author:
Banke, Presiding Judge. Birdsong, Chief Judge,
      Beasley, Judge, Carley, Judge,

text:
    75324.
    RYALS v. THE STATE.
    (367 SE2d 309)
   Banke, Presiding Judge.

Ryals appeals the denial of his motion for new trial following his conviction of burglary.

On the evening of the night the offense occurred, Ryals had visited the victim’s home in the company of his wife and two young daughters, ostensibly to look for a wristwatch which he had lost on the premises while doing yard work for the victim earlier that day. With the victim’s permission, and in his presence, the appellant and his family looked around the house but were unable to find the watch and subsequently left. The victim testified that before retiring that night, he locked the outside door of his home and latched the adjacent screen door. When he awoke in the morning, he discovered that his billfold containing $62 was missing from his trousers, which he had left hanging from a chair next to his bed. He also discovered that the screen door had been slit in the area of the latch.

The victim immediately reported the theft to the police; and, based on his assertion that no visitors other than the Ryals family had been present at his house the previous evening, the police obtained a warrant to search the family’s mobile home. While the officers were en route to the home to execute the warrant, they observed Ryals and his wife walking alongside the road and placed both of them in the back seat of the patrol car. They then proceeded to the mobile home to execute the search warrant. Although the ensuing 45-minute search uncovered no evidence connecting Ryals to the burglary, both Ryals and his wife were nevertheless taken to the police station, where, at 11:55 a.m., the appellant signed a written waiver of his Miranda rights. A lengthy interrogation session followed, terminating at approximately 5:00 p.m. with the appellant’s placement of his signature on the following written statement: “I went at 2:00 to Mr. Harrisons (sic) house and went in and took a billfold with $62 and left there and went home. I unlatched the screen door and opened the wood door. It wasn’t locked.” Following a Jackson v. Denno hearing, the trial court admitted this statement over Ryals’ objection that it had not been voluntarily made. See generally OCGA § 24-3-50. Held:

1. The appellant contends that “[t]he trial (sic) committed reversible error by finding that [his] alleged confession was freely and voluntarily given.” While this enumeration of error is couched solely in Fifth Amendment terms, the appellant additionally argues in his brief that the police violated his “State and Federal Constitutional Rights” by holding him in custody and making it clear to him “that [he] was not going to be allowed to leave the police station until such time as they received a confession from him as to his guilt in this case.” We hold that this argument is sufficient to raise the contention that the confession was extracted in violation of the appellant’s due process rights under the Fourth as well as the Fifth Amendment.

Pursuant to the Appellate Practice Act of 1965, which comprehensively and exhaustively revised and modernized appellate procedure in Georgia, enumerations of error are to be reviewed in such a manner “as to bring about a decision on the merits of every case appealed and to avoid dismissal of any [appeal] or refusal to consider any points raised therein, except as may be specifically [authorized by the Act.]” OCGA § 5-6-30. (Emphasis supplied.) “Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” OCGA § 5-6-48 (f).

In conformance with the letter and spirit of the Appellate Practice Act, we conclude that the appellant’s constitutional challenge to the admissibility of his custodial statement is properly before us, notwithstanding his lack of precision in specifying the precise source of the constitutional right which he contends has been violated.

2. It is apparent that the appellant’s statement was obtained as the product of an arrest made without probable cause. In a case with remarkably similar facts, the United State Supreme Court, in Dunaway v. New York, 442 U. S. 200 (99 SC 2248, 60 LE2d 824) (1979), held that a defendant’s due process rights were violated by just such an in-custody interrogation conducted pursuant to an unlawful arrest, notwithstanding the defendant’s purported voluntary waiver of his Miranda rights following the arrest. Accord State v. Harris, 256 Ga. 24 (343 SE2d 483) (1986). In the present case, as in Dunaway, supra, there was clearly no probable cause for the appellant’s arrest, and “[n]o intervening events broke the connection between [his] illegal detention and his confession. To admit [appellant’s] confession in such a case would allow ‘law enforcement officers to violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the “procedural safeguards” of the Fifth.’ ” Dunaway, supra, 442 U. S. at 219, citing Comment, 25 Emory LJ. 227, 238 (1976). The fact that a confession may be voluntary for purposes of the Fifth Amendment is merely a threshold requirement for Fourth Amendment analysis. Dunaway, supra, 442 U. S. at 217. Accordingly, even assuming arguendo that the evidence would otherwise support a conclusion that the appellant’s confession was voluntary, we conclude that it should have been excluded from evidence as the fruit of an unlawful arrest.

3. Without the appellant’s in-custody statement, there was insufficient evidence to sustain a conviction. It follows that the appellant’s motion for a directed verdict of acquittal should have been granted.

Judgment reversed.

Sognier and Benham, JJ., concur. Birdsong, C. J., concurs specially. Pope, J., concurs and also concurs specially. Beasley, J., concurs in part and dissents in part. Deen, P. J., and Carley, J., dissent. McMurray, P. J., dissents as to the judgment of reversal.

Birdsong, Chief Judge,

concurring specially.

I concur specially with the majority opinion for two reasons: (1) This court can consider error not enumerated in exceptional cases where no exception is taken, if the error is obvious, and seriously affects the fairness, integrity or public reputation or judicial proceedings, and (2) this is a Fourth Amendment error, based upon egregious police conduct, which should not be condoned by the judicial system.

(1) “The United States Supreme Court has stated the general rule many times: ‘ “In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Atkinson, 297 U. S. 157, 160.’ Silber v. United States, 370 U. S. 717, 718 (82 SC 1287, 8 LE2d 798); accord Rogers v. United States, 422 U. S. 35, 41 (95 SC 2091, 45 LE2d 1); Lamb v. Cramer, 285 U. S. 217, 222 (52 SC 315, 76 LE 715); United States v. Tenn. &c. R. Co., 176 U. S. 242 (20 SC 370, 44 LE 452).” Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482). The error is obvious and it seriously affects the fairness, integrity and public reputation of judicial proceedings. This court is authorized to consider the error. Kearney v. State, 184 Ga. App. 64, 66 (360 SE2d 633).

(2) The U. S. Supreme Court, in Brown v. Illinois, 422 U. S. 590 (95 SC 2254, 45 LE2d 416), considered the admissibility of a suspect’s statement following his detention, without probable cause, and held that the warnings required by the Miranda decision in no way inform a person of his Fourth Amendment rights, including his right to be released from unlawful custody following an arrest made without a warrant or without probable cause. Id. at 601. In the instant appeal, there was only a search warrant, not an arrest warrant — and for good reason as there was no probable cause to arrest. Although Ryals was detained at the police station for approximately seven hours and warned of his Miranda rights, Miranda warnings alone cannot make a suspect’s statement following an illegal arrest a product of free will, and serve to break the causal connection between the illegal arrest and the confession. Id. at 603. The question whether a confession made after an illegal arrest is the product of a free will must be answered on the facts of each case, and no single fact is dispositive; in determining whether a confession is obtained by exploitation of an illegal arrest, the giving of the warnings required by the Miranda decision, the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. Id. And, even if the trial court finds the confession voluntary under the Fifth Amendment, the Fourth Amendment issue remains.

The Supreme Court again, in Dunaway v. New York, 442 U. S. 200 (99 SC 2248, 60 LE2d 824), found that “[t]he Rochester police violated the Fourth and Fourteenth Amendments, when, without probable cause to arrest, they seized petitioner and transported him to the police station for interrogation,” as in the instant appeal. The suspect was “seized” within the meaning of the Fourth Amendment, “when he was taken involuntarily to the police station” if the police lacked probable cause to arrest. It was held that “detention” for custodial interrogation, regardless of its label, intrudes so severely on the interests protected by the Fourth Amendment, as to invoke the traditional safeguards against illegal arrest. Id. “Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed ‘arrests’ or ‘investigatory detentions.’ ” Davis v. Mississippi, 349 U. S. 721, 726 (89 SC 1394, 22 LE2d 676).

Brown, supra, settled the argument that “ ‘Miranda warnings ... do not alone sufficiently deter a Fourth Amendment violation. . . . Consequently, although a confession after proper. Miranda warnings may be found “voluntary” for purposes of the Fifth Amendment, this type of “voluntariness” is “merely a threshold requirement” for Fourth Amendment analysis. . . .’” Dunaway, supra at 217. Appellate courts focus upon “ ‘the causal connection between the illegality and the confession’. . . . When there is a close causal connection between the illegal seizure [of the person] and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts.” Id. at 217-218. “And the burden of showing admissibility rests, of course, on the prosecution.” Id.

I have found no event of any significance to establish attentuation of the primary illegality. To the contrary, there are many elements establishing exacerbation of the primary taint — the illegal arrest: (1) The illegal detention continued over a period of almost seven hours. (2) The police also held the suspect’s wife in detention for that same period. (3) The police refused to permit the suspect or his wife to care for their children during the detention period, although they were out of school during the latter part. (4) Neither the suspect nor his wife were fed the noon meal, although one officer said he purchased them a coke and a package of crackers out of his own pocket. (We will only note in passing: (a) This was a snack and not a meal, and (b) it was personal action of the individual and not the official act of the State.) (5) Water was not furnished to either the suspect or his wife during the detention period, although the police said a water fountain was available. (Here we will note that the availability of water elsewhere in the building from where a suspect is being detained and questioned is not “making available” a suspect’s minimal needs of sustenance.) The suspect stated that he was permitted to visit the water fountain once during the seven hours. (6) The suspect stated that he was denied rest room facilities, and this allegation was not refuted. (7) The police admitted that custody of the suspect’s children was discussed with him in the context that they would be placed in the custody of the Department of Family and Children’s Services, if both the suspect and his wife were confined.

One cannot but conclude from the totality of the evidence that the police intended to detain the suspect for an indefinite period, and at least until he talked to them. Moreover, the suspect agreed to make a statement only after approximately seven hours of detention of himself and his wife, only after he was unable to make satisfactory arrangements for care of his children, only after custody of the children was discussed with the police, and only after the suspect agreed to make a statement provided his wife would be released. This court should not countenance illegal arrest, unlawful detention of the suspect and his wife, and the prolonged and coercive nature of the tactics used by the police, while denying him minimal sustenance and rest room privileges, so as to extract a statement obviously in violation of Brown, supra, Dunaway, supra, and Davis, supra.

Accordingly, I would find that we should consider the obvious constitutional error, and that such error requires reversal, unless this court desires to sanction illegal arrest, unlawful detention, and obvious and prolonged police tactics to coerce a suspect into making a statement.

I am authorized to state that Judge Pope joins in this special concurrence.

Beasley, Judge,

concurring in part and dissenting in part.

1. I concur in the conclusion of inadmissibility because it is clear from the record, as a matter of law, that the trial court erred in finding that the alleged confession was voluntary. That is the issue that was raised below and the ruling that is urged as error here. Deciding it does not require second-guessing defendant’s counsel by sua sponte raising other issues and rendering decisions as to them.

During the course of the trial, when a police officer began to testify about defendant’s custodial statement, defendant moved “for a Jackson-Denno hearing,” thus invoking his federal constitutional right to the “due process” procedure set out in Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964) to assure that his Fifth and Fourteenth Amendments right against compelled self-incrimination was not violated by the introduction of the confession. The Court in Jackson recognized: “The procedures used in the trial court to arrive at its conclusions on the coercion issue progressively take on added significance as the actual measure of the protection afforded a defendant under the Due Process Clause of the Fourteenth Amendment against the use of involuntary confessions.” Id. at 391. He argued, after the evidence was presented out of the presence of the jury, that it showed that the statement was not voluntarily made, “absolutely not.” The court disagreed and found, to the legal degree necessary as a threshold matter to allow the jury to consider it, that it was voluntary. And so, despite defendant’s urging that it was not voluntary and should not be put before the jury, it was admitted.

Defendant again challenged the court’s ruling, in the motion for new trial, still insisting that the alleged confession was not voluntary. The court, however, denied the motion.

On appeal, defendant enumerates as error the court’s finding of voluntariness. He argues that the evidence from the Jackson-Denno hearing which is not disputed shows that the court could not find that the statement was voluntary. While he does not expressly recite that what he stands on is the right against compelled self-incrimination in state courts which is protected by the Fifth and Fourteenth Amendments, it is patent that this is his ground. He is simply repeating what he claimed below. He does, of course, in addition cite and rely in this court on the Georgia statute on the subject, OCGA § 24-3-50.

The trial court erred in its finding of voluntariness, reaching this result because the judge did not believe defendant’s version, which differed only in some respects from that given by the investigating officer and the police chief. However, the uncontested objective facts did not give berth to such a finding. The other special concurrence ably lists some of them.

Some deserve elaboration. The warrantless arrest of both defendant and his wife, while they were walking along the railroad track towards town that morning was itself a circumstance to be considered in determining voluntariness because it set the abrupt and power-exhibiting tone of the long detention. This was exacerbated by the thorough search of their trailer home which took place with defendant and his wife in police custody there, before they were taken to the police station.

Another fact contributing to coercion as opposed to voluntariness is that they were detained at the police station, except when taken in mid-afternoon to another city for a polygraph test instigated by the police chief, for over six hours. So, too, is the fact that defendant’s mother had gone off to get an attorney after talking with defendant, his wife, and the police chief, yet the questioning continued, the attorney was not available, and sometime later the alleged confession was obtained.

The burden was on the State to prove that the confession was voluntary, not on defendant to prove it was involuntary. Lego v. Twomey, 404 U. S. 477 (92 SC 619, 30 LE2d 618) (1972). For applications of this rule, see Jones v. State, 245 Ga. 592, 598 (8) (266 SE2d 201) (1980); State v. Osborne, 174 Ga. App. 521 (330 SE2d 447) (1985). The trial court’s finding was clearly erroneous, as it was counter to a preponderance of the evidence, and I agree that the alleged confession should have been excluded.

2. That is not to say that the motion for directed verdict should have been granted. It was denied because the alleged confession was in evidence, albeit we have found that it was erroneously admitted. We cannot go back, exclude the alleged confession, and on the basis of the remaining evidence substitute our judgment for the trial court’s. The state is entitled to retry the case without the inadmissible evidence. Defendant is entitled to a new trial, as prayed for in his motion for new trial based on the ground here discussed.

Carley, Judge,

dissenting.

The majority first holds that appellant’s confession “should have been excluded from evidence as the fruit of an unlawful arrest.” (Majority opinion, page 459.) The majority then holds that, absent the confession, the evidence would not be sufficient to authorize appellant’s conviction. In so doing, the majority acts in excess of its jurisdiction. Whether or not appellant’s confession was the fruit of an arrest which was unsupported by probable cause has heretofore never been raised as an issue in this case. Accordingly, that issue is not one which this court is now authorized to consider and to rule upon. When consideration is limited to only those issues in this case which are properly before this court, appellant’s conviction must be affirmed.

Accordingly, I must dissent.

Appellant never filed a pre-trial motion wherein he asserted the underlying illegality of his arrest under the Fourth Amendment and sought the suppression of his confession as the fruit thereof. Appellant only sought, during the course of the trial, a Jackson v. Denno hearing to determine the voluntariness of his confession. Accordingly, only a ruling by the trial court as to a violation of appellant’s Fifth Amendment rights was invoked. “We view the purpose of a JacksonDenno hearing and the requirement for the giving of Miranda warnings, as one allowing the trial court in the first instance, as a matter of law, and the jury, ultimately, as a matter of fact, to assure themselves of the voluntariness of a statement made by an individual and offered as a truthful but inculpatory admission against interest, and thus not violative of the constitutional prohibition of involuntary self-incrimination.” (Emphasis supplied.) Farley v. State, 145 Ga. App. 98, 100 (1) (243 SE2d 322) (1978). Thus, the trial court has never had occasion to consider the Fourth Amendment issue that is addressed by the majority. As appellant had requested, the trial court simply conducted a Jackson v. Denno hearing and, after giving proper consideration to the totality of those circumstances which surrounded the subsequent confession rather than those which surrounded the initial arrest, found that appellant had voluntarily given his inculpatory statement to the officers. See generally Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976). It is only this Fifth Amendment issue of the voluntariness of appellant’s confession that is before this Court, not the Fourth Amendment issue of the probable cause for appellant’s arrest that is addressed by the majority.

Apparently unlike the majority, appellant himself recognizes that the underlying lawfulness of his arrest is not, and cannot be, a viable issue on this appeal. The admission of the confession is not enumerated as error on the ground that it was the product of appellant’s unlawful arrest. Appellant enumerates as error only the trial court’s finding that the “alleged confession was freely and voluntarily given.” The majority simply ignores this enumeration of error, choosing instead to exceed its jurisdiction to hold that appellant’s confession was erroneously admitted for a totally unenumerated reason which has never been raised in or ruled on by the trial court. “ ‘The Court of Appeals has jurisdiction for the trial and correction of errors of law. . . . ([Cit.]) The Appellate Practice Act of 1965 ([OCGA § 5-6-40]) provides that the appellant shall file with the Clerk of the Court of Appeals “an enumeration of the errors, which shall set out separately each error relied upon.” . . . We do not know of any law or rule of practice and procedure that authorizes the Court of Appeals ... to examine the entire record and grant a new trial upon a ground of [its] own making and not upon a ground specified by the appellant. The duty of the appellate court is to correct errors alleged to have been made in the trial court and not to manufacture them.’ [Cit.] Thus we can not consider any error alleged to have been made unless there is an enumeration of it as provided in [OCGA § 5-6-40], nor can we consider and reverse on an error enumerated unless it is supported in the record and shown to have been ruled on by the trial judge.” (Emphasis supplied.) Craig v. State, 130 Ga. App. 689, 692-693 (6) (204 SE2d 307) (1974). Although under Rule 35 (b) of the Rules of this Court, Craig, in and of itself is a physical precedent only, the authorities cited therein remain quite viable. Moreover, Craig was cited with approval in a 1983 case of this Court which likewise held that “the issue underlying this enumeration, not being raised at trial, cannot be considered on appeal. [Cit.]” Kent v. Hunt & Assoc., 165 Ga. App. 169, 171 (7) (299 SE2d 123) (1983).

The statement in the majority opinion that appellant himself urges a Fourth Amendment violation is simply the majority’s own erroneous interpretation of the Fifth Amendment argument that is advanced in appellant’s brief in legitimate support of his enumeration of error. However, even if the majority were correct in its interpretation of the nature of appellant’s argument, appellant’s brief would not provide this court with the jurisdiction needed to address the Fourth Amendment issue. Appellant’s failure to raise a Fourth Amendment issue in the trial court or to enumerate any error as to such an issue on appeal serves to preclude this court from addressing the merits of any argument made in his brief as to that issue. See generally Craig v. State, supra. “An enumeration of error cannot be enlarged to include other issues not made therein. [Cit.]” (Emphasis supplied.) Reese v. State, 139 Ga. App. 630, 631-632 (3) (229 SE2d 111) (1976). This court will “not reach the matter raised in [appellant’s] brief ... [if] the issue was not enumerated as error.” (Emphasis supplied.) Irvin v. Askew, 241 Ga. 565, 566 (2) (246 SE2d 682) (1978).

It is unclear what part of the record the majority relies upon for the recited facts supporting its finding of the lack of probable cause for appellant’s arrest. Presumably, the majority relies upon the evidence which was adduced at the Jackson v. Denno hearing. However, since the Jackson v. Denno hearing involved only the Fifth Amendment voluntariness of appellant’s subsequent confession, the State was never required to introduce any evidence as to the Fourth Amendment probable cause for appellant’s initial arrest. Accordingly, it should not be surprising that the majority finds a lack of evidentiary support for the existence of probable cause for appellant’s arrest. The majority, in effect, finds reversible error because the State failed to produce evidence as to an issue which was never raised in the trial court and because the trial court failed to exclude appellant’s confession for a reason which was never presented to that court. The evidence which was produced at the Jackson v. Denno hearing, although conflicting, clearly authorized the trial court, acting as the trier of fact, to find that appellant’s confession had been freely and voluntarily given. “The trial court’s determination that [appellant’s] confession was voluntary and therefore admissible for the jury’s consideration was supported by a preponderance of the evidence . . . and was not error.” Thomas v. State, 233 Ga. 237, 240 (2) (210 SE2d 675) (1974). When proper consideration is given to all of the admissible evidence, including appellant’s confession, the trial court did not err in denying appellant’s motion for a directed verdict of acquittal. “ ‘A confession of guilt, freely and voluntarily made by the accused, is direct evidence of the highest character and sufficient to authorize a conviction when corroborated by proof of the corpus delicti. [Cits.]’ [Cit.]” Fields v. State, 232 Ga. 723 (2) (208 SE2d 822) (1974). I would affirm the conviction and, therefore, I dissent.

Decided March 18, 1988.

John R. Thigpen, Sr., for appellant.

Harry D. Dixon, Jr., District Attorney, Margaret M. Edwards, Assistant District Attorney, for appellee.

I am authorized to state that Presiding Judge Deen joins in this dissent.

       “The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own free will, and to suffer no penalty, as held in Twining [v. New Jersey, 211 U. S. 78], for such silence.” Malloy v. Hogan, 378 U. S. 1, 8 (84 SC 1489, 12 LE2d 653) (1964). See Miranda v. Arizona, 384 U. S. 436, 463 (86 SC 1602, 16 LE2d 694) (1966).


source: Caselaw Access Project

author: Sognier, Judge. Carley, Judge, Beasley, Judge,

license: Public Domain

text:
    75410.
    BENTLEY-KESSINGER, INC. v. JONES et al.
    (367 SE2d 317)
   Sognier, Judge.

Fred M. Jones, Larry Kessinger, and Hubert Wright, as lessors, brought dispossessory proceedings against their tenant, Bentley-Kessinger, Inc. based on Bentley-Kessinger’s nonpayment of rent. The landlords were awarded possession of the premises, and following the eviction they filed a Complaint for Lien, asking the court for a general lien on all property of the former tenant remaining in the commercial building, and permission to sell the property at private sale and apply the proceeds to satisfy not only that rent past due at eviction, but all unpaid rent on the 20-year lease. The trial court ruled in favor of the lessors, finding that the lease agreement specifically authorized the lessee’s liability for rent accruing after eviction. Bentley-Kessinger appeals.

Appellant contends the trial court erred by ruling that its liability for rent accrued after eviction was contractually authorized by the lease agreement. We agree and reverse.

We note initially that although the lease document is not in the record, its absence does not present an insurmountable hurdle to our decision of this case on its merits. We have here neither a situation where one party alleges that the other party has quoted paragraph 24 (b) of the lease inaccurately, nor the situation where one party alleges that even though paragraph 24 (b) is quoted accurately, its meaning is altered when read in conjunction with some other lease provision which is not before us. Rather, both parties agree that paragraph 24 (b) is the sole lease provision at issue, and their recitations of its contents are not in conflict. Rule 15 (b) of the Rules of the Court of Appeals, 172 Ga. App. A-3, A-8-9, allows us to consider this as an implied consent to the fact that paragraph 24 (b) says, in actuality, what the parties, in their briefs, tell us it says. See Whisnant v. State, 178 Ga. App. 742, 743 (1) (344 SE2d 536) (1986); Hiley v. McGoogan, 177 Ga. App. 809, 811, fn. 1 (341 SE2d 461) (1986). It further allows us to consider that paragraph as controlling, since neither party has pointed to another portion of the lease as altering what may be derived from a reading of paragraph 24 (b) alone. Thus, as the record shows the trial court concluded as a matter of law that paragraph 24 (b) provides that rent will continue to accrue even after default and repossession of the premises, we have before us all that is needed to allow us to review that conclusion, which is enumerated as error, on its merits.

It is the general rule in Georgia that an eviction and subsequent reentry and possession of the premises by the landlord terminates the lease. W. James Wilson & Assoc. v. Kelley, 143 Ga. App. 271, 272 (238 SE2d 270) (1977). Thus, any right to rent which accrues after eviction is normally extinguished. Nothing in Metro Mgt. Co. v. Parker, 247 Ga. 625 (278 SE2d 643) (1981) may be construed as overruling Kelley, supra, as the issue in Kelley with which we are concerned here was not addressed in Metro Mgt. The Supreme Court granted certiorari in Metro Mgt. “to consider whether the termination of a lease is a condition precedent to the institution of dispossessory proceedings under [OCGA § 44-7-50], where possession of the premises is sought on the basis of non-payment of rent, rather than on the basis of termination of the lease.” Id. at 625-626. Any reliance on Metro Mgt., therefore, for the proposition that the landlord-tenant relationship continues after the landlord evicts the tenant, is misplaced. It is true that parties to a lease agreement may contract in advance to hold the lessee liable for rent even after an eviction, de-

ducting therefrom only the amounts recovered by the lessor from reletting the premises. Hardin v. Macon Mall, 169 Ga. App. 793, 794 (1) (315 SE2d 4) (1984). However, our decision in Hardin was premised on the existence of an explicit and detailed provision in the lease which clearly and unequivocally expressed the parties’ intention to hold the lessee responsible for after-accrued rent even should an eviction take place. We do not agree with appellees or with the trial court that such is the case here. The only portion of the lease which is possibly applicable is that portion of paragraph 24 (b) (ii) which provides as follows: “Pursuit of any of the foregoing remedies by either party, shall not preclude pursuit of any other remedies provided by law, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rights, rents, or other things due hereunder, or of any damage accruing to either party by reason of the violation of any of the terms, provisions and covenants herein contained, by the other.” This language is general, and does not express a clear intent to allow the landlord to collect future rent in derogation of the usual rule. In the absence of such a clear expression of contrary intent, the common law should govern. Accordingly, that portion of the judgment below which finds appellant indebted to appellee for rent which accrued after eviction, and allows appellee to apply the proceeds of the sale of appellant’s property to that indebtedness, must be reversed.

Judgment reversed and case remanded for further proceedings in accordance with this opinion.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Carley and Beasley, JJ., dissent.

Carley, Judge,

dissenting.

I cannot agree with the majority’s determination that the “eviction and subsequent reentry and possession of the premises by the landlord terminates the lease.” This conclusion ignores the teaching of the Supreme Court’s decision in Metro Mgt. Co. v. Parker, 247 Ga. 625 (278 SE2d 643) (1981). In Metro Mgt. Co., the Supreme Court reversed the judgment of this Court holding that a termination by the landlord of the lease was a condition precedent to regaining possession of the premises through a dispossessory proceeding even when the basis for eviction was nonpayment of rent. The Supreme Court held that “[i]f the ground for dispossession is that the tenant is a holdover, there is a requirement for termination of the lease simply to place the tenant in the status of a holdover. Where this requirement for termination exists, it must occur prior to the demand for possession. If the ground for dispossession is non-payment of rent, [OCGA § 44-7-50] provides that a landlord may make a demand for possession when the tenant ‘shall fail to pay the rent when the same shall become due.’ This right exists apart from any right the landlord may have under a lease to terminate the lease for non-payment of rent. The statute does not impose a requirement that the landlord terminate the lease before instituting dispossessory proceedings where he does so solely on the basis of non-payment of rent. Rather, a close reading of Chapter [44-7] indicates that the intent of the legislature was to provide a landlord with a means to regain possession of premises from a tenant who fails to make timely payment of rent. Failure to pay rent is a separate ground from that of holding over beyond the term. It may exist during the term.” (Emphasis in original in part and supplied in part.) Metro Mgt. Co. v. Parker, supra, 630.

To the extent that the language in W. James Wilson & Assoc. v. Kelley, 143 Ga. App. 271, 272 (238 SE2d 270) (1977) could be construed to hold that eviction always terminates the lease even when eviction is based upon non-payment of rent, it must yield to the Supreme Court’s decision in Metro Mgt. Co. v. Parker. In this case, the dispossessory proceeding was brought because of default in making payments of rental reserved under the lease. When construed in light of the rationale of Metro Mgt. Co., the language of paragraph 24 (b) of the lease agreement clearly authorizes the landlord to “regain the premises” without terminating the lease. Thus, the landlord is entitled to seek the enforcement of the defaulting tenant’s obligation to pay the rental reserved during the remainder of the term less credit for rent received as a result of any subsequent lease to a third party. I would affirm the judgment of the trial court.

Beasley, Judge,

dissenting.

The defendant lessee leased a commercial building as a fast-food restaurant for a period of twenty years at the rate of $4,000 per month, plus taxes and insurance. The lessee failed to make certain lease payments and the lessors instituted dispossessory proceedings. Following eviction, lessors filed an amended “complaint for lien” alleging that the defendant owed rental arrearages in excess of $20,000 and asking for a general lien on property and equipment belonging to the former lessee remaining on the premises and for permission to dispose of it by private sale, the proceeds to satisfy the overdue rental. The parties agreed that the defendant would be enjoined and restrained from removing, damaging, or disposing of its property and equipment pending disposition of the complaint for lien.

The trial court concluded that a paragraph of the lease agreement provided contractually that rent would continue to accrue even after default and repossession and therefore that defendant was in arrears in the amount of $56,742.86 under the lease terms; granted plaintiffs a general lien on defendant’s remaining property and equipment and the right to sell it at public sale in order to discharge the lien and the indebtedness; and provided that it would by order transfer title to the property and equipment sold subject to the rights of any valid perfected security interest.

Lessee’s contention is that the trial court erred in ruling as a matter of law that a paragraph in the lease agreement permitted eviction plus the recovery of rent following eviction.

First of all, I assume that the order appealed from is a final order and directly appealable rather than wanting from a certificate under OCGA § 5-6-34 (b).

Turning to the merits, parties to a lease agreement may agree by specific terms that even after eviction the lessee shall be liable for rent for the entire term of the lease, less the amount received if the premises are re-let. Hardin v. Macon Mall, 169 Ga. App. 793 (1) (315 SE2d 4) (1984). Therefore, the propriety of the court’s determination in this case depends upon the language of the lease agreement.

But now there is a roadblock to a decision. Both appellant and appellees purport to quote purported provisions of the lease agreement in their respective appellate briefs, and appellant contends that there is no specific provision for rent after eviction. But no copy of this critical document appears anywhere in the record submitted on appeal. An inquiry to the trial court clerk confirmed that it was not in the record, so this is not a situation which lends itself to our ordering the record to be supplemented per OCGA § 5-6-48 (d). Even if we regarded the quotations as an implied stipulation of fact, we would need the entire lease so as to properly construe the disputed portion in context. OCGA § 13-2-2 (4).

The burden of showing harmful error is appellant’s, which must be done by the record and not by assertions of evidence in the brief or enumerations of error. Gibbs v. Browning, 172 Ga. App. 76, 77 (321 SE2d 813) (1984). See also Veit v. State, 182 Ga. App. 753, 758 (6) (357 SE2d 113) (1987); Continental Ins. Co. v. Carter, 171 Ga. App. 162, 163 (318 SE2d 770) (1984); York v. Miller, 168 Ga. App. 849, 850 (310 SE2d 577) (1983). The rule is well settled in this State that “the burden is on the party alleging error to show it affirmatively by the record. [Cits.]” Campbell v. Powell, 206 Ga. 768, 770 (3) (58 SE2d 829) (1950). Therefore, even if appellant had provided a copy of the lease in part or in its entirety in its brief rather than ostensible passages from the lease in its argument in brief, this would be inadequate for this Court to consider the substance of the lease and likewise it would not have afforded a basis for reversal of the lower court. Taylor v. Bentley, 166 Ga. App. 887 (2) (305 SE2d 617) (1983). As quoted and applied in Griffith v. Ga. Bd. of Dentistry, 175 Ga. App. 533, 534 (333 SE2d 647) (1985): “ ‘ “This court is a court for the correction of errors and its decision must be made on the record sent to this court by the clerk of the court below and not upon the briefs of counsel. [Cits.]”’ Tingle v. Arnold, Cate & Allen, 129 Ga. App. 134, 139 (199 SE2d 260) (1973) (on motion for rehearing).”

Decided March 18, 1988.

Michael E. Sumner, for appellant.

H. Parnell Odom, for appellees.

Of course, the burden was on plaintiff-lessor at the trial level to prove its case, but appellant does not raise below or enumerate as error the court’s ruling without the document actually in evidence, so the sufficiency of the evidence is not before us. Harrison v. Lawhorne, 130 Ga. App. 314, 318 (5) (203 SE2d 292) (1973); Long v. Marion, 257 Ga. 431, 432 (1) (360 SE2d 255) (1987).

In order to contest the trial court’s interpretation of the lease agreement, appellant was required to make a copy of the document a part of the record. See Lake v. Hicks, 147 Ga. App. 175 (2) (248 SE2d 236) (1978). In its absence we are constrained to affirm the lower court’s determination.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    75566.
    THOMPSON v. THE STATE.
    (367 SE2d 320)
   McMurray, Presiding Judge.

Defendant was indicted for child molestation, enticing a child for indecent purposes, aggravated sodomy and two counts of rape. The evidence adduced at trial, construed most favorably to support the jury’s verdicts, showed that the victim, who was under 14 years of age at the time, went to her bedroom for the night on November 5, 1986, and, shortly thereafter, defendant entered the victim’s bedroom, locked the door and committed acts which constitute child molestation. Defendant then forced the victim from her bedroom to his automobile, which was parked behind the house, and committed acts which constitute rape. The next day, the victim told her mother what had happened and the victim was taken to the hospital where a physical examination revealed that she was subjected to violent sexual intercourse within a 24 to 36-hour period. From this and other evidence adduced at trial, defendant was found guilty of child molestation, enticing a child for indecent purposes and rape.

Defendant’s trial attorney was allowed to withdraw by the trial court and another attorney was appointed to represent defendant on appeal. Appellate counsel filed this appeal and subsequently submitted an enumeration of error and brief. As an addendum to his appeal, defendant filed, pro se, documents wherein he asserts error. Held:

1. Defendant first contends the trial court erred in applying OCGA § 24-2-3, Georgia’s Rape Shield statute, by limiting his cross-examination of the victim and his direct examination of the victim’s father and brother. More specifically, defendant complains that he was not permitted to inquire of these witnesses regarding “possible false prior accusations of sexual misconduct...” made by the victim against her father and brother.

During defense counsel’s cross-examination of the victim, the following transpired: “Q. Now, . . . you sometimes have dreamed up things happening, haven’t you? A. I dream, but everybody does. Q. . . . You’ve been to mental health counseling before this alleged — [State’s attorney]: Your Honor, I object to this. If he’s trying to get into the character of the victim, that’s not relevant in this case. [Defendant’s attorney]: Your Honor, I’m trying to get into the credibility of the witness.” Thereafter, the trial court overruled the State’s objection and instructed defendant’s attorney to “confine [his inquiry,] without any elaboration, [to] whether or not [the victim] has told another person or persons that things have happened to her when, in fact, they have not happened.” Defense counsel agreed and, without exception, he pursued this line of inquiry with the victim and later with the victim’s father and brother. The victim denied she made any such accusations. The victim’s brother affirmed that the victim had not “made certain accusations against [him] in the past.” The victim’s father testified that the victim had “made false accusations against [him].”

Under these circumstances, we find that defendant is not entitled to relief under this enumeration of error since the trial court overruled the State’s objection and defense counsel did not object to the limited line of inquiry he was permitted. “ ‘(A) litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same. He is required to stand his ground and fight in order to successfully enumerate as error an (alleged) erroneous ruling by the trial judge. Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it. (Cit.)’ [Cit.]” Sanders v. State, 181 Ga. App. 117 (2), 120 (351 SE2d 666). In the case sub judice, defendant’s attorney not only acquiesced by not objecting to the trial court’s ruling, after the trial court instructed defendant’s attorney as to the permissible line of inquiry, he stated: “That’s exactly what I want to do, Your Honor.”

2. Defendant, in his pro se submission, contends that his trial counsel was ineffective. “Because [defendant is] represented on appeal by counsel other than trial counsel, and no motion for new trial was filed, ‘we remand the case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel. Smith v. State, 255 Ga. 654 (3) (341 SE2d 5) (1986).’ Hambrick v. State, 256 Ga. 148 (5) (344 SE2d 639) (1986).” Midura v. State, 183 Ga. App. 523, 524 (3) (359 SE2d 416). Consequently, this case must be remanded to the trial court for a hearing and for appropriate findings concerning only the issue of ineffective assistance of counsel. Should further review of the issue of ineffective assistance of counsel be necessary, the appropriate appellate procedure shall be followed for such review. See Martin v. State, 185 Ga. App. 145, 146 (3) (a) (363 SE2d 765).

3. A liberal reading of defendant’s pro se brief indicates that he challenges the jury’s verdict based on the general grounds.

“A person commits the offense of child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a).

“A person commits the offense of enticing a child for indecent purposes when he solicits, entices, or takes any child under the age of 14 to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA § 16-6-5 (a). This crime includes the element of asportation. Dennis v. State, 158 Ga. App. 142 (2) (279 SE2d 275).

“A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” OCGA § 16-6-1 (a).

In the case sub judice, the victim testified that defendant entered her room while she was in bed, solicited sexual activity, sodomized her and raped her. She also testified that defendant took her from her room to his vehicle outside the house and there he raped her, forcibly and against her will. This testimony was corroborated by medical evidence which indicated that the victim had been forcibly raped within 24 to 36 hours of her physical examination. This and other evidence adduced at trial was more than sufficient to enable any rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses of child molestation, enticing a child for indecent purposes and rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

4. Next, defendant challenges pro se the trial court’s order that he pay restitution “for the necessary psychotherapy treatment and counselling rendered to [the victim] arising out of the incidents from which these charges arose.”

“ ‘Code Ann. §§ 27-3008 [now OCGA § 17-14-8] through 27-3010 [now OCGA § 17-14-10] contemplate a hearing and specific written findings by the court in determining whether it will order restitution and, if so, the amount thereof. (Cit.)’ (Emphasis supplied.) Cannon v. State, 246 Ga. 754, 756 (272 SE2d 709) (1980).” Patterson v. State, 161 Ga. App. 85, 86 (5) (289 SE2d 270). In the absence of a pre-sentence hearing wherein the parameters of the above-cited Code sections are considered by the trial court, a sentence imposing restitution cannot stand. Patterson v. State, 161 Ga. App. 85, 86 (5), supra. In the case sub judice, no such hearing was conducted and no written findings were made by the trial court with regard to restitution. Consequently, that portion of defendant’s sentence which imposes restitution must be vacated and the case remanded to the trial court with direction that a hearing on the issue of restitution be made in accordance with the above-referenced Code sections. Should further review of the issue of restitution be necessary, the appropriate appellate procedure shall be followed.

5. Defendant’s remaining arguments in his pro se brief are either not supported by the record or are presented for the first time on appeal. While these issues may be relevant to defendant’s claim of ineffective assistance of counsel, this court has no jurisdiction to address such contentions on appeal. See Halm v. State, 125 Ga. App. 618 (4) (188 SE2d 434).

Judgment affirmed as to conviction and case remanded for a hearing as directed in Division 2; judgment affirmed as to sentence but vacated only as it relates to restitution and case remanded for hearing as directed in Division 4.

Birdsong, C. J., Sognier, Pope and Benham, JJ., concur. Deen, P. J., Banke, P. J., Carley and Beasley, JJ., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I fully concur in Division 1 but would not reach the issues sought to be raised in the pro se documents and would affirm the judgment.

Defendant is represented on appeal by counsel appointed on July 17 after trial counsel was permitted to withdraw following defendant’s sentencing on June 30. No motion for new trial was filed by either counsel. The sole issue raised on appeal by counsel is ruled on in Division 1.

Since July 1, 1983, the effective date of the current state constitution, persons no longer have a right to represent themselves and be represented by an attorney. Ga. Const. 1983, Art. I, Sec. I, Par. XII. Defendant’s two documents, therefore, should not be taken as properly presenting issues for review. He may have misunderstood counsel’s instructions to him, when an Anders motion was filed, to the effect that if the motion was granted defendant could raise any points he wished. However, the Anders motion was denied.

In view of the constitutional change and the practical problems attendant to allowing two separate representatives of one party, we should not begin the practice of permitting criminal defendants to file briefs and raise issues as well as be represented by counsel who are appointed or retained to do so for them. See in this regard Smith v. State, 186 Ga. App. 303 (367 SE2d 573) (1988); Taylor v. State, 186 Ga. App. 113 (366 SE2d 422) (1988), Beasley, J., dissenting.

Decided March 18, 1988.

Keith F. Allen, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

I am authorized to state that Presiding Judge Deen, Presiding Judge Banke, and Judge Carley join in this opinion.

       For annotation relating to impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that similar charges were made against other persons, see 75 ALR2d 508. See Little v. State, 413 NE2d 639 (1)-(6) (Ind. App. 1980), where the Indiana Court of Appeals found that evidence of false accusations of similar sexual misconduct is admissible on the issue of the victim’s credibility but held that such prior accusation must be “demonstrably false” in order to avoid conflict with the State’s Rape Shield statute.


author: Sognier, Judge. McMurray, Presiding Judge,

text:
    75596, 75597.
    ENERGY CONTRACTORS, INC. v. GEORGIA METAL SYSTEMS & ENGINEERING, INC.; and vice versa.
    (367 SE2d 324)
   Sognier, Judge.

Georgia Metal Systems & Engineering, Inc. (GMS), a subcontractor, brought an action against Energy Contractors, Inc. (EC), its general contractor, and EC’s president, Alex Jordan, alleging that EC had breached its contract by wrongfully terminating GMS from a particular construction job, and that both EC and Jordan had tortiously interfered with its contractual relations. EC answered and counterclaimed for damages against GMS, alleging that it, and not EC, had breached the contract in question and others and that GMS was guilty of fraud in its performance of the contracts. At the close of GMS’s evidence, the trial court denied EC’s motion for a directed verdict based on GMS’s failure to prove its damages, but granted Jordan’s motion for a directed verdict and dismissed Jordan as a defendant. The trial court subsequently granted EC’s motion for a directed verdict as to the tort claim. The case went to the jury on the claim for breach of contract, and the jury returned a verdict in favor of GMS for $20,000. Both parties appeal.

The evidence at trial showed that EC and GMS entered into a written contract whereby GMS was to fabricate and install an air conditioning ventilation system at a project known as Charles Evans BMW. EC and GMS also entered into an oral contract whereby GMS was to perform similar services at a project known as Lawrenceville Medical/Dental Center.

After GMS had initiated work on these projects, EC terminated its manager in charge of the Charles Evans BMW project, Robert Tiller. Shortly thereafter, Tiller began working for GMS. Jordan did not want Tiller working on EC’s projects as an employee of GMS and, by letter dated May 28, 1985, Jordan informed GMS “[t]he next time [Mr. R. H. Tiller] steps foot on one of [EC’s] jobs I will. . . [r]emove your Firm from the job, . . . [withhold all payments until such time as the job is complete whereupon all charges for completing your portion of the work will be deducted from any monies due you, . . . [o]btain a Restraining Order, and . . . [, i]f necessary obtain a Bond to satisfy any Lien you might record. I regret this action but I will not tolerate immature and unprofessional individuals even remotely associated with our Company.” GMS received four other letters from EC, dated May 28, 1985. In one of the letters Jordan threatened to repudiate the GMS/EC construction contracts if certain demands were not fulfilled by EC and, in another letter, Jordan threatened to “[o]btain a Restraining Order and . . . File Suit against . . .” GMS if Mr. Tiller “contacts” EC’s office.

Via letters dated May 29, 1985, EC repudiated its Charles Evans BMW and Lawrenceville Medical/Dental Center contracts with GMS, ordered GMS to leave the construction sites and advised GMS that both projects would be completed by other resources, the cost of which would be deducted “from [GMS’s] original quotation . . .”

1. In the main case, EC contends the trial court erred by admitting into evidence certain of its intra-office memoranda, because they were not relevant and were introduced to inflame the jury. “ ‘Any fact is relevant which, when taken alone or in connection with another or others would warrant the drawing by the jury of a logical inference with reference to the issue on trial.’ [Cits.]” Pope v. Triangle Chem. Co., 157 Ga. App. 386-387 (1) (277 SE2d 758) (1981). In the case sub judice, the intra-office memoranda shed light on EC’s motives for breaching the contracts with GMS. “ ‘Questions of relevancy of evidence, which includes the issue of materiality, are for the [trial] court, and in the absence of an abuse of judicial discretion, this court will not interfere.’ [Cit.]” Metro. Property &c. Co. v. Shepherd, 166 Ga. App. 300, 301 (1) (304 SE2d 74) (1983). We find no abuse of that discretion here, and consequently the trial court did not err by admitting into evidence the intra-office memoranda. See generally Smith v. State, 255 Ga. 685, 686 (2) (341 SE2d 451) (1986).

2. EC next maintains the trial court erred by failing to grant its motion for a directed verdict, arguing that GMS failed to carry its burden of proving damages. In this vein, EC contends that the jury’s $20,000 verdict was not supported by the evidence.

“The basic component of damages recoverable by a contractor when a construction contract is wrongfully breached ... is the net profit to which the contractor would have been entitled had full performance of the contract been permitted. That figure is reached by subtracting from the contract price the amount which full performance would have cost the contractor. If performance by either party had begun prior to the breach, adjustments must be made to ensure that the contractor receives the full amount of the profit, but no more. First, there must be added to the profit figure the amount of the contractor’s net loss up to the point of the breach. That figure is reached by subtracting from the expenses incurred by reason of the contractor’s performance the salvage or resale value of the material left on hand. The sum of those figures (the profit which would have been realized from full performance plus net loss incurred by performance to the date of breach) may in no event exceed the contract price. Second, there must be deducted from the recovery those amounts received by the contractor from the owner as prepayment or progress payment.” Williams v. Kerns, 153 Ga. App. 259, 260 (1), 266, 267 (265 SE2d 605) (1980).

In the case sub judice, GMS presented evidence showing that the contract price for the Charles Evans BMW project was $30,000; that the amount of contract “extras” (items authorized by EC to be added to the contract price) was $2,504.15; that the total amount of progress payments paid by EC was $13,500; that the amount of “invoices” (expenses) unpaid by EC was $13,215 and that the amount of GMS’s lost profits was $734. Applying the above formula, this was sufficient evidence upon which the jury could determine damages within a reasonable degree of certainty. See Williams v. Kerns, supra at 268 (2), and Cobb & Eldridge, Ga. Law of Damages (2d ed.) § 17-17. Further, in light of GMS’s evidence regarding attorney fees, interest and other expenses incurred by GMS as a result of EC’s alleged “bad faith” in breaching the contract, we do not find the jury’s verdict of $20,000 to be unreasonable. Consequently, the trial court did not err by failing to grant EC’s motion for directed verdict, and the jury’s verdict was not disproportionate to the evidence adduced at trial. Compare Story v. Monteith, 180 Ga. App. 517 (349 SE2d 760) (1986).

3. Lastly, EC asserts the general grounds, arguing that there was no evidence upon which the jury could have found against EC on its counterclaim for breach of contract against GMS as to the Lawrence-ville Medical/Dental Center project. We do not agree.

“In the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported with some evidence, even where the verdict may be against the preponderance of evidence. [Cits.]” Thompson v. Hill, 143 Ga. App. 272, 275 (4), 276 (238 SE2d 271) (1977). In the case sub judice, not only was there conflicting evidence as to the subject matter and terms of the oral contract for materials and services to be supplied by GMS at the Lawrenceville Medical/Dental Center project, but there was evidence which authorized a finding that EC breached this contract by ordering GMS off the project prematurely.

4. In the cross-appeal, GMS’ sole enumeration of error is that the trial court erred by granting EC’s motion for a directed verdict on the issue of Jordan’s personal liability for tortious interference with contract, because there was evidence in the record from which the jury might have concluded that Jordan was not acting for the corporation, but from personal feelings of malice toward Tiller.

Unlike the situation in American Game &c. Music Svc. v. Knighton, 178 Ga. App. 745, 746 (1) (344 SE2d 717) (1986), Jordan cannot be found liable personally on the basis that he took part in the corporation’s commission of a tort, since the tort alleged here is interference with contractual relations, which requires intentional and improper interference with the performance of a contract between another and a third person. The corporation, being a party to the contract here, is not a third person and thus, by definition, could not have committed the tort. Accordingly, Jordan’s individual liability cannot be derivative. Based on the facts in the case sub judice, it can be premised only on evidence piercing the corporate veil by showing that he acted outside the scope of his employment, in disregard of the corporate entity, or in derogation of the corporation. See Alexie, Inc. v. Old South Bottle &c. Corp., 179 Ga. App. 190, 193-194 (5) (345 SE2d 875) (1986).

The dissent concludes that the letters and memoranda from Jordan are themselves evidence that he was acting to vent his own feelings of animosity, and not within the scope of his employment or authority. However, the record amply demonstrates that the dispute between Jordan and Tiller was not a personal one, unrelated to the business of the corporation, but rather that it centered about Tiller’s actions and performance as an employee of Energy Contractors. Job performance was the reason for Tiller’s dismissal, and Jordan’s allegations that Tiller was recruiting Energy Contractors’ employees for his new employer while on the job together were the main basis for the post-dismissal dispute. Without more, we cannot say that the contents of Jordan’s correspondence demonstrate that he was not acting on behalf of the corporation. The letters were signed in his capacity as the corporation’s president, and it is well established that the president of a corporation is presumed to have authority to act for the corporation in matters relating to and within the scope of its business. Long Tobacco Harvesting Co. v. Brannen, 99 Ga. App. 541, 545 (2) (109 SE2d 90) (1959).

Since Georgia Metal Systems did not meet its burden of overcoming the presumption that Jordan was acting in his corporate capacity, we affirm the trial court’s grant of the motion for a directed verdict as to Jordan’s individual liability for tortious interference with contractual relations.

Judgments affirmed.

Birdsong, C. J., Deen, P. J., Carley, and Pope, JJ., concur. McMurray, P. J., Banke, P. J., Benham, and Beasley, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

The majority relies on the concept of “piercing the corporate veil” in determining whether an action for tortious interference of contract can be sustained against Jordan. This theory does not belong in this case.

“The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party ‘has overextended his privilege in the use of a corporate entity in order to defeat justice, perpetrate fraud or to evade contractual or tort responsibility.’ Kelley v. Austell Bldg. Supply, 164 Ga. App. 322, 326 (3) (297 SE2d 292). See also Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 63 (4) (250 SE2d 851); Fla. Shade Tobacco Growers v. Duncan, 150 Ga. App. 34, 35 (256 SE2d 644).” Hogan v. Mayor &c. of Savannah, 171 Ga. App. 671, 673 (3) (320 SE2d 555). In the case sub judice, we are not concerned as to whether Jordan overextended his privilege in the use of a corporate entity in order to defeat personal liability for breach of contract. Instead, the pivotal issue is whether Jordan stepped outside his role as a corporate officer, breaching his duty to act in the best interests of the corporation (see Quinn v. Cardiovascular Physicians, 254 Ga. 216 (2) (326 SE2d 460)), and acted as a third party to vent his own personal feelings of animosity against one of Georgia Metal Systems & Engineering, Inc.’s employees.

“One who intentionally and improperly interferes with the performance of a contract . . . between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.” Restatement of Torts 2d, § 766. “In determining whether an actor’s conduct in intentionally interfering with a contract ... of another is improper or not, consideration is given to . . . the actor’s motive [and] the interests sought to be advanced by the actor ...” Restatement of Torts 2d, § 767 (b) (d). The interest of gratifying feelings of ill will toward another will generally not justify interference of contract by a corporate officer. See Restatement of Torts 2d, § 767, comment on clause (d). See also Restatement of Torts 2d, § 769 comments on clauses (d) and (e).

“A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions and inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a); Tri-Eastern Petro. Corp. v. Glenn’s Super Gas, 178 Ga. App. 144, 145 (1) (342 SE2d 346) (1986).” Beard v. Fender, 179 Ga. App. 465 (346 SE2d 901).

Decided March 18, 1988.

Dana B. Miles, R. Timothy Hamil, for appellant.

Robert L. Littlefield, Jr., for appellee.

In the case sub judice, after examining the entire trial transcript and record, I find there was ample evidence to support a conclusion that Jordan’s actions were personally motivated, were in breach of his duty as a corporate officer and were in interference with the Georgia Metal Systems & Engineering, Inc. (“GMS”)/Energy Contractors, Inc. (“EC”) contractual relationship. Consequently, the trial court erred in directing a verdict in favor of Jordan on the issue of tortious interference of contract. See American Game &c. Svc. v. Knighton, 178 Ga. App. 745 (1) (344 SE2d 717), and cits. Compare Georgia Power Co. v. Busbin, 242 Ga. 612, 613 (2) (250 SE2d 442).

I am authorized to state that Presiding Judge Banke and Judge Beasley join in this dissent.


author:
McMurray, Presiding Judge.
      Deen, Presiding Judge, Beasley, Judge,

text:
    75413.
    FAVORS v. ALCO MANUFACTURING COMPANY et al.
    (367 SE2d 328)
   McMurray, Presiding Judge.

Plaintiff Favors brought suit against Aleo Manufacturing Company (“Aleo”), J. T. Crider and Sanders Lindley in the Superior Court of Fulton County. Plaintiff had been employed by Aleo at its Douglasville, Georgia facility. Her employment was terminated by Crider, Alco’s plant manager, on July 11, 1985. Lindley, a shop foreman, was plaintiff’s boss during the period of her Aleo employment.

Plaintiff’s complaint was cast in five counts. Counts 1, 2 and 3 sought damages against Lindley for sexual harassment, battery and invasion of privacy. In this regard, it was alleged that on numerous occasions Lindley made demands upon plaintiff for sexual favors and he touched, grabbed and squeezed her private areas in a lewd manner.

In Count 4 of the complaint, plaintiff alleged that Aleo was liable vicariously for Lindley’s conduct. It was also asserted that Aleo negligently failed to provide a work place which was free from sexual harassment.

Count 5 was levelled against Lindley and Crider. It was alleged therein that these defendants tortiously interfered with plaintiff’s contract of employment.

Defendants answered the complaint. They denied the material allegations of each count.

The parties commenced discovery and plaintiff gave a deposition in which she deposed that Lindley sexually harassed her two or three times a week between December 1984 and May or June 1985; that Lindley also sexually harassed other female employees at Aleo; that the sexual harassment by Lindley often occurred in the presence of other employees; and that, therefore, other employees (including plaintiff’s immediate supervisor) were aware of Lindley’s conduct. Plaintiff also deposed that she always reacted negatively to Lindley’s advances; that after the last incident of sexual harassment she brought the matter to the attention of Crider; that Crider confronted Lindley with plaintiff’s allegations and told him, in plaintiff’s presence, that such incidents were not to happen again; that immediately after that meeting, Lindley called plaintiff a “bitch” and a “whore”; and that no further acts of harassment took place.

Finally, plaintiff deposed that her employment was terminated approximately four to six weeks after she complained to Crider about Lindley’s conduct. In this regard, plaintiff averred that Lindley wanted plaintiff fired to retaliate for her negative reaction to his advances; that in order to stir up trouble for plaintiff, Lindley told Crider that plaintiff was wearing a halter top which the safety committee asked her not to wear; that Lindley’s statement to Crider was a lie because the safety committee did not object to the halter top; and that, following a dispute with Crider about the halter top, she was fired when she tried to use the telephone to call her lawyer.

Thereafter, defendants Crider and Lindley moved for partial summary judgment upon Count 5 of the complaint. In an accompanying affidavit, Crider deposed that plaintiff was not employed by Aleo for a definite time period; that he had absolute authority to discharge plaintiff from Alco’s employment; and that he was “solely responsible for the decision to discharge her.” A memorandum was attached to Crider’s affidavit. Crider deposed that he prepared the memorandum on or about the date of plaintiff’s discharge in the regular course of his duties and that the preparation of such memoranda was one of his regular duties as plant manager. According to Crider, the memorandum set forth “a complete and accurate account of the circumstances surrounding [plaintiff’s] discharge.”

The memorandum shows the following: Plaintiff was discharged by Crider when she opted to use the telephone to call her lawyer after being told not to do so on company time. The telephone dispute came on the heels of an argument about a halter top which plaintiff was wearing. Crider was informed about the halter top by Lindley who told him that safety committee members asked plaintiff to change the top because it violated safety committee rules and that plaintiff refused. When plaintiff was called into Crider’s office, the halter top argument ensued. It was at that point that plaintiff went to the telephone to call her lawyer and she was fired.

Lindley also submitted an affidavit in support of the Count 5 summary judgment motion. He deposed that he received information from a member of Alco’s safety committee that plaintiff was wearing a blouse which violated safety rules and that he passed this information on to Crider. He also deposed that he never behaved inappropriately toward plaintiff or other female employees under his supervision.

Following a hearing, the trial court granted partial summary judgment to Crider and Lindley with respect to Count 5. Aleo then sought summary judgment upon Count 4 of the complaint.

In support of its partial summary judgment motion, Aleo submitted the affidavits of Crider and Martin L. Reid, Alco’s general manager. In their affidavits, Crider and Reid deposed that plaintiff complained about Lindley’s conduct on only one occasion; that Crider immediately told Lindley “if anything was going on ... it was not to happen anymore”; and that no other employee was ever heard to complain about sexual harassment at Aleo.

In opposition to Alco’s partial summary judgment motion, plaintiff submitted the affidavit of another Aleo employee, Ms. Henderson. Her affidavit shows that she witnessed acts of sexual harassment by Lindley; that a night supervisor was aware of Lindley’s conduct; that she talked with a leadman about Lindley’s conduct in July 1983; and that she told Crider that Lindley was constantly “bothering” her.

Alco’s motion for partial summary judgment was granted by the trial court and plaintiff appeals. She enumerates error upon the grant of summary judgment to defendants with respect to Counts 4 and 5 of the complaint. Held:

1. At the outset, we observe that Count 4 of the complaint sets forth a common law tort claim against Alco. Cox v. Brazo, 165 Ga. App. 888, 889 (303 SE2d 71), aff’d 251 Ga. 491 (307 SE2d 474). Violations of Title VII of the Civil Rights Act of 1964 (42 USCA § 2000 (e)) are not alleged. (Indeed, our state courts are without jurisdiction to entertain such an action. Retired Public Employees’ Assn. v. Bd. of Administration of Public Employees’ Retirement Systems, 229 Cal. Rptr. 69 (Cal. App. 3 Dist. 1986); Fox v. Eaton Corp., 358 NE2d 536 (48 Ohio St.2d 236) (1976).) Accordingly, our analysis will proceed along traditional, common law lines and we will not entertain arguments based upon Title VII cases and rationales.

2. Plaintiff argues that Aleo is liable for the alleged sexual harassment of plaintiff under the doctrine of respondeat superior. This argument cannot be sustained. The alleged sexual harassment was not committed in the furtherance of Alco’s business. Rather, the acts allegedly committed by Lindley were outside the scope of employment. Cox v. Brazo, 165 Ga. App. 888, 889, supra; Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 667 (2) (307 SE2d 129).

3. “A cause of action for negligence against an employer may be stated if the employer, in the exercise of reasonable care, should have known of an employee’s reputation for sexual harassment and that it was foreseeable that the employee would engage in sexual harassment of a fellow employee but he was continued in his employment. Hollrah v. Freidrich, 634 SW2d 221 (Mo. App. 1982).” Cox v. Brazo, 165 Ga. App. 888 (1), 889, supra. Accord Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670, 673 (3) (347 SE2d 619). Thus, in order to prevail upon its partial summary judgment motion, the burden was upon Aleo to show that it neither knew, nor, in the exercise of reasonable care, should have known, of Lindley’s reputation for sexual harassment. Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670, 673 (3), supra. Our review of the record leads us to conclude that Aleo failed to carry its burden in this regard.

“On a motion for summary judgment the evidence must be construed most strongly against the movant, and the party opposing the motion is entitled to all inferences that may fairly and reasonably be drawn in support of his case. Buchanan v. Georgia Boy Pest Control Co., 161 Ga. App. 301 (287 SE2d 752) (1982).” Vizzini v. Blonder, 165 Ga. App. 840 (303 SE2d 38). Giving the plaintiff, the party opposing Alco’s partial summary judgment motion, the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, we find that Alco’s female employees were sexually harassed by Lindley; that the sexual harassment took place at Aleo frequently and openly; and that Alco’s employees (including supervisors) generally were aware of it.

Aleo asserts it had no reason to know of Lindley’s reputation for sexual harassment because complaints were not received by its plant manager or general manager. We disagree. The issue in cases of this kind is knowledge or reason to know, not complaints. An employer may know, or in the exercise of due care have reason to know, of an employee’s reputation for sexual harassment in the absence of complaints. Did Aleo know of Lindley’s reputation for sexual harassment? Should it have known of Lindley’s reputation in the exercise of reasonable care? Genuine issues of material fact remain with regard to these questions. It follows that the trial court erred in granting Alco’s partial summary judgment motion.

4. “ ‘The fact that employment is at will and that the employer is free from liability for discharging an employee does not carry with it immunity to a third person who, without justification, causes the discharge of the employee. Thus, the rule has been stated that where a third person induces an employer to discharge an employee, under a contract terminable at will, but under which the employment would continue indefinitely, in accordance with the desire of the employer, except for such interference, and where the only motive actuating the third person is a desire to injure the employee ... a cause of action arises in favor of the employee against such third person. . . .’ [Cit.]” Ott v. Gandy, 66 Ga. App. 684, 688 (19 SE2d 180). Thus, although plaintiff’s employment was terminable at will, nevertheless, she had a valuable contract right with which a third person could not tortiously interfere.

In Count 5 of the complaint, plaintiff alleged that together Crider and Lindley tortiously interfered with her employment contract. The evidence demonstrates without contradiction, however, that Crider was vested with unconditional authority to discharge plaintiff. Thus, it cannot be said that Crider tortiously interfered with plaintiff’s contract of employment regardless of his motives. Georgia Power Co. v. Busbin, 242 Ga. 612, 613 (2) (250 SE2d 442). The trial court correctly granted summary judgment to Crider upon Count 5 of the complaint.

On the other hand, Lindley did not have the absolute right to discharge plaintiff. He was a “third person” with potential liability for the wrongful procurement of plaintiff’s discharge. Georgia Power Co. v. Busbin, 242 Ga. 612, 613 (2) 614, supra. Did Lindley tortiously interfere with plaintiff’s contract of employment?

Giving the plaintiff the benefit of all reasonable doubts, we find the following facts and inferences: Lindley wanted plaintiff discharged because she did not accede to his requests. In order to achieve that end, Lindley falsely told Crider that plaintiff was wearing a halter top contrary to a directive of the safety committee. Following a discussion with Crider about the wearing of halter tops, plaintiff attempted to use the telephone to call her attorney. Crider told plaintiff not to use the telephone on company time but she did so anyway and was fired.

In our view this evidence is sufficient to raise a question of fact as to whether Lindley interfered with plaintiff’s employment contract for purely personal reasons. It can be argued that, motivated by a desire to injure plaintiff, Lindley set in motion the machinery which led to plaintiff’s discharge. Accordingly, Lindley was not entitled to summary judgment upon Count 5 of the complaint. Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670, 672 (2), supra.

5. The trial court erred in granting summary judgment to Aleo upon Count 4 of the complaint. With regard to Count 5, the trial court erred in granting summary judgment to Lindley; it did not err in granting summary judgment to Crider.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., Deen, P. J., and Carley, J., concur. Deen, P. J., also concurs specially. Sognier, J., concurs in the judgment only. Banke, P. J., Pope, Benham and Beasley, JJ., concur in part and dissent in part.

Deen, Presiding Judge,

concurring specially.

While I concur fully with the majority opinion, the following additional relevant observations are set forth.

1. Under the present state of the law, there should be no room for doubt that Crider may not be held liable for wrongful discharge of Favors or for tortious interference with her contract of employment. It was uncontroverted that Crider had the authority to fire Favors, and under Georgia Power v. Busbin, 242 Ga. 612 (250 SE2d 442) (1978) and its multitudinous progeny, he could exercise that authority for whatever reason, good, bad, or otherwise. The dissenting opinion, in effect, seeks to create an exception to this rule, where sexual discrimination is alleged, but it should be emphasized that “[w]e dare not decide a question of right by a rule of courtesy, or substitute deference to sex for deference to law.” Williams v. Simmons, 79 Ga. 649, 655 (1887). There is, as yet, no crack in Georgia’s employment-at-will doctrine through which Favors’ claim against Crider could slip. See Levin, “Georgia’s ‘Employment-at-Will Doctrine: Time for a Change,” The Atlanta Lawyer (Fall 1987), pp. 5-12. (This excellent article may sprout and cause to thrive an idea whose time has come.)

“In the court-house, the standard of justice for both sexes is the same. Like the sun, the law shines on all who are in the same place with equal warmth and splendor. The most charming and attractive woman in the universe, loaded down with misfortune, is not to prevail as a suitor where she is in the wrong, be her adversary whom [sic] he may.” Boland v. Klink, 63 Ga. 448, 453 (1879). In the specific context of employment-at-will cases, women and men equally are subject to discharge for either good or bad or no reason.

2. Favors’ claim against Aleo for the shop foreman’s sexual harassment, based on the doctrine of respondeat superior, is controlled adversely to her position by Cox v. Brazo, 165 Ga. App. 888 (303 SE2d 71) (1983) and Murphy v. ARA Sues., 164 Ga. App. 859 (298 SE2d 528) (1982). The shop foreman’s alleged harassment while on the job is wrong and to be deplored. “Surely, the matrons of the land are not [to be] exposed to such an indignity at the pleasure of every libertine who, with no check from the law, may be rude and reckless enough to insult their virtue.” Goodrum v. State, 60 Ga. 509, 510 (1878). However, the shop foreman’s crude, rude, reckless, rough, and rapacious behavior obviously was outside the scope of his employment, and the employer may not be held vicariously liable on that basis.

Beasley, Judge,

concurring in part and dissenting in part.

I concur in Divisions 1, 3, and that part of Division 4 reversing summary judgment for shop foreman Lindley. However, the record does not establish as a matter of law that the sexual harassment was outside the scope of shop foreman/supervisor Lindley’s employment, so as to relieve employer Aleo of liability. Also, plant manager Crider was not entitled to summary judgment either, on the claim for tortious interference with the employment contract of plaintiff, an hourly laborer. In these regards, then, I respectfully dissent to Division 2 and the portions of Divisions 4 and 5 which conclude otherwise.

1. Division 2, scope of employment. Lindley’s alleged act of lying about the safety committee’s disapproval of a halter top was not outside the scope of his employment, as it was his duty to report employee violations to the plant manager, since he was shop foreman and the supervisor of employees such as plaintiff. It is the exercise of this duty which is the very subject of one of plaintiff’s complaints.

Secondly, when Lindley made the alleged sexual remarks and allegedly touched the employee, he was doing so in the capacity of an agent of the employer who has supervisory power and control over an hourly laborer, thus using the position Aleo placed him in to subject the employee to tort. This relationship of supervisor and laborer, which Lindley allegedly misused on the job, provided the opportunity and credentials and power to do and say what he allegedly did. What must be considered is the broad scope of the shop foreman’s duties, the inferior position of the laborer, and the master-servant relationship between the supervising shop foreman and the employer Aleo.

This is analogous to Miller v. Honea, 163 Ga. App. 421, 422 (294 SE2d 629) (1982), in that the record in this case does not establish as a matter of law that Lindley “had so deviated from his duties as to make his [torts] upon [Favors] a purely personal act.”

2. Division 4, tortious interference (OCGA § 51-9-1). Even if it is true that plant manager Crider had unconditional authority to discharge plaintiff insofar as employer Aleo was concerned, there is evidence that he exceeded the bounds imposed by law in the exercise of that authority. Crider’s own account is that plaintiff was fired because she called her attorney for advice after being told not to do so on company time, when she was confronted by him with what is allegedly a false report about her attire. As related in the majority opinion, this occurred several weeks after she complained to plant manager Crider about her supervisor’s sexual harassment.

The evidence outlined, and contained in the record, permits an inference that the ostensible cause of firing was pretextual and that the real reason was her more upsetting sexual complaint. Motive is not foreclosed from relevancy. See Energy Contractors v. Ga. Metal Systems &c. Engineering, 186 Ga. App. 475 (367 SE2d 324) (1988). If sexual discrimination was the basis, it exceeded lawful authority, for no one in this state may exercise a contractual right to fire “at will” in violation of a person’s right to equal protection of the laws. Ga. Const. 1983, Art. I, Sec. I, Par. II. At the very least, since Lindley was not fired for sexual harassment but was simply warned, Favors may not be fired for reporting it. Georgia Power Co. v. Busbin, 242 Ga. 612, 613 (2) (250 SE2d 442) (1978), recognized an “absolute right to discharge” but this was not in the context of alleged sexual discrimination.

Neither are these the circumstances in the case cited therein, McElroy v. Wilson, 143 Ga. App. 893, 894 (240 SE2d 155) (1977). McElroy, as a matter of fact, sets out the category into which this case falls: “where, even though the contract is terminable at will, a party with no authority to discharge the employee, being activated by an unlawful scheme or purpose to injure and damage him, maliciously and unlawfully persuades the employer to breach the contract with the employee.” The authority granted by Aleo to its plant manager could not exceed or supersede the law or run counter to it. “The fact that an employment is at the will of the employer and employee does not make it one at the will of others, and a malicious and wrongful interference with such employment by another is actionable although the employment be at will.” Ott v. Gandy, 66 Ga. App. 684 (1) (19 SE2d 180) (1942).

The recent case of Shaw v. W. M. Wrigley, Jr., Co., 183 Ga. App. 699, 700 (1) (359 SE2d 723) (1987), illustrates that an employee may indeed attack the motive for termination under certain circumstances designated by the law. That case involved handicap discrimination. It alluded to the similarity to cases “brought under Title VII, the federal provisions prohibiting discrimination in employment on the basis of race and sex.” Just because Title VII cases are brought in federal court does not mean that the prohibitions contained therein do not bind employers, or those exercising the power to discharge, with respect to at-will employment contracts.

“ ‘[T]he relation of master and servant gives rise to certain duties imposed by law independently of the express terms of the contract, . . . an action at tort will lie . . . [if] the discharge was accompanied by wrongful acts amounting to a trespass ‘The duty, for a

breach of which an action ex delicto lies, must be a duty imposed by law as to some relationship, general or special, as applied to that class of cases where the alleged duty arise out of a contract.’ ” Keys v. Enrichment Svcs., 183 Ga. App. 8, 10 (357 SE2d 852) (1987).

The duty not to violate the law in discharging an at-will employee renders the grant of summary judgment to plant manager Crider, under the evidence thus far developed, error. Whether he is personally liable remains a question of fact to be determined by the jury. American Game &c. Music Svc. v. Knighton, 178 Ga. App. 745, 746 (1) (344 SE2d 717) (1986).

Decided March 18, 1988.

S. Lee Storesund, for appellant.

R. Patrick White, Kurtis A. Powell, Lewis B. Gardner, for appellees.

I am authorized to state that Presiding Judge Banke, Judge Pope, and Judge Benham join in this opinion.

       OCGA § 45-19-29 (1) prohibits discrimination based on sex, in public employment. See Kilmark v. Bd. of Regents, 175 Ga. App. 857 (334 SE2d 890) (1985).


author: Pope, Judge.

text:
    75978.
    MASHBURN v. THE STATE.
    (367 SE2d 881)
   Pope, Judge.

Defendant Darryl F. Mashburn brings this appeal from his convictions and sentences for the offenses of trafficking in cocaine and carrying a concealed weapon. On appeal his sole enumeration of error challenges the trial court’s denial of his motion to suppress.

The evidence adduced at trial, consisting primarily of the testimony of Officer James Goodrum, shows the following: At approximately 2:00 a.m. on July 25, 1987 Officer Goodrum observed the defendant standing in the doorway of the Taurus Lounge drinking a beer. When defendant stepped off the sidewalk into the parking lot, Officer Goodrum, who was in his patrol car, pulled alongside the defendant and informed him that he was in violation of the local open container ordinance and that he was going to issue him a citation. Officer Goodrum testified that when he started to write out the citation defendant appeared to get “real nervous.” Officer Goodrum then noticed a bulge in defendant’s left front pocket and asked defendant if he had a gun in his pocket. Officer Goodrum testified that at this point the defendant “got real scared, kind of nervous and he said, ‘Where?’ ” Officer Goodrum responded, “Your left front pocket,” and defendant removed a large key chain from that pocket. Officer Good-rum said he then decided, based on the defendant’s nervousness and his past experience in similar situations, to get out of his car and place his arm around the defendant to prevent the defendant from fleeing the scene. Officer Goodrum then requested the defendant to have a seat in the back of the patrol car while he finished issuing his citation. Prior to placing defendant in his patrol car, however, Officer Goodrum did a pat-down search for weapons whereupon he immediately discovered “a gun or the impression of a gun” in defendant’s right rear pocket. Upon identifying the object as a .32 caliber revolver, Officer Goodrum placed defendant under arrest for carrying a concealed weapons He then proceeded to search defendant finding a clear plastic bag of white powder, which was subsequently identified as cocaine, in another of defendant’s pockets.

Decided March 18, 1988.

Thomas R. Moran, for appellant.

Robert E. Wilson, District Attorney, John H. Petrey, Lanie Pryles, Assistant District Attorneys, for appellee.

Defendant argues that the officer’s initial search of his person was unauthorized. We think not. “ ‘(A) reasonable search for weapons for the protection of the police officer, (is permitted) where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ Terry v. Ohio, [39 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968).]” Smith v. State, 139 Ga. App. 129, 131 (227 SE2d 911) (1976). See also State v. Dubose, 161 Ga. App. 144 (291 SE2d 39) (1982); Haynes v. State, 159 Ga. App. 602 (2) (284 SE2d 104) (1981); Clinkscale v. State, 158 Ga. App. 597 (1) (281 SE2d 341) (1981). Clearly, under the circumstances present here, and considering defendant’s actions and nervous behavior Officer Good-rum was fully authorized to conduct a pat-down search of the defendant prior to placing him in the back of his patrol car. Moreover, once the .32 caliber revolver was discovered in defendant’s rear pocket, probable cause existed for defendant’s arrest and the subsequent search which yielded the illegal contraband was permissible as a search incident to a lawful arrest. Accordingly, we find no error in the denial of defendant’s motion to suppress. Gainer v. State, 175 Ga. App. 759 (334 SE2d 385) (1985); Powell v. State, 170 Ga. App. 185 (1) (316 SE2d 779) (1984); State v. Dubose, supra.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76208.
    SEGREE v. THE STATE.
    (367 SE2d 882)
   Pope, Judge.

Owen Anthony Segree brings this appeal from his conviction and sentence of trafficking in cocaine. His sole enumeration of error on appeal challenges the denial of his motion to suppress.

The evidence showed that on June 8, 1986 Senior Customs Inspector Baxley and Customs Inspectors Nadeau and Vincent were on duty at the international arrival area at the Atlanta International Airport. This is a border entry point where persons arriving from foreign countries are processed for entry into the United States. While acting as a “rover” in the customs area on that date (i.e., out amongst the arriving passengers), Inspector Baxley saw that appellant was arriving from Jamaica and noticed that he was carrying a very large, soft-sided suitcase that appeared to have few contents. Baxley asked appellant to accompany her to a “secondary” table in the customs area and asked that he open his bag for inspection. The bag contained few articles of clothing, perhaps one shirt, one pair of pants, and a pair of shoes. When asked, appellant stated that he was traveling on business, that he would be staying at the Airport Hotel overnight, and that then he would be leaving to go to Miami for a couple of days before returning to Jamaica. When informed by Baxley that there was no “Airport Hotel,” appellant stated that he had no reservation and would have to find a place to stay.

Based on her twenty years’ service as a customs inspector Baxley became suspicious of appellant. He was traveling from a drug source country to a drug distribution city, which according to his passport he had done numerous times in the past. He claimed to be a business traveler staying for several days, but he was dressed in casual clothing with almost no extra clothing, had no business card and no hotel reservation. It was Baxley’s experience that businessmen arriving from Jamaica dressed like businessmen everywhere and always had a reservation prearranged. More drugs have been seized from Jamaican flights than any other arriving international flights at the Atlanta airport.

With the permission of her superior, Baxley sent appellant to another room to be patted down by Inspectors Nadeau and Vincent. During the pat down procedure, appellant initially refused to shift his body weight to the toes of his shoes thereby lifting his heels from the floor. Nothing was discovered during the pat down of his clothing, but the procedure also required that appellant remove his shoes so that his shoes, socks and feet could be inspected. It is common practice to smuggle contraband concealed in a courier’s shoes. Appellant removed his shoes and they were inspected. Each inspector noticed that appellant’s shoes had two stitched seams; one seam was the normal top seam found on shoes where the sole was sewn to the upper, but the other was sewn of coarse thread, was irregular, and was sewn around the side of the sole. The shoes seemed unusually thick. When Inspector Vincent squeezed the heel of the shoes, they seemed unusually soft. A probe inserted into the heel revealed the shoes contained cocaine. Approximately 1.3 pounds of cocaine were removed from the soles of appellant’s shoes.

Decided March 18, 1988.

James W. Studdard, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

The thrust of appellant’s argument on appeal is that the search of his shoes was constitutionally unreasonable. He concedes that routine border searches, conducted for the purpose of controlling the movement of people and goods across our national boundaries, do not violate the Fourth Amendment’s prohibition against unreasonable searches. However, he contends that the removal of his shoes went beyond a routine border search and constituted an unreasonable strip search. We disagree.

“We conclude that examination of a person by ordinary pat-down or frisk, the requirement that outer garments such as coat or jacket, hat or shoes be removed, that pockets, wallet and purse be emptied, are part of the routine examination of a person’s effects which require no justification other than the person’s decision to cross our national boundary. The single fact that such a search occurs at a border makes it reasonable within the meaning of the [Fjourth [A]mendment. We do not read 19 USC § 482 as requiring any suspicion other than the subjective response [i.e., “mere suspicion”] of a customs official who considers that the circumstances make such a search appropriate. The facts before us do not raise and our holding should not be read to reach a more intrusive search. The search of [appellant,] however, was no more intrusive than the permitted routine examination described above. His motion to suppress was properly denied. His conviction is affirmed.” United States v. Sandler, 644 F2d 1163, 1169 (5th Cir. 1981); United States v. Nieves, 609 F2d 642 (2nd Cir. 1979), cert. den., 444 U. S. 1085 (1980); United States v. Fitzgibbon, 576 F2d 279 (10th Cir. 1978), cert. den. 439 U. S. 910 (1978); see United States v. Chase, 503 F2d 571 (9th Cir. 1974), cert. den., 420 U. S. 948 (1975).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.