text:
    A94A0626.
    KING v. THE STATE.
    (444 SE2d 381)
   McMurray, Presiding Judge.

Defendant Ralph Lee King, a/k/a Gregory Leonard Bately, was indicted for two counts of aggravated assault in that, along with two co-indictees, he did “make an assault upon the person of’ the victim “with the intent tó rob” her. After the jury found him guilty as charged on Count 1, an order of nolle prosequi was entered as to the second count. Defendant brings this timely direct appeal from the judgment of conviction and sentence entered on the jury’s verdict. In his sole enumeration of error, defendant urges the general grounds.

“ ‘ “The offense of aggravated assault has two essential elements: (1) that an assault, as defined in OCGA § 16-5-20 be committed on the victim; and (2) that it was aggravated by (a) an intention to murder, rape, or to rob, or (b) use of a deadly weapon.” (Cit.) OCGA § 16-5-20[, in pertinent part,] states: (a) a person commits the offense of simple assault when he either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.’ (Emphasis supplied.) Knox v. State, 261 Ga. 272, 274 (3) (404 SE2d 269).” Williams v. State, 208 Ga. App. 12, 13 (430 SE2d 157). The following evidence was adduced at trial: The victim was the night attendant at a convenience store in Clayton County, Georgia. She identified defendant as one of two males that she had noticed lingering in the store for more than twenty minutes around 11:30 p.m. on the night of the incident. She was certain of her identification of defendant because of his noticeably maloccluded or missing teeth. She observed that defendant and a freckled-faced companion, subsequently identified as co-indictee Charlie Lewis Beasley, were shoplifting in the area of the store where cigarettes and automotive supplies were displayed. She heard a heavy metal against metal “clink” from that area of the store as defendant reached into coolers where cans of beer and soda were stored. When both men subsequently approached the counter, defendant was masking his hand with a newspaper and she feared that he was hiding a gun. As the store would empty of other customers, “he’d put his hand back in there, put the paper back like this, and come towards me.” The victim “was frightened beyond belief.” Beasley, the defendant’s companion, sought to distract her by asking the victim to turn around and hand him a requested item that the victim knew was not displayed behind her. Beasley left the store when the victim refused to respond to him. Defendant “just went on stuffing things in his pockets.” He walked past the checkout counter as if to leave, then paused and said to the victim “I want your rings and I want the cash out of both your drawers.” The victim tried unsuccessfully to remove her rings. As she tried to get the cash drawers open, “[t]wo headlights came in from off of Pointe South Road. The people that were sitting in the car with him started flashing the lights” and defendant left. On cross-examination, the victim agreed that she “never saw an entire gun” but saw what she “thought was the barrel of something silver or metallic” as the defendant “was standing in front of my counter.” No gun was ever discovered. After his arrest that evening, defendant was returned to the convenience store, where the victim identified him. She also identified the cigarettes as coming from her store by scanning the bar code on her cash register. According to the victim, these cigarette cartons were part of a special promotion and only those cartons designated for her location would scan on her register. Defendant took the stand, admitting that he had been in the store that night. He denied attempting to rob the victim by demanding her rings and denied that he demanded the cash from the registers, testifying that “the only thing I did was read a newspaper and stole the cigarettes.”

“On appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. Robinson v. State, 194 Ga. App. 432, 433 (1) (390 SE2d 652).” Rigenstrup v. State, 197 Ga. App. 176, 180 (4), 181 (398 SE2d 25). See also Howard v. State, 261 Ga. 251, 252 (403 SE2d 204). “ ‘Conflicts in the testimony of the witnesses, including the state’s witnesses, is a matter of credibility for the jury to resolve. . . .’ Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311).” Fisher v. State, 151 Ga. App. 93 (258 SE2d 920). Accordingly, the jury in the case sub judice was authorized to believe that defendant approached the victim at the counter with the specific intent to intimidate her by pretending to have a gun hidden beneath the newspaper covering his hand. That act constitutes an assault as defined by OCGA § 16-5-20 (a) (2): any act which places another in reasonable apprehension of immediately receiving a violent injury. “ ‘In Thomas v. State, 99 Ga. 38, 44 (26 SE 748), Justice Atkinson, speaking for the court, said that “there need not be an actual present ability to commit a violent injury upon the person assailed, but if there be such a demonstration of violence, coupled with the apparent ability to inflict the injury, so as to cause the person against whom it is directed reasonably to fear the injury unless he retreat to secure his safety, and under such circumstances he is compelled to retreat to avoid an impending danger, the assault is complete, though the assailant may never have been within actual striking distance of the person assailed.” ’ ” Reeves v. State, 128 Ga. App. 750, 751 (2) (197 SE2d 843). Evidence of his intent to rob, in aggravation of the assault, came from proof that defendant entered the convenience store for the purpose of stealing cartons of cigarettes. The evidence was sufficient to authorize defendant’s conviction for aggravated assault as alleged in the indictment beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Woodall v. State, 159 Ga. App. 832 (285 SE2d 582).

Decided May 23, 1994.

Glenn B. Icard, Jr., for appellant.

Robert E. Keller, District Attorney, Gina C. Naugle, Assistant District Attorney, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A94A0045.
    STATE OF GEORGIA v. PROFITT.
    (444 SE2d 356)
   Pope, Chief Judge.

This appeal involves the forfeiture of a 1987 Chevrolet Camaro worth less than $25,000. The car was seized on February 3, 1993, and the civil action complaint was filed on April 7, 1993, more than 60 days later. See OCGA § 16-13-49 (h) (2). However, the State provided Profitt with notice of the seizure, and when Profitt filed a claim to the seized property, the State filed its civil action complaint within 30 days. See OCGA § 16-13-49 (n). Ruling that strict compliance with the 60-day filing requirement of OCGA § 16-13-49 (h) (2) is required even if the procedures set forth in OCGA § 16-13-49 (n) are utilized, the trial court granted Profitt’s motion for judgment on the pleadings.

The State contends the trial court erred in its ruling, and we agree. See Robinson v. State, 209 Ga. App. 446 (2) (433 SE2d 707) (1993). OCGA § 16-13-49 (h) (2) provides: “Within 60 days from the date of seizure, a complaint for forfeiture shall be initiated as provided for in subsection (n), (o), or (p) of this Code section.” However, subsection (n) sets forth an alternative to immediately filing a civil complaint where the seized property is worth less than $25,000. In such a case, the State may simply provide notice of the seizure and wait for a claimant to file a claim. Then, if a claim to the seized property is filed within 30 days of the notice, the State must file a civil complaint within 30 days of actual receipt of the claim. OCGA § 16-13-49 (n) (5). In Robinson, we held that where the alternative procedures of OCGA § 16-13-49 (n) are utilized, the 60-day period set forth in OCGA § 16-13-49 (h) (2) “may be extended.” 209 Ga. App. at 447. Or, as the State argues, another way to look at it is that requirement of OCGA § 16-13-49 (h) (2) that the complaint be “initiated as provided for in subsection (n) . . .” within 60 days is met when the State initiates the process by fulfilling the requirements of OCGA § 16-13-49 (n) in an appropriate case. Either way you look at it, the exact issue presented in this case was decided in the State’s favor in Robinson. As there is no dispute that the State complied with the requirements of OCGA § 16-13-49 (n), the judgment below must be reversed.

Decided May 3, 1994

Reconsideration denied May 24, 1994

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellant.

Cook, Noell, Tolley & Wiggins, Edward D. Tolley, Ronald E. Houser, for appellee.

Judgment reversed.

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

       Profitt argues that the issue in Robinson was whether the trial court erred in failing to conduct a hearing on the claimant’s motion to dismiss and that the parties failed to fully brief the question of the interrelationship between OCGA §§ 16-13-49 (h) (2) and 16-13-49 (n). However, in concluding that any error in failing to hold a hearing on the motion to dismiss would have been harmless because the motion was without merit, we squarely held that a forfeiture complaint need not be dismissed where it was filed more than 60 days after the seizure but less than 30 days after the claimant filed his claim pursuant to OCGA § 16-13-49 (n).


author: Cooper, Judge.

text:
    A94A0113.
    IKEMIYA v. SHIBAMOTO AMERICA, INC. et al.
    (444 SE2d 351)
   Cooper, Judge.

Plaintiff Kyoichi Ikemiya appeals from the trial court’s grant of summary judgment to defendants Shibamoto America, Inc. (“SAI”) and SAS Foods, Inc. (“SAS”) on plaintiff’s complaint alleging claims for wrongful termination of an employment agreement and fraud.

The record reveals that plaintiff was the owner of Tokyo Trading Company, Inc. which had been doing business as KSK Foods, Inc. (“KSK”) since 1980. In 1987, KSK was bought by a company named Maruki USA, and plaintiff remained employed by KSK as general manager. By 1987, plaintiff was also the owner of a sake and plum wine distributorship and a Japanese grocery store in Atlanta called Satsumaya.

In the spring of 1988, Maruki USA began having financial troubles, and plaintiff began looking for investors to help KSK. Plaintiff made several trips to Japan and met with representatives of SAI and their parent company Shibamoto, Inc. to discuss the possibility of defendants taking over KSK. After several alternatives were discussed, SAI ultimately decided it would purchase the inventory and some equipment from KSK. A new corporation, SAS, was formed to buy KSK’s assets and operate the new business with SAI as its sole shareholder. During negotiations, it was also agreed that SAS would hire plaintiff as sales manager for the new company and pay him an annual salary of $60,000. The parties also agreed that plaintiff would not start to work for SAS until he finished winding up KSK’s business, although plaintiff could and did tell KSK’s old customers to place all new orders with SAS. There were no discussions regarding any other terms of plaintiff’s employment. A short memorandum was prepared in August 1988, after one of the meetings in Tokyo, summarizing the terms of defendants’ purchase of the assets of KSK. Although this memorandum indicates plaintiff was to work for SAS, it does not mention his salary, the length of his employment or the basis by which he could be terminated.

Shortly after the sale of KSK’s assets to SAS, defendants wrote plaintiff a letter informing him that his ownership of Satsumaya and the liquor distributorship was against company policy because the businesses were similar and could create a conflict with SAS’s business interests. After receiving this letter, plaintiff told defendants he would not work for SAS. Plaintiff then filed this action against defendants for wrongful termination of an employment contract and fraud. Defendants moved for summary judgment, and the trial court granted their motion on the grounds that no enforceable contract existed and there were no facts to support plaintiff’s conclusory allegations of fraud.

1. Plaintiff contends the trial court erred by ruling that plaintiff’s employment agreement with defendants was unenforceable because the agreement was not in writing as required by the statute of frauds. Plaintiff does not argue that the memorandum signed in August 1988 constituted an enforceable employment agreement between the parties. Rather, plaintiff contends any agreement plaintiff had with the defendants did not have to comply with the statute of frauds because there has been “such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance.” OCGA § 13-5-31 (3).

Agreements not to be performed within one year from their making must be in writing. OCGA § 13-5-30 (5). Although defendants’ oral offer of employment to plaintiff was made in August 1988, his employment with SAS was not to begin until some unspecified time in the future after he had finished winding up the business of KSK. This kind of employment agreement has been repeatedly held to be “one that is not to be performed within one year from the making thereof and one that falls within the Statute of Frauds. [OCGA § 13-5-30 (5).] Such a contract is unenforceable.” (Citations and punctuation omitted.) Slater v. Jackson, 163 Ga. App. 342, 343 (2) (294 SE2d 557) (1982). See also Gatins v. NCR Corp., 180 Ga. App. 595, 598 (349 SE2d 818) (1986).

Part performance required by OCGA § 13-5-31 (3) to obviate the statute of frauds must be substantial and essential to the contract. Hudson v. Venture Indus., 243 Ga. 116, 118 (252 SE2d 606) (1979). Thus, “oral employment contracts for longer than one year are unenforceable unless there has been part performance that is ‘consistent with the presence of a contract and inconsistent with the lack of a contract.’ [Cit.]” Baxley Veneer &c. v. Maddox, 261 Ga. 309 (1) (404 SE2d 554) (1991). Plaintiff’s activities — traveling to Japan, facilitating the sale of KSK to SAS, finding office space for the new company, referring customers to SAS, and providing SAS with KSK’s client list — were not sufficient acts to establish part performance and remove this agreement from the statute of frauds because these activities are not inconsistent with employment terminable at will without a con-, tract. Presto v. Scientific-Atlanta, 193 Ga. App. 606 (4) (388 SE2d 719) (1989); Gatins v. NCR Corp., supra at 598; see also Hudson v. Venture Indus., supra at 119. Therefore, the trial court did not err in ruling the employment agreement to be unenforceable.

Moreover, even if we were to accept plaintiff’s argument that his employment agreement did not have to comply with the statute of frauds, defendants would still be entitled to summary judgment because plaintiff’s employment with SAS was not for a definite term and was, therefore, terminable at will by either party. Fortenberry v.

. Haverty Furniture Cos., 176 Ga. App. 360 (1) (335 SE2d 460) (1985). We reject plaintiff’s argument that his employment agreement with defendants was for the definite term of “one year with automatic renewals” solely because the parties agreed he was to receive an annual salary of $60,000. Although OCGA § 34-7-1 provides that if “wages are payable at a stipulated period, the presumption shall arise that the hiring is for such period,” this court has repeatedly held “that documents referring to an annual salary merely establish the total amount payable during a twelve-month period and not the duration thereof. The computation of the salaries on an annualized basis does not turn this compensation term into a duration term.” Gatins v. NCR Corp., supra at 597. Therefore, there is no presumption under OCGA § 34-7-1 that plaintiff was hired on a yearly basis, and a year-to-year contract does not result. American Standard v. Jessee, 150 Ga. App. 663, 665 (1) (258 SE2d 240) (1979). Because plaintiff’s employment agreement was terminable at the will of either party, plaintiff has no cause of action for wrongful termination.

2. Plaintiff also contends the trial court erred in granting summary judgment to defendants on plaintiff’s claims for fraud. In his complaint plaintiff alleges that defendants fraudulently induced plaintiff to negotiate the transfer of KSK’s business assets, including the company’s customer lists, without any intent to honor its agreement to employ plaintiff. Our review of the record reveals that plaintiff has failed to set forth any specific facts in support of these allegations of fraud. Plaintiff merely argues that defendants must have known all along about plaintiff’s ownership of Satsumaya because the Japanese community in Atlanta is very small and close knit, and Satsumaya was one of only two Japanese groceries in the metro-Atlanta area. “Conclusory allegations, without substantiating facts or circumstances, are not sufficient to raise a material issue for trial. [Cit.]” Richard A. Naso &c. v. Diffusion, 194 Ga. App. 201, 204 (390 SE2d 106) (1990).

Decided April 29, 1994

Reconsideration denied May 24, 1994

Lamb & Associates, W. L. Henderson, for appellant.

Schreeder, Wheeler & Flint, Lawrence S. Burnat, for appellees.

Moreover, “the allegedly defrauded party must prove actual, not constructive, knowledge on the part of the defendant. [Cit.]” Jackson v. Paces Ferry Dodge, 183 Ga. App. 502, 504 (2) (359 SE2d 412) (1987). Thus, the deposition testimony of one of SAS’ officers stating that defendants did not become aware of plaintiffs ownership of other businesses until after the assets of KSK were purchased and after employment by SAS was discussed with plaintiff was sufficient to pierce the allegations contained in plaintiffs complaint. Richard A. Naso &c. v. Diffusion, supra at 205.

Furthermore, “although fraud can be predicated on a misrepresentation as to a future event where the defendant knows the future event will not take place . . . fraud cannot be predicated on a promise which is unenforceable at the time it is made. And this is controlling in the instant case because the promises [of employment] upon which the [plaintiff] relies for establishing fraud were unenforceable even absent any fraud at the time of their utterance. The oral promises could not be enforced because the underlying employment contract, being terminable at will, is unenforceable.” (Citations and punctuation omitted.) American Standard v. Jessee, supra at 666. See also Taylor v. AMISUB, 186 Ga. App. 834 (2) (368 SE2d 791) (1988). Accordingly, the trial court did not err in granting defendants’ motion for summary judgment on plaintiff’s fraud claims.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A94A0526.
    CROSS v. THE STATE.
    (444 SE2d 589)
    Decided May 9, 1994
    Reconsideration denied May 24, 1994.

      Farkas & Ledford, Thomas G. Ledford, for appellant.

      Britt R. Priddy, District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant Cross appeals his conviction of selling and distributing cocaine. The sole enumeration of error addresses the sufficiency of the evidence to authorize defendant’s conviction. Held:

An undercover deputy sheriff testified as to making a street purchase of cocaine from defendant and a companion, Winchester. The deputy testified that he had handed the money to, and received the cocaine from defendant. Defendant sought to impeach the deputy by showing that at a hearing related to the prosecution of Winchester on charges arising from the same incident the deputy had testified that he had exchanged cash for cocaine with Winchester. The deputy explained that he had not had a chance to examine his notes made shortly after the incident prior to giving the earlier testimony, reiterated that both men were involved together in selling the cocaine, and repeated that it was defendant who handed him the cocaine in exchange for the cash.

Defendant maintains that due to the conflict between his testimony at trial and at the earlier hearing in the Winchester prosecution, the jury was not authorized to attribute any credibility to the deputy. We disagree. Credibility is an issue for the jury. Appellate courts consider only the sufficiency not the weight of the evidence. Taylor v. State, 262 Ga. 429, 430 (1) (420 SE2d 750); Cox v. State, 197 Ga. App. 240, 241 (5) (398 SE2d 262); Rigenstrup v. State, 197 Ga. App. 176, 180 (4), 181 (398 SE2d 25). The evidence was sufficient to authorize defendant’s conviction under the standard required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

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


text:
    A94A0072.
    BLANKENSHIP et al. v. WEST GEORGIA PLUMBING SUPPLY, INC.
    (444 SE2d 596)
   Cooper, Judge.

West Georgia Plumbing Supply, Inc. (“plaintiff”) brought an action on an open account against appellant Earl Blankenship. Service was accomplished on February 7, 1991, by leaving a copy of the complaint with appellant Martha Gaynelle Blankenship, Earl Blankenship’s wife. On May 7, 1991, Mr. Blankenship made several conveyances to his wife, including a security deed and $2,500 note from Clifford and Charlene Lisle (“Lisle note”) which was held in his name. As a result of the conveyances, Mr. Blankenship was left with virtually no property in his name. On May 22,1991, Mr. Blankenship entered prison and served eight months of a two-year sentence for mail fraud. During his imprisonment, the case was tried, and a judgment was entered for plaintiff for $8,017.40. However, at that point, Blankenship had no financial means to satisfy the judgment. Plaintiff then brought the instant action against Mr. and Mrs. Blankenship to set aside the conveyances as fraudulent. Plaintiff alleged that during the pendency of the action on the open account, Mr. Blankenship fraudulently conveyed various interests in real property to his wife for the sole purpose of hindering and defrauding plaintiff in the collection of its judgment; that no adequate consideration was paid by Mrs. Blankenship; and that Mrs. Blankenship was aware of the pending action by virtue of her having accepted service of the complaint.

At trial, Mr. Blankenship testified that the conveyances to his wife were not related to plaintiff’s lawsuit. He explained that, under advice of counsel, he transferred his interests to his wife so that she could look after them while he was in prison. The Blankenships also presented evidence demonstrating that over the years they had a practice of transferring property interests between themselves. For example, the evidence showed that from time-to-time, Mr. Blankenship was a home builder and that in order to finance his building projects, Mrs. Blankenship would buy lots with her own money and deed the lots to Mr. Blankenship so that he could use the lots as collateral for construction loans. Mr. Blankenship would then build the homes, and Mrs. Blankenship would be repaid when the houses sold. The Blankenships contended that the Lisle note resulted from this type of transaction.

It appears that Mrs. Blankenship purchased two lots in the Oak Knoll Subdivision for $15,500 and conveyed them to her husband. Mr. Blankenship built houses on each lot and sold both homes to third parties. In the sale of the first house, Mr. Blankenship made enough to repay his wife for her initial purchase of the lot. However, the sale of the second house to the Lisles did not fully cover the cost of the lot, and Mrs. Blankenship was still owed $2,500. As a result, the Lisles gave Mr. Blankenship a note for $2,500 and security deed. Mrs. Blankenship testified that her husband told her that he conveyed the instruments to her to allow her to collect the note. Mr. and Mrs. Blankenship testified that the $2,500 note represented the $2,500 still owed to Mrs. Blankenship for her purchase of the lot.

Defendants Mr. and Mrs. Blankenship submitted three requests to charge, and the trial court refused to give one of defendants’ requests. Defendants excepted to the court’s failure to give the excluded charge, and the jury returned a verdict for plaintiff, setting aside the conveyances and awarding $3,500 in punitive damages. The judgment also included an award of $3,500 for attorney fees and an award of money damages in the amount of $2,906.23 against Mrs. Blankenship, $1,533.88 of which represented payment she received on the Lisle note since the May 7, 1991 conveyance. Defendants’ motion for new trial was denied and this appeal followed.

Defendants enumerate as error the trial court’s failure to give their request to charge which reads as follows: “Where a wife is owed money by her husband it is not fraudulent for the husband to transfer property to the wife for the purpose of paying the debts owed her, provided the property so conveyed be reasonably proportioned to the amount of the debt owed her and the husband may prefer payment to the wife over any other unsecured creditor.” The trial court did not indicate its rationale for excluding the charge. Plaintiff has no quarrel with the request as an abstract principle of law but contends that the charge is inapt and not adjusted to the evidence because it was not limited to the Lisle note. Plaintiff argues that the charge is capable of being interpreted by the jury to apply to the other transfers of May 7, 1991, in which there was no claimed indebtedness between the Blankenships and was properly refused by the trial court on this basis. We disagree.

Basically, there are only three conveyances at issue in the instant action, and the conveyance of the Lisle note is the only conveyance about which there was evidence of indebtedness between the Blankenships, as husband and wife. The other two conveyances involved the assignment of a security deed and note in Mr. Blankenship’s name representing an unrelated mortgage Mr. Blankenship personally held on another home he sold to separate purchasers and the conveyance by warranty deed of two lots in another subdivision to Mrs. Blankenship for and in consideration of love and affection. Thus, the jury could not have been confused about the application of the charge and the charge could not be applied equally to the other conveyances because they did not involve a claimed indebtedness between husband and wife.

“It is the duty of the trial court to charge the jury on the law applicable to the issues where there is any evidence on which to predicate the instructions. A refusal to give a charge is error if the charge is a correct statement of the law and applicable to the issues involved.” (Citations and punctuation omitted.) Smoky, Inc. v. McCray, 196 Ga. App. 650, 653 (5) (396 SE2d 794) (1990). Conflicts in the testimony regarding Mr. Blankenship’s reasons for making the conveyances and questions involving adequate consideration and Mrs. Blankenship’s knowledge of the previous lawsuit are issues of fact to be resolved by the jury and are not relevant to our inquiry. “[Defendants’] request contained a correct statement of law and was adjusted to the evidence. [See Strickland v. Davis, 184 Ga. 76, 79-80 (1) (190 SE 586) (1937).] The objection was properly preserved. Failure to give the requested charge on a critical legal theory of recovery constituted substantial error and was harmful as a matter of law. [Cits.]” McDevitt & Street Co. v. K-C Air Conditioning Svc., 203 Ga. App. 640, 647 (9) (418 SE2d 87) (1992). Thus, the trial court erred in denying defendants’ motion for new trial.

Decided May 24, 1994.

Worthington & Flournoy, Thomas M. Flournoy, Jr., for appellants.

Grogan, Jones, Rumer & Gunby, Milton D. Jones, for appellee.

Judgment reversed.

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


text:
    A94A0254.
    YOUNG v. THE STATE.
    (444 SE2d 598)
   Cooper, Judge.

Defendant was convicted of two counts of burglary. He appeals from the entry of judgment on the convictions and sentence and the denial of his motion for new trial.

With regard to the first count, the record reveals that on August 30, 1992, David Grinstead discovered that his automobile repair shop at 3121 Broadway had been burglarized. Grinstead determined that several items were missing, including a light blue 1986 Oldsmobile Cutlass with a Houston County license plate. In a statement given to the police shortly after the robbery, Frederick Bolton, defendant’s half-brother, stated that he saw defendant driving a blue Cutlass with a Houston County tag and that defendant told him he got the car from a repair shop on Broadway. Robert Watson, defendant’s brother-in-law, also gave the police a statement. At the time of the trial, Watson had already pled guilty to the burglary of Grinstead’s Garage. Watson told the police that he and defendant broke into the garage; that they took several items from the garage, including a blue car; that defendant found the car keys; that défendant drove the car from the garage; and that they kept the car for approximately three weeks. At trial, Watson testified that he committed the burglary alone and could not recall giving the police a statement. Defendant admitted driving a car for two days shortly after the burglary but stated that the car was not a blue Cutlass but was a grey Buick Skylark lent to him by a friend.

As to the other burglary count, the record shows that on September 16, 1992, Carolyn Rivers discovered that her combination television and VCR had been stolen. She reported the stolen television to the police. Clarence Sallette testified that on September 16, 1992, defendant came to his house and asked if he could come in and plug in a VCR/TV to see if it worked. Sallette turned away from defendant momentarily. When he returned, defendant was gone, but the television remained. After a few minutes, defendant came back, running, sweating and out of breath. Sallette stated that he then realized what was going on, and he told defendant to get the box and get out of the house. Defendant left the house but left the television behind Sallette’s house.

On the same afternoon, two detectives, who were investigating the Grinstead burglary, spotted defendant riding in the back of a pickup truck. When the truck stopped at a stop sign, the officers pulled behind the truck. One of the detectives called out defendant’s name, and defendant fled. The other detective chased defendant but did not catch him. The driver of the truck was questioned and directed the police to Sallette’s residence where the television was recovered. The police subsequently called Rivers, and she identified the recovered TV/VCR as her stolen property.

1. Defendant contends the evidence was insufficient to support his conviction of the burglary of Grinstead’s Garage because the testimony of Watson and Bolton is the only evidence which connects him to the burglary and the State failed to sufficiently corroborate accomplice Watson’s testimony and Bolton’s testimony alone could not support a burglary conviction.

“In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict.” (Citations and punctuation omitted.) Lowe v. State, 208 Ga. App. 49, 51 (1) (430 SE2d 169) (1993). “Recent unexplained possession is probative evidence which must be reviewed along with other evidence in the case to determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Cit.]” Slater v. State, 209 Ga. App. 723, 724 (1) (434 SE2d 547) (1993). Even if Bolton’s testimony regarding defendant’s recent possession of the stolen car was insufficient to support a conviction for burglary alone, it was sufficient corroboration of Watson’s testimony. See Castell v. State, 250 Ga. 776, 780 (1c) (301 SE2d 234) (1983); Reaves v. State, 242 Ga. 542, 543 (1) (250 SE2d 376) (1978). Bolton’s testimony connected defendant to the crime and led to the inference that defendant was guilty. Accordingly, we find that the evidence, viewed in a light favorable to the verdict, was sufficient to authorize a rational trier of fact to find defendant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Martin v. State, 209 Ga. App. 720 (434 SE2d 534) (1993).

Decided May 24, 1994.

L. Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

2. Defendant also enumerates as error the insufficiency of the evidence to support his conviction of the burglary of Carolyn Rivers’ house. However, in his appellate brief, defendant sets forth the evidence which, in fact, supports his conviction, and quite curiously, defendant appears to concede that the evidence was sufficient. Nonetheless, having reviewed the evidence in its entirety in a light to support the verdict, we find that the evidence was sufficient to support a conviction of burglary beyond a reasonable doubt. Jackson v. Virginia, supra.

3. Appellant enumerates as error ineffective assistance of counsel at trial. However, again, defendant’s appellate argument would seem to undercut the enumeration of error. In his brief, defendant states as follows: “Upon examination of the record and research, there appears to be no single error or collection of errors in trial counsel’s performance which would meet the ‘but for’ standard enunciated in Strickland v. Washington, 466 U. S. 668 [(104 SC 2052, 80 LE2d 674)] (1984). The strongest evidence of trial counsel’s effectiveness was the jury’s acquittal of Appellant on Count Two. Trial counsel’s performance fell ‘within the wide range of reasonable professional assistance’ required by Spencer v. State, 260 Ga. 640 [(398 SE2d 179)] (1990).” With this argument, we do not disagree. Thus, this enumeration is without merit.

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A94A0284.
    SHARPE v. THE STATE.
    (444 SE2d 600)
   Blackburn, Judge.

Appellant, Michael Sharpe, was indicted along with Harry Peopies for trafficking in cocaine. Peoples pleaded guilty, and Sharpe was tried and convicted. On appeal, Sharpe contends the trial court erred by denying his motion for a directed verdict of acquittal and by giving erroneous charges on the credibility of witnesses and reasonable doubt.

The evidence shows that prior to their arrests, Sharpe and Peoples were acquaintances who had known each other for six to eight months and who regularly frequented the same nightclub in Montgomery, Alabama. On October 6, 1992, they were returning to Montgomery from an overnight trip to Atlanta, Georgia, when they were stopped by a Troup County, Georgia, sheriff’s deputy after the vehicle they were riding in twice crossed the fog line. The vehicle was rented by Peoples for the trip to Atlanta, and Peoples was driving at the time of the stop.

Upon receiving conflicting stories from Sharpe and Peoples as to where they had been, the deputy obtained consent from Peoples to search the vehicle. With the aid of a drug sniffing canine, 985 grams of cocaine were found hidden in a box of Surf laundry detergent in the trunk of the vehicle.

Peoples testified at trial that he and Sharpe made the trip to purchase a kilogram of cocaine from someone Sharpe knew in Atlanta. On October 5, 1992, Peoples contacted Sharpe, via Sharpe’s beeper, to get the telephone number of Sharpe’s friend, an alleged drug dealer. Sharpe told Peoples the person did not have any drugs, but that he knew the supplier in Atlanta and that the supplier would sell them one kilogram of cocaine and front them another. At Peoples’ suggestion, they went to the Montgomery airport where Peoples rented the vehicle in which they drove to Atlanta.

Peoples further testified that when they arrived in Atlanta, the supplier was not at home, but another man took them to the Magic City Club to meet the supplier there. At the Magic City Club, the supplier told them they could not get the cocaine until the next day, so they spent the night at a Red Roof Inn. Peoples stated that early the next morning Sharpe went to Underground Atlanta with the same individual who took them to the Magic City Club the night before to get additional money needed to purchase the cocaine. After Sharpe returned, they purchased the cocaine, put it into the Surf laundry detergent box, and began the trip home.

Sharpe testified that he and Peoples made the trip for the purpose of going to the Magic City Club, a nude dancing establishment. On October 5, 1992, Peoples paged Sharpe and asked him if he would like to go with him to the Magic City Club. Sharp testified that he had never been to a nude dancing club and was very excited to join Peoples. They rented the car at the Montgomery airport and drove to the Club where they stayed until closing, spending the night at a Red Roof Inn. The next day around noon Peoples dropped Sharpe off at Underground Atlanta so he could say hello to an old college friend, and they returned to Montgomery from there. Sharpe specifically denied Peoples’ account of the events and denied being aware of the cocaine in the vehicle.

1. Sharpe contends that the trial court erred in denying his motion for directed verdict of acquittal as the only evidence against him was the uncorroborated testimony of Peoples, his alleged accomplice. We disagree.

“ ‘The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.’ ” Hogan v. State, 210 Ga. App. 122, 123 (1) (435 SE2d 494) (1993). “In Georgia, the testimony of an accomplice used to convict the accused of a crime must be supported by independent corroborating evidence as to the identity and participation of the accused tending to connect him to the crime or leading to the inference that he is guilty. Slight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony and thus support the verdict. The necessary corroboration may be by circumstantial evidence. . . . While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citations and punctuation omitted.) Bennett v. State, 202 Ga. App. 699 (415 SE2d 310) (1992); accord Claybrooks v. State, 189 Ga. App. 431, 432 (375 SE2d 880) (1988).

In the case at bar, Sharpe was traveling in the car with the cocaine, he was in possession of a beeper at the time of his arrest, Sharpe and Peoples rented the car to drive to Atlanta, even though both men owned their own automobiles, neither man was formally dressed, and the arresting officers testified that Sharpe was nervous, fidgety and talkative during the traffic stop and search of the vehicle. We find such circumstantial evidence when viewed in the light most favorable to the verdict was ample to identify Sharpe as a participant in the crime charged, and the evidence was sufficient to authorize a rational trier of fact to find him guilty beyond a reasonable doubt. See Bennett, supra; Herndon v. State, 187 Ga. App. 77, 78 (4) (369 SE2d 264) (1988).

2. Sharpe next contends the trial court erred in instructing the jury that “all witnesses who appear and testify under oath are presumed to speak the truth.” Specifically, he asserts the charge misled the jury and was burden-shifting.

Our Supreme Court has suggested that use of the challenged jury charge be discontinued as possibly misleading, but both that court and the United States Supreme Court have held that the charge is not unconstitutionally burden-shifting. Noggle v. State, 256 Ga. 383, 385-386 (349 SE2d 175) (1986). While the better practice would be to not give the subject charge, it is not reversible error to do so when considered in the context of the charge as a whole. See id.; Frost v. State, 200 Ga. App. 267, 271 (5) (407 SE2d 765) (1991); Coleman v. State, 189 Ga. App. 366, 367 (375 SE2d 663) (1988).

Decided May 24, 1994.

Rubin, Winter & Rapoport, Robert G. Rubin, for appellant.

Peter J. Skandalakis, District Attorney, Monique F. Kirby, Lynda S. Engel, Assistant District Attorneys, for appellee.

3. “[Sharpe’s] remaining enumeration of error is directed to the court’s charge concerning reasonable doubt in which it referenced ‘reasonable and moral certainty.’ . . . Although the better [practice] would [be to] not include that phrase, [the Supreme Court] held in Vance v. State, 262 Ga. 236 (2) (416 SE2d 516) (1992) that a similar instruction created no reversible error when considered in the context of the charge as a whole.” (Citation and punctuation omitted.) Hicks v. State, 262 Ga. 756 (3) (425 SE2d 877) (1993); see also McDonald v. State, 210 Ga. App. 689 (5) (436 SE2d 811) (1993).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A94A0478.
    GOODSON v. THE STATE.
    (444 SE2d 603)
   Cooper, Judge.

This appeal follows our grant of defendant’s application seeking discretionary review of the trial court’s order revoking his probation. Defendant was charged with the murder of his wife. At the time of his arrest, defendant was on probation for previous convictions of theft by taking and habitual violator. A petition was issued for revocation of defendant’s probation alleging that defendant had violated the terms of his probation by committing the new offense of felony murder. On August 26, 1993, an evidentiary hearing was held to determine if the probated sentence should be revoked. At this hearing, all of the evidence brought forward by the State in support of its contention that defendant had committed this new criminal offense was wholly hearsay in nature. Nevertheless, the trial court entered an order revoking the balance of defendant’s probation.

Decided May 24, 1994.

Peter D. Johnson, for appellant.

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

Hearsay evidence has no probative value and is inadmissible in a probation revocation proceeding. Barnett v. State, 194 Ga. App. 892 (392 SE2d 322) (1990). “Thus, such evidence is incapable of supporting a trial court’s findings whether or not objection was lodged.” Id. at 893.

The State concedes on appeal that all of the evidence at the hearing was hearsay but argues that the revocation order should be upheld anyway because testimony at the hearing indicated that at the time of his arrest, defendant admitted he had been using crack cocaine and codeine syrup which would have alone afforded the trial court a legitimate basis for revoking the remainder of defendant’s probated sentence. We disagree. “[Although ordinarily a judgment right for any reason must be affirmed, where it is apparent that the court rests its judgment on reasons which are erroneous or upon an erroneous legal theory, it commits reversible error. [Cit.]” Sosbee v. State, 155 Ga. App. 196 (270 SE2d 367) (1980). Thus, a probation revocation cannot stand if the revocation is not made on the ground stated in the petition. Id. at 196. “While the evidence might have supported a finding that the defendant violated a condition of his probation [by possessing illegal substances], this was not one of the grounds stated in the petition for revocation of probation. Therefore the order of revocation was erroneous. [Cits.]” Radcliff v. State, 134 Ga. App. 244, 245 (214 SE2d 179) (1975).

Judgment reversed.

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

       The charge was subsequently reduced to felony grade involuntary manslaughter following the preliminary hearing.


text:
    A94A0639.
    CHAMBERS v. THE STATE.
    (444 SE2d 833)
   Cooper, Judge.

This is the second appearance of this case before this court. Defendant was first convicted of one count of incest and one count of child molestation, the victim in each count being his natural daughter. That conviction was reversed by this court in Chambers v. State, 205 Ga. App. 78 (421 SE2d 326) (1992). On August 27, 1992, a second trial was held, and defendant was again convicted of incest and child molestation. Defendant appeals his convictions and the trial court’s denial of his motion for new trial.

1. In his first enumeration of error, defendant argues the trial court erred by refusing to allow defendant to introduce the testimony of several witnesses who would have testified that the victim had accused several people other than the defendant of having sexual intercourse with her.

(a) During the trial of this case, a videotaped interview of the victim was admitted into evidence during which the victim admitted having made a false accusation regarding sexual activity she had with a boy, which she subsequently retracted. Prior to the introduction of the videotape evidence, defendant sought to introduce the testimony of four witnesses who would have testified that the victim had made identical false allegations to them regarding the same sexual activity she allegedly had with the same boy. This testimony was essentially a duplication of the victim’s videotaped admission that was already before the jury. Defendant is correct in acknowledging that this issue has already been decided adversely to him in Chambers v. State, supra. In Chambers, we held that the requirements of Smith v. State, 259 Ga. 135 (1) (377 SE2d 158) (1989) were satisfied by the admitted videotape interview of the victim containing her prior accusation and retraction and that Smith did not require the admission of the very same duplicate testimony sought to be admitted by defendant in this case. Chambers v. State, supra at 79. Accordingly, the trial court’s refusal to allow these four witnesses to testify was not error.

(b) Defendant also sought to introduce the testimony of two children whose mother was a friend of the victim’s stepmother. These children testified outside the presence of the jury that the victim told them that she had sex with her natural mother’s boyfriend and with one or two other boys in the trailer park where she lived. (These boys are different than the boy discussed in Division 1 (a) of this opinion.) These conversations allegedly took place during the same period of time that the victim claimed defendant was sexually molesting her. Defendant contends the trial court erred in not allowing these two witnesses to testify at trial, raising two different arguments.

The testimony of these two witnesses was not admissible for the purpose of showing a false allegation under Smith v. State, supra, as argued by defendant, because there was no showing by defendant or determination by the trial court that the victim’s accusations against her mother’s boyfriend and the two boys in the trailer park were false. To the contrary, both witnesses claimed they fully believed the victim when she told them she had sex with these other persons. Thus there was no evidence to support a reasonable probability of falsity as required by Smith, and the trial court properly excluded this evidence on this ground. See generally Postell v. State, 200 Ga. App. 208 (4a) (407 SE2d 412) (1991), rev’d on other grounds, 261 Ga. 842 (412 SE2d 831) (1992).

Defendant further contends that this testimony should have been admitted to show that the victim may have had sexual intercourse with persons other than defendant. “Absent a showing of relevance, evidence of a child’s past sexual history, including acts committed by persons other than the accused, is inadmissible. Moreover, evidence of a prior molestation or previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or her preoccupation with sex.” (Citations and punctuation omitted.) Marion v. State, 206 Ga. App. 159 (1) (424 SE2d 838) (1992). However, this court also has held that where the State introduces medical testimony indicating that the child has been sexually abused or evidence of child abuse accommodation syndrome and connects the child’s behavior to that syndrome, evidence that the victim may have been molested by someone other than the accused may be admissible to establish other possible causes for the behavioral and medical symptoms exhibited by the child. Burris v. State, 204 Ga. App. 806 (2) (420 SE2d 582) (1992).

During the trial of this case, the State called an expert witness who, on direct examination, was questioned about the victim’s medical examination and testified that the victim had been sexually active more than once. Two other witnesses called by the State testified that the victim had many of the common characteristics of a sexually abused child. “Testimony regarding the [child sexual abuse accommodation] syndrome and all the child’s symptoms . . . having been properly admitted, the evidence regarding other possible causes of her behavior and [symptoms] was necessary to prevent the jury from reaching the unwarranted conclusion that the only possible explanation for the medical findings and the existence of behavior consistent with the child sexual abuse accommodation syndrome was that the victim had been molested by [defendant]. Moreover, a jury’s awareness that the victim had been molested previously could affect its judgment of the victim’s credibility, as the credibility of a young child’s report of an improper touching must necessarily be greater if the child has had no occasion to learn about such behavior from prior incidents.” Hall v. State, 196 Ga. App. 523, 525 (2) (396 SE2d 271) (1990). Defendant did not seek to introduce evidence about the victim’s accusations against these other persons to show the child’s nonchastity or preoccupation with sex but rather to support his defense that the victim was molested by someone other than defendant. “In light of the fact that the evidence supporting the jury’s conviction of defendant though clearly sufficient was not overwhelming, but was largely dependent on the testimony of the victim and that of others as to what she told them, the exclusion of this evidence was not harmless, as we cannot say that it is highly probable that the error did not contribute to the judgment. Accordingly, defendant must be afforded a new trial.” (Citations and punctuation omitted.) Marion v. State, supra at 160.

Decided May 24, 1994.

James C. Wyatt, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Fred R. Simpson, Assistant District Attorneys, for appellee.

Although the State argues on appeal that defendant failed to raise this theory of admissibility at trial, we find that defense counsel’s numerous attempts throughout trial to convince the trial court to allow this witness’ testimony into evidence sufficiently touched upon the issues and arguments now raised by defendant on appeal. We also note, but do not decide, that this testimony may also have been admissible to impeach the victim’s statement made to an investigator that she had never had sexual relations with anyone other than defendant, as argued by defendant at trial. See generally Villafranco v. State, 252 Ga. 188 (2) (313 SE2d 469) (1984); Jimmerson v. State, 190 Ga. App. 759 (1) (380 SE2d 65) (1989). Accordingly, defendant must be afforded a new trial.

2. Defendant also argues the trial court erred by failing to allow the jury to hear evidence about several dreams of a sexual nature which the victim relayed to her treating psychologist and several other lay witnesses. Defendant contends that the jury had the right to hear about these dreams because they showed that the victim was very confused about sexual issues and could have easily fantasized or falsely sexualized her relationship with her father. The trial court sustained the State’s objection to the introduction of this testimony on relevancy grounds because the psychologist who was to testify could not state that there was any connection between the victim’s dreams and the charges against defendant. “[T]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” O’Neal v. State, 254 Ga. 1, 3 (2) (325 SE2d 759) (1985). Since the defendant was unable to show a connection between the victim’s dreams and the alleged acts committed by defendant, we conclude that the trial court did not abuse its discretion in refusing to admit this testimony.

3. We need not address defendant’s remaining enumeration for we find it unlikely that the same alleged error will reoccur upon retrial.

Judgment reversed.

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


text:
    A94A0770.
    ROSS v. A BETTERWAY RENT-A-CAR, INC. et al.
    (444 SE2d 604)
   Cooper, Judge.

This appeal arises out of a lawsuit brought by plaintiffs, A Betterway Rent-a-Car d/b/a Budget Rent-A-Car (“Budget”) and the Salvation Army, for damages sustained by their respective vehicles in an automobile accident. Plaintiffs alleged that the accident occurred on August 15, 1992, on Interstate 75/85 southbound near the University Avenue exit, when a tow truck negligently pulled from the emergency lane onto the expressway and into the path of the Salvation Army’s vehicle. The driver of the Salvation Army vehicle, Philip Canning, testified that when he slammed on his brakes to avoid hitting the tow truck, his car started to fishtail and was hit from behind by two other vehicles, one of which was owned by Budget. The tow truck was not involved in the collision and did not stop. Defendant Ronnie Ross admitted that he owned a tow truck at the time of the collision but could not remember whether he was driving it on August 15, 1992, at the time and place of the accident. The case was tried without a jury, and the trial judge entered a judgment in favor of Budget for $10,361.78 and in favor of the Salvation Army for $13,249.25. Defendant appeals from the judgment.

1. Defendant argues in two enumerations of error that the trial court erred in denying his motion for directed verdict, because there is insufficient evidence to support the verdict. “In a bench trial there is no jury verdict. Thus, it is procedurally incorrect to move for a directed verdict; and such motion, as well as the grant [or denial] thereof, will be construed as one for involuntary dismissal under OCGA § 9-11-41 (b).” (Citation omitted.) Hertz Corp. v. McCray, 198 Ga. App. 484 (1) (402 SE2d 298) (1991). “Thus, in cases of this nature, the trial judge sits as trier of fact, and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them.” (Citation and punctuation omitted.) Id. at 485.

Defendant primarily argues there was no evidence which placed him at the scene of the accident. Canning testified that the accident occurred around 11:00 p.m. and that prior to the accident, the tow truck had been in the emergency lane with a disabled vehicle which contained several persons of Hispanic descent. Defendant admitted during discovery that on a previous occasion while driving his tow truck, he stopped to give assistance to a vehicle containing persons of Hispanic descent, but he had no knowledge of whether that occurred on August 15, 1992. At trial, defendant testified that on a Saturday in August he stopped to give assistance to a disabled vehicle containing persons of Hispanic descent at the location of the accident. Defendant stated that he believed the time to have been around 8:00 p.m., but he did not know whether the date was August 15, 1992. Defendant also testified that he left the persons in the disabled car one of his business cards. “The inference which the [trier of fact] may draw from proved facts is circumstantial evidence, which the [trier of fact] has before it for consideration along with all other evidence in the case. It is for the [trier of fact] to weigh this evidence along with all the other evidence and determine where the preponderance of the evidence lies.” Macon Coca-Cola Bottling Co. v. Chancey, 216 Ga. 61, 70 (114 SE2d 517) (1960). Although there was some discrepancy about the date and time defendant was placed at the scene of the accident, there was ample evidence from which the trial judge could infer that defendant was the driver of the tow truck which negligently pulled from the emergency lane and caused the accident.

Defendant’s contention that there was no evidence that one of the damaged cars belonged to Budget is also without merit. The transcript reveals that an appraiser for Budget identified photographs of a damaged car as the car owned by Budget which was involved in the accident on August 15, 1992.

2. Defendant asserts in his third enumeration of error that the trial judge erred in failing to apportion damages. Specifically, defendant argues that the damage to the Salvation Army’s and Budget’s vehicles was caused by other vehicles; therefore, the damages should have been apportioned among those vehicles which caused the damage. We find no merit to defendant’s argument. The trial court correctly ruled that to the extent defendant believed other persons were responsible for the damage, defendant should have made those persons third-party defendants. See generally Caudle v. Whiddon, 126 Ga. App. 21 (189 SE2d 875) (1972).

3. In his final enumeration of error, defendant argues the trial court erred in awarding damages because plaintiffs were only entitled to recover the cost to repair the vehicles. With respect to the vehicle owned by the Salvation Army, an appraiser testified that before the accident, the vehicle was worth $17,466. The Salvation Army received $4,293.75 as the salvage value of the vehicle. Subtracting those two figures and adding in the cost of the appraisal, the total loss suffered by the Salvation Army was $13,249.25, the same amount awarded by the trial court. Budget’s appraiser testified that the value of Budget’s vehicle before the accident was $11,604.28 and its value after the accident was $1,357.50. In addition, Budget paid expenses of $115 for towing services. Thus, Budget’s total damages were $10,361.78, the amount awarded by the court. Both appraisers testified that in their opinions, the respective vehicles were total losses. Defendant’s argument that plaintiffs were only entitled to recover the amount it would have cost to repair their vehicles is without merit. The difference in value of a vehicle before and after an accident is a proper measure of damages when the vehicle is declared a total loss. See Bowling v. Gober, 206 Ga. App. 38 (3) (424 SE2d 335) (1992).

Decided May 24, 1994.

Zimmerman & Associates, Keith F. Brandon, for appellant.

Fain, Major & Wiley, Gene A. Major, G. Keith Richardson, Frederic H. Pilch, for appellees.

Judgment affirmed.

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


text:
    A94A0873.
    ALLEN v. THE STATE.
    (444 SE2d 385)
   Cooper, Judge.

Defendant was convicted by a jury of battery against the victim, his common-law wife. He appeals from the judgment of conviction and sentence entered on the verdict, raising as his sole enumeration of error the sufficiency of the evidence.

The evidence adduced at trial reveals that defendant, a physician, and his wife had an argument in their bedroom. Defendant struck his wife in the head with his fist and then began kicking her in the head and face. He chased his wife out of the house and locked her out. Officer Perry responded to the domestic violence call and when he arrived, defendant’s wife was sitting in an ambulance. Her lip was bleeding and swollen, and she had a visible knot on her forehead. Defendant’s wife told Officer Perry that defendant hit her in the mouth with his fist and kicked her in the head. Officer Perry arrested defendant for battery pursuant to the Family Violence Act. Defendant’s wife was taken away by an ambulance and treated at the hospital emergency room. Although defendant admitted arguing with his wife, he denied that he hit or kicked her. Defendant’s brother, who was living with defendant and his wife at the time of the incident, testified that defendant’s wife was running down the hallway and slipped and fell face first on the parquet floor. Officer Perry testified that over the course of his five-year career as a police officer he has responded to over one hundred domestic violence calls and that the injuries to defendant’s wife were consistent with injuries received in domestic violence and inconsistent with injuries which might result from a fall.

OCGA § 16-5-23.1 provides that “[a] person commits the offense of battery when he intentionally causes substantial physical harm or visible bodily harm to another.” The evidence was sufficient to enable a rational trier of fact to find defendant guilty of battery beyond a reasonable doubt under the standard in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Hussey v. State, 206 Ga. App. 122 (2) (424 SE2d 374) (1992).

Decided May 24, 1994.

William W. West, for appellant.

Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.

Judgment affirmed.

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


text:
    A94A0899.
    CADDEN v. THE STATE.
    (444 SE2d 383)
   Cooper, Judge.

Defendant was convicted by a jury of driving under the influence and improper lane change. His sole enumeration on appeal is the trial court’s denial of his motion in limine to suppress the results of an intoximeter test.

After observing defendant make several traffic violations, Officer Phillip Herren of the Whitfield County Sheriff’s Department stopped defendant’s car. Officer Herren detected the odor of alcoholic beverage on defendant and also noticed that defendant was unsteady on his feet, that his eyes were red and that his speech was slurred. After defendant failed several field sobriety tests, Officer Herren placed defendant under arrest and read him the implied consent warning. Defendant was taken to jail and given an Intoximeter 3000 breath test which produced a reading of .11 grams percent. Defendant asked for another breath test and was given a second test 13 minutes later. The second test produced a reading of .09 grams percent. Because of the discrepancy in test results defendant requested an independent blood test.

At the hearing on defendant’s motion in limine to suppress the results of the intoximeter test, Officer Herren testified that defendant used a pay telephone to call the hospital to find out how much the blood test cost. After making the call, defendant told Officer Herren he did not have the money. Officer Herren asked defendant if there was any way to contact someone who could bring defendant the money. Defendant said there was no one at his home, and the passenger in defendant’s vehicle refused to go to defendant’s house to get the money. When defendant asked Officer Herren to take him home to get some money, Officer Herren refused, but told defendant he would call someone for him or take him to a teller machine to get money for the test. Defendant testified that he did not call the hospital and that the officer told him the test cost $138 in cash. Although defendant had between $60 and $70 in cash and some credit cards with him at the station, he did not tell the officer about the credit cards because he had been told payment for the test must be in cash. The passenger then arranged for defendant’s bond, and defendant was released. After his release, defendant made no attempt to have a blood test.

“Questions of credibility arising out of conflict in testimony regarding the circumstances of pursuing the additional testing are for resolution by the court. On appeal evidence must be viewed in the light most favorable to support the verdict; an appellate court determines evidence sufficiency and does not weigh evidence or determine witness credibility.” (Citations and punctuation omitted.) Melvin v. State, 205 Ga. App. 799, 801 (la) (423 SE2d 718) (1992).

“OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. While it is not the officer’s duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. The statute also states that the justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer. It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test. Factors to be considered include, but are not limited to, the following: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused’s requests; (3) availability of police time and other resources; (4) location of requested facilities, e.g., the hospital to which the accused wants to be taken is nearby but in a different jurisdiction; (5) opportunity and ability of accused to make arrangements personally for the testing.” (Citations and punctuation omitted.) State v. Buffington, 189 Ga. App. 800, 801-802 (377 SE2d 548) (1989).

Viewing the evidence in light of the analytical framework set forth above, we find that defendant was given a reasonable opportunity to have an independent test performed. Officer Herren was willing to accommodate defendant to the extent that defendant could contact someone to bring him the necessary funds for the test. Officer Herren’s refusal to take defendant home was not unreasonable given concerns the officer may have had for his safety. Looking at the totality of the circumstances, we conclude that Officer Herren made a reasonable effort to accommodate defendant’s request for an independent blood test. Accordingly, the trial court did not err in admitting the results of the intoximeter test. Melvin, supra at 802.

Decided May 24, 1994.

Waycaster, Corn & Morris, Marcus R. Morris, for appellant.

Jack O. Partain III, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A94A0477.
    STEVENS v. THE STATE.
    (444 SE2d 840)
   Cooper, Judge.

Terrence Stevens was convicted of theft by taking and appeals from the judgment of conviction and sentence.

The evidence shows that two undercover GBI agents and a confidential informant went to the High Hat Bar in Midway, Georgia, to make a drug buy. After briefly speaking with Stevens, the informant indicated that they should come back to the club in 15 minutes, during which time Stevens was going to get in touch with his supplier. When the informant and the agents returned, Stevens got into their car and directed them to the place where crack cocaine could be purchased. When they reached the house identified by Stevens, Stevens and one of the agents got out of the car and began walking toward the house. The agent gave Stevens $600 with which Stevens was to purchase one-half ounce of cocaine, and the agent returned to the car. When Stevens reached the house, the agents lost sight of him as he rounded the corner of the house. The agents waited for 20 minutes, but Stevens never returned. They searched the area but did not find Stevens. Several months later, in a round-up of all of the individuals from whom drugs were bought in the area, Stevens was taken into custody and identified by the two agents as the same individual who, months earlier, had taken $600 from them to buy crack cocaine but instead fled with the money. In a written statement, Stevens admitted receiving the money from an agent to buy drugs, keeping the money and fleeing.

1. Stevens enumerates as error the denial of his motion for directed verdict made at the close of the State’s case. Stevens contends that the officers freely and voluntarily gave him the money as part of an illegal contract for the sale of drugs; that the officers, as parties to the illegality, had no right to demand a return of the money or performance of the illegal contract; and that he was legally in possession of the money. Thus, the State has proven no crime as charged in the indictment.

Stevens is incorrect in characterizing this case as an action to enforce a contract. OCGA § 16-8-2 provides that “[a] person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” (Emphasis supplied.) Stevens was charged with being in lawful possession of $600 in U. S. currency which he unlawfully appropriated with the intention of depriving the owner. Thus, there was undisputed evidence supporting the material allegations in the indictment, and the evidence was sufficient to enable a rational trier of fact to find Stevens guilty of theft by taking beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the trial court did not err in denying Stevens’ motion for directed verdict. See generally Moss v. State, 209 Ga. App. 59 (1) (432 SE2d 825) (1993).

2. In his second enumeration of error, Stevens contends the trial court abused its authority by limiting his cross-examination and interjecting itself during the course of the trial. Stevens argues that the court’s inference prevented him from putting his defense before the jury. The trial court excluded the testimony of one of the agents regarding his experience as a middle man in a drug deal on the grounds of relevancy. The trial court also refused to permit counsel to elicit from the agent his opinion as to whether or not his arrangement with Stevens was legal and whether or not Stevens’ failure to return the money was criminal without the agent being qualified as an expert in the field of law. “Defendant ‘had the right to a thorough and sifting cross-examination of any witness called against him. OCGA § 24-9-64. . . . However, the extent of cross-examination can be curtailed if the inquiry is not relevant or material, and such restriction lies within the discretion of the trial court which will not be disturbed on appeal unless manifestly abused. [Cits.]’ [Cit.] Under the circumstances of the case sub judice, we find no manifest abuse of discretion in the trial court’s limitation of defense counsel’s cross-examination of the State’s [witnesses].” Fletcher v. State, 197 Ga. App. 112, 113 (1) (397 SE2d 605) (1990).

Stevens also argues that the trial court restricted his opening statement. The record reveals that during defense counsel’s opening statement, he discussed the State’s burden to prove each element of the accusation, and the trial court cautioned counsel that his statement was restricted to what he expected the evidence to be and could not include legal argument. “ ‘Counsel for both parties in either a civil or a criminal case, preliminary to the introduction of evidence, may state to the jury what each expects to prove on the trial, and should be confined to a summary or recital or such matters of proof only as are admissible under the rules of evidence.’ [Cit.]” Williams v. United Parcel Svc., 180 Ga. App. 387, 388 (1) (349 SE2d 264) (1986); Cargill v. State, 255 Ga. 616 (21a) (340 SE2d 891) (1986). “The trial judge is presumed to know the law and to be capable of separating admissible grains of evidence from inadmissible chaff. [Cit.] The record contains nothing to rebut this presumption. We will not presume the trial court committed error where that fact does not affirmatively appear in the record. [Cit.]” Rowe v. Rowe, 195 Ga. App. 493, 494 (2) (393 SE2d 750) (1990).

Decided May 25, 1994.

John E. Pirkle, for appellant.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

3. Stevens also contends the trial court erred in admitting his arrest record which was made in October 1992 when the incident occurred in June 1992. At trial, Stevens objected on the grounds of relevancy and bootstrapping. “Admission of evidence rests in the trial court’s sound discretion; and evidence should be admitted if it is admissible for any legitimate purpose. Further, we will not reverse the correct ruling of a trial court regardless of the reason therefor.” (Citations omitted.) Krebsbach v. State, 209 Ga. App. 474 (1) (433 SE2d 649) (1993). The State argues that the evidence was used to corroborate the agents’ testimony on the identification of Stevens at his arrest and custody booking and that all the circumstances connected with the arrest are proper evidence to be submitted to the jury. See Burnett v. State, 234 Ga. 741, 744 (218 SE2d 4) (1975). We agree and find no error in the admission of this evidence.

Judgment affirmed.

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


text:
    A94A0494.
    ATLANTA INDOOR ADVERTISING CONCEPTS, INC. v. WORLD CLASS FITNESS, INC.
    (444 SE2d 385)
   Cooper, Judge.

Plaintiff, Atlanta Indoor Advertising Concepts, Inc. d/b/a Headlines USA, is a corporation in the business of selling advertising space to commercial customers. On March 27, 1991, Sonya Bowen, on behalf of plaintiff, and Thomas Hicks, on behalf of defendant, a health club, entered into a contract in which plaintiff was to provide certain advertising services to defendant in exchange for a fee of $6,000. The contract identified plaintiff as Atlanta Indoor Advertising Concepts d/b/a Headlines USA, Inc., and specified that $500 of the fee was to be paid upon execution of the contract, with the balance paid in monthly installments of $500. Defendant made the initial $500 payment but failed to pay the balance. Plaintiff sued defendant for breach of contract and quantum meruit, seeking damages in the amount of $5,500 plus attorney fees and interest on the unpaid balance of the contract fee. Both parties filed motions for summary judgment. The trial court granted defendant’s motion and denied plaintiff’s motion, and plaintiff appeals that order.

1. Plaintiff contends the trial court erred in granting summary judgment to defendant on the ground that plaintiff was not a legal entity entitled to sue. Defendant argued in its motion that the advertising contract was between Headlines USA, Inc. and defendant, and because Headlines USA, Inc. was not a registered corporation, plaintiff could not bring an action against defendant. Plaintiff is a corporation doing business under the registered trade name of Headlines USA. The reference in the contract to Headlines USA, Inc. is an obvious misnomer. A “misnomer of a corporation in a written instrument, or in a law, or in a judicial proceeding is not material or vital in its consequences, if the identity of the corporation intended is clear or can be ascertained by proof.” (Emphasis in original.) (Citations and punctuation omitted.) Hawkins v. Turner, 166 Ga. App. 50, 51-52 (1) (303 SE2d 164) (1983). The intent of the parties was clearly to bind Atlanta Indoor Advertising Concepts. The only misnomer occurred in identifying the trade name of plaintiff as Headlines USA, Inc., rather than Headlines USA. We conclude that the misnomer did not warrant the entry of summary judgment in favor of defendant. See Hawkins v. Turner, supra at 53; see also Pinson v. Hartsfield Intl. Commerce Center, 191 Ga. App. 459 (382 SE2d 136) (1989).

Defendant also argued in its motion for summary judgment that plaintiff could not maintain the action because documents from the Secretary of State’s office showed that plaintiff failed to pay its annual registration fee for three years. Plaintiff’s president stated in his affidavit dated April 9, 1993, that the corporation was in good standing. Regardless of whether plaintiff’s annual registration fee was delinquent at the time the action was filed, the corporation had not been dissolved. Compare Gas Pump v. Gen. Cinema Beverages of North Florida, 263 Ga. 583 (436 SE2d 207) (1993). Therefore, summary judgment should not have been granted to defendant on this ground.

2. In its second enumeration of error, plaintiff argues the trial court erred in denying its motion for summary judgment. Plaintiff argues that it fully performed its obligations under the contract and therefore was entitled to recover the agreed upon fee. In support of its motion for summary judgment, plaintiff submitted the affidavit of its president, who stated therein that plaintiff performed all services it was obligated to perform under the contract and that plaintiff received no notice from defendant that defendant was dissatisfied with plaintiff’s performance under the contract. With its brief in opposition to plaintiff’s motion for summary judgment, defendant submitted the affidavit of two of its officers who stated that plaintiff did not provide the services agreed to in the contract and that as a result, defendant terminated the agreement in accordance with contract provisions.

Decided May 25, 1994.

Adam R. Gaslowitz, for appellant.

Schwall & Schwall, Emory A. Schwall, Frederick B. Whittington III, for appellee.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). We find that the opposing affidavits create a question of fact as to whether plaintiff performed its obligations under the contract. Therefore, the trial court properly denied plaintiff’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

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


text:
    A94A0513.
    In the Interest of L. D. H., a child.
    (444 SE2d 387)
   Cooper, Judge.

The juvenile court found that L. D. H. committed the offense of murder and adjudicated him a delinquent. L. D. H. appeals from that order.

The transcript from the commitment hearing reveals that L. D. H. and the victim, both minors, argued during the day at a junior high school basketball game and discussed fighting. Later that night, after a birthday party at a local club, L. D. H. and the victim got into a fight during which the victim was stabbed and killed. Several witnesses testified that after the fight had broken up, they heard L. D. H. say either that he was going to “kill” or “cut” the victim. At least two witnesses heard L. D. H. say “I told you I was going to cut you.” A police officer responded to the scene and found the victim on the ground with a stab wound. The officer asked who did this, and L. D. H. stated that he did it. L. D. H. then gave the officer the knife. At trial, L. D. H. contended that he did not mean to cut the victim and that he only had the knife out to scare him.

1. L. D. H. first argues that the trial judge erred in allowing the mother of the victim to remain in the courtroom during the hearing. OCGA § 15-11-28 (c) provides: “The general public shall be excluded from hearings involving delinquency, deprivation, or unruliness. Only the parties, their counsel, witnesses, persons accompanying a party for his assistance, and any other persons as the court finds have a proper interest in the proceeding or in the work of the court may be admitted by the court. The court may temporarily exclude the child from the hearing except while allegations of his delinquency or unruly conduct are being heard.” The trial judge found that the victim’s mother had attended a previous hearing and was familiar with the case and that she had a proper interest in the proceedings. Consequently, the judge exercised his discretion and allowed the victim’s mother to remain in the courtroom. OCGA § 15-11-28 (c) “vests the juvenile judge with a broad discretion which this court has no right to control absent a manifest abuse of discretion.” (Citations omitted.) B. J. L. v. State of Ga., 173 Ga. App. 317, 319 (3) (326 SE2d 519) (1985). We find no abuse of discretion.

2. In his second enumeration of error, L. D. H. argues that the trial court should have granted his motion for directed verdict. “There is no verdict in a bench trial. The issue, then, is simply whether the evidence met the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” (Citations and punctuation omitted.) Daniels v. State, 211 Ga. App. 23, 25 (2) (438 SE2d 99) (1993). We conclude the evidence was sufficient to enable a rational trier of fact to find L. D. H. guilty beyond a reasonable doubt.

3. L. D. H. contends in his third and fourth enumerations of error that the trial court erred in finding that he was guilty of murder instead of manslaughter. Specifically, L. D. H. argues that because the evidence shows that the victim was the aggressor in the alleged attack and provoked L. D. H. into the altercation, the trial, judge should have found that he acted either in self-defense or that the accidental killing was manslaughter. “If malice is in the mind of the slayer at the moment the killing is done, and it moves him to do the killing, no matter how short a time it may have existed, such killing constitutes murder. The fact that the events happened quickly does not alter the sufficiency of the evidence.” (Citation and punctuation omitted.) Walker v. State, 240 Ga. 608, 609 (1) (242 SE2d 118) (1978). There was evidence that L. D. H. had the requisite intent to kill the victim, and a rational trier of fact could have found L. D. H. guilty of murder beyond a reasonable doubt.

Decided May 25, 1994.

Martin & Martin, Karen K. Martin, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A94A0676.
    LOWE v. MACERICH REAL ESTATE COMPANY, II et al.
    (444 SE2d 389)
   Cooper, Judge.

Plaintiff brought an action against defendants for injuries sustained in a fall. The trial court granted defendants’ motion for summary judgment, and this appeal followed. Plaintiff asserts the grant of summary judgment to defendants as her sole enumeration of error.

Plaintiff alleged in her complaint that she slipped and fell on the hardwood floor outside the entrance to Sears in the Columbus Square Mall. She alleged that her fall was due to defendants’ negligence in maintaining an entrance which appeared level and safe but sloped to a dangerous degree and in failing to warn persons using the entrance to be aware of the dangerous qualities of this area. However, in her deposition, plaintiff testified that she did not know what caused her to fall. She stated that she was looking straight ahead when she lost her balance and just fell. She also testified that the area was well lit, that nothing distracted her and that there was no foreign substance on the floor. In defense of defendants’ motion for summary judgment, plaintiff submitted the affidavit of an expert who averred that the entrance in question was “extremely negligently designed and maintained” because there were no markings or other signs to warn pedestrians that they were approaching a slope in the floor; the change in elevation of the floor would not be apparent to persons walking over the area in question because of an optical illusion created by the parquet design of the floor and the angle of elevation; and there was insufficient traction for pedestrians. Thus, the negligently designed and maintained floor was “a proximate cause” of plaintiff’s fall. The expert also averred that defendants, by and through their employees and supervisory personnel, had superior knowledge of the negligent condition or reasonably should have had superior knowledge of the perilous condition. Despite the final contention, there is no evidence of anyone previously falling in this location.

“A proprietor owes a duty to invitees to keep the approaches and premises in a safe condition. OCGA § 51-3-1. The basis of a proprietor’s liability for injuries to an invitee resulting from a defective or hazardous condition existing on the premises is the proprietor’s superior knowledge of the condition and of the potential for injury created by it. [Cit.] A proprietor is not an insurer of an invitee’s safety, and an invitee is expected to exercise care for his own safety; however, ‘an invitee is not obliged to inspect the premises to discover latent defects nor even to observe patent defects.’ [Cit.] ‘ “Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law. . . . [Cits.]” ’ [Cit.]” Fowler v. Campbell, 191 Ga. App. 872 (1) (383 SE2d 163) (1989).

Plaintiff contends the trial court erred in granting defendants’ motion for summary judgment because there were genuine issues of material fact as to whether defendants were negligent in designing and maintaining an entrance which had an optical illusion that concealed a change in elevation, lacked warnings notifying pedestrians that they were approaching a slope and was too slick. We disagree. The expert opined that the slope was concealed by an optical illusion and that defendants were negl’gent in failing to provide warnings of the slope. The mere fact that there is a slope does not of itself constitute negligence. See Pilgreen v. Hanson, 89 Ga. App. 703, 709 (1a) (81 SE2d 18) (1954). The expert did not allege that the slope was too steep or unsafe for pedestrians (see Haire v. City of Macon, 200 Ga. App. 744, 745 (409 SE2d 670) (1991)), and there is no evidence that a change in elevation caused plaintiff’s fall. Compare Pilgreen, supra (“hump” in the floor of a dimly lit restaurant was covered by diagonal rows of alternating colored tiles with a slippery surface); Butts v. Academy of Beauty, 117 Ga. App. 222 (160 SE2d 222) (1968) (six-inch step-down was not apparent because black and white diagonal floor pattern under brilliant illumination gave the appearance of continuity). Moreover, despite the expert’s opinion that the surface did not provide enough traction, there is no evidence that this condition caused plaintiff to fall. See Harmon v. Reames, 188 Ga. App. 812, 814 (374 SE2d 539) (1988). Plaintiff looked at the floor after the incident and does not know what caused her fall. Furthermore, a slick surface does not of itself constitute negligence. Pilgreen, supra at 709.

Citing Lumbus v. D. L. Claborn Buick-Opel, 153 Ga. App. 807 (266 SE2d 526) (1980), plaintiff contends that while each of the factors enumerated by the expert may not constitute negligence in and of themselves, their combined effect created a dangerous condition of which defendants failed to warn. However, we decline to apply this principle in the instant case since plaintiff does not attribute her fall to any of these factors, and the expert neither witnessed the fall nor indicated how it occurred. See Fowler, supra at 873. Although the expert was apparently familiar with the location of the incident, we do not find that his list of deficiencies, composed after the fact, creates genuine issues of material fact since plaintiff, even at this juncture cannot attribute the fall to any of the alleged deficiencies. Accordingly, we conclude that the instant case is more akin to that line of cases in which the fall occurred “for an unexplained reason.” Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641) (1987). Compare Haire, supra.

Decided May 25, 1994.

Agnew, Schlam & Bennett, Paul E. Schlam, for appellant.

Self, Mullins, Robinson & Marchetti, J. Ronald Mullins, Jr., Martha M. Hartley, for appellees.

“To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety which he is not in this state. In the absence of any allegation or probative evidence indicating that the fall would not have occurred but for the existence of the alleged defect, we hold the trial court did not err in concluding that no issue of fact existed in the case for resolution by a jury.” (Citations and punctuation omitted.) Fowler, supra at 873.

Judgment affirmed.

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


text:
    A94A0719.
    BRYANT v. THE STATE.
    (444 SE2d 391)
   Cooper, Judge.

Defendant was convicted by a jury of robbery by sudden snatching. On appeal from the judgment entered on the verdict, defendant argues the trial court erred in not charging the lesser included offense of theft by taking.

The trial transcript reveals that the victim was pushing her grocery cart through the meat section in a supermarket. The victim stopped her cart to look at a ham. The victim’s purse was in the child seat of the cart which was located approximately two feet away from her. The victim picked up the ham to look at it and, as she turned around, she saw a man slowly lifting her purse out of the cart. The victim began screaming at the man, and the man quickly began walking backward with the victim’s purse. The victim ran after the man who was apprehended by another customer in the store. The victim identified defendant as the man who took her purse.

OCGA § 16-8-40 (a) (3) provides that “[a] person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y sudden snatching.” “A person commits the offense of theft by taking when he unlawfully takes . . . property of another with the intention of depriving him of the property. . . .” OCGA § 16-8-2.

Defendant argues that his written request for a charge on the lesser included offense of theft by taking should have been given because there was a question of fact as to whether the purse was taken from the victim’s immediate presence. We disagree. In Welch v. State, 235 Ga. 243 (1) (219 SE2d 151) (1975), the Supreme Court of Georgia noted that one’s immediate presence extends fairly far, and robbery convictions will generally be upheld, even if the object taken was out of the physical presence of the victim, if the object was under his control or his responsibility and if the victim was not too far distant. See also Sypho v. State, 175 Ga. App. 833 (2) (334 SE2d 878) (1985). “The meaning of presence is, not that the taking must necessarily be from the actual contact of the body, but if it is from under the personal protection, that will suffice. Within this doctrine, the person may be deemed to protect all things belonging to the individual within a distance, not easily defined, over which the influence of the personal presence extends.” (Citations and punctuation omitted.) Sypho, supra at 834.

“[I]n order to prove a case of robbery by suddenly taking or carrying away the property of another without his consent, it is only necessary to show that the person robbed was conscious that something was being taken away from him, and that for any reason he was unable to prevent it; and consequently the only difference now between robbery of this class and larceny from the person is that in the latter case the property is abstracted without the knowledge of its possessor; but if the possessor becomes conscious, even in the taking, that his property is being taken away from him, and this knowledge is obtained before the taking is complete, the offense of robbery is committed.” Williams v. State, 9 Ga. App. 170, 171 (1) (70 SE 890) (1911); accord McNearney v. State, 210 Ga. App. 582, 583 (436 SE2d 585) (1993).

“As a general rule, a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” (Citations and punctuation omitted.) James v. State, 210 Ga. App. 454 (2a) (436 SE2d 565) (1993) . However, the trial judge is justified in refusing to charge a lesser included offense when there is no evidence of the lesser included offense. Edwards v. State, 264 Ga. 131 (_ SE2d _) (1994) . The victim testified that while she picked out a ham, defendant took her purse out of her grocery cart, which was no more than two feet away from her, and that she saw defendant as he lifted her purse out of the grocery cart. The victim established that she was conscious that something was being taken from her, therefore, “the offense, if any, was robbery by sudden [snatching].” Williams, supra at 171. Accordingly, we conclude the trial court did not err in refusing to charge the lesser included offense of theft by taking. Sanders v. State, 135 Ga. App. 436, 438 (218 SE2d 140) (1975).

Decided May 25, 1994.

Hodges, Erwin & Hedrick, David W. Orlowski, for appellant.

Britt R. Priddy, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

Judgment affirmed.

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