlanta Zoning Ordinance; but it only had 11 parking spaces. Thus, the premises lacked 16 parking spaces and were non-conforming. However, the premises were legally grandfathered.

The zoning code requires restaurants to have more parking spaces per square foot than retail stores. Murphy’s use of the new location as a restaurant would require 42 parking spaces.

Murphy sought an exception. The Board of Zoning Appeals (“BZA”) granted an exception by allowing for off-site parking at several nearby locations. The exception was granted on the condition that Murphy provide an attendant at one of the off-site parking locations. The attendant was to be on duty every night except Sunday, from 6:00 p.m. to 10:00 p.m. He was to be sure that only Murphy’s customers parked in Murphy’s parking spaces.

Murphy appealed. He argued that inasmuch as the new location was already non-conforming and legally grandfathered to the extent of 16 parking spaces, he was only required to provide a total of 26 parking spaces. He also argued that the BZA lacked the authority to impose a parking attendant requirement condition and that, in any event, the parking attendant requirement was arbitrary and capricious and an abuse of discretion.

The superior court ruled that Murphy could not take advantage of the previous non-conforming off-site parking situation and that, therefore, he was required to provide 42 parking spaces. It also ruled that the BZA did not have the authority to require the presence of a parking attendant and that even if it. did, such a requirement was arbitrary and capricious because there was no evidence that the presence of an attendant would protect the public interest. Accordingly, the superior court struck down the parking attendant requirement. However, the superior court did not remand the case to the BZA, finding that the BZA had already fully considered the parking attendant issue.

The BZA sought and we granted a discretionary appeal. The BZA appeals in Case No. A93A1710. Murphy cross-appeals in Case No. A93A1711. Held:

1. Section 16-25.002 of the Atlanta Zoning Ordinance provides: “In granting special permits, such conditions may be attached as are deemed necessary in the particular case to protect the public interest and surrounding properties.” We agree with the superior court that the record is devoid of evidence as to just how the parking attendant condition would protect the public interest. The superior court did not err in striking down the condition.

Decided November 10, 1993

Reconsideration denied November 23, 1993

Michael V. Coleman, David D. Blum, Robert L. Zoeckler, for appellant.

Ellenberg & Associates, Richard D. Ellenberg, for appellee.

2. Inasmuch as the special exception was granted on condition that Murphy employ a parking attendant, the superior court should remand this case to the BZA. See generally Hames v. Kusmiersky, 166 Ga. App. 730 (305 SE2d 377). After all, the special exception may not have been granted by the BZA if it had known that the parking attendant condition was to be stricken.

3. The superior court properly determined that Murphy is not entitled to take advantage of the previous non-conforming use. As it is said: “Where the use of a building, which is nonconforming because it does not meet offstreet parking requirements, is changed, the new use does not have a right to continued nonconforming use status in relation to offstreet parking.” Anderson, American Law of Zoning 3d, p. 261, § 9.50 (1986).

Judgment affirmed in part and reversed in part and remanded in Case No. A93A1710. Judgment affirmed in Case No. A93A1711.

Johnson and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A93A2247.
    WHITEHEAD v. THE STATE.
    (438 SE2d 128)
   Johnson, Judge.

Roosevelt Whitehead, Jr., was tried and convicted of two counts of sale of cocaine. Having previously pled guilty to a charge of possession of cocaine with intent to distribute in 1988, Whitehead received two concurrent life sentences in prison pursuant to OCGA § 16-13-30 (d).

In his single enumeration of error asserted on appeal, Whitehead claims the trial court erred in denying his motion for new trial. He argues that he received ineffective assistance of counsel, not at trial, but in the advice he was given concerning an offered plea bargain. He asserts that the advice was grossly deficient and misleading, causing him to reject the plea offer based on his understanding that a life sentence was not a possibility in his case. The plea negotiations which preceded trial were as follows: Trial counsel attempted unsuccessfully to persuade the State to merge these two new charges against Whitehead into time remaining on probation in the earlier case. The State then made an offer, placing a sentence of 12 years to serve “cap” in exchange for a guilty plea to the new charges. This offer was communicated to Whitehead and rejected. The issue is whether counsel’s advice to Whitehead that a life sentence was a possibility and not a certainty in the event he was found guilty at trial constitutes ineffective assistance of counsel.

Whitehead relies on Lloyd v. State, 258 Ga. 645 (373 SE2d 1) (1988), for the proposition that a cognizable claim of ineffective assistance of counsel can arise in the plea bargain phase of a case rather than at trial. In Lloyd, counsel failed to communicate an offered plea bargain, the terms of which were more favorable than the results reached after trial. The Supreme Court concluded, “Objective professional standards dictate that a defendant, absent extenuating circumstances, is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him. For counsel to do otherwise amounts to less than reasonably professional assistance.” (Emphasis supplied.) Id. at 648 (2) (a). It is uncontroverted in our case that the offer of a guilty plea, with a 12 years to serve “cap,” was presented to, and rejected by Whitehead. The evidence presented at the motion for new trial hearing with regard to the crucial issue, whether Whitehead was informed that he faced a mandatory life sentence, is conflicting. Whitehead testified at the hearing that counsel had told him he was not a candidate for a life sentence because the previous offense was committed before the mandatory life sentencing provisions of OCGA § 16-13-30 (d) had gone into effect. Whitehead’s trial attorney testified at the hearing that he was aware that a life sentence was a possibility, but that he was willing to argue both to the trial judge and on appeal, if necessary, that the application of the mandatory life sentence in Whitehead’s situation constituted an ex post facto application of the enhanced sentencing provision, violating Whitehead’s constitutional rights. Most salient, however, is that counsel testified that he had informed Whitehead that he was facing a life sentence if he went to trial and was found guilty. “I gave him no guarantees that he was not subject to the life imprisonment provisions. ... I never gave him any assurance that he was not covered by the life sentence statute.”

Decided November 8, 1993

Reconsideration denied November 23, 1993

John O. Cole, for appellant.

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

From the advice given by counsel, Whitehead was informed that the consequences of refusing the State’s offer of a maximum 12-year sentence could be harsher than the consequences of accepting it. He rejected certainty for the uncertainty of a jury trial. The trial court concluded that trial counsel had adequately informed Whitehead of the possible consequences of rejecting the State’s proffered plea. “A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. [Cit.] Here [Whitehead] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. [Cit.]” Gilbert v. State, 208 Ga. App. 258, 263 (4) (430 SE2d 391) (1993). While Whitehead may not have been made aware that a life sentence was mandatory because of confusion concerning whether the earlier conviction was entered before or after the date of the effective statute, he had been told that a life sentence was a possibility when he made the decision to reject the State’s offer and go to trial. We find that counsel’s evaluation of the case and advice to Whitehead fell within the range of professionally reasonable judgments. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); see Cook v. State, 255 Ga. 565, 581 (17) (f) (340 SE2d 843) (1986); Henderson v. State, 192 Ga. App. 750, 753 (2) (386 SE2d 408) (1989). Therefore, the trial court’s finding that Whitehead was not denied effective assistance of counsel is not clearly erroneous, and will not be disturbed.

Judgment affirmed.

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

       This was incorrect. The sentence enhancement statute was enacted prior to Whitehead’s 1988 conviction, it was amended, however, in 1990. The State points out that the ex post facto theory, while without merit, was not too farfetched given that an amendment repealing and replacing subsection (a) without a savings clause, was passed in 1990.


text:
    A93A2366.
    MINOR v. SUPER DISCOUNT MARKETS, INC.
    (438 SE2d 384)
   Birdsong, Presiding Judge.

Edna Minor appeals the grant of summary judgment to defendant Super Discount Markets, Inc. d/b/a Cub Foods in this slip arid fall case. She contends issues of fact remain as to actual and constructive knowledge of the peril by appellee.

Appellant contends she slipped and fell as she was looking at the poultry display, pushing the shopping cart ahead of her. When she tried to get up, she saw a liquid covering the four or five-foot aisle between the chicken cooler and another cooler. The substance appeared to be a coating of water as if the floor had been recently mopped. After she fell, she saw an employee about 15 feet away looking at her and holding a mop in his hand. Appellant contends that appellee’s employee’s presence in the area gives rise to its actual or constructive knowledge of the peril (see Hardin v. Super Discount Market, 205 Ga. App. 646 (423 SE2d 18)), and that she could not see the wet floor because her shopping cart obstructed her vision immediately in front of her and because she was looking at the chicken with the intention of making a purchase. Held:

The grant of summary judgment to appellee is correct. The evidence shows that, according to her own admission, appellant could have seen the large wet area ahead of her if she had been looking where she was going. The shopping cart obscured her vision of the area immediately in front of and under the cart, but the fact remains that she did not look ahead and see the wet area before she pushed her cart so far into it as to obscure her vision of it. She admits she had shopped in the store previously; she was undoubtedly familiar with shopping carts and knew that normal use of a cart obscures the shopper’s view of an area immediately under and in front of the cart. The fact that she was looking at appellee’s merchandise does not relieve her of the duty to look where she was going before she pushed the cart so far into the dangerous area that she could not see the danger. To say otherwise would permit customers to barge heedlessly around a store looking at the merchandise, or looking anywhere but in their paths, with no care for their own safety and the safety of others. This would render the proprietor an insurer of his customers’ safety, which he is not. Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327).

Appellant admitted that she was not looking at the floor ahead; she was looking at the chicken. She did not exercise ordinary care for her own safety. On appellee’s motion for summary judgment (see Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)), even assuming appellee had knowledge of the peril, it was appellant’s burden to come forward with specific evidence that appellee’s knowledge of the peril was superior, for that is the true ground of the proprietor’s liability. When the perilous condition is known to the proprietor and not known to the person injured, a recovery is permitted (Westbrook v. M & M Supermarkets, 203 Ga. App. 345 (1) (416 SE2d 857)), but the person injured is not excused from the duty to exercise ordinary care for her own safety. Not only must she show that the defendant had knowledge of the peril, she must show that she was without knowledge of its presence; she must exercise ordinary care for her own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to her or in the exercise of ordinary care she should have learned of it. She must make use of all her senses in a reasonable measure to discover and avoid those things that might cause hurt to her. Alterman Foods, supra at 623. 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.

Decided November 4, 1993

Reconsideration denied November 23, 1993

Morris L. Richman, for appellant.

Drew, Eckl & Farnham, G. Randall Moody, Jennifer D. Welch, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Cooper, Judge.

text:
    A93A0983.
    BECK v. THE STATE.
    (438 SE2d 391)
   Cooper, Judge.

Appellant was convicted by a jury of aggravated assault and appeals from the judgment of conviction and sentence entered on the jury verdict.

The evidence stated in the light most favorable to upholding the jury’s verdict shows that appellant and his wife were in the process of getting a divorce in May 1991. Appellant and his wife agreed to an exchange of certain personal property located in a storage unit, and appellant arranged to meet his wife and take her to the storage unit to pick up some items. On the day appellant was to meet his wife, appellant and his friend Kenny Spalding drove from Brunswick, Georgia to Florida to buy some beer and drank a six-pack on the way back. When they arrived at appellant’s wife’s house, she was not at home so appellant and Spalding drove around the corner to the victim’s house to look for appellant’s wife. The victim lived with his girl friend and her son, Billy Hutto. The victim came out of the house to see what appellant wanted, and appellant said that he was looking for his wife. When the victim told appellant that his wife was not there, Spalding got out of the passenger side of the car and confronted the victim. After Spalding called the victim an obscene name, the victim slapped Spalding across the face. Spalding got back in the truck, and appellant and Spalding drove away but immediately returned to the victim’s house. Appellant got out of the truck and walked across the victim’s yard cursing at the victim. When appellant got closer, the victim lightly shoved appellant away and told him to leave. Appellant then took out a box-cutter, and the victim backed away from appellant. The victim tripped over a cross-tie and fell on his back, and appellant attacked the victim, slashing his face with the box-cutter. Appellant continued his attack on the victim until Hutto hit appellant in the back with a steel pipe. Spalding and appellant left, and when the police interviewed appellant several days later, appellant gave a statement indicating he had been attacked by the victim and Hutto and that he used his box-cutter to get away from the two men. Appellant was arrested in June 1991 and charged with aggravated assault. Appellant testified at trial that the victim and Hutto attacked him, that he was afraid for his life because Hutto hit him with a steel pipe and that he used the box-cutter to fend off the attack.

1. In his first enumeration of error, appellant contends that the trial court erred in refusing to allow his mother and his wife to testify about alleged threats made by his wife against appellant. Appellant made an offer of proof outside the presence of the jury during which his wife and mother testified. Appellant’s wife testified and denied making any threats against appellant. Consequently, we find no error in the trial court’s exclusion of her testimony.

Appellant’s mother testified during the offer of proof about a telephone conversation she had with appellant’s wife shortly before May 19, during which appellant’s wife threatened to do serious harm to appellant. Appellant’s mother also testified that appellant’s wife said she had friends who could take care of the problem, although she did not specifically mention the victim. Also, appellant’s mother did not state whether she told appellant about this alleged threat before the altercation with the victim. Appellant contends that his mother’s testimony was relevant to show his state of mind toward the victim and to support his defense of justification. “[E]vidence regarding a justification defense should be based solely upon the circumstances which occur between a defendant and the victim.” (Citations and punctuation omitted.) Watson v. State, 206 Ga. App. 95, 97 (5) (424 SE2d 360) (1992). The mother’s testimony referred only to prior threats made by appellant’s wife and not to any specific threat made by the victim. Thus, the testimony was too remote and had no probative value on the real question at issue, which was whether appellant had reason to believe that the victim was going to do him harm. See Haynes v. State, 134 Ga. App. 588, 589 (2) (215 SE2d 342) (1975). Moreover, appellant testified that he was aware that his wife had made threats to either harm him or have her friends harm him. Accordingly, we find no error with the trial court’s ruling excluding the testimony of appellant’s mother.

2. Appellant also argues that the trial court erred in failing to declare his wife a hostile witness. During the offer of proof, the trial judge did not allow appellant’s counsel to ask leading questions without a showing that appellant’s wife was a hostile witness. The transcript reflects that appellant’s counsel abandoned his attempt to make such a showing, and the trial court never ruled on his request that appellant’s wife be declared a hostile witness. Therefore, this enumeration presents nothing for our review. McGee v. State, 205 Ga. App. 722 (5) (423 SE2d 666) (1992).

3. Appellant contends that the trial court erred in its charge and recharge to the jury.

(a) Appellant first argues that the trial court erred in charging the jury on defense of property. The charge was marginally related to the victim’s actions in pushing appellant away when appellant advanced onto the victim’s property. “Where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue.” (Citations and punctuation omitted.) Shields v. State, 202 Ga. App. 659, 661 (3) (415 SE2d 478) (1992).

(b) Appellant also argues that the trial court erred in failing to charge the jury that justification included the right to defend against a forcible felony and in failing to define forcible felony. We have reviewed the trial court’s entire charge and conclude that the trial judge adequately charged the jury on the principles related to self-defense and justification. “Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.” (Citations and punctuation omitted.) Griffin v. State, 199 Ga. App. 646, 648 (3b) (405 SE2d 877) (1991); see also Riner v. State, 147 Ga. App. 707 (1) (250 SE2d 161) (1978).

(c) Appellant argues that the trial court erred in not charging the jury on voluntary intoxication as a defense. In support of his argument, appellant points to evidence in the record that when the investigating officer attempted to take a statement from appellant following the incident, he was unable to obtain a clear statement from appellant. Appellant testified that although he had been drinking, his judgment was not affected. We find that the evidence did not warrant a charge on voluntary intoxication. Furthermore, we note that the trial judge charged the jury on intent, including the State’s burden to prove intent beyond a reasonable doubt. Consequently, the trial court did not err in failing to give the additional charge on voluntary intoxication. See Foster v. State, 258 Ga. 736 (10) (374 SE2d 188) (1988).

(d) Appellant takes issue with the specific recharge given to the jury. The record reflects that the jury requested a recharge on the definitions of aggravated assault and simple assault and the trial court, in discussing what constitutes a deadly weapon, charged that while an object such as a box-cutter is not a deadly weapon per se, it could be a deadly weapon depending on the manner in which it is used. The trial court also charged that whether an object constituted a deadly weapon in making the assault on the victim is a matter to be determined by the jury. Appellant argues that the trial court should not have used the word box-cutter since the evidence showed that the pipe used by Hutto could also have been a deadly weapon; he also contends that the trial court should not have used the word “victim” since appellant was also a victim. “It is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required.” (Citations and punctuation omitted.) Brantley v. State, 199 Ga. App. 623, 626 (9) (405 SE2d 533) (1991). We conclude that there was no error in the charge because the charge as a whole was not likely to confuse the jury.

Decided November 23, 1993.

James A. Yancey, Jr., for appellant.

Glenn Thomas, Jr., District Attorney, Kevin R. Gough, Assistant District Attorney, for appellee.

(e) Finally, appellant contends that the trial court erred in charging the jury in the “moral and reasonable certainty” language disapproved by the Supreme Court of Georgia in Vance v. State, 262 Ga. 236 (416 SE2d 516) (1992). When considered in the context of the entire charge, we find that the court’s use of the words “moral and reasonable certainty” creates no reversible error. See id. at 238; but see McDonald v. State, 210 Ga. App. 689 (436 SE2d 811) (1993).

4. Appellant’s argument that the trial court erred in admitting photographs depicting the victim’s injuries is without merit. See Allen v. State, 262 Ga. 649 (4) (424 SE2d 1) (1993).

5. We also find no merit to appellant’s contention that the trial court should have granted a mistrial on the grounds that the prosecutor made an improper closing argument when he commented that certain photographs admitted into evidence may have been taken a week after the incident. There was no evidence presented as to when the photographs at issue were taken. Therefore, “[t]he argument merely involved the prosecutor drawing a reasonable inference from the evidence. [Cit.]” Johnson v. State, 258 Ga. 856, 858 (6) (376 SE2d 356) (1989).

6. Contrary to appellant’s contention in his final enumeration of error, the evidence was sufficient for a rational trier of fact to find appellant guilty of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A1082.
    THE STATE v. ROE.
    (438 SE2d 186)
   Beasley, Presiding Judge.

The State appeals as permitted by OCGA § 5-7-1 (4) from an order granting defendant’s motion to suppress. He is charged with being a habitual violator of motor vehicle laws. OCGA § 40-5-58 (c).

1. Because there was no physical evidence sought to be introduced, defendant’s motion is more accurately denominated a motion in limine to exclude the officer’s testimony based on the alleged constitutional violation. Substance, not title, controls. Goswick v. State, 150 Ga. App. 279, 280 (1) (257 SE2d 303) (1979). The trial court properly reached the merits by treating the motion as one in limine. See generally State v. Johnston, 249 Ga. 413 (3) (291 SE2d 543) (1982), and Smith v. State, 185 Ga. App. 531 (2) (364 SE2d 907) (1988), where motions to suppress intoximeter test results were treated in this manner.

As to the right of appeal under OCGA § 5-7-1 (4), “if a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion — whatever its name — is subject to direct appeal on the part of the state.” State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864) (1984). See also State v. McKenna, 199 Ga. App. 206 (404 SE2d 278) (1991).

2. The question is whether the officer legitimately discovered the incriminating evidence. It stemmed from a stop of the driver-defendant and an inquiry for identification and an explanation for defendant’s presence.

The sole witness at the suppression hearing was a police officer who stopped defendant’s car and, based on information obtained from him and checked, arrested him for driving as a habitual violator. Defendant contended that the stop violated his Fourth Amendment rights against unreasonable seizure. He did not raise the state constitution as a shield, so there was no ruling on what could have been an independent state ground. See Hayes v. State, 202 Ga. App. 204, 207 (414 SE2d 321) (1991) (Beasley, J., concurring specially); Taylor v. State, 177 Ga. App. 624, 627 (3) (340 SE2d 263) (1986).

The evidence is undisputed that the officer stopped Roe to investigate. She was suspicious that he might have burglary in mind, because of his actions and because of recent burglaries in the vicinity. She thought that the other possibilities were that he was lost and needed direction or just could not find the house he was looking for.

Decided November 23, 1993.

Britt R. Priddy, District Attorney, Francis D. Hand, Jr., Assistant District Attorney, for appellant.

The trial court applied the wrong standard in deciding the issue. The court twice stated, in ruling, that it thought the officer acted properly in stopping defendant, but that the evidence was inadmissible on the charge of driving as a habitual violator because such a charge was not related to the purpose of the stop. This is an error of law. See, e.g., Mays v. State, 190 Ga. App. 390 (378 SE2d 145) (1989), where the driver was stopped for driving under the influence and the driver was prosecuted also for being a habitual violator, an offense which came to the attention of the officer after the stop. See also Baker v. State, 257 Ga. 567 (361 SE2d 808) (1987), where defendant was stopped for driving with no taillights and was charged also with being a habitual violator; and Ragan v. State, 191 Ga. App. 374, 375 (2) (381 SE2d 589) (1989).

The “right for any reason” rule does not apply when the court “ ‘acts upon an erroneous legal premise.’ ” Plant v. Trust Co. of Columbus, 164 Ga. App. 387, 388 (297 SE2d 37) (1982); Smith v. Andrews, 139 Ga. App. 380 (228 SE2d 320) (1976). See also All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 233-234 (2) (387 SE2d 429) (1989).

Furthermore, given only a cold transcript, we cannot hold as a matter of law that the stop was invalid and so uphold the ruling on that basis. The case must be remanded for the court to rule on the reasonableness of the stop (seizure). The trial court is the finder of fact on motions to suppress evidence. OCGA § 17-5-30 (b); Williams v. State, 204 Ga. App. 372, 374 (419 SE2d 351) (1992). It, rather than we, must judge the credibility of the witnesses and the weight of the evidence. Williams v. State, 256 Ga. 609, 610 (1) (351 SE2d 454) (1987). See also Duckett v. State, 206 Ga. App. 651 (426 SE2d 271) (1992), where we remanded to the trial court “as the finder of fact . . . [to] make the credibility decision it avoided earlier based on an erroneous belief regarding what the law requires.” Id. at 653.

Judgment reversed and case remanded with direction.

Cooper and Smith, JJ., concur.

Jones & Jones, L. Earl Jones, Stefanie 0. Jones, for appellee.

       On the use and development of independent state constitutional grounds, see especially Robert P. Williams, State Constitutional Law: Cases and Materials, 2d ed., The Michie Co., Charlottesville, Virginia (1993).