text:
    A96A2311.
    SPRAY v. THE STATE.
    (476 SE2d 878)
   Eldridge, Judge.

Charlie Spray was convicted by a Lowndes County jury of ten counts of theft by taking and one count of making a false statement. He appeals the trial court’s denial of his motion for directed verdict and subsequent motion for judgment of acquittal, contending that the evidence was insufficient to support his convictions for theft by taking because the allegations contained in the indictment and the proof adduced at trial were at variance. With regard to his conviction for making a false statement, appellant contends that the State failed to prove venue. Finding no merit to either of these contentions, we affirm.

Appellant was the Chief of Police in Valdosta, Lowndes County. Pursuant to his position, appellant applied to the Georgia Emergency Management Agency (GEMA) on behalf of the Valdosta Police Department to obtain surplus law enforcement items for drug interdiction purposes. The GEMA program obtained excess items of defense from the federal government and redistributed them to state law enforcement agencies specifically to aid the agencies in combating drug crimes.

Appellant’s application was approved by the GEMA program in November 1991. Thereafter, between March 1993 and September 1994, appellant made numerous trips to the GEMA warehouse in Atlanta where he obtained goods ranging from clothing and sleeping bags to generators and trucks. Only once did appellant follow proper procedure: he informed the Valdosta city manager of an ambulance and a Dodge “K” car that he had acquired from GEMA. These items were properly impounded in the city lot and were given city identification numbers. However, the vast majority of the approximately 119 items that the appellant acquired from the GEMA program for the Valdosta Police Department never found their way into city property at all; appellant’s trips to Atlanta and back culminated at his home where the GEMA items were left for the use of appellant, his relatives, and his friends. The city manager was unaware of the items obtained from GEMA by appellant,. as was the Valdosta Police Department captain in charge of the local drug task force, for which purpose the items were ostensibly acquired.

Further, as an accounting measure in January 1995, GEMA sent a memorandum to all agencies that had received property under the program. The memorandum requested “Validation of Compliance and Utilization” as to the use being made of the approximately 119 items allegedly received by the Valdosta Police Department; appellant signed the GEMA verification form asserting that: “All property obtained is being used ONLY by this agency and ONLY for drug or counterdrug operations.”

1. In each of the theft by taking counts, appellant was charged with “unlawfully, knowingly and willfully tak[ing] the property of the State of Georgia.” However, appellant contends that his taking of the property was lawful since GEMA willingly turned the property over to appellant in his capacity as Chief of Valdosta Police. Relying on this Court’s decision in Walker v. State, 146 Ga. App. 237 (246 SE2d 206) (1978), appellant argues that while the evidence may have authorized a conviction for an “unlawful appropriation” after a lawful taking, the evidence does not support appellant’s conviction for an “unlawful taking” as charged in the indictment. We disagree.

Our theft by taking statute, OCGA § 16-8-2, states that “[a] person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” Under the statute, the phrase “regardless of the manner in which the property is taken or appropriated” is a catch-all phrase rendering our theft by taking statute broad enough to encompass theft by conversion, theft by deception or any other of the “myriad .and even yet-to-be-concocted schemes for depriving people of their property.” Gordon v. State, 181 Ga. App. 391, 392 (352 SE2d 582) (1986), rev’d on other grounds in Gordon v. State, 257 Ga. 335 (359 SE2d 634) (1987) (evidence showing an “outrageous markup” for services rendered not sufficient to support conviction for theft); see also Lundy v. State, 195 Ga. App. 682, 684 (394 SE2d 559) (1990); Ray v. State, 165 Ga. App. 89, 90 (299 SE2d 584) (1983). Although the statute defines two types of theft, i.e., an unlawful taking and an unlawful appropriation, the issue is not necessarily how the offense was perpetrated, but when the subjective intent to deprive the owner of the property arose: at the time of the taking, or thereafter while being in lawful possession. Stull v. State, 230 Ga. 99, 103 (196 SE2d 7) (1973); Mason v. State, 180 Ga. App. 235, 237 (348 SE2d 754) (1986). Thus, under the broad language of our theft by taking statute, the importance of the manner in which the theft is perpetrated is diminished by the determinant issues: the existence of the requisite intent to steal and when it began. Stull, supra at 103.

In terms of practical application, a grand jury will often return an indictment mirroring the exact language of the statute which gives rise to a cause of action on both forms of the offense and permits a jury charge thereon. See Dukes v. State, 265 Ga. 422, 424 (457 SE2d 556) (1995). However, if a criminal defendant is charged solely under the “unlawful appropriation” language of OCGA § 16-8-2, the evidence must show that the defendant, being in lawful possession of the property, thereafter appropriated it to his own use with the requisite intent to deprive the owner thereof, and the trial court must so charge the jury. Dukes, supra at 423; Walker, supra. On the other hand, if the indictment charges the defendant, as in the case sub judice, solely under the “unlawful taking” language of the statute, then the evidence must show that the requisite intent to deprive the owner of the property was present at the time of the taking, and the trial court must so charge the jury. Bell v. State, 220 Ga. App. 293 (469 SE2d 714) (1996); Robinson v. State, 152 Ga. App. 296 (262 SE2d 577) (1979).

In the case sub judice, simply because appellant went through appropriate channels and obtained the GEMA property under color of his position as Valdosta Chief of Police, does not mean that appellant cannot be indicted for and found guilty of an unlawful taking under the statute. Again, the manner in which the theft occurred is not necessarily determinative. Instead, the question is whether the appellant had the requisite intent to deprive the State of Georgia of the goods at the time appellant received the property from GEMA. “It is plain that it was the intent of [the owner] to extend [the property], not to the accused, but to the [city] which they thought the accused represented. . . . They delivered possession to the accused, not for himself, but as they supposed, as agent. ... It is clear that the accused intended to appropriate the proceeds of the property, the possession of which he thus acquired, to his own use. Under these circumstances, ... it clearly made'out a case within the purview of § 26-1802 [OCGA § 16-8-2].” Stull, supra at 102-103.

In this regard, the trial court in the case sub judice properly instructed the jury that in order to find the appellant guilty of the offense of theft by taking as charged in the indictment, “the state must prove beyond a reasonable doubt that the defendant at the time he received the property alleged in a particular count intended to take that property and convert it to his own use.” Compare Dukes, supra at 423-424. The jury found the appellant guilty as charged, and this Court, in reviewing the evidence in a light most favorable to the verdict, finds that the evidence was sufficient for a reasonable trier of fact to have determined that appellant intended to deprive the State of Georgia of the GEMA property at the time of his receipt of the items and was, thus, guilty of theft by taking as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Our opinion in Walker, supra, does not demand a different result. In Walker, the defendant, like the appellant in the case sub judice, had been indicted solely for an unlawful taking, but there ends the similarity. The Walker trial court directed a verdict on the issue of lawful possession, specifically finding that Walker was in lawful possession of the goods for which he had been indicted. However, the trial court acquiesced in the State’s "request to charge the jury on the “unlawful appropriation” language of the statute, contrary to the offense as alleged in the indictment. In the case sub judice, the issue as to the lawfulness of appellant’s receipt of the goods from GEMA was left to the jury, and the trial court correctly instructed the jury regarding the elements of the crime as charged in the instant indictment. Thus, our opinion in Walker, supra, aids appellant not at all.

2. Appellant contends that venue for the crime of making a false statement under OCGA § 16-10-20 should have been in Fulton County where the form was sent after appellant had signed it. We do not agree.

In OCGA § 17-2-2, the general criminal venue statute, subsection (a) provides that actions shall be tried “where the crime was committed, except as otherwise provided by law.” As OCGA § 16-10-20 provides for no specific statutory venue, our determination as to the venue for the crime will necessarily hinge on a resolution of the inquiry, “Where was the crime committed?” In making this determination, our opinion in State v. Barber, 193 Ga. App. 397, 398 (388 SE2d 350) (1989), holds sway. Although Barber dealt with a different section of our Code, OCGA § 49-4-146.1, this Court analyzed when an act of “falsifying” occurs: at the time a false statement is made, or at the time it is sent. We now find that the resulting conclusion in Barber applies herein: “Our review of both the statute and the indictment persuade[s] us that the crime, in this case, consisted of the act of ‘falsifying,’ rather than the act of ‘submitting’ or ‘sending,’ and thus we conclude that the crime was committed in [Lowndes] County and venue is proper there.” Id. at 398. Common sense, too, aids us in this determination. OCGA § 16-10-20 makes it a crime for a person to knowingly make “any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement” regarding any matter “within the jurisdiction of any department or agency of state government.” Thus, appellant made the false statement for which he was indicted when he signed the “Validation of Compliance and Utilization” form and thereby falsely attested to the use being made of GEMA property. Sending the"'form to GEMA in Fulton County did not make appellant’s false attestations any more false or add in any way to the offense as described in the statute. Therefore, although sending the form to Atlanta may have aggravated the offense, as well as aided in . the detection and prosecution of the appellant for the crime, if appellant had signed the form and put it in a filing cabinet, the statement would be no less false under the facts of this case, and no less actionable under OCGA § 16-10-20.

Decided October 10, 1996

J. Converse Bright, for appellant.

Michael J. Bowers, Attorney General, Terry L. Lloyd, Assistant Attorney General, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A96A0898, A96A0899.
    MAULDIN et al. v. HOUSING AUTHORITY OF THE CITY OF MARIETTA, GEORGIA; and vice versa.
    (477 SE2d 317)
   Pope, Presiding Judge.

Condemnees owned property which they leased to a tenant who used it as a neighborhood grocery. Condemnor took this property and assembled it with other parcels on the block to create a site for an office building. When the parties were unable to agree on just and adequate compensation for condemnees’ property, a jury trial was held. Condemnor presented two expert witnesses who valued the property at approximately $57,000 and $61,000, while condemnees’ expert valued the property at $141,000. The jury returned a verdict of $105,000, and a judgment for this amount was entered. In Case No. A96A0898, condemnees seek a new trial, challenging several evidentiary rulings of the trial court as well as its jury charge. In Case No. A96A0899, condemnor cross-appeals, raising issues which only need to be addressed if condemnees are granted a new trial. Concluding that condemnees’ arguments are without' merit, we affirm the judgment entered on the jury verdict.

1. Condemnor’s experts assessed the market value of condemnees’ property standing alone. At approximately the same time condemnor was assembling property on the block, however, a private entity (“DSI”) was also trying to assemble the same parcels for a private office building project. Thus, condemnees argued that the market value of their property should be based on its value as part of an assemblage. Their expert evaluated the property in this manner, basing his analysis on several documents; and the trial court’s treatment of these documents is the subject of condemnees’ first two enumerations of error.

(a) Six or seven months before the taking, DSI sent condemnees a written offer to purchase their property for $312,500, and also sent a neighbor an offer to purchase his property for $450,000. The neighbor accepted the offer and signed the document, but condemnees did not. DSI’s offers contained the following express contingency, however: “It is understood, and Seller acknowledges and agrees, that Purchaser is purchasing the Property with a view toward leasing said property to the United Way of Cobb County. Accordingly, Seller agrees that Purchaser’s obligations under this Agreement are expressly contingent on . . . the ability of the Purchaser to lease the Property to United Way upon terms and conditions acceptable to Purchaser.” The trial court allowed condemnees’ expert to discuss the two offers from DSI as a basis for his valuation of the property, but did not admit the documents as independent evidence of value.

The trial court did not err in excluding the unaccepted offer sent by DSI to condemnees. An unaccepted offer to buy, sell, or lease property is not admissible as direct evidence of the property’s value, though testimony referring to the unaccepted offer as a basis for an opinion as to value is admissible. Merritt v. Dept. of Transp., 147 Ga. App. 316 (2) (248 SE2d 689) (1978), rev’d on other grounds, 243 Ga. 52 (252 SE2d 508) (1979).

Nor did the trial court abuse its discretion in excluding the contract which was executed by condemnees’ neighbor, but never closed. A purchase agreement which does not close may be admissible as evidence of value, but only if the agreement is not too speculative; the likelihood of consummating the deal must be reasonable enough to permit the conclusion that the purchaser has actually obligated himself to purchase the property at the named price. See Dept. of Transp. v. White, 173 Ga. App. 68 (2) (325 SE2d 397) (1984). While the presence of some contingencies may not render an agreement too speculative, see id., the contingency in this agreement effectively eliminates any risk or commitment on the part of the buyer — i.e., the buyer is only obligated to purchase the property if it is able to lease it out at a rate which will bring an acceptable profit, regardless of the purchase price of the property. Indeed, it is arguable that the document in question is merely an option rather than a purchase agreement, and we have said that mere options have no substantial probative value and are therefore inadmissible. See Dept. of Transp. v. Cochran, 160 Ga. App. 583 (1) (287 SE2d 599) (1981). Whatever we call the agreement, the illusory nature of DSI’s obligation under this agreement makes the probative value of the stated purchase price marginal at best. And its probative value is further diminished by the fact that the subject of the agreement was nearby property rather than the property at issue in this case. Cf. Dept. of Transp. v. Simon, 151 Ga. App. 807 (3) (261 SE2d 710) (1979) (distinguishing subject property from nearby property for purpose of analyzing admissibility of unaccepted offers). Accordingly, condemnees’ first enumeration of error is without merit.

(b) Condemnees also challenge the trial court’s refusal to admit two exclusive listing agreements. (The trial court did allow condemnees to mention these agreements for the purpose of showing that private assemblage efforts were going on, but not as direct evidence of value.) These documents were even less probative as to value than the documents discussed above, since they did not bind any purchaser in any way. Thus, the trial court’s refusal to admit them was not an abuse of discretion.

2. In their third enumeration of error, condemnees argue that the trial court should have worded its jury instruction regarding the unaccepted offer differently. The trial court charged the jury that “any evidence which was admitted to you concerning unaccepted offers to purchase was not admitted as direct evidence of value of the property, but merely as a basis for the opinion evidence of the witness.” Condemnees suggest that the court should have instructed the jury instead that “while evidence of an unaccepted offer to buy, sell, or lease property is not in and of itself evidence of value, where a witness testifies as to value and bases his opinion partly on such offer, his testimony is admissible.” Both quotes are correct statements of the law. The charge given by the court is more suited to a jury instruction, however, since it directs the jury what to do with evidence that was admitted, rather than abstractly advising them on the law of admissibility. Moreover, condemnees have failed to show that this slight difference in wording harmed them, particularly since the court gave condemnees’ preferred instruction during the trial when the evidence about the unaccepted offer was admitted. See Foote v. State, 265 Ga. 58 (2) (455 SE2d 579) (1995) (even if a charge is erroneous, reversal is not warranted unless the erroneous charge is harmful in light of the entirety of the jury instructions).

3. Lastly, condemnees contend the trial court should have given its requested charge from White v. Fulton County, 264 Ga. 393, 394 (1) (444 SE2d 734) (1994): “The Constitution of the State of Georgia requires that an owner of property taken should be paid for what is taken from him. It deals with persons, not tracts of land. And the question is what the owner has lost, not what the taker has gained.” White involved a taking in which the jury had to determine the value of two separate estates in the same parcel (i.e., an ownership interest and a leasehold interest), and the issue was whether the sum of the values of the separate interests could exceed the fair market value of the property valued as a whole. The statement quoted above was made in the context of holding that the sum of the values of the separate interests could exceed the fair market value of the property as a whole, and this explains the reference to persons rather than tracts of land. As the case at hand did not require the jury to evaluate separate interests in the same parcel of land, that reference would have been unhelpful and might have been confusing. The principle that the State must pay a property owner for property taken from him was adequately covered by the charge given. Accordingly, the court’s failure to give a charge which was not adapted to the case and might have been confusing was not error. See Parrott v. Fletcher, 113 Ga. App. 45 (5) (146 SE2d 923) (1966).

Decided August 30, 1996

Reconsideration denied October 11, 1996

Moore & Rogers, John H. Moore, Sarah L. Bar go, for appellants.

Charles A. Evans, for appellee.

4. In its supplemental brief, condemnor stated that the arguments raised in its cross-appeal need not be considered if condemnees’ appeal is not successful. As we have concluded that all of condemnees’ enumerations of error are without merit, condemnor’s cross-appeal is dismissed as moot.

Judgment affirmed in Case No. A96A0898. Case No. A96A0899 dismissed as moot.

Andrews and Smith, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A96A1018.
    GUICE v. THE STATE.
    (477 SE2d 322)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with two counts of armed robbery. The evidence adduced at a jury trial reveals that defendant committed both offenses during a convenience store holdup. The first robbery occurred when defendant used a handgun to coerce the store’s counter clerk to give him money from the cash register. The second robbery occurred a few minutes later after defendant attempted to coerce the counter clerk and another store employee into a back room. When the victims refused to go, defendant took the counter clerk’s purse and fled. A few minutes later, a law enforcement officer apprehended defendant near the crime scene. Defendant was in possession of a handgun, “a wad of bills . . .’’anda check from the convenience store’s cash register.

The jury found defendant guilty on both counts of the indictment. This appeal followed. Held:

1. Defendant contends the trial court should have excluded three eyewitnesses’ identification testimony because on-the-scene photographic showups using his driver’s license were impermissibly suggestive.

Pretermitting whether the photographic showups in question were unduly suggestive, the controlling issue is whether, “under the totality of the circumstances, the suggestiveness of the procedure gave rise to a substantial likelihood of misidentification. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972); Mobley v. State, 198 Ga. App. 497 (3) (402 SE2d 100) (1991); Pack v. State, 182 Ga. App. 618 (356 SE2d 557) (1987).” Reid v. State, 210 Ga. App. 783, 785 (2), 786 (437 SE2d 646). “ ‘The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. Neil v. Biggers, [supra].’ Martin v. State, 193 Ga. App. 581, 582 (1) (388 SE2d 420).” Phillips v. State, 204 Ga. App. 698, 700 (2), 702 (420 SE2d 316).

In the case sub judice, the eyewitnesses had ample opportunity to observe the robber during commission of the crimes charged, all three witnesses observed the armed robber from short distances and under highly luminous conditions, the witnesses were focused on the armed robber’s activities, the photographic showups were, conducted less than 30 minutes after commission of the crimes charged, and all three eyewitnesses decisively identified defendant as the perpetrator of the crimes charged. These circumstances demonstrate that there is little, if any, likelihood of misidentification due to the on-the-scene showup procedures that were employed in the case sub judice. Accordingly, the trial court did not err in admitting the three eyewitnesses’ identification testimony at trial.

2. Defendant asserts that the mandatory sentencing provisions contained in OCGA § 17-10-7 (b) (2) violate the Eighth Amendment to the United States Constitution. “The Georgia Supreme Court held in Yearby v. State, 259 Ga. 461 (385 SE2d 414) (1989) that an appellant is without standing to contest the validity of OCGA § 17-10-7 until such time as he claimed a right of parole, and the statute was asserted against him as a bar.” Stevens v. State, 210 Ga. App. 355, 356 (4) (436 SE2d 82). Accordingly, defendant’s assertion is premature.

3. Contrary to defendant’s final three enumerations, the evidence was more than sufficient to authorize the jury’s finding that he is guilty, beyond a reasonable doubt, of committing the crimes charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Johnson, J., concurs. Ruffin, J., concurs in the judgment only.

Decided September 24, 1996

Reconsideration denied October 11, 1996.

Millard B. Morgan, for appellant.

Robert E. Keller, District Attorney, David B. Hornsby, Assistant District Attorney, for appellee.


text:
    A96A1325.
    GANONG v. THE STATE.
    (477 SE2d 324)
   Pope, Presiding Judge.

Defendant Thomas Ganong appeals from the Hall County Superior Court’s denial of his plea of autrefois acquit. Because defendant has already been acquitted in Forsyth County of the same offense alleged in the Hall County indictment, we reverse the trial court’s denial of defendant’s plea in bar.

In June 1994, defendant allegedly raped a woman on a houseboat on Lake Lanier. This lake forms the boundary between Forsyth, Hall, and Gwinnett Counties; and a Forsyth County grand jury indicted defendant in November 1994, with venue based on OCGA § 17-2-2 (f). When the Forsyth County prosecutor was preparing for trial in January 1995, however, the victim took him to the site of the alleged rape, and after consulting with several others, he concluded that the site was actually in Hall County rather than Forsyth County. He informed Hall County and ceased his prosecution of the case, but did not dismiss the indictment.

The Forsyth prosecutor also communicated his conclusion to defendant, who refused to waive the venue issue and filed a speedy trial demand under OCGA § 17-7-170. After two terms passed in which juries qualified to try him were impaneled but he was not tried, defendant moved for a judgment of acquittal. At the hearing on the motion, the State argued that such a judgment would be inappropriate because venue in Forsyth County was improper, but despite an opportunity to do so, it failed to introduce any evidence to show that venue in Forsyth County was improper. The trial court in Forsyth County then entered a judgment of acquittal, necessarily finding that venue in Forsyth was proper; and that judgment was affirmed by this Court in State v. Ganong, 221 Ga. App. 250 (470 SE2d 794) (1996). See also Bond v. State, 212 Ga. App. 608, 609 (442 SE2d 482) (1994) (entry of nolle prosequi does not prevent defendant from claiming benefits of OCGA § 17-7-170).

Decided September 27, 1996

Reconsideration denied October 11, 1996

Banks & Stubbs, Rafe Banks III, for appellant.

Lydia J. Sartain, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

In the meantime, defendant was indicted in Hall County for the same offense. After the judgment of acquittal was entered in Forsyth County, defendant entered this plea. The Hall County court denied the plea, relying on Schiefelbein v. State, 258 Ga. 623 (373 SE2d 354) (1988), in which the Supreme Court held that jeopardy does not attach (and thus double jeopardy concerns do not preclude a second trial on the same offense) if a criminal defendant is first tried in a county in which venue is improper. But unlike the situation in Schiefelbein, the venue issue in this case has already been actually and necessarily adjudicated against the State and affirmed on appeal. See Ganong, 221 Ga. App. at 250-251. The State argues that this prior adjudication of the issue should not be binding because it did not have the opportunity to present evidence to support its lack of venue argument in the Forsyth County case. Our reading of the record shows, however, that the State had the opportunity to present evidence of lack of venue in the earlier case and simply failed to do so, and such a conclusion is implicit in our holding in the prior appeal. See id. Thus, the Hall County court’s willingness to allow the State a second chance to litigate the venue question was contrary to principles of collateral estoppel. See OCGA § 9-12-40; Kent v. Kent, 265 Ga. 211 (1) (452 SE2d 764) (1995). It follows that the trial court erred in denying defendant’s plea of autrefois acquit.

Judgment'reversed.

Andrews and Smith, JJ., concur.

       OCGA § 17-2-2 ffl provides: “Whenever a stream or body of water is the boundary between two counties, the jurisdiction of each county shall extend to the center of the main channel of the stream or the center of the body of water; and, if a crime is committed on the stream or body of water and it cannot be readily determined in which county the crime was committed, the crime shall be considered as having been committed in either county.”


text:
    A96A1606.
    THE STATE v. DIAMOND.
    (477 SE2d 320)
   Pope, Presiding Judge.

The State appeals the trial court’s grant of Jacqueline Diamond’s motion to suppress. At the suppression hearing, only the testimony of the arresting officer, Officer Cheryl Davis of the Cobb County Police Department, was presented. She testified that on February 25, 1995, at about 3:30 a.m., she observed a vehicle driving north in front of her patrol car. Davis recalled that the vehicle seemed to have difficulty staying in its lane of travel and at one point it “straddled the line dividers between the two northbound lanes.” After seeing the vehicle’s difficulty maintaining its lane, Davis activated her video camera. The vehicle then put on its right turn signal and turned right onto Little Willeo Road, Davis observed the vehicle entering a curve, at which point the vehicle’s left turn signal was again activated, although Davis testified there was no street to turn onto. Davis stated that the driver turned off the blinker after the curve. Because Davis suspected that the driver of the vehicle was driving under the influence of alcohol, she decided to stop the vehicle and activated the blue lights of the police vehicle.

Davis recalled that the vehicle, which Diamond was driving, pulled off the road into someone’s yard and stopped “almost abruptly.” After Diamond failed several field sobriety tests, Davis placed her under arrest and read her the implied consent card. Subsequent breath and blood tests revealed that Diamond’s blood alcohol level exceeded the legal limit.

On cross-examination, Diamond’s attorney asked Davis to review the videotape of the events outside of the court’s presence. (The court never viewed the videotape of the events.) Davis had previously testified that she had viewed the videotape — though not recently — and that it did not show what she remembered. She had stated that the discrepancy might be attributable to the different vantage point of the video camera. After reviewing the video, Davis stated that her reason for activating the camera was not recorded and that it was difficult to see certain aspects of Diamond’s driving that Davis recalled.

After reviewing the video, Davis testified for the first time that there were construction barrels on both sides of the road that night. Nevertheless, Davis stated that the barrels were about a foot off the road and did not play a role in Diamond’s driving. With her recollection refreshed, Davis recalled that when Diamond moved from the left northbound lane into the right lane, she had activated her right turn signal. Davis recalled that Diamond kept the right turn signal activated for a quarter of a mile, until she turned right onto Little Willeo Road, and that it was unusual for a driver to leave a blinker on for that distance.

Davis reiterated that her decision to stop Diamond was based on Diamond’s inability to stay completely within her lane, the fact that Diamond was still driving on top of the lane dividers, and the fact that Diamond used her left turn blinker while driving on Little Willeo Road to indicate a non-existent turn. Davis, who testified that her training included detection of DUIs, said that she stopped Diamond to ascertain whether she was a safe driver and to assure that she would not pose a hazard to others. Davis issued Diamond citations for failure to maintain her lane of travel, for no proof of insurance, and for driving under the influence.

The court granted the motion to suppress, based on its finding that Davis did not have an articulable suspicion upon which to stop Diamond’s vehicle. In its factual findings, the court stated: “there was no indication that there was any straddling of any line when the officer testified after reviewing the videotape. The fact that the initial testimony of the officer indicated that the vehicle was straddling was never restated by the officer after refreshing her memory by reviewing the video tape, either on cross examination or on re-direct by the State. Therefore it does not appear to this Court that there was a straddling of the line, except when there was a legal change of lanes from left to right.”

Here, in its sole enumeration of error, the State argues that the trial court improperly granted the motion because Davis had sufficient articulable suspicion for the stop and the court’s findings of facts were clearly erroneous. We agree and reverse.

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Allenbrand v. State, 217 Ga. App. 609 (1) (458 SE2d 382) (1995). The court’s conclusion that there was no evidence after Davis reviewed the videotape that Diamond’s vehicle was straddling the lane was clearly erroneous. First, Davis had previously testified that she turned on the videotape only after observing Diamond’s vehicle straddle the lanes. Moreover, after reviewing the videotape, Davis reiterated that Diamond was still driving on top of the lane dividers.

“An officer may conduct a brief investigatory stop of a vehicle if such stop is justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. The specific articulable suspicion must be based on the totality of the circumstances — objective observations, known patterns of certain kinds of lawbreakers, and inferences drawn and deductions made by trained law enforcement personnel.” (Citations and punctuation omitted.) State v. Whitfield, 219 Ga. App. 5, 6 (463 SE2d 728) (1995).

This Court has specifically determined that an officer’s observation of a motorist’s “weaving” may serve as sufficient reason to warrant an investigative stop for a possible DUI violation. State v. Whitfield, 219 Ga. App. at 7; Pupo v. State, 187 Ga. App. 765, 766 (1) (371 SE2d 219) (1988). Given Davis’s testimony that Diamond was unable to stay in her lane, combined with the testimony of Diamond’s unusual — though not illegal — behavior of signaling for a nonexistent turn, we are unable to conclude that the investigative stop lacked a reasonable, articulable basis for the suspicion that Diamond might be under the influence of alcohol. See generally State v. Adams, 186 Ga. App. 87 (366 SE2d 326) (1988); compare State v. Goodman, 220 Ga. App. 169, 170 (2) (469 SE2d 327) (1996).

Decided September 19, 1996

Reconsideration denied October 11, 1996

Benjamin F. Smith, Jr., Solicitor, Rebecca A. Hulsey, Assistant Solicitor, for appellant.

Green & Associates, Patrick H. Head, for appellee.

Judgment reversed.

Andrews and Smith, JJ, concur.

       In the context of “pretextual” stops of motorists, see Whren v. United States, 517 U. S. (116 SC 1769, 135 LE2d 89) (1996).


text:
    A96A1539.
    ROBERTS v. THE STATE.
    (477 SE2d 345)
   Pope, Presiding Judge.

Defendant John Fitzgerald Roberts was convicted by a jury of armed robbery and making a false statement about the armed robbery. Following the denial of his motion for new trial, he appeals.

We view the evidence in a light favorable to the jury’s verdict. Defendant and four co-defendants needed money to buy drugs. One of the co-defendants (Colbert) said he would rob the Dairy Queen if the others would just go along. Defendant and the other co-defendants went with Colbert while he got a gun and something to wear over his face, and then while he robbed the Dairy Queen. All of the co-defendants shared the drugs purchased with the proceeds and divided up the remaining money.

1. In two enumerations of error, defendant challenges the admission of his in-custody confession. Specifically, he argues that (a) the State failed to show that it had explained defendant’s rights to him, and (b) the confession was coerced by the officer’s statements regarding what the co-defendants had already told him.

(a) Defendant’s first argument is not supported by the record. Contrary to defendant’s assertion, the officer taking defendant’s statement did testify at the Jackson-Denno hearing that he advised defendant of his Miranda rights, and that defendant understood those rights. And at the trial, the officer read the actual rights statement which he had read to defendant, and testified that defendant signed the waiver form.

(b) Defendant first gave a statement denying any involvement in the robbery. After the officer told him he was implicated in the statements of his co-defendants, however, defendant admitted that he knew what Colbert was doing and went along. Both of defendant’s statements were taped, but what the officer told him in between the statements was not; and defendant argues that this scenario somehow suggests coercion. But advising a defendant of the evidence the State already has against him, without threat or promise, does not constitute coercion.

Accordingly, the trial court did not err in admitting evidence of defendant’s statement. See Jones v. State, 194 Ga. App. 746, 748 (3) (391 SE2d 663) (1990).

2. Defendant contends that the trial court should not have admitted shirts allegedly worn by Colbert on the night of the robbery and a photograph of the site where the shirts were found, because the shirts were not adequately identified by the witnesses. Even if clothing cannot be positively identified, however, it is admissible if testimony indicates it is similar to that worn by the perpetrator; and this is particularly true where, as here, circumstantial evidence suggests the clothing was that worn by the perpetrator (i.e., the officers found the shirts exactly where the co-defendants said they had been thrown from the car). See Taylor v. State, 243 Ga. 222 (7) (253 SE2d 191) (1979); Holloway v. State, 164 Ga. App. 506 (5) (296 SE2d 744) (1982).

3. Nor did the trial court abuse its discretion in allowing testimony that Thomas, one of the co-defendants, had sought to establish a false alibi for the whole group. Defendant argues this testimony was not relevant because the State did not allege that he attempted to establish a false alibi. Nonetheless, it was logically relevant to the question of whether the whole group was involved in the crime. Moreover, Thomas testified at trial, and her testimony was more favorable to defendant than her pre-trial statement had been (e.g., at trial she said defendant did not receive any of the money from the robbery, but in her pre-trial statement she said he did). Thus, the challenged testimony was also relevant to the credibility of a witness.

4. Defendant argues that the trial court should have given his requested charge on mere association. As the court instructed the jury that the State must prove every element of the offenses charged beyond a reasonable doubt, and the mere association principle is just a corollary of this requirement, this argument is without merit. See Lamunyon v. State, 218 Ga. App. 782 (3) (463 SE2d 365) (1995).

Decided October 11, 1996.

Joseph A. Grimsley, for appellant.

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

5. Defendant also enumerates as error the trial court’s failure to inform defense counsel which requests to charge would be given before closing argument. See OCGA § 5-5-24 (b). But defendant did not point out to the court this easily remedied failure prior to argument; nor did he ask to reargue in light of any unexpectedly included or omitted charges. Additionally, defendant shows no harm from the court’s failure to comply with OCGA § 5-5-24 (b). We therefore find no harmful error. See Latimore v. State, 170 Ga. App. 848 (2) (318 SE2d 722) (1984); Daniels v. State, 137 Ga. App. 371 (4) (224 SE2d 60) (1976).

Judgment affirmed.

Andrews and Smith, JJ, concur.


author: Eldridge, Judge.

text:
    A96A2197.
    SHIELDS v. THE STATE.
    (477 SE2d 342)
   Eldridge, Judge.

A Walker County jury found appellant William E. Shields guilty as charged of the offenses of serious injury by vehicle; DUI — less safe driver; DUI — excessive blood alcohol content; and driving on the wrong side of the road. Shields appeals.

Appellant raises as his sole enumeration of error that the trial court erred in allowing the victim, former Rossville Police Sergeant William E. Meredith, to testify that, in the hospital emergency room to which both appellant and Meredith had been transported, he heard a man who was lying on a nearby stretcher ask the hospital staff “what happened and they told him that he was involved in an accident with a — hit a Rossville Police Sergeant”; the man responded that “he didn’t hit no goddamn pig.” Appellant contends that the admission of this latter statement was reversible error as the statement was inadmissible hearsay since no competent evidence was presented that demonstrated the identity of the man who made the statement, and thus, no exception to the hearsay rule would permit its introduction. In the alternative, appellant argues that even if the evidence showed that appellant made the statement about which he complains, its admission constituted reversible error as the statement put appellant’s character in issue without being relevant to any issue in the case or any fact in dispute.

Hearsay evidence is not admissible unless the evidence constitutes a recognized exception to the general rule excluding hearsay. Moore v. State, 154 Ga. App. 535 (268 SE2d 706) (1980). A voluntary, incriminating statement or confession by a criminal defendant is admissible as an exception to the hearsay rule, as is an express or implied admission against interest. Toledo v. State, 216 Ga. App. 480, 482 (455 SE2d 595) (1995); Summerour v. State, 211 Ga. App. 65 (1) (438 SE2d 176) (1993). With these principles in mind, we turn to a review of the record in the case sub judice.

Sufficient evidence may well have established that appellant was the maker of the statement about which he complains. See Jackson v. State, 256 Ga. 536 (2) (350 SE2d 428) (1986). Certainly, no evidence places any other victims of a vehicular collision, save appellant and William Meredith, in the emergency room of the Hutcheson Medical Center in rural Fort Oglethorpe, north Georgia, at. 3:00 a.m.; moreover, the context in which the statement was made identifies the maker as the one who was involved in the collision with William Meredith, i.e., appellant. However, the inquiry does not end there with regard to the admissibility of appellant’s statement. The question then becomes whether the statement about which appellant complains was an “incriminating statement or confession,” or an admission against interest so as to fit within the exception to the hearsay rule. Summerour, supra at 65; Toledo, supra at 482. We conclude that it was not.

In fact, it is difficult to discern any purpose for the admission of this statement other than the improper introduction of appellant’s character into evidence, and the brief of the state provides this Court with no enlightenment in this regard. Clearly, the statement, on its face, contains a denial of appellant’s role in the auto accident with Sergeant Meredith; further, appellant did not testify at trial or make any contradictory remarks that might have imbued the challenged statement with impeachment value. Thus, the only apparent benefit that inured to the prosecution by the introduction of appellant’s statement was by virtue of the less than seemly language in which his denial was couched. This Court is concerned about this appearance of prosecutorial over-reaching seemingly camouflaged by the general rule regarding the admissibility of a defendant’s voluntary statements; even under the broad admissibility standards of that general rule, a defendant’s statements must be. relevant for some purpose other than to show a deficient character. In the apparent absence of a legitimate, relevant purpose for its introduction, the admission of appellant’s statement was error.

Notwithstanding the above, we are constrained to find that, upon the record before this Court, the error in the admission of appellant’s statement was harmless. The state’s case demonstrated that just after midnight on December 6, 1989, appellant, driving a Cadillac automobile at a high rate of speed northbound on a particularly dark stretch of Highway 193, attempted to pass an 18-wheel tractor trailer truck on a curve of the highway where routine caution and double yellow lines would prohibit such a maneuver. Heading southbound in the opposite direction, William Meredith was returning home from his father’s house. Meredith saw the truck, and “I dimmed my lights[;] the truck dimmed his lights like that, and right as I was going into the blind curve right there, approximately at the end of the trailer just getting past the truck[,] I just met headlights right in the middle of the road.” William Meredith had to be cut out of his vehicle and “it hurt terribly when they took me out of the car. It just — they were just like pulling me apart when they took me out of it. like that. It just — I’m not a baby but it hurt terribly when they took me out of the car like that.” Meredith had suffered a crushed pelvis as a result of the collision and spent 23 days in the hospital; Meredith testified as to the permanent nature of the injuries he suffered. A subsequent test of appellant’s blood, drawn three hours after the collision, showed a blood alcohol content of .16.

Decided October 11, 1996.

Sawyer & Sawyer, Horace K. Sawyer III, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, for appellee.

The state presented testimony from the victim, the tractor trailer driver, numerous EMTs and hospital personnel, and the State Trooper who was called to the scene and later reconstructed the accident. Appellant did not testify and put up no evidence in contradiction of the state’s case. Thus, we conclude that the error in the admission of appellant’s statement was harmless beyond a reasonable doubt in light of the overwhelming evidence of appellant’s guilt. Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869) (1976); Sampson v. State, 209 Ga. App. 213, 216 (433 SE2d 136) (1993).

Judgment affirmed.

Andrews and Smith, JJ., concur.

       Appellant’s reliance on this Court’s decision in Cobb v. State, 209 Ga. App. 708 (434 SE2d 513) (1993) is misplaced. The multiplicity of error that made a harmless error analysis impossible in Cobb, supra, is simply not present in the case sub judice.


text:
    A96A2309.
    LOWE v. THE STATE.
    (477 SE2d 341)
   Eldridge, Judge.

Appellant was indicted on June 15, 1994, along with two co-defendants, Eric Lamar Stovall and Don Carlos Johnson, for trafficking in cocaine and possession of a firearm during the commission of a felony. Appellant was convicted on January 31, 1995, along with the co-defendants, of trafficking in cocaine. Appellant was sentenced on January 31, 1995. Although appellant stated in open court that he wanted appointed counsel to appeal, no appeal was filed. The trial court granted an out-of-time right to appeal and allowed an extraordinary motion for new trial to be filed. The motion for new trial was denied on April 16, 1996, and the order entered on May 21, 1996. A notice of appeal was filed on June 3, 1996. On July 15, 1996, the notice of appeal was amended to include the granting of a new trial and the entering of an acquittal to the co-defendant, Don Carlos Johnson.

Appellant filed no transcript and refers to the transcript of the co-defendant Eric Lamar Stovall filed with this Court pursuant to Stovall’s appeal on this case, Stovall v. State, 219 Ga. App. XXX (1995) (unpublished opinion).

On December 29, 1993, Detective M. C. Cox of the Forest Park Police Department observed Eric Lamar Stovall driving a green Honda Accord on Springdale Road as part of an ongoing investigation of Stovall; the next day, Cox again observed Stovall on Springdale Road driving the same car with appellant and Don Carlos Johnson as passengers. Cox, along with other officers, stopped Stovall. Don Carlos Johnson was seated in the right front passenger seat, while appellant sat behind him on the right side of the car. All occupants were removed from the vehicle and a small paper sack, which was open, was found on the floor. The sack contained several small baggies, as well as a large rock, of crack cocaine. Detective Moorefield, when removing Johnson from the front seat, saw the bag on the floor behind the driver’s seat, next to where appellant’s feet had been. Upon searching, appellant had over $600 in cash, while Stovall had over $2,000 in cash. A loaded Glock 9mm handgun was partially hidden under the driver’s seat and eight rounds of .45 ACP ammunition were found in the glove compartment, but no .45 caliber pistol was recovered. Immediately prior to the stop, no occupant was seen making any sudden movement or throwing anything into the backseat of the vehicle.

At trial, appellant made a timely motion for directed verdict, which was denied. The jury returned a conviction of trafficking in cocaine against all three defendants who were in the motor vehicle.

The appellant’s enumerations of error are both based upon the same standard, since the failure to grant a directed verdict and failure to grant a new trial on the sufficiency of the evidence both involve the same analysis under Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

Decided October 11, 1996

Alfred L. King, Jr., for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Appellant contends that he was not shown to be in constructive possession of the drugs, which were lying at his feet in the backseat behind the driver, and that the $600 found on his person did not implicate him as a party to the crime of trafficking. The jury found all three occupants guilty beyond a reasonable doubt of trafficking in cocaine, which means that the jury found them all guilty of joint constructive possession of the drugs. The trial court denied motions for new trial to both appellant and Stovall but granted a new trial and entered an acquittal as to Johnson.

This Court in Blaise v. State, 185 Ga. App. 653, 654 (365 SE2d 499) (1988), held: “[a]ppellant argues that mere presence in the vicinity of contraband, without more, does not establish possession, and there must be a showing of constructive possession by appellant other than mere spatial proximity. While we agree with those principles of law, they are inapplicable here. Possession may be joint or exclusive, and actual or constructive. Garvey v. State, 176 Ga. App. 268, 274 (6) (335 SE2d 640) (1985). . . . Such evidence would authorize a finding that appellant and his co-defendants had equal access to the cocaine and were in joint constructive possession of the drug. Id. By showing circumstantially that the three defendants had equal access to the cocaine, the evidence established that the defendants were parties to the crime, and thus, guilty of joint constructive possession of the cocaine. Brownlee v. State, 173 Ga. App. 138, 139 (1) (325 SE2d 815) (1984). Such evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, [supra]. Hence, it was not error to deny appellant’s motion for a directed verdict of acquittal. Eaton v. State, 184 Ga. App. 645, 647 (3) (362 SE2d 375) (1987).” See also Ancrum v. State, 197 Ga. App. 819, 821 (399 SE2d 574) (1990); Lance v. State, 191 Ga. App. 701, 703 (382 SE2d 726) (1989); Bruce v. State, 191 Ga. App. 580, 582 (382 SE2d 367) (1989); Patterson v. State, 187 Ga. App. 406, 409 (370 SE2d 500) (1988); Mendez v. State, 185 Ga. App. 1 (1) (363 SE2d 262) (1987).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


author: Judge Harold R. Banke.

text:
    A96A1787.
    BROWN et al. v. SUPER DISCOUNT MARKETS, INC. et al.
    (477 SE2d 839)
   Judge Harold R. Banke.

Janice Brown and her daughter Kelly Roper sued Super Discount Markets, Inc. d/b/a Cub Foods (“Cub”) and Phillip Smith, a security employee, to recover damages for false arrest, false imprisonment, and assault and battery resulting from their detention for suspected shoplifting at Cub. The case is before us on appeal from the grant of summary judgment in favor of Cub and Smith.

Summary judgment is appropriate when the court viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence was as follows. As Brown and Roper were beginning to checkout at Cub, Smith intercepted them because he had purportedly observed them concealing cigarettes, meat, and cheese inside their purses as they shopped. Cashier Cheryl Hall noticed that the women unsuccessfully attempted to remove some of the secreted merchandise from their purses after they were caught. Evette Sanabria, a customer service representative, accompanied Smith, Brown, and Roper to the store office. Sanabria ascertained that the items allegedly purloined totaled $26.66. Smith decided not to prosecute the customers, gave them a criminal trespass warning, and advised them not to return.

Cub and Smith moved for summary judgment asserting that their actions were protected by statutory privilege under OCGA § 51-7-60. They further contended that any touching was non-confrontational and privileged.

In opposition to summary judgment, Brown and Roper offered their testimony and that of Nichols, Brown’s fiance, who witnessed Smith’s initial confrontation with the women. All three testified that Smith grabbed Brown’s arm and slung her and that Smith shoved Roper into a nearby candy rack. Brown and Roper further claimed that Smith locked the office door, prevented them from leaving, pushed Brown down repeatedly whenever she attempted to leave the office, and poked her in the back as she was departing the store. Both stated that they were detained an unreasonable length of time, between an hour and an hour and a half. They further testified that Smith threatened to contact the Department of Family & Children Services to have Roper’s child taken away and that Smith was profane and verbally abusive. Held:

Brown and Roper’s sole enumeration of error is that summary judgment was precluded by the existence of material disputed facts. We agree. Cub and . Smith could not prevail on motion for summary judgment unless the reasonableness of the initial decision to detain Brown and Roper and reasonableness of the manner and length of their subsequent detention were established as a matter of law. K Mart Corp. v. Adamson, 192 Ga. App. 884, 885 (386 SE2d 680) (1989); OCGA § 51-7-60.

When Smith intercepted Brown and Roper, he claimed that he had observed first-hand that the women were attempting to conceal or take possession of Cub’s merchandise. OCGA § 16-8-14 (a) (1). Because Smith had reasonable cause to believe that shoplifting was in progress, Smith was entitled to intercept Brown and Roper and investigate further. Swift v. S. S. Kresge Co., 159 Ga. App. 571, 573 (2) (284 SE2d 74) (1981).

However, the circumstances surrounding the detention are more problematic. Although Cub maintains that the detention was brief and voluntary, lasting approximately ten minutes, Brown and Roper vigorously dispute those claims. Contrary to Cub’s contention, whether the manner and length of detention were reasonable may be determined as a matter of law only in rare cases where the evidence is uncontroverted. Compare Bi-Lo v. McConnell, 199 Ga. App. 154, 156 (3) (404 SE2d 327) (1991) (disputed facts about conduct created jury question); and Crowe v. J. C. Penney, Inc., 177 Ga. App. 586, 588 (2) (340 SE2d 192) (1986). This is not such a case, and a jury must determine the reasonableness of Smith’s actions on the false imprisonment and false arrest counts. United States Shoe Corp. v. Jones, 149 Ga. App. 595, 597 (255 SE2d 73) (1979); OCGA § 9-11-56 (e).

Decided September 27, 1996

Reconsideration denied October 15, 1996

Joseph M. Todd, for appellants.

Drew, Eckl & Farnham, Peter B. Barlow, George R. Moody, for appellees.

Summary judgment must be reversed on .the assault and battery claim as well. Notwithstanding Cub’s argument to the contrary, any unlawful touching of a person’s body, even though no physical injury ensues, violates a personal right and constitutes a physical injury to that person. Christy Bros. Circus v. Turnage, 38 Ga. App. 581 (144 SE 680) (1928). “ ‘ “Any act of physical violence (and the law will not draw a line between different degrees of violence), inflicted on the person of another, which is not necessary, is not privileged, and which constitutes a harmful or offensive contact, constitutes an assault and battery.” (Cit.)’ Greenfield v. Colonial Stores, 110 Ga. App. 572, 574-575 (1) (139 SE2d 403) (1964).” Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876, 880 (3) (429 SE2d 264) (1993).

Brown and Roper testified that Smith bullied them, made threats, scared them, and used excessive physical force both before and after he took them to the office. The above-stated facts raise a triable issue as to whether Smith’s actions constituted assault and battery within the meaning of OCGA §§ 51-1-13; 51-1-14.

Judgment reversed and remanded.

McMurray, P. J., and Ruffin, J., concur.

       Cub offered affidavits from a friend of a Brown family member and a paralegal employed by its counsel, and an unsworn statement from Brown’s daughter, Tammy Roper, to assert that the appellants’ lawsuit was a fraud and to challenge the veracity of Brown and Roper’s version of events. The friend’s affidavit was admissible under OCGA § 24-3-31. The tape-recorded statement is inadmissible because it is unsworn. The paralegal’s affidavit is inadmissible because the paralegal was not a witness to any statement allegedly made by the parties, Janice Brown or Kelly Roper. Compare Jacobs v. Spano, 193 Ga. App. 447 (387 SE2d 924) (1989) (nonparty witness to whom party made statement can testify as to party’s admissions). See Hassell a First Nat. Bank, 218 Ga. App. 231, 232-234 (2) (461 SE2d 245) (1995); OCGA § 9-11-56 (e).

       We observe that counsel for appellees misstated the facts by asserting that appellants admitted they were shoplifting. The record clearly refutes this statement. This was not the only time that counsel for appellees made material misstatements of the record. We note that counsel also misstated the law in arguing that false arrest and false imprisonment claims are mutually exclusive. Simmons v. Kroger Co., 218 Ga. App. 721, 722 (1) (463 SE2d 159) (1995). See Standard 45 (b), State Bar Rule 4-102 (d).


text:
    A96A2085.
    JORDAN v. THE STATE.
    (477 SE2d 583)
   Eldridge, Judge.

Following a bench trial, Christopher Jordan was found guilty of driving with an unlawful drug present in his blood or urine, operating a motor vehicle with no insurance, and driving without a license in his possession; appellant was found not guilty of driving with an expired tag. He appeals.

The record shows that a Lawrenceville police officer, operating an unmarked police car, noticed appellant driving through a high crime area in Gwinnett County; the officer’s attention was drawn to appellant because the officer had not seen appellant’s vehicle in the area before, and appellant was a white male in a predominantly black community. The officer followed appellant. As appellant pulled into a Texaco service station, the officer noted that appellant’s Kansas license tag was expired. The officer pulled in behind appellant’s parked car, and when appellant exited the Texaco convenience store, the officer asked him for his license and proof of insurance; appellant had neither. The officer detected the odor of marijuana on appellant’s clothing. Appellant was given the Miranda warnings and voluntarily-made a statement that he had smoked marijuana that morning and had smoked crack cocaine the day before. Appellant was placed under arrest and read the implied consent information. The officer requested a urine sample for chemical testing, to which procedure appellant agreed; appellant requested a breath test, which request was honored. At trial, a forensic chemist testified that the urinalysis performed on appellant’s sample was positive for the presence of cocaine, as well as cocaine metabolites.

1. In a two-pronged argument, appellant contends that the trial court erred in finding that the police officer had probable cause to stop appellant. First, appellant argues that the officer’s stop of appellant for operating a vehicle with an expired tag was pretextual since the officer testified that his suspicions were aroused because appellant was a white driver in a “high drug area.” Second, appellant argues that even if the stop was not simply pretext, the officer was not justified in detaining appellant for driving with an expired Kansas tag because no Georgia law is violated by such an act. Thus, appellant contends that his statements and the results of his urinalysis should have been suppressed as derived from an illegal stop.

Appellant’s arguments are not well taken. The first ignores that appellant was not stopped, but followed because of the officer’s suspicions. The evidence was uncontroverted that the officer did not approach and, thus, “stop” appellant until after the officer saw that the license tag on appellant’s car was expired. That appellant was driving on an expired Kansas license tag is a fact appellant has never denied, and we find that the evidence supports the trial court’s determination that, regardless of the officer’s debatable reasons for following appellant’s car, the actual stop was based upon appellant’s operation of a vehicle with an expired tag. Wilder v. State, 192 Ga. App. 891, 892 (386 SE2d 685) (1989); Carter v. State, 192 Ga. App. 726 (386 SE2d 389) (1989).

Appellant’s second argument is equally meritless. Appellant contends that an out of state driver has no obligation to register his vehicle in Georgia, and this state has no interest in the collection of tax revenues for a vehicle with an out of state tag that is not registered herein; thus, the stop of a vehicle based on its operation with an expired out of state tag is not justified since no Georgia law is violated by such an act. Taking appellant’s argument to its logical conclusion, the citizens of Georgia could avoid ad valorem taxes on vehicles altogether through the convenient attachment of an expired out of state license tag, since an officer could never justifiably stop a vehicle to investigate the use thereof. However, fortunately for law enforcement and contrary to appellant’s assertions, an investigative stop can be utilized to determine if a law is being broken. This is the type of brief detention authorized by Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), in order to “balance intrusion against crime prevention or law enforcement.” (Emphasis supplied.) State v. Adams, 186 Ga. App. 87, 88 (366 SE2d 326) (1988). What is required by an officer is a “founded suspicion” as a basis from which a court can determine that the stop was not merely arbitrary, capricious, or harassing. Tedford v. State, 213 Ga. App. 252, 254 (444 SE2d 156) (1994). In the case sub judice, the police officer was justified in approaching the appellant to determine if the operation of appellant’s motor vehicle with an expired Kansas license tag was in violation of OCGA § 40-2-8 (b). See Wilder, supra at 892. There Was no error.

2. For a myriad of reasons, appellant contends that the results of his urine drug tests were inadmissible. We disagree.

With regard to the foundational requirements for the admission of urine drug test results, OCGA § 40-6-392 (a) (1) (A) states: “Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation [hereafter GBI] on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose.” Thus, in order to meet the requirements for admissibility of a urinalysis under this Code section, the State must introduce evidence that: (1) the test was performed under methods approved by the GBI; (2) on a machine which was in good working order; and (3) by an individual with a valid permit to conduct such testing. See Lewis v. State, 215 Ga. App. 486, 488 (451 SE2d 116) (1994).

In the case sub judice, Dr. Horton McCurdy, a toxicologist with the Forensic Sciences Division of the GBI, was qualified as an expert for the state; the doctor testified as to his training on the urinalysis instruments, his authority to perform urine drug tests, and the methods he utilizes to perform these tests. Appellant did not object to any of Dr. McCurdy’s qualifications or procedures. Dr. McCurdy testified that both of the instruments he used were in good working order pursuant to statutory requirements, and that he had tested each machine prior to performing, appellant’s urine drug tests. In addition, the State introduced a certificate of inspection for each instrument which demonstrated compliance with the statutory requirements; Dr. McCurdy also testified that each machine is checked for accuracy prior to the performance of any test thereon. The doctor testified that he possessed a valid permit from the GBI for the operation of the machines. Thereafter, Dr.' McCurdy testified in detail as to each test that he had performed on appellant’s urine sample, how it was performed, and the results thereof.

This Court finds that the testimony of Dr. McCurdy was sufficient to meet the foundational requirements of OCGA § 40-6-392 (a) (1) (A) for the admission of the evidence of appellant’s urine drug tests, and the results of those tests. Lewis, supra at 488; Martin v. State, 214 Ga. App. 614, 617 (448 SE2d 471) (1994). Appellant’s complaints regarding the length of time that had elapsed between the original certification of the machines and the date of appellant’s urinalysis goes to the weight and not the admissibility of the evidence, especially in light of Dr. McCurdy’s testimony that the machines are tested regularly and were working properly pursuant to statutory requirements at the time of appellant’s urinalysis. See Lattarulo v. State, 261 Ga. 124, 126 (401 SE2d 516) (1991) (evidence that machine might have malfunctioned relates to weight rather than admissibility). In point of fact, Dr. McCurdy’s testimony, alone, was sufficient to demonstrate compliance with the statute without the submission of the certificates of inspection. Appellant has not shown that he has been harmed by their admission. Scott v. State, 213 Ga. App. 84, 88 (444 SE2d 96) (1994).

Appellant also challenges the methods whereby the tests were conducted and submits for this Court’s review seven pages of the lengthy Rules of the GBI in order for us to determine the “total absence” of any GBI-approved method by which to conduct urine testing. Further, appellant challenges Dr. McCurdy’s authorization to conduct a urine drug test. This Court finds that these challenges have been waived by appellant’s failure to raise objection thereon in the court below. Jackson v. State, 217 Ga. App. 485, 488 (458 SE2d 153) (1995).

In addition, appellant contends that the results of his urine drug tests are inadmissible because the officer failed to follow the requirements of OCGA § 40-5-67.1 (a) which, according to appellant, mandate that either a breath test or a blood test must be given before the officer may require a urine test.

We note at the outset that in the case sub judice, appellant received a breath test and a urine test; thus, even under appellant’s reading of OCGA § 40-5-67.1 (a), there was substantial compliance with the statute. See OCGA § 1-3-1 (c). Further, a violation of OCGA § 40-5-67.1 (a) would not necessarily affect the admissibility of appellant’s urine drug test pursuant to OCGA § 40-6-392 (a) (1) (A). See State v. Hassett, 216 Ga. App. 114 (453 SE2d 508) (1995), relying on Keenan v. State, 263 Ga. 569 (436 SE2d 475) (1993) (discussion of OCGA § 40-5-67.1 (g) (2) in relation to criminal trials).

Nonetheless, in order to clarify the seemingly contradictory language between OCGA §§ 40-6-392 and 40-5-67.1 (a) regarding the authority of law enforcement to choose the appropriate chemical test in DUI cases, and in order to forestall this issue from arising in the future, we address appellant’s interpretation of the requirements of OCGA § 40-5-67.1 (a).

In support of his contention that a blood or breath test must be given before a urine test can be performed, appellant cites that portion of OCGA § 40-5-67.1 (a) which states: “the officer shall require a breath test or a blood test and may require a urine test.” However, in constructing a statute so as to give effect to the legislative intent, a mere segment of the statute should not be lifted out of context and construed without consideration of all the other parts of the statute. City of Jesup v. Bennett, 226 Ga. 606, 609 (176 SE2d 81) (1970). Moreover, OCGA § 40-5-67.1 must be read in concert with OCGA §§ 40-5-55 and 40-6-392, which are expressly referenced therein, in order to effectuate the purpose of the statutes. City of Brunswick v. Atlanta Journal & Constitution, 214 Ga. App. 150, 153 (447 SE2d 41) (1994); State v. Leviner, 213 Ga. App. 99, 100 (443 SE2d 688) (1994).

The reading of these statutes, in conjunction with those opinions that have interpreted them, demonstrates that* a law enforcement officer has the authority to choose which chemical test, breath, blood, urine or other bodily substance, will be administered. OCGA § 40-5-55 (a) (law enforcement officer designates which tests administered); OCGA § 40-6-392 (person shall undergo either breath, blood, urine or other test at the request of law enforcement officer); OCGA § 40-5-67.1 (b) (1), (2), (3) (breath, blood, urine or other test under OCGA § 40-5-55 administered at designation of law enforcement officer); Steed v. City of Atlanta, 172 Ga. App. 839 (325 SE2d 165) (1984) (law enforcement officer shall designate which tests administered); Op. Atty. Gen. 77-21 (arresting officer designates which chemical test to be taken by driver). Where possible, effect is to be given to all the words of a statute, and it is firmly established that courts should not interpret a statute so as to render parts of it surplusage or meaningless. City of Brunswick, supra at 153; State of Ga. v. C. S. B., 250 Ga. 261, 263 (297 SE2d 260) (1982); Saleem v. Bd. of Trustees &c. of Atlanta, 180 Ga. App. 790, 791 (351 SE2d 93) (1986). Thus, that portion of OCGA § 40-5-67.1 (a) cited by appellant, read in pari materia with OCGA §§ 40-5-55 and 40-6-392, cannot require that either a blood or breath test be given before a urine test is administered without contradicting the plain language in all three statutes regarding the police officer’s authority to designate which chemical test is to be utilized, blood, breath, urine or other bodily substance. Therefore, it is safe to assume the legislature had something else in mind. City of Brunswick, supra at 153; Brown v. City of Marietta, 214 Ga. App. 840 (449 SE2d 540) (1994).

What that something else may be becomes more apparent upon consideration of the purpose for chemical testing-under these statutes, i.e., detection, via the least intrusive and least expensive method, of the source of impairment suspected by the officer in order to support a prosecution for DUI thereon. See Ga. L. 1995, p. 1160; Ga. L. 1995, Ex. Sess., p. 5. To that end, it must be understood that a breath test will not detect drugs; a urine test will not necessarily reflect blood alcohol content accurately; and a blood test, the most complicated, intrusive and expensive of the three, may be utilized to detect both drugs and an accurate blood alcohol content, if the officer is unsure which substance is causing impairment. See Turkula, Drug & Alcohol Testing, § 6.01, Biological Sources for Testing, p. 6-1 (1990). Given the essentially odorless nature of most drugs, the detection of the source of impairment in DUI cases where drug use is suspected, but not assured, is often a shot in the dark, especially when alcohol is also involved; thus, either a breath test or blood test will be the choice of most officers. However, in those instances where an officer is able to narrow down the cause of impairment to drug use, either through a confession as in the case sub judice, or through the presence of marijuana odor or drug paraphernalia, it would be absurd to construe OCGA § 40-5-67.1 as requiring a totally useless breath test or an expensive, intrusive, and complicated blood test when a urinalysis, which is the most commonly used, accurate and reliable method for the detection of major drugs of abuse, would better serve the purpose of the statute. See Turkula, supra, § 6.03, Urine Testing Techniques, pp. 6-6-6-7. Surely, the legislature did not intend to elevate one test over another, but intended to require an inexpensive, appropriate test for the detection of the suspected source of impairment. Statutes must be construed in order to square with common sense and sound reasoning, as well as to effectuate the purpose of the General Assembly. City of Brunswick, supra at 153.

In addition, appellant’s interpretation of OCGA § 40-5-67.1 (a) ignores that “statutes directing the mode of proceeding by public officers, designated to promote method, system uniformity, and dispatch in such proceeding, will be regarded as directory if a disregard thereof will not injure the rights of parties, and the statute does not declare what result shall follow non-compliance.” Southern Security Co. v. American Discount Co., 55 Ga. App. 736, 740 (191 SE 258) (1937); O’Neal v. Spencer, 203 Ga. 588 (47 SE2d 646) (1948); Lang v. State, 168 Ga. App. 693, 696 (310 SE2d 276) (1983). OCGA § 40-5-67.1 (a) establishes an administrative procedure with regard to chemical tests. Ga. L. 1995, Ex. Sess., p. 5. Non-compliance does not exact a penalty under the statute and produces no injury to the parties. Thus, the language of OCGA § 40-5-67.1 (a) is not mandatory, and an officer’s decision to require a urine test for drugs, rather than a blood or breath test, does not violate the provisions of the statute.

Consequently, this Court rejects appellant’s statutory interpretation and finds that OCGA § 40-5-67.1 (a) authorizes a law enforcement officer to designate the appropriate chemical test to be administered, breath, blood, urine or other bodily substance, for the detection of the source of impairment as suspected by the officer.

3. In his final enumeration of error, appellant challenges the chain of custody with regard to the urine sample because the arresting officer’s description of the packaging of the sample differed from the description of this evidence by the forensic toxicologist.

A chain of custody is sufficiently established when circumstances establish a reasonable assurance of the identity of the sample. Fedd v. State, 194 Ga. App. 475, 476 (391 SE2d 24) (1990). The State’s burden is met with a showing that, with reasonable certainty, the evidence examined is the same as that seized and that there.has been no tampering or substitution; where there is only a bare speculation of tampering, it is proper to admit the evidence and “let whatever doubt remains go to its weight.” (Citation and punctuation omitted.) Kerr v. State, 205 Ga. App. 624, 626 (423 SE2d 276) (1992).

In the case sub judice, the arresting officer testified that he took possession of the urine sample, sealed the plastic container with red tape, sealed the container in a plastic evidence bag, and placed the evidence bag, along with two pieces of accompanying paperwork, in a locked evidence refrigerator at the police department. The transport officer testified that he removed the evidence bag from the refrigerator and transported it to the crime lab, along with the two pieces of accompanying paperwork; the bag and paperwork were locked in the crime lab’s blood locker. The forensic chemist testified that he removed the sealed evidence bag from the blood locker and that the container with the urine specimen was still sealed with red tape; at trial the chemist had in his possession the two pieces of accompanying paperwork from the police department, both of which were tendered into evidence.

Decided September 27, 1996

Reconsideration denied October 15, 1996

Rich & Smith, Randolph G. Rich, for appellant.

Gerald N. Blaney, Jr., Solicitor, William Z. Meadows, Richard E. Thomas, Assistant Solicitors, for appellee.

This evidence was sufficient to establish the chain of custody. Fedd, supra at 476. The trial court determined that any contradictions in the arresting officer’s description of the initial packaging of the evidence and the toxicologist’s description of the way the package looked when it arrived at the crime lab did not suggest tampering, but a faulty memory on the part of the officer caused by the 14-month period since the incident. The record demonstrates that this determination was not clearly erroneous; thus, there was no error in the admission of this evidence. Dunn v. State, 218 Ga. App. 329, 330 (461 SE2d 294) (1995).

Judgment affirmed.

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

       Appellant argues that this Court’s reliance on our decision in Lewis, supra, would be misplaced because the legislative amendments to OCGA § 40-6-392 (a) (1) (A) became effective after the Lewis decision. This argument ignores the fact that the language of the statute setting out the requirements for admissibility did not change from one legislative incarnation to the other.

       The requirements for the formal certification of an instrument, and the promulgation of rules therefor under OCGA § 40-6-392 (a) (1) (A), relate to breath test instruments, such as the Intoximeter 5000, which certification attempts to ensure correct results and aid in the introduction of this evidence at trial. Ga. L. 1995, p. 1160; Ga. L. 1995, Ex. Sess., p. 5; see OCGA §§ 40-5-67.1 (j); 40-6-392 (f). With regard to blood and urine tests conducted in a GBI clinical laboratory setting, the requirements of OCGA § 40-6-392 (a) (1) (A) are satisfied with the testimony of the forensic toxicologist regarding his training and authorization, as well as his testimony regarding the performance of the instrument, the performance of the chemical tests, and the results thereof. Compare OCGA § 40-5-67.1 (g) (2) (F); see Lewis, supra at 489; Martin, supra at 617.


text:
    A96A0942.
    MINGLEDORFF v. STOKELY.
    (477 SE2d 374)
   McMurray, Presiding Judge.

A1 Freddie Mingledorff, an inmate at the Calhoun Correctional Institution, filed an action, pro se, against Alan Stokely for damages he allegedly sustained as a result of Stokely’s negligence. Stokely filed a motion to dismiss the complaint because Mingledorff filed the action seven days after expiration of the two-year statute of limitation. Mingledorff responded with a motion to amend the complaint’s filing date, asserting that the trial court’s clerk received the complaint 12 days before expiration of the statute of limitation, but “held up processing [the] lawsuit [because] additional forms needed [for processing the complaint were not included in the forms prison officials gave him for initiating his lawsuit].” Mingledorff asserts that he resubmitted the complaint — with the necessary papers — to prison officials five days before expiration of the statute of limitation; that prison officials delayed posting these papers until a day before expiration of the statute of limitation and that, as a result of this delay, the trial court clerk did not receive his complaint until a day after expiration of the statute of limitation. Mingledorff argued that his complaint should not be dismissed because he has access to the trial court only “via the U. S. Mail by the permission and assistance of authorities over [him and that these prison officials imposed] restrictions and prohibitions that severely obstructed the timely filing of the law suit [and violated his] constitutional right to affirmative governmental assistance in the preparation and filing of legal papers, according to Bounds v. Smith, 430 U. S. 817 (1977); and (H.B. 92, Act No. 585, Georgia Laws 1985).”

The trial court recognized that its clerk first received Mingledorff’s “civil action” 12 days before expiration of the statute of limitation, but concluded that this mailing did not constitute entry of the complaint because Mingledorff did not then comply with the filing requirement prescribed by Uniform Superior Court Rule 36.10. The trial court also found it unnecessary to deal with Mingledorff’s motion to amend the complaint’s filing date because the trial court’s clerk did not receive all forms necessary for processing the complaint until after expiration of the statute of limitation. The trial court therefore dismissed Mingledorff’s complaint based on expiration of the statute of limitation. This appeal followed. Held:

1. Mingledorff’s motion for this Court to appoint an attorney to represent him on appeal is hereby denied. “ ‘(T)his being a civil proceeding, [Mingledorff], though indigent, [is] not entitled to have . . . appointed counsel. . . .’ Crawford v. Linahan, 243 Ga. 161, 165 (253 SE2d 171) (1979).” Frazier v. Merritt, 190 Ga. App. 832 (1) (380 SE2d 495).

2. While some federal courts allow pro se inmates to file certain civil pleadings with the jailer, Garvey v. Vaughn, 993 F2d 776 (11th Cir. 1993), such a rule does not prevail in Georgia. “A civil action is commenced by filing a complaint with the court.” OCGA § 9-11-3. And filing “with the court” does not mean depositing the complaint in the mail. See State of Ga. v. Jones, 125 Ga. App. 361 (187 SE2d 902). If the United States Postal Service is chosen as a means of transmittal of the complaint, the complaint must be delivered to “the clerk’s official receptacle for the receipt of mailed pleadings in plenty of time for it to be picked up and stamped as filed before the limitation period [runs, except that a trial judge may permit such filings with him or her. OCGA § 9-11-5 (e)].” Stephens v. Espy, 213 Ga. App. 580 (445 SE2d 292). Liberty from this rule is sparingly considered and then only in cases involving “the careless innocent.” Justice Hardy Gregory, Jr., Ga. Civil Practice, pp. 79, 82, § 2-2 (B) (1990 ed.). See Griffith v. Mitchell, 117 Ga. 476, 478-480 (43 SE 742), and Forsyth v. Hale, 166 Ga. App. 340, 341-344 (304 SE2d 81). Compare Lackey v. Crittenden, 217 Ga. App. 432 (457 SE2d 701).

Decided October 15, 1996

Al F. Mingledorff, pro se.

Beckmann & Pinson, Walter W. Ballew III, for appellee.

In the case sub judice, we cannot say Mingledorff is a “careless innocent” with regard to the delayed filing of his complaint. Mingledorff s complaint was filed after expiration of the statute of limitation because Mingledorff waited until the eleventh hour to assert his claim in state court and he then neglected to comply with the filing procedures prescribed by USCR 36.10. Moreover, while prison officials may be to blame for the filing of Mingledorff s complaint after expiration of the statute of limitation, Stokely had nothing to do with this untimely filing. He should therefore not suffer an extension of the two-year statute of limitation. Consequently, since it is undisputed that Mingledorff s complaint was not filed in accordance with OCGA § 9-11-5 (e) and USCR 36.10 before expiration of the applicable statute of limitation, the trial court did not err in granting Stokely’s motion to dismiss Mingledorff s complaint.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

       Mingledorff’s complaint is on a form entitled, “Inmate Form for Civil Action.” This standard form not only provides sections pertinent to the inmate/plaintiff’s civil action, but also provides sections pertinent to the inmate/plaintiff’s criminal conviction, sentence and history of civil litigation.

       This rule pertinently provides as follows: “Complaints or petitions presented to the clerk for filing shall be filed only when accompanied by the proper filing fee, fee for sheriff service or a pauper’s affidavit and, when applicable, any forms required by law or rule to be completed by the parties.”