author: Blackburn, Judge.

text:
    A98A0665.
    SIMONDS v. THE STATE.
    (499 SE2d 744)
   Blackburn, Judge.

Charles Scott Simonds appeals his conviction on two counts of attempted kidnapping, contesting the sufficiency of the evidence. He also contends that the trial court erred in allowing evidence of a pretrial identification and in refusing to allow him to undergo a post-trial polygraph examination.

1. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.” (Punctuation omitted.) Jessup v. State, 224 Ga. App. 176, 177 (480 SE2d 232) (1996).

Adam Privett, who was six years old at the time of trial, testified that he was playing in the road near his house with a friend, John Riddle. He testified that a man drove up in a car and asked them if they wanted to get in and go racing. Privett said the man told them that, if they got in the car, he would take them to his house and give them candy and toys. When the children said no and backed away, the man drove off. The man returned shortly thereafter and again asked the children if they wanted to get in the car. Again the children said no, and the man drove off. Privett testified that the car was white with a burgundy top and stars on the hubcap. He said that the man was wearing jeans, a white shirt, and a black toboggan hat.

Privett testified that, after the incident, he picked Simonds’ picture out of a group of photographs shown to him by Detective Lawrence Moseley. He also testified that Moseley showed him a car, and that he identified it as the car the man was driving. However, when Privett was asked if he saw, in the courtroom, the man who had approached him, he said that he did not.

John Riddle, who was seven years old at the time of trial, testified that he was playing with Privett when the man drove up. Riddle was on the passenger side of the car and heard the driver tell Privett to get into the car. The man drove away, but came back a second time. Riddle testified that when the car came back, he and Privett went and hid in the barn near Privett’s house. Riddle also testified that the car had a “bent” section on the passenger side.

Detective Moseley of the Jesup Police Department testified that Simonds had been arrested for driving a stolen car, and that the car matched the description of the vehicle given by Privett and Riddle. When the car was recovered, the center piece of one of its hubcaps was missing, and there was a dent on the passenger side door. The car did not have a license plate, but there was a temporary tag in the rear window. Privett and Riddle were brought to the station to look at a photographic lineup. Privett identified Simonds’ photograph as the man who had approached him in the car. The next day, Moseley showed Privett the car that Simonds had been driving when he was arrested, and Privett identified it as the car the man was driving. Moseley testified that Riddle was unable to identify Simonds in a photographic lineup or to identify the car.

Moseley testified that Simonds told him he did not own a toboggan cap. However, two other witnesses testified that they had seen Simonds wearing a dark ski or toboggan cap near the time of the incident.

Tammy Lynn, a neighbor of the Privetts, testified that she had seen a white and burgundy car driving very slowly along the road the day of the incident. She said the car drove by ten or eleven times in a forty-five minute period. The driver was wearing a white shirt and a black knit hat. She testified that one of the car’s hubcap plates was missing. She started to write down the tag number, and noticed that the tag was inside the car’s rear window. She was later shown Simonds’ car by Detective Moseley, and identified it as the car she saw.

Although largely circumstantial, this evidence was sufficient to authorize the jury to find Simonds guilty beyond a reasonable doubt of the offense of attempted kidnapping. Jackson v. Virginia, supra.

2. Simonds contends the trial court erred in allowing testimony regarding Privett’s pre-trial identification of Simonds at the photographic lineup. Although he cites no authority in support of this enumeration, he argues that the circumstances surrounding the procedure were suspicious.

We have previously held that “[cjonvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Punctuation omitted.) Futch v. State, 192 Ga. App. 345, 346 (385 SE2d 18) (1989). In this case, Privett was not able to identify Simonds at trial, but Detective Moseley testified that Privett had picked Simonds’ picture out of the photographic lineup. Although Simonds does not contend that such testimony amounted to hearsay, we note that “[a] law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection.” (Punctuation omitted.) Woodard v. State, 175 Ga. App. 449, 450 (3) (333 SE2d 645) (1985).

Decided March 13, 1998

Reconsideration dismissed March 27, 1998.

Jerry W. Caldwell, for appellant.

Charles S. Simonds, pro se.

Stephen D. Kelley, District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

Contrary to Simonds’ contention, the photographic lineup was not impermissibly suggestive. Detective Moseley testified that he showed Privett pictures of six different individuals, and that Privett selected Simonds’ picture as the man who had approached him. Although Simonds contends that Moseley then told Privett that he had selected the right man, Moseley denied that he had made such a statement, testifying that he merely told Privett he had done a good job and that he was proud of him. Even if Moseley had made such a statement, it could not have influenced Privett’s identification, since he had already selected Simonds’ picture and did not make a subsequent in-court identification. Therefore, the court did not err in allowing testimony regarding Privett’s pre-trial identification of Simonds.

3. Simonds contends the trial court erred in refusing to allow him to undergo a post-trial polygraph examination in connection with his motion for new trial. However, he has cited no authority for the proposition that a defendant is entitled to such an examination.

Judgment affirmed.

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


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A98A0141.
    SINGLETON v. THE STATE.
    (500 SE2d 411)
   Johnson, Judge.

A jury found Ricky Angelo Singleton guilty of two counts of theft by shoplifting. He appeals the convictions entered on the jury’s verdict. We affirm.

1. In his first enumeration of error, Singleton contends the evidence was insufficient to support the jury’s verdict. We disagree.

On appeal, the evidence is construed in the light most favorable to uphold the jury’s verdict, and this Court does not weigh the evidence or determine witness credibility. Winn v. State, 215 Ga. App. 120 (1) (449 SE2d 667) (1994). We only determine the sufficiency of the evidence. Id. So viewed, the evidence shows that on June 10, 1994, an employee of Montgomery Ward saw Singleton in the store and called security because he looked suspicious. The security officer saw Singleton pick up a tape player and walk toward the door. When Singleton got outside the store, the security officer detained him. The employee testified that the price of the tape player was $180 and that Singleton did not approach the counter to purchase it. She identified Singleton at trial. Singleton testified that he bought the tape player at a flea market and took it to Montgomery Ward to exchange it.

On July 29, 1994, Singleton was arrested outside the same store with a vacuum cleaner for which he had not paid and which had a value greater than $100. According to Singleton, he had taken an empty vacuum cleaner box to the store for the purpose of gathering evidence for a class-action suit against Montgomery Ward, and the box he was caught with was empty. He did not explain how he came into possession of the vacuum cleaner. Security videotapes showing the removal of both the tape player and the vacuum cleaner from the store were introduced into evidence.

“A person commits the offense of theft by shoplifting when he . . ., with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession therefor or of the value thereof, in whole or in part, . . . [c]onceals or takes possession of the goods or merchandise of any store or retail establishment.” OCGA § 16-8-14 (a) (1). The evidence was sufficient for a rational trier of fact to find Singleton guilty beyond a reasonable doubt of two counts of shoplifting. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Winn, supra.

2. In his second and third enumerations of error, Singleton contends the trial court erred in admitting into evidence a statement he made to store security personnel. After the July 29, 1994 incident, Singleton was taken to the loss prevention office at Montgomery Ward. The Montgomery Ward loss prevention and safety manager saw Singleton in the office and stated, “I know you . . . [h]ave I picked you up before,” to which Singleton responded, “no ma’am. I — you have not.” Singleton contends this statement should have been excluded from evidence since there was no testimony he had been given his Miranda warnings at the time he made the statement. We disagree.

The requirement that Miranda warnings be given as an incident of custodial interrogation does not apply to questioning undertaken by private citizens. Glean v. State, 197 Ga. App. 34, 35 (4) (397 SE2d 459) (1990); Carnes v. State, 115 Ga. App. 387, 391 (4) (154 SE2d 781) (1967). Since the Montgomery Ward employee was not a law enforcement officer, she was not required to inform Singleton of his Miranda rights before questioning him. These enumerations lack merit.

3. In his final enumeration of error, Singleton maintains the trial court erred in refusing to allow him to replay the surveillance videotapes during his closing argument.

Decided March 27, 1998.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

The trial court has broad discretion in controlling the argument of counsel and, unless it clearly appears that the court has abused this discretion and that such abuse has resulted in harm or prejudice to the opposing party, this Court will not undertake to control the exercise of such discretion. Ga. Power Co. v. Walker, 101 Ga. App. 454, 456 (1) (114 SE2d 159) (1960). See also Bonilla v. State, 204 Ga. App. 424 (1) (419 SE2d 495) (1992) (physical precedent only). Singleton has failed to show that any harm or prejudice resulted from his inability to replay the tapes.

Contrary to Singleton’s argument, Hodges v. State, 194 Ga. App. 837, 838 (3) (392 SE2d 262) (1990), and Ramsey v. State, 165 Ga. App. 854, 859 (7) (303 SE2d 32) (1983), do not require a different result. In those cases, we upheld the trial court’s exercise of its discretion in permitting during closing argument the use of a videotape and the re-reading of a transcript that were both previously admitted into evidence. However, the trial court also has the discretion to prohibit the use of such exhibits during closing argument.

The present case was tried in a single day, and the state only presented four witnesses. It was within the trial court’s discretion to conclude that the jury would be able to recall the videotapes sufficiently during Singleton’s closing argument and that Singleton could effectively argue reasonable deductions from the tapes without replaying them before the jury. Furthermore, Singleton was not prohibited from making reference to the tapes during his closing argument. Based on these circumstances, the trial court did not clearly abuse its discretion in refusing to allow Singleton to replay the videotapes.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A97A2229.
    THE STATE v. GOBLE.
    (500 SE2d 35)
   Smith, Judge.

Following a mistrial on rape-related charges and acquittal on other charges arising out of the same incident, appellee Steven Lee Goble was re-indicted. The State added three sodomy-related counts to the re-indictment of the rape offenses. Based upon OCGA § 16-1-7 (b), which requires a single prosecution for all known crimes arising from the same conduct, Goble filed a plea in bar of double jeopardy as to the sodomy charges. The trial court granted the plea in bar. The State appeals, claiming lack of prior knowledge of the sodomy offenses. Because Goble failed to show affirmatively that the State had actual knowledge of an act of sodomy prior to the first trial, we reverse.

Because of the issue raised, this appeal necessarily entails a detailed review of sexually graphic testimony and evidence. Goble, a former DeKalb County Police Officer, was originally charged with rape, sexual assault of a person in custody, two counts of violating his oath of office through the commission of the above felonies, and three counts of burglary, with each of the above felonies underlying the burglary charges. While on duty, Goble detained and then escorted an intoxicated woman home after her companion was arrested by Goble’s partner for DUI. After arriving at her home, he allegedly assaulted her sexually.

Goble was tried by a jury. The State introduced evidence of an assault on the complainant, as well as testimony from the complainant that Goble committed forcible, vaginal rape on her. The complainant testified that Goble ejaculated in her face, but she never testified to any act of sodomy. The State also produced expert testimony regarding DNA that was retrieved from a semen smear on the complainant’s face; DNA analysis identified the semen as Goble’s with a probability ratio of five million to one.

Goble testified in his own behalf at trial. His defense was that of consensual sex. In addition, Goble testified that the complainant twice performed consensual, oral sodomy on him. He explained the presence of semen on the complainant’s face by testifying that, after consensual, vaginal intercourse, the complainant “got back onto her knees and was sucking me until I ejaculated.”

The jury acquitted on the three counts relating to the sexual assault of a person in custody. The jury was unable to reach a verdict on the remaining rape-related counts. A mistrial was declared.

The State re-indicted Goble on the rape charges and, based upon his trial testimony, added three sodomy-related counts to the re-indictment: sodomy; burglary, with sodomy as the underlying felony; and violation of oath of office, with sodomy as the underlying felony.

The defense filed a plea in bar to the added counts. The defense claimed that prosecution on those counts was barred because the State knew that an act of sodomy had been committed prior to the commencement of the first prosecution. OCGA § 16-1-7 (b). In support of the plea in bar, the defense pointed to the State’s pre-trial possession of Goble’s statement made during a DeKalb Police Internal Affairs investigation. In this statement, Goble described how he and the complainant had engaged in consensual, vaginal intercourse, but failed to mention either of the two acts of oral sodomy about which he testified during trial. The statement did contain the following colloquy, which occurred during the course of questioning about the episode of vaginal intercourse: “[Q:] Where did you ejaculate? [A:] Ah, outside of her. [Q:] Where at, on her? [A:] Not on her. [Q:] Wfiiere at? [A:] She licked it off.” This last answer, Goble argued, was sufficient to demonstrate the State’s knowledge that an act of oral sodomy had occurred.

In response to Goble’s motion, the State maintained it was unaware of any acts of oral sodomy until Goble’s admission in judicio during the first trial. The State pointed out that the complainant consistently denied that an act of oral sodomy occurred; that in the internal affairs statement Goble did not say he put his penis into the complainant’s mouth, as he did at trial; and that the State could not reasonably be expected to prosecute for oral sodomy based on the statement, “she licked it off,” without any indication of what or where “it” was.

The trial court granted Goble’s plea in bar, finding that the internal affairs statement as cited above “was sufficient to put the State on notice as to conduct by the Defendant which constituted sodomy as defined under the criminal laws of Georgia.” We disagree and reverse.

In order to prevent harassment through multiple prosecutions and to ensure judicial finality, if “several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.” OCGA § 16-1-7 (b).

In determining what is “known” by a prosecutor, the appellate courts of this State have adopted the late Justice Weltner’s approach in his concurrence in McCannon v. State, 252 Ga. 515 (315 SE2d 413) (1984): “Properly construed, the statute [OCGA § 16-1-7 (b)] should apply only to such crimes which are actually known to the prosecuting officer actually handling the proceedings. . . . This would obviate the possibility of a miscarriage of justice in cases where the commission of other crimes arising from the same conduct may not be within the actual knowledge of the prosecuting officer actually handling the prosecution.” Id. at 519; Baker v. State, 257 Ga. 567, 568 (361 SE2d 808) (1987). Moreover, the burden is on the defendant to affirmatively show that the prosecuting officer had actual knowledge of the crime allegedly subject to a plea in bar under the statute. Hayles v. State, 188 Ga. App. 281 (2) (372 SE2d 668) (1988).

Here, it is undisputed that the acts of sodomy arose from the same conduct, in the same jurisdiction, as the other alleged offenses. Accordingly, the issue is whether Goble’s internal affairs statement is sufficient to show affirmatively that the prosecuting officer had actual knowledge prior to trial that an act of sodomy had been committed, and thus to bar subsequent prosecution for that act. Based upon the record before us, we find that it is not.

Nothing in the record demonstrates the prosecutor’s actual knowledge — prior to trial — that an act of sodomy occurred during the alleged assault on the complainant. In and of itself, the internal affairs statement that “she licked it off” is ambiguous, especially in the context in which it was given. Moreover, this statement does not necessarily conflict with the complainant’s allegation that Goble ejaculated in her face, so as to raise an inference that some other act was being referenced.

Goble makes several arguments in support of his contention that the prosecution had actual knowledge. First, he argues that “surely [the prosecutor] must have wondered, where is the semen,” based upon the internal affairs statement and the fact that “only a neat little spot” was found on the complainant’s face. Second, he asserts that the prosecutor admitted at the first trial that “oral sex” had occurred. Finally, he contends that from the State’s “enormous power to investigate and follow up on such information as provided from the internal affairs statement,” the prosecutor should have known about the acts of sodomy. We are unpersuaded by either of these arguments. What the prosecutor “surely wondered” or “should have known” from the small amount of semen found on the complainant’s face does not meet an affirmative burden to demonstrate actual knowledge, particularly since the complainant explained that she had wiped off her face. The prosecutor’s comment during trial, “Other than that, he doesn’t mention anything about oral sex in the statement,” was made after Goble testified on direct to two acts of oral sodomy. At the time, the prosecutor was attempting to introduce Goble’s internal affairs statement for impeachment purposes, arguing that it was inconsistent with Goble’s testimony on direct examination that sodomy occurred. This remark by the prosecutor does not rise to the level of actual knowledge before trial that sodomy was committed. This is especially true in light of the complainant’s repeated denials to investigators that an act of sodomy occurred and the prosecutor’s inability to question a criminal defendant regarding a single, ambiguous statement that contradicted the complainant’s account of the incident.

Decided March 16, 1998

Reconsideration denied March 30, 1998

J. Tom Morgan, District Attorney, Elisabeth G. Macnamara, Assistant District Attorney, for appellant.

Mackinson & Katz, Gail A. Mackinson, for appellee.

The appellate standard of review of a grant of a plea in bar of double jeopardy is whether the trial court’s findings support its conclusion that the bar should be applied. State v. D’Auria, 222 Ga. App. 615, 616 (475 SE2d 678) (1996). Reviewing the record as a whole, we find that Goble’s single, ambiguous comment in the internal affairs statement was insufficient as a matter of law to affirmatively demonstrate the prosecutor’s actual knowledge prior to trial that an act of sodomy had occurred during the alleged assault on the complainant. Accordingly, the prosecutorial bar created by OCGA § 16-1-7 (b) does not apply. We reverse the ruling of the trial court and remand this case for further proceedings not inconsistent with the holding herein.

Judgment reversed and case remanded.

McMurray, P. J., and Beasley, J., concur.

       The trial court refused to admit the internal affairs statement for any purpose.


author: Judge Harold R. Banke.

text:
    A98A0143.
    FOUNTAIN v. THE STATE.
    (500 SE2d 614)
   Judge Harold R. Banke.

Lonnie Fountain was convicted of possession of methamphetamine. The sole error enumerated on appeal alleges ineffective assistance of counsel.

This case arose as Fountain met his ex-wife in a gas station parking lot to deliver child support. A deputy saw him, inquired as to his identity, radioed that information to a dispatcher, and learned of an outstanding warrant for Fountain’s arrest for violating a temporary restraining order. The deputy arrested Fountain and transported him to the jail, where he was searched. Three baggies of methamphetamine were discovered on his person.

At trial, Fountain’s counsel began his direct examination by asking Fountain how he got involved with Pickens County. Fountain testified that five years before, he had been arrested on a drug charge and was in fact guilty. Fountain then explained that as a condition of his probation he covertly began assisting with drug interdiction in Pickens County, making several buys. Fountain’s defense was that he had purchased the methamphetamine to assist law enforcement authorities. Held:

Decided March 30, 1998.

Gregory A. Hicks, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

Fountain argues that his trial counsel’s decision to introduce evidence of his criminal record constituted ineffective assistance. We disagree.

To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and but for the deficiency there was a reasonable probability the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). Review of counsel’s performance, however, must be highly deferential. Rogers v. State, 195 Ga. App. 446, 448 (2) (394 SE2d 116) (1990). Tactical errors do not constitute ineffective assistance. Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790) (1994).

The trial court’s conclusion that counsel’s decision to elicit Fountain’s criminal history was tactical is not clearly erroneous. Wingfield v. State, 226 Ga. App. 448, 450 (4) (486 SE2d 676) (1997). Fountain bore the burden of presenting evidence establishing his trial counsel’s ineffectiveness. Lowery v. State, 212 Ga. App. 870, 871 (443 SE2d 304) (1994). His failure to secure trial counsel as a witness at the motion for new trial hearing authorized the trial court’s conclusion, particularly when the record shows that counsel used Fountain’s prior conviction as an explanation for his sole defense that he obtained the contraband to aid the State. Id. Further, the evidence was sufficiently overwhelming to prevent Fountain from showing prejudice.

Judgment affirmed.

Birdsong, R J., and Johnson, J., concur.


text:
    A98A0210.
    CASEY v. THE STATE.
    (500 SE2d 613)
   Judge Harold R. Banke.

Leo Casey was convicted of child molestation. In his sole enumeration of error, he challenges the sufficiency of the evidence of venue.

This case arose after Casey moved in with the victim’s mother, ostensibly to protect her from her ex-husband. The victim, a 14-year-old intellectually disabled girl, testified that while she, her mother, her brother, and Casey were living in a house by a church, Casey touched her private areas on her top and bottom and had sex with her more than once. She also testified that Casey threatened to kill her family and kidnap her if she told anyone. The victim conveyed her claims of sexual abuse to an investigator for the Department of Family & Children Services, her school psychologist, a police officer, and her physician, each of whom testified at trial. Held:

Generally, criminal cases must be tried in the county in which the crime occurred. Nihart v. State, 227 Ga. App. 272, 278 (2) (488 SE2d 740) (1997). Casey maintains that the evidence was insufficient to establish venue because the victim gave conflicting testimony on when the offense occurred. The victim, who had the mental age of a seven-and-a-half-year-old, claimed the offense occurred while she lived in a house by a church located in the county where the trial was held. Although she told her doctor she had sex with Casey six to eight months prior to her April 1996 exam, Casey and her family moved from that house to Florida before that time.

The indictment alleged that the crime occurred between April 15,1995 and July 31,1995. According to the investigating officer, the move occurred in July 1995. The victim’s mother testified that Casey came to live with her in the house just down from the church in May or June 1995 and she married Casey in August 1995, after the move to Florida. She further testified that she awoke one night at that house to find the nude Casey and her daughter in bed with her, apparently engaged in foreplay. This evidence is sufficient to create a jury question on the venue issue, notwithstanding the doctor’s testimony about the victim’s statement on when the crime occurred. See McNeese v. State, 170 Ga. App. 118 (1) (316 SE2d 564) (1984) (venue is a jury question). The jury was entitled to make allowances for the victim’s intellectual deficiency in relation to her statements to the doctor. See Campbell v. State, 223 Ga. App. 484 (1) (477 SE2d 905) (1996); see also Rich v. State, 207 Ga. App. 343, 345 (427 SE2d 796) (1993). Thus, we must conclude that the evidence, viewed in the light most favorable to the verdict, was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime occurred in the county where Casey was indicted. DeVine v. State, 229 Ga. App. 346, 349 (1) (494 SE2d 87) (1997) (at criminal trial, when evidence of venue is conflicting, it must be proved beyond a reasonable doubt); see Hall v. State, 226 Ga. App. 298 (1) (485 SE2d 800) (1997).

Judgment affirmed.

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

Decided March 30, 1998.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, for appellee.


author: Eldridge, Judge.

text:
    A98A0339.
    McCOY v. THE STATE.
    (500 SE2d 611)
   Eldridge, Judge.

Bruce McCoy appeals a Ben Hill County jury’s verdict finding him guilty of violating the Georgia Controlled Substances Act, OCGA § 16-13-31 (a) (1), trafficking in cocaine. We affirm.

1. In his first four enumerations of error, appellant challenges the sufficiency of the evidence introduced against him. Viewed in a light most favorable to the verdict, the evidence shows that drug investigators from the Ben Hill County Sheriff’s Office were provided with information from a reliable informant that placed the officers on the lookout for a green Ford rental car being driven by a man named Kelvin Wright. The officers spotted a car matching the given description and followed it into the Uptown Motel parking lot in Fitzgerald, Georgia. As the officers approached the vehicle, it took off from the parking lot. The officers gave chase, following the green Ford in a circuitous route that went past the old Third Ward School on Sheridan Street. The car finally stopped close by the Uptown Motel, where the chase had begun. Kelvin Wright was driving the car, William Holt was in the front passenger’s seat, and appellant Bruce McCoy was sitting alone in the back seat directly behind Wright.

Based upon the information provided by the informant and upon the newly casual attitude of the occupants of the car, the officers retraced the route the chase had taken; they found four plastic bags of crack cocaine abandoned on the side of the road near the school. The total weight of the drugs was 57.2 grams.

In addition to presenting the officers’ testimony, the state called as a witness a woman who happened to be driving by the school at the time of the chase. She testified that she saw a person in the back seat of a green Ford that was being chased by a police car throw items out of the car window; she testified that the items landed in the ditch near the school. The drugs were found in the ditch near the school. Also, the state called co-defendant William Holt to testify at appellant’s trial. Holt testified that he was sitting in the front passenger seat of the green Ford during the chase; that appellant was sitting alone in the back seat; and that he saw appellant throw drugs out of the window of the car near the old school on Sheridan Street. Accordingly, we find the evidence sufficient for a rational trier of fact to have found appellant guilty beyond a reasonable doubt of the offense as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 30, 1998.

David E. Morgan III, for appellant.

2. In his last enumeration of error, appellant contends that the trial court committed reversible error by sustaining an objection to appellant’s general question on voir dire wherein he asked the jurors, “Now, what I’m getting down to here is: are there any of you that have a general belief or value that if someone is charged, that they must be guilty? You know, kind of the thought that, well, you know, where there’s smoke, there’s fire; that type of thing. The Judge, I believe, has already charged you or will charge you later on that a person comes into a criminal trial like this, the law presumes they are innocent. Do any of you have any problem or does that bother you; I mean, just your personal feelings? I’m not saying it’s good or bad, but your personal feelings in that area.”

“While a defendant in a criminal case has an absolute right to have prospective jurors questioned as to those matters specified in OCGA § 15-12-133, control of voir dire examination is within the sound legal discretion of the trial court, and the appellate courts should not interfere unless it is shown to have been manifestly abused. [Cits.]” Lawton v. State, 191 Ga. App. 116, 118 (381 SE2d 106) (1989). In this case, we do not find error in sustaining objection to the question as posed, because the question, confusing and overly broad as it was, appeared to ask for an opinion as to a matter of law. “The Supreme Court has repeatedly upheld the discretion of the trial court to restrict voir dire to questions dealing directly with the specific case, and to prohibit overly broad questions.” (Citations and punctuation omitted; emphasis supplied.) Williams v. State, 165 Ga. App. 69, 70 (2) (299 SE2d 402) (1983). Moreover, questions calling for an opinion by a juror on matters of law are improper. See id.; Hunter v. State, 170 Ga. App. 356 (1) (317 SE2d 332) (1984); Petty v. State, 179 Ga. App. 767 (1) (347 SE2d 663) (1986). The prohibited question was not phrased or designed so as to elicit or reveal any actual bias or prejudice against appellant or any interest in the cause. Bennett v. State, 153 Ga. App. 21, 26 (III) (264 SE2d 516) (1980). Accordingly, the trial court did not err in refusing to allow the question to be answered.

Judgment affirmed.

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

John C. Pridgen, District Attorney, Kathryn O. Fallin, Assistant District Attorney, for appellee.


text:
    A98A0373.
    MAUGHON v. LASSITER.
    (500 SE2d 626)
   Judge Harold R. Banke.

In this boundary dispute, James Maughon sued Henry Lassiter for trespass to prevent the removal of timber from the contested property. After the jury returned a verdict for Lassiter, Maughon brought this appeal, challenging the exclusion of a 1956 plat.

Prior to trial, Lassiter moved in limine to exclude the 1956 plat on the grounds that Maughon could not prove its correctness, it contradicted the plat Maughon’s lawyers used to draw his deed, and it lacked relevance, in that the plat was not in Maughon’s chain of title. The plat depicted adjoining property, the boundary of which was not at issue. Ultimately, the trial court excluded the plat because Maughon provided no witness to attest to the plat’s correctness; it also expressed reservations about the surveyor’s acumen. However, the court allowed Maughon’s witness, an attorney who performed a title search, to testify as to his use of the plat in formulating his opinion. Held:

Maughon’s failure to proffer the plat into evidence presents us with nothing to review. Bagley v. CSX Transp., 219 Ga. App. 544, 547 (2) (465 SE2d 706) (1995); Merritt v. City of Albany, 198 Ga. App. 337, 338 (401 SE2d 567) (1991). This also prevents Maughon from establishing the requisite error. Hertz Corp. v. McCray, 198 Ga. App. 484, 486 (2) (402 SE2d 298) (1991).

Notwithstanding the plat’s absence from the record, Maughon’s expert’s testimony and his own admissions undermine his contention that the plat was relevant to the boundary dispute at issue here. See Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264, 266 (4) (387 SE2d 593) (1989); Kosal v. State, 204 Ga. App. 708, 714 (6) (420 SE2d 621) (1992) (decisions to exclude evidence reviewed for abuse of discretion). Maughon’s expert testified that he “couldn’t rely on it [the plat] completely because it didn’t totally collaborate” the description on Maughon’s deed. He conceded that the plat’s measurements were inconsistent with the boundary line Maughon alleged to be correct in his complaint. Maughon acknowledged that the measurements in the plat, established by dragging chains through the woods, were “imprecise.” He also admitted that the plat, based upon tax records, “can’t establish where the line actually is.” In these circumstances, we must affirm.

Judgment affirmed.

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

Decided March 30, 1998.

Talley & Sharp, Daniel S. Digby, William C. Bushnell, for appellant.

Crumbley & Chafin, R. Alex Crumbley, Chamberlain, Hrdlicka, White, Williams & Martin, James L. Paul, for appellee.


text:
    A98A0430.
    LUNBERRY v. THE STATE.
    (500 SE2d 625)
    Decided March 30, 1998.

      Summer & Summer, Daniel A. Summer, for appellant.
   Blackburn, Judge.

Darren Gene Lunberry appeals his conviction for possession of marijuana and driving under the influence of marijuana, based, in part, on the trial court’s failure to give a limiting instruction upon the admission of similar transaction evidence. For the reasons discussed below, we are compelled to reverse.

It is undisputed, that on July 5, 1995, Lunberry was stopped by Officer Sam Duff at a roadside license and insurance inspection checkpoint and was ultimately charged with possession of marijuana and driving under the influence of marijuana. It is also undisputed that the trial court failed to give a limiting charge to the jury upon the admission of similar transaction evidence involving prior convictions for DUI. Although Lunberry made no specific objection regarding the lack of a limiting instruction relating to the similar transaction evidence admitted by the court, he reserved any objections to the court’s charge.

This case is controlled by Hinson v. State, 229 Ga. App. 840, 842 (3) (494 SE2d 693) (1997). The admission of similar transaction evidence without accompanying limiting instructions is harmful as a matter of law. “[T]he trial court committed reversible error in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of extrinsic acts or similar crimes evidence.” Id. As a result, Lunberry’s conviction must be reversed.

Based on the above, it is unnecessary to address Lunberry’s remaining enumerations of error.

Judgment reversed.

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

Lydia J. Sartain, District Attorney, Lucy K. Henry, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A97A1833.
    WHITLOCK et al. v. GEORGE et al.
    (499 SE2d 138)
   McMurray, Presiding Judge.

On August 21, 1994, Annette J. George’s teenage son, Aubrey George, Jr., was driving his mother’s car when it was struck by a train owned by Norfolk Southern Corporation a/k/a Norfolk Southern Railway Company (“Norfolk Southern”). The collision killed the car’s 13-year-old passenger, Michael Cox.

In October 1994, Ms. George’s insurance carrier, Atlanta Casualty Company (“Atlanta Casualty”), offered Michael Cox’s estate (“the estate”) the Georges’ $15,000 bodily injury coverage limit “as full and final settlement of [the estate’s] claim.” Although the estate’s attorney accepted this offer in a letter dated December 5, 1994, the deal was not executed because Atlanta Casualty would not settle while the deceased child’s grandmother, Ruby Nell Cox, was serving as the estate’s administratrix. Atlanta Casualty endeavored to settle the estate’s claim with the deceased child’s parents.

On December 29, 1995, Patricia Whitlock, individually and as heir of the estate, by and through Ruby Nell Cox (the deceased child’s grandmother), and Ruby Nell Cox, as the estate’s administratrix (plaintiffs), filed a wrongful death action against the Georges, Norfolk Southern and three Norfolk Southern employees. The Georges answered the complaint, but did not raise settlement, release or accord and satisfaction in defense. The Georges, instead, proceeded with discovery and later (in March and June 1996) offered to negotiate a settlement. After plaintiffs rejected these offers, the Georges filed a motion for summary judgment on August 21, 1996, seeking to enforce the December 1994 agreement between Atlanta Casualtys claims adjuster and the estate’s attorney.

Plaintiffs filed this appeal after the trial court granted the Georges’ motion for summary judgment. Held:

1. In Yellow Cab Co. v. Gen. Lumber Co., 35 Ga. App. 620 (134 SE2d 190), that plaintiff sued that defendant to recover damages caused by a collision between the plaintiff’s truck and the defendant’s cab. “A plea by the defendant, which alleged that after the collision and prior to the institution of the plaintiff’s suit the parties entered into ‘an agreement of settlement in full for the damages sued for in the plaintiff’s petition,’ the terms of which were that the plaintiff would pay the defendant for áll damages sustained by the defendant as a result of the collision, and that the defendant in turn would pay the plaintiff for the damages sustained by the plaintiff as a result thereof, but which plea, although averring a performance of the agreement by the plaintiff, failed to show performance thereof by the defendant, or that the defendant’s mere promise was made and accepted in satisfaction of the tort, set forth no valid defense, and was properly stricken on motion. Molyneaux v. Collier, 13 Ga. 406 (12); Lowry v. Sloan, 51 Ga. 633 (2); English v. Reid, 55 Ga. 240 (2); B. & W. Ry. Co. v. Clem, 80 Ga. 534 (4) (7 S. E. 84); Long v. Scanlan, 105 Ga. 424, 427 (31 S. E. 436); Fouche v. Morris, 112 Ga. 143 (37 S. E. 182); Kennedy v. Maddox, 15 Ga. App. 684 (84 S. E. 153); Spence v. Carter, 33 Ga. App. 279, 283 (125 S. E. 883); 1 C. J. 576.” (Emphasis in original.) Id. at 621 (2).

Decided March 18, 1998

Reconsideration denied March 31, 1998

Law Offices of Rodney M. Keys, Maurice L. King, Jr., for appellants.

Watson, Spence, Lowe & Chambless, Stephen S. Goss, Decker & Hallman, William W. Briggs, Henry E. Williams, for appellees.

The record in the case sub judice does not indicate that Atlanta Casualty paid or tendered $15,000 on the Georges’ behalf in settlement of plaintiffs’ claims against the Georges. Nor is there proof that the estate’s attorney accepted Atlanta Casualty’s promise to pay this amount as full and final satisfaction of plaintiffs’ claims against the Georges. Moreover, the fact that Atlanta Casualty and the Georges waited more than a year and a half before seeking to enforce the agreement between the estate’s attorney and Atlanta Casualty (pleading in response to plaintiffs’ complaint, invoking discovery and offering to negotiate a settlement agreement with plaintiffs) raises genuine issues of material fact as to whether the Georges waived the effect of the alleged accord and satisfaction. “ ‘(A)ccord and satisfaction may be rescinded by agreement, or waived by acts or conduct of a party thereto, whereby the debt would be restored to its original status. (Cit.)’ Motorola Communications &c., Inc. v. South Ga. &c. Gas Co., [104 Ga. App. 376, 381 (2) (121 SE2d 672)].” Dawson Constr. Co. v. Ga. State Financing &c. Comm., 203 Ga. App. 625, 631 (3) (417 SE2d 190). Consequently, the trial court erred in granting the Georges’ motion for summary judgment.

2. Our holding in Division 1 of this opinion renders it unnecessary to address plaintiffs’ remaining enumerations of error.

Judgment reversed.

Beasley, J., concurs. Smith, J., concurs in the judgment only.


author: Ruffin, Judge.

text:
    A97A2036.
    HARRIS et al. v. LEADER.
    (499 SE2d 374)
   Ruffin, Judge.

Margaret Harris was treated by psychiatrist Edward Leader, M.D. for approximately nine years. Harris subsequently sued Leader for, inter alia, medical malpractice, intentional and negligent infliction of emotional distress, battery, breach of fiduciary duty and invasion of privacy. Harris prayed for both compensatory and punitive damages. At trial, the court directed a verdict in favor of Leader on Harris’ claims for intentional infliction of emotional distress, battery and punitive damages. The jury subsequently ruled in favor of Leader on Harris’ remaining claims. Harris appeals the trial court’s directed verdict and the denial of her motion for new trial. For reasons which follow, we affirm.

1. “ A motion for directed verdict is proper where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the “any evidence” test.’ [Cit.]” Roberts v. Chapman, 228 Ga. App. 365, 366 (1) (492 SE2d 244) (1997).

(a) Viewed in a light most favorable to Harris, the opposing party on Leader’s motion for directed verdict, the evidence concerning her claim of battery shows as follows. Harris first went to Leader in 1984, at which time he diagnosed her as suffering from anorexia nervosa and a borderline personality disorder. During the nine years of treatment, Harris met with Leader at least once per week in his office for therapy. On approximately six occasions during this period, Leader permitted Harris to hold Ids hand during therapy. Harris explained the handholding as follows: “I would sit here and he would sit there (indicating), and he would hold out his hand to me and I would take his hand and I would hold it, and I would massage it, and I would rub it. And then finally I would give him a kiss on the hand. . . .” On a “couple of occasions,” Leader also permitted Harris to sit on the floor by his chair with her arms around his legs. Finally, Harris testified that they would “hug[ ] at the end of sessions.”

According to Leader, he allowed the limited physical contact because he thought it may help create a bond that would benefit Harris in treatment. As for the handholding, Leader testified that although he generally did not allow any physical contact with patients, Harris “was really falling apart” and she “begged and pleaded with [him] ... to let her hold [his] hand.” Leader stated, however, that he allowed her to hold his hand only very briefly, “probably less than a minute.” Leader further testified that Harris initiated every instance of contact, except one brief hug he gave her when she did well in a school course. Harris acknowledged that “none of [the contact] was in a sexual nature.”

We conclude that this contact did not constitute battery. We note initially that the relationship of physician and patient is a consensual one, and “any unauthorized and unprivileged contact by a doctor with his patient in examination, treatment or surgery would amount to a battery. In the interest of one’s general right of inviolability of his person, any unlawful touching of that type is a physical injury to the person and is actionable.” Mims v. Boland, 110 Ga. App. 477, 481-482 (1) (a) (138 SE2d 902) (1964). However, “[i]n the relationship of doctor and patient, as in other situations involving a touching of another’s person, consent to the act by the person affected negates the contact as an actionable tort. As a general rule there can be no tort committed against a person consenting thereto, if that consent is free and not obtained by fraud, and is the action of a sound mind.’ [Cits.]” Id. at 482. See OCGA §§ 51-11-1 and 51-11-2 (addressing the effect of a plaintiff’s authorization and consent to the subject conduct).

“Consent” is defined as “[voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith.” Black’s Law Dictionary (5th ed. 1979). A patient seeking to establish an effective withdrawal of consent must show among other things that she used language or acted in such a manner which was subject to no other inference but that the consent was withdrawn. Williams v. Lemon, 194 Ga. App. 249, 250 (2) (390 SE2d 89) (1990).

The undisputed evidence in this case shows that Harris authorized Leader’s physical contact. In fact, as stated above, the evidence establishes that on all but one occasion Harris initiated the contact. It is clear from the parties’ testimony that Harris consented to the limited physical contact as part of her treatment, and there is no evidence that she ever withdrew her consent. See Williams, supra. Accordingly, on the one occasion when Leader hugged Harris after he learned she did well in a college class, it is clear that Harris consented to the contact. See id.; see also 15A CJS 576, Consent (consent “exists where a person by his line of conduct has shown a disposition to permit another person to do a certain thing without raising objection thereto”). There being no evidence of an effective revocation of consent by Harris to Leader’s physical contact, the directed verdict on Harris’ claim for battery is affirmed. See Roberts, supra.

(b) To prevail on her claim for intentional infliction of emotional distress, Harris was required to present evidence of “four elements: (1) intentional or reckless conduct (2) that is extreme and outrageous and (3) causes emotional distress (4) that is severe. [Cit.]” Mears v. Gulfstream Aerospace Corp., 225 Ga. App. 636, 638-639 (1) (484 SE2d 659) (1997). “Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and leave him to exclaim ‘Outrageous!’” (Citation and punctuation omitted.) Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991). “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law. [Cit.]” Id.

The record in this case contains no such evidence. In support of her claim, Harris presented expert testimony showing that her borderline personality disorder could have resulted in “all kinds of difficulties, including addictions, pathological attachments to people, neediness and dependency and the like.” The expert explained that in treating this disorder “you are attempting to kind of help the person cope with the stormy feelings, do the things that will not stir them up and do the things that will calm those storms down until the person gets to be able to take care of and take charge of their lives again.”

There is abundant testimony showing that Harris had such a pathological attachment to Leader. For example, Harris testified: “I felt like he totally controlled my life, I couldn’t live without him. He was a part of my very soul and existence, and I was nonfunctional unless we were in contact with each other. He would tell me I was needy, dependent, and other descriptive words like that, that I think fostered those feelings.” She also stated: “I thought he was God. As a matter of fact, when I would go to church I was so mixed up, when we would sing hymns at church I was praising Dr. Leader. I wasn’t praising God, I was praising Dr. Leader. And I would tell him that. He knew it.” Harris also testified that she told Leader that she loved him: “I would say, ‘Dr. Leader, I love you so much. You are my world.’ . . . He would say, T know it.’ Or he would reciprocate by saying how much he loved me.” Harris also sent Leader letters in which she expressed her love for him. In one letter, Harris wrote “I don’t want to stop loving you, Dr. Leader. It hurts deeply just to think about this.”

According to Harris, despite Leader’s knowledge of her pathological attachment to him, his conduct often fostered her infatuation. The most notable instance of Leader’s conduct cited by Harris concerns the circumstances preceding an attempted suicide, the fourth of which Harris committed during her treatment with Leader. In this instance, as they had done in the past, Leader arranged for a telephone treatment session. According to Harris: “[W]e talked . . . about sexual fantasies, and I confronted him about it, and I said, T want to know, do you have sexual fantasies about me.’ And he said, T can’t deny it. I do have sexual fantasies about you, but I don’t act upon them.’ That shocked me.” Though the testimony is unclear, it shows that at some point during the week that followed, Leader called Harris on the telephone and during that conversation she ingested numerous sleeping pills in an attempt to kill herself.

In opposition, Leader presented expert testimony showing that a psychiatrist’s self-disclosure, such as the statement at issue here, is important in therapy. Specifically, the expert testified that “there are many different schools of therapy. There is no one standard that everybody adheres to. In the humanistic approach, self-disclosure is considered very important. I will tell ... a patient, I will say, You know, I had a very similar problem, and this is how I overcame it. Try it on for size, it worked for me, it may work for you.’ That’s a self-disclosure. See, I haven’t pretended that I’m sort of a super human being who never had problems. I revealed I had the same problems.”

Even viewing all the foregoing evidence in a light most favorable to Harris, it shows only that there are different schools of thought concerning whether self-disclosure is appropriate, and that Leader provided therapy under the humanistic school which favored self-disclosure. Though Leader’s disclosure to Harris that he had sexual fantasies for her may be facially troublesome to the average layman, considering the debate between members of the psychiatric community, it is not such a statement that would rise to the level of outrageousness. Thus, despite Leader’s awareness of Harris’ particular susceptibility to injury from emotional distress, we conclude that his conduct was insufficient to support her claim for intentional infliction of emotional distress. Compare Williams v. Voljavec, 202 Ga. App. 580 (415 SE2d 31) (1992) (physician relentlessly vented angry statements toward a hospitalized cardiac patient) (physical precedent only). Accordingly, the trial court did not err in directing a verdict for Leader on this claim.

(c) For the same reasons, we find Leader’s conduct was insufficient to support a claim for punitive damages. “To authorize the imposition of punitive damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. The latter expression relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights. Mere negligence, even gross negligence, will not support an award of punitive damages.” (Citations and punctuation omitted.) Evans v. Willis, 212 Ga. App. 335, 338 (1) (b) (441 SE2d 770) (1994).

As stated in Division 1 (a) and (b), Harris has cited no evidence of such conduct in this case. Accordingly, the trial court properly granted Leader a directed verdict on Harris’ claim for punitive damages.

Decided March 20, 1998

Reconsideration denied March 31, 1998

Barnes, Browning, Tanksley & Casurella, Jerry A. Landers, Jr., for appellants.

Hawkins & Parnell, Alan F. Herman, Anita T. Wallace, for appellee.

2. Harris also asserts that the trial court erred in denying her motion for new trial on her medical malpractice claim because there was sufficient evidence supporting the claim. We disagree.

“ ‘A trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.’ [Cit.] ... It is the function of the jury to resolve conflict in testimony ([cit.]); this Court will not substitute its judgment for that of the jury and will neither weigh evidence nor determine witness credibility. [Cit.]” Stubbs v. Harmon, 226 Ga. App. 631, 632 (1) (487 SE2d 91) (1997).

The relevant issue decided by the jury in this instance was whether Leader complied with the standard of care required in his treatment. OCGA § 51-1-27; Williams v. Mem. Med. Center, 218 Ga. App. 107, 108 (1) (460 SE2d 558) (1995) (physical precedent only). Though Harris presented evidence showing that Leader’s conduct did not comply with the applicable standards of care, Leader cites to evidence that his treatment did comply with these standards. In light of this conflicting evidence, the trial court did not err in denying Harris’ motion for new trial based on the sufficiency of the evidence supporting her claim for medical malpractice. See Stubbs, supra.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


author: Beasley, Judge.

text:
    A97A2245.
    VESSELL et al. v. WALKER et al.
    (499 SE2d 688)
   Beasley, Judge.

Vessell, Quick, and Hunnicutt sued Hannah for damages on various theories, including breach of contract. Vessell and Hunnicutt, who were employed by Hannah from 1988 until 1994, alleged that Hannah breached an agreement to give them an interest in his business (Auto Salvage of Senoia a/k/a Senoia Auto Salvage) in lieu of a salary. Quick alleged that Hannah breached an agreement to convey a trailer and surrounding acreage to Quick after accepting monies paid by Quick for the property.

Hannah died during the pendency of this litigation, and Walker, administratrix of his estate, was substituted as party defendant. During discovery, plaintiffs learned that in 1991, Hannah sold his business to his stepson Hester for $1 and “other valuable consideration.” Prior to trial, Hester was added as a party defendant.

In amended complaints, plaintiffs sued Hester in his capacity as owner of Senoia Auto Salvage, asserting that he allowed Hannah to operate the business as his agent. Evidence was introduced at trial showing that after the transfer of ownership, Hester told Hannah that he could operate the business until he died. Nonetheless, after the close of the evidence, the trial court granted Hester’s motion for directed verdict on the ground that there was no evidence of any agency relationship between Hester and Hannah. The trial court based this ruling on evidence that Hester did not assume any control over operation of the business or have any dealings with plaintiffs.

The jury returned a verdict awarding each plaintiff damages against Hannah’s estate alone. Following entry of final judgment, plaintiffs appeal the trial court’s grant of Hester’s motion for directed verdict. We reverse. “The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” OCGA § 10-6-1. This relationship may arise if the principal either assumes control over the agent or has the right to exercise control. The evidence supports findings that Hester’s ownership of the business gave him a legal right to control its operation and that Hester created a relation of principal and agent between the two by telling Hannah he could continue as operator.

The fact that Hester and plaintiffs had no dealings with each other is not fatal to their claims. “If an agent shall fail to disclose his principal, when discovered, the person dealing with the agent may go directly upon the principal under the contract, unless the principal shall have previously accounted and settled with the agent.” OCGA § 10-6-54. A jury could find that Hannah, as operator of the business, had the authority to bind Hester, as owner, on an agreement to transfer an interest in the business to employees in lieu of salary. Directing the verdict was error.

The jury verdict in favor of Quick against Hannah’s estate rests on a different claim. The plaintiffs and particularly Quick have advanced no arguments in regard thereto. No doubt that is because Quick had no claim against Hester even though he joined in the motion to add him. The directed verdict stands as to him.

Judgment affirmed in part and reversed in part.

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

Decided March 10, 1998

Reconsideration denied March 31, 1998

R. Keith Prater, for appellants.

Knight, Stemberger & Gomez, Mark A. Gomez, Hoke J. Thomas, Jr., for appellees.

       See Smith v. Maytag Corp., 216 Ga. App. 676, 679 (1) (455 SE2d 379) (1995).

       See Haifa v. Bailey, 219 Ga. App. 178, 180 (2) (464 SE2d 614) (1995).

        Beasley v. Paul, 223 Ga. App. 706, 711 (2) (478 SE2d 899) (1996).


text:
    A97A2286.
    BEUGNOT v. COWETA COUNTY et al.
    (500 SE2d 28)
   Ruffin, Judge.

Cecil Beugnot, the owner of a mobile home park in Coweta County, sought, a writ of mandamus in superior court against Coweta County, the county’s Board of Commissioners (“the Board”) and others, challenging the Board’s denial of his application for a building permit for the mobile home park. Beugnot then moved for partial summary judgment, claiming, inter alia, that Coweta County was estopped from denying the permit and that he had a vested right in developing the mobile home park on the property. The defendants responded and filed a cross-motion for summary judgment, claiming that Beugnot had abandoned his right to operate and develop the mobile home park, which had been classified by the county as a nonconforming use. The superior court granted summary judgment to the defendants and denied Beugnot’s motion for partial summary judgment. We granted Beugnot’s application for discretionary appeal, and for reasons which follow, we reverse.

In zoning matters, when a permit is sought under the terms set out in a county’s zoning ordinance, the landowner must present his case on its facts and on the law to the local governing body. Dougherty County v. Webb, 256 Ga. 474, 477-478, n. 3 (350 SE2d 457) (1986). “That body acts in a quasi-judicial capacity to determine the facts and apply the law. [Cits.] A disappointed landowner travels to superior court by direct appeal, if the zoning ordinance so provides, or otherwise by mandamus. City of Atlanta v. Wansley Moving &c. Co., 245 Ga. 794 (267 SE2d 234) (1980).” Id. In the instant case, Coweta County’s zoning ordinance does not specifically provide for direct appeals in zoning cases. Furthermore, the defendants have not argued that Beugnot should have directly appealed the denial of his permit pursuant to any ordinance provisions. Accordingly, Beugnot properly petitioned for a writ of mandamus. See id.

On appeal from a zoning decision, “[t]he superior court is bound by the facts presented to the local governing body. The law, of course, is determined anew by the superior court. In a mandamus action, the landowner is entitled to relief only where he has established before the local governing body a clear legal right to the relief sought, or demonstrates to the superior court a gross abuse of discretion. [Cit.]” Webb, supra at 477-478, n. 3.

On appeal to this Court from the decision of the superior court, “our duty is not to review whether the record supports the superior court’s decision but whether the record supports the initial decision of the local governing body. . . .” Emory Univ. v. Levitas, 260 Ga. 894, 898 (1) (401 SE2d 691) (1991).

In light of this standard, the record here reveals that Beugnot purchased 66 acres of property in Coweta County in 1963 for the purposes of developing a mobile home park. Beugnot began adding mobile homes to the land in 1969 and had 13 mobile homes on the property when Coweta County enacted its first zoning ordinance which prohibited mobile home parks in the area. The Board of Zoning Appeals (the “BZA”) recognized Beugnot’s property as a nonconforming use. Section 31 of the Coweta County Zoning Ordinance defines “Nonconforming use or structure” as “[a]ny building, structure, or use of land lawful at the time of passage or amendment of this ordinance which does not conform, after the passage or amendment of this ordinance, with the regulations of the district in which it is located.” (Emphasis supplied.) Additionally, § 50 of the zoning ordinance sets forth that “[t]he lawful use of any building or lot existing at the time of the enactment or amendment of this ordinance may be continued although such use does not conform to the provisions of this ordinance.” (Emphasis supplied.) The term “use” is defined in the ordinance as “[t]he purpose or purposes for which land ... is designed, arranged or intended, or to (for) which said land ... is occupied, maintained or leased.”

Although maintenance of the existing mobile homes on the property was considered by the county to be a nonconforming use, after passing its zoning ordinance the county prohibited Beugnot from adding any additional mobile homes on the property. Beugnot appealed this decision to the superior court, asserting his right to continue development of the mobile home park on the entire 66 acres as a nonconforming use (“Beugnot I”). The county, relying on language in the ordinance providing that “[n]o non-conforming use shall be enlarged or extended in any way[,]” argued that “[s]ince only portions of the 66 acre tract were dedicated to mobile home use at the time the ordinance was adopted, the [BZA had] no authority to permit an expansion of the non-conforming use.” Accordingly, the issue before the superior court was whether the nonconforming use was (1) only the 13 mobile home sites or (2) the proposed use of the entire 66 acres as a mobile home park.

The superior court conducted a jury trial, and on September 2, 1970, the jury rendered its verdict, finding that “the entire sixty-six (66) acre tract was being used for a non-conforming use on December 3, 1969 and that Mr. Beugnot [should be] permitted to continue the development of the sixty-six (66) acres.” The county did not appeal the judgment and, as late as October 1984, agreed that the 1970 verdict “grandfather[ed] the furthered development of the park . . . and [regulations governing mobile homes would not apply as long as development has not been abandoned for a period of two (2) years. . . .”

From 1970 to 1980, Beugnot continued to add at least one mobile home to the park every two years in compliance with the then-existing zoning ordinance. In 1980, he began adding or making major annual improvements to the property, including installing new water lines and building lakes.

In 1979 or 1980, Beugnot received a letter from Coweta County’s chief building official stating that Beugnot had abandoned the nonconforming use status of his property. Pursuant to § 54 of the zoning ordinance, abandonment occurs “[w]henever a nonconforming use has been discontinued for a period of one year [and] such use shall not thereafter be reestablished, and any future use shall be in conformity with the provisions of this ordinance.” Beugnot appealed to the BZA, which affirmed the county official’s claim that Beugnot abandoned the nonconforming use. Beugnot threatened to sue Coweta County over the BZA decision, but did not do so because the county eventually allowed him to continue developing the property as a mobile home park. As evidence of the county’s decision to allow continued development, it provided Beugnot with over 30 permits for development of the property as a mobile home park between 1980 and March 1995. A letter to Beugnot in October 1984 signed by a county building official and the chairman of the county’s Board of Commissioners confirmed Beugnot’s right to “continued development of [the] nonconforming Mobile Home Park.” In August 1989, a county planner stated in a letter referencing Beugnot’s “66 Acre Mobile Home Park” that continued development of the park would be allowed under the county’s zoning ordinance. The planner noted that the number of mobile homes to be allowed on the property would be “predicated upon what would be approved by the County Health Department.”

Coweta County issued its last permit to Beugnot in March 1995 for installation of electrical lines to a mobile home. On or about August 15, 1995, the Coweta County Building Department denied Beugnot’s application for a building permit to install an additional mobile home pad on the property. In denying the application, the Building Department referred to § 57 of its zoning ordinance which provides that “no nonconforming use shall be enlarged or extended in any way.” The BZA affirmed the denial of the application, and Beugnot appealed to the Board. At the Board hearing, the county argued that Beugnot abandoned his nonconforming use. After the Board affirmed the BZA’s decision, Beugnot filed his petition for a writ of mandamus with the superior court, claiming, inter alia, that the zoning ordinance was unconstitutional, that he had a vested right in developing the property that was violated, and that the county was collaterally estopped from denying his permit, given the res judicata effect of the jury’s verdict in Beugnot I. Beugnot raised these issues in his motion for partial summary judgment, while also seeking summary judgment on his claims that the defendants tortiously interfered with his business relations and should be held in civil contempt.

The defendants in turn moved for summary judgment, asserting that Beugnot abandoned his nonconforming use as to the undeveloped portion of his property on June 4, 1994, the day after the last permit for a new mobile home site was allegedly granted to Beugnot.

The superior court, in granting summary judgment to the defendants, agreed that Beugnot had abandoned his nonconforming use of the remainder of his 66 acres by failing to seek any permits for new mobile homes between May 1994 and October 1995. The superior court concluded that there was no evidence that Beugnot had expended any time, money or effort between May 1994 and October 1995 for the expansion of the mobile home park.

1. We conclude that the superior court erred in granting summary judgment to the defendants and denying Beugnot’s motion for partial summary judgment as he had a vested right in the continued development of the entire 66-acre tract for a mobile home park which he had not abandoned.

(a) “To be vested, in its accurate legal sense, a right must be complete and consummated, and one of which the person to whom it belongs cannot be divested without his consent. . . . [T]he term Vested rights,’ which cannot be interfered with by retrospective laws, means interests which it is proper for the state to recognize and protect and of which the individual cannot be deprived arbitrarily without justice.” (Citation and punctuation omitted.) Goldrush II v. City of Marietta, 267 Ga. 683, 694 (7) (482 SE2d 347) (1997). Moreover, “ ‘[a] landowner will be held to have acquired a vested right to . . . initiate and continue a use despite a restriction contained in an ordinance where, prior to the effective date of the ordinance, in reliance upon a permit theretofore validly issued, he has, in good faith, made a substantial change of position in relation to the land, made substantial expenditures, or has incurred substantial obligations.’ [Cit.]” Id. at 698 (10).

The Supreme Court of Georgia has repeatedly recognized the vested right of property owners seeking to develop a mobile home park on their land to continue the development despite a county’s adoption of zoning ordinances preventing such use. See Craig v. City of Lilburn, 226 Ga. 679 (177 SE2d 75) (1970); Springtime, Inc. v. Douglas County, 228 Ga. 753 (187 SE2d 874) (1972); Spalding County v. East Enterprises, 232 Ga. 887 (209 SE2d 215) (1974). See generally City of Douglasville v. The Willows, Inc., 236 Ga. 488 (224 SE2d 363) (1976).

In Craig, property owners had obtained six permits from the county for placement of septic tanks, and installation of the tanks was in progress when the city of Lilburn enacted zoning regulations prohibiting the development of the park. The owners had also obligated themselves for $3,200 worth of work on the property prior to the enactment of the zoning regulations. The Supreme Court concluded that the owners had “acquired a vested property right in the proposed use of their land, toward which they had made substantial expenditures of time, effort and money. [Cits.]” Craig, supra at 680.

Additionally, in Springtime, supra, the Supreme Court held that Douglas County was not entitled to an injunction preventing the property owner from enlarging his mobile home park. The park was in existence prior to the rezoning of the property that prohibited the operation of the park. After the zoning change, the owner sought and obtained a building permit from a county official to enlarge the mobile home park. The owner borrowed over $100,000 and had substantially completed the development when Douglas County obtained a temporary injunction preventing further development and construction of mobile home sites on the owner’s property. The Court concluded that Douglas County was “not entitled to an injunction when, with full knowledge of [its] rights, [it had] been guilty of delay and laches in asserting them, and [had] negligently suffered large expenditures to be made by another party on whom great injury would be inflicted by the grant of the injunction. [Cits.]” Springtime, supra at 757-758.

This Court has ruled that a nonconforming use can be the proposed use of property for development and maintenance of a mobile home park and that a property owner can obtain vested rights in such a use. Rainwater v. Coweta County Bd. of Zoning Appeals, 123 Ga. App. 467 (181 SE2d 540) (1971). The facts of Rainwater show that James Rainwater purchased a tract of land in 1961 for development of a mobile home park. Prior to Coweta County’s adoption of its ordinance that prevented the existence of mobile home parks in the area, Rainwater had cleared portions of the land, installed a culvert and a road on the property, and entered a contract for the construction of a well. Rainwater appealed from the superior court’s order affirming Coweta County’s denial of a permit for a septic tank. Coweta County’s zoning ordinance definitions of “use” and “nonconforming use” in 1971 were substantially the same as the county’s current definitions of those terms. We found that the question in Rainwater’s appeal was “whether [his] actions were sufficient to constitute a nonconforming use within the meaning of the statute so that such use could be continued even though it would not conform to the provisions of the zoning ordinance.” Id. at 468. Relying on the Supreme Court’s decision in Craig, we concluded that “in our construction of the zoning ordinance, a substantial expenditure of time, effort and money by [Rainwater] in the proposed use of the property would be sufficient to constitute a nonconforming use.” Id. at 469. Accordingly, we said, “the question as to whether there was a nonconforming use was for the jury[,]” so the superior court erred in directing a verdict for Coweta County. Id.

As in Rainwater, there was evidence in the instant case that Beugnot had expended substantial time, effort and money on the development of the property as a mobile home park prior to the county’s enactment of the zoning ordinance. Moreover, the county’s zoning ordinance does not prohibit categorizing the proposed use of the entire 66 acres for a mobile home park as a nonconforming use. The ordinance establishes that “nonconforming use” includes the “use of land lawful at the time of passage or amendment of [the] ordinance.” See Coweta County Zoning Ordinance § 31. And “use” includes “[t]he purposes ... for which land . . . [is] intended, or [for] which said land ... is occupied, maintained, or leased.” Id. Accordingly, the question of whether the proposed use of the 66 acres was sufficient to constitute a nonconforming use was properly left for the jury. And the jury’s verdict in Beugnot I specifically concluded that the entire 66 acres was being used as a nonconforming use, the mobile home park.

The county did not contest the Beugnot I decision, but rather admitted that the verdict grandfathered the development of the 66 acres as a mobile home park. In accordance with this admission, the county issued permit after permit from 1970 until 1995 without ever raising the concern that he was impermissibly extending or enlarging his nonconforming use by adding mobile home sites. The 1980 controversy between the county and Beugnot involved the county’s claim that Beugnot had abandoned his use, not that he was extending or enlarging his use. Letters from county officials to Beugnot and other interested parties sent during the 1980s confirmed that Beugnot could continue to develop his nonconforming use, the 66-acre mobile home park. In denying the August 1995 permit for a site, the county first cited to the ordinance provision prohibiting enlargement of a nonconforming use. However, the county subsequently changed its argument, arguing before the Board, then the superior court, and now this Court that Beugnot abandoned his nonconforming use. Accordingly, it is clear that the nonconforming use was determined by the jury in 1970 and considered by the county to be the use and proposed use of the 66 acres as a mobile home park.

Beugnot also construed the verdict to mean that he could develop the entire parcel. Moreover, Beugnot relied to his detriment on the county’s assertions that he could continue to develop the 66 acres as a mobile home park and the county’s actions of issuing permits for the development. From the time he purchased the property until 1979, Beugnot expended approximately $56,400 in developing the park. He cleared and grubbed land, graded roads, and installed septic systems, wells, lakes and ponds. Between 1970 and 1994 he installed at least 23 mobile home pads on the 66 acres. With full knowledge of Beugnot’s intentions and the ordinance provisions, the county allowed Beugnot to continue development of the entire parcel for 25 years. If the county desired to limit Beugnot’s continued development of the property, it should have taken appropriate action prior to Beugnot’s development and not approved the development. Accordingly, we find that Beugnot had a vested right in the nonconforming use. Craig, supra; Goldrush, supra.

(b) Additionally, we find that there was no evidence that Beugnot intentionally abandoned the nonconforming use. Abandonment is commonly “ ‘ “construed to mean the intentional relinquishment of a known right to devote the property to a permitted non-conforming use, evidenced by an overt act or failure to act, sufficient to support the implication of such an intent.” ’ [Cit.]” Ansley House, Inc. v. City of Atlanta, 260 Ga. 540, 542 (397 SE2d 419) (1990). Although § 54 of the Coweta County zoning ordinance establishes a specific time frame for abandonment of a nonconforming use (one year), “the expiration of [such a] time period . . . has been construed by a majority of courts to merely raise a rebuttable presumption that there has been an intent to abandon the nonconforming use. Some proof of an overt act or failure to act is still required before there will be a finding of an intent to abandon the nonconforming use. [Cits.]” Id.

There is no evidence in this case of an overt act or failure to act on Beugnot’s part to prove his intent to abandon the use of the property. At the Board hearing, Beugnot presented evidence that people were currently living on the 66-acre tract, that he had continually improved the entire property, that he had not yet developed all 66 acres because of limited finances and that he had periodically contacted the county to ensure that the 66-acre tract was in compliance with the nonconforming use provisions of the zoning ordinance. Beugnot obtained permits for the development of the property from 1970 through 1995. Accordingly, Beugnot has not failed to act, nor was there any overt act on his part evidencing his intent to abandon the nonconforming use. Ansley House, supra.

Coweta County’s argument that Beugnot can prove his intent not to abandon the nonconforming use of the 66-acre tract only by obtaining a county permit for a “new” mobile home site is unpersuasive. The county’s theory is in direct conflict with the definition of “use” set forth in the zoning ordinance. As long as Beugnot takes some action to develop or maintain his property within a one-year period, he has not abandoned the nonconforming use as established in § 54 of the ordinance. Beugnot’s use of the property can include maintaining it for a certain purpose according to the definition of “use” in the zoning ordinance. Beugnot’s March 1995 permit for installation of electrical service to an existing mobile home site was evidence that Beugnot was maintaining the 66-acre tract for the purpose of a mobile home park.

Moreover, nothing in the zoning ordinance requires that Beugnot continue developing the undeveloped portions of his property, as opposed to the developed portions, within a one-year period in order for him to comply with Article 5 governing nonconforming uses. We will not infer such a requirement into the zoning ordinance because “statutes or ordinances which restrict an owner’s right to freely use his property for any lawful purpose are in derogation of the common law[; therefore,] they must be strictly construed and never extended beyond their plain and explicit terms.” (Citations and punctuation omitted.) Bo Fancy Productions v. Rabun County Bd. of Commissioners, 267 Ga. 341, 343 (1) (a) (478 SE2d 373) (1996).

The evidence before the Board clearly showed that Beugnot has, at the very least, maintained the lawful nonconforming use of the property as required by the zoning ordinance. Beugnot was thus entitled to the continued enjoyment of the nonconforming use, and the Board erred in denying him relief. Accordingly, the superior court erred in granting summary judgment to Coweta County and denying Beugnot’s motion for partial summary judgment as Beugnot had a vested right in the nonconforming use, which he had not abandoned.

(c) We have noted supra that mandamus will issue under two circumstances: (1) when a petitioner has a clear legal right to the relief sought or (2) where there has been a gross abuse of discretion. Webb, supra. See Wansley Moving &c. Co., supra at 796, citing Pruitt v. Meeks, 226 Ga. 661 (177 SE2d 41) (1970). The first circumstance has been met in this case, as Beugnot has a clear legal right to relief given his vested right in the nonconforming use which he has not abandoned. Wansley Moving &c. Co., supra. The writ of mandamus should have been granted.

2. Our conclusion that the trial court erred in denying Beugnot partial summary judgment does not extend to Beugnot’s claims that the defendants allegedly interfered with his business relations and that they should be held in civil contempt. Beugnot has not asserted on appeal that the trial court erred in denying his motion for partial summary judgment on these claims, or that the trial court erred in granting the defendants summary judgment on the claims. Accordingly, he has waived any right to appeal on these issues. See Robison v. Green, 228 Ga. App. 27, 28 (2) (491 SE2d 95) (1997).

Decided March 16, 1998

Reconsideration denied March 31, 1998

Wilson, Brock & Irby, Richard W. Wilson, Jr., James S. Teague, Jr., Gerald S. Walters, for appellant.

Glover & Davis, Asa M. Powell, Jr., Jerry A. Conner, for appellees.

Judgment reversed.

Birdsong, R J., and Eldridge, J., concur.