text:
    A00A1234.
    SASSER v. ADKINSON.
    (538 SE2d 800)
   Ruffin, Judge.

On July 20, 1998, Pam Sasser filed a family violence petition against Mike Adkinson pursuant to OCGA § 19-13-1 et seq. A temporary protective order was entered, preventing Adkinson from having any contact with Sasser or her daughter. On October 6, 1998, the trial court held Adkinson in contempt for violating the temporary protective order. The court sentenced Adkinson to ten days in jail, but suspended the sentence upon his promise to have no further contact with Sasser. On December 29,1998, the court again held Adkinson in contempt for contacting Sasser on several occasions. The court revoked the earlier suspension of the ten-day jail sentence, ordering that Adkinson spend ten days in the Cobb County jail. On December 29 or 30, however, Adkinson was released pending appeal. His appeal of the contempt order was dismissed by this Court on August 24, 1999.

On September 16, 1999, Adkinson filed a Motion to Modify or Amend Sentence, alleging that, in addition to spending two days in the Cobb County jail before being released for appeal, he had spent another two days in the Hall County jail on a separate contempt allegation that the court later determined to be unfounded. Adkinson asked that the court give him credit for the two days spent in the Hall County jail and vacate the remaining portion of the ten-day prison sentence. On October 19, 1999, the trial court granted the motion, holding that Adkinson “should not be required to spend the balance often (10) days incarcerated in the Cobb County jail.” Sasser appeals this order, contending that the trial court lacked authority to modify the sentence after the expiration of the term of court in which it was entered. We agree.

Decided August 30, 2000.

Whelchel & Dunlap, Thomas S. Bishop, for appellant.

Sunderland & Diaz, Thomas S. Sunderland, for appellee.

It is well settled that, in the absence of a statute providing to the contrary, “the trial court’s authority to vacate or modify a judgment ends with the expiration of the term of court in which the judgment was entered.” We have held that this principle precludes a trial court from eliminating a prison sentence previously imposed. The Supreme Court has held that an order staying enforcement of a prior order “is unquestionably a modification of the first order,” and is thus subject to the rule that a trial court’s power to modify a judgment ends with the term of court in which it is entered. Adkinson has not cited, and we have not found, any case holding that a different rule applies in the context of an order imposing punishment for contempt. Accordingly, the trial court lacked authority to modify the sentence so as to eliminate any unserved time.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

       This order was entered November 2, nunc pro tunc to October 6.

       This order was entered December 30, nunc pro tunc to December 29.

        McBee v. State, 239 Ga. App. 314 (521 SE2d 209) (1999). See also Latham v. State, 225 Ga. App. 147-148 (483 SE2d 322) (1997).

       Id. at 148-150.

        Cobb County v. Buchanan, 261 Ga. 857-858 (413 SE2d 198) (1992).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A00A1269.
    GOLF MARKETING, INC. v. ATLANTA CLASSIC CARS, INC.
    (538 SE2d 809)
   Eldridge, Judge.

Following a bench trial in the State Court of DeKalb County, the trial court found for plaintifi/appellee Atlanta Classic Cars, Inc. (“ACCI”) on its contract action filed against defendant/appellant Golf Marketing, Inc. (“GMI”). GMI appeals. Finding no error in the trial court’s judgment, we affirm.

The evidence, viewed to support the court’s judgment, shows that ACCI sponsors a yearly golf tournament at the Golf Club of Georgia at Creekside in Alpharetta. As incentive for participation, ACCI offers a Hole-in-One (“ace”) bonus of a new automobile. During the May 19, 1998 tournament at issue, a new 500SL Mercedes Benz sedan was to be awarded to the first participant lucky enough to ace the designated prize hole: the 184-yard, par three 11th hole at Creek-side. The retail price of the sedan was $81,495.

Prior to the tournament, ACCI contracted with GMI to underwrite the Hole-in-One giveaway by indemnifying ACCI for the retail price of the Mercedes, should the loss of that car occur by virtue of an ace on the designated prize hole. ACCI had contracted with GMI the previous year for the same purpose. The 1998 contract was signed by both parties. The premium cost of the underwriting was $2,300, a check for which was cut by ACCI on May 14, 1998, sent to GMI, and deposited thereby. GMI then sent signage to Creekside which was displayed on the prize hole and advised the golfers of the prize to be won. The signage advertised GMI’s participation in ACCI’s tournament.

During the May 19, 1998 tournament, using a seven iron, Jeff Wright aced the 11th hole. He was awarded the Mercedes sedan. The next day, ACCI informed GMI that the prize had been awarded and demanded reimbursement pursuant to contract. At the end of May, ACCI received a letter from GMI dated the day before the tournament, May 18,1998, which stated “we are confirming and agreeing to the request to halt all business with Atlanta Classic Cars as of May 18th, 1998, three o’clock p.m., until further notice.” In response, ACCI sent GMI two separate letters requesting reimbursement for the loss of the car as per the contractual agreement. Thereafter, in an undated letter received by ACCI on July 31, 1998, GMI sent ACCI a check for $2,300 and stated “[a]s per the request of Atlanta Classic Cars, we are enclosing a check in the amount of $2300 for your return of fees, for your cancellation of Contract.” ACCI then sent the check back to GMI and filed suit, seeking the price of the Mercedes pursuant to contract, plus interest from the time that the demand on the contract was made.

At trial, GMI defended on two grounds: (1) GMI’s southeast sales representative, Craig Meyers, asserted that David Smith, the sales manager at ACCI, orally rescinded the contract during a telephone conversation the day before the tournament; and (2) GMI claimed defense on contract, alleging that ACCI failed to follow the specific terms of the contract in proving an ace was made on the 11th hole during the tournament.

During ACCI’s case, Smith testified that he never rescinded the contract and certainly would not have done so via telephone the day before the tournament, since “I wouldn’t have been able to get any other insurance in place, even if I had wanted to do something like that.” ACCI also claimed that any failure with regard to proof of the ace was due to GMI’s attempts to claim rescission of the contract.

Following trial and prior to the court’s ruling, the parties filed briefs outlining the legal issues and the law with regard thereto. In a one-page order containing neither findings of fact nor conclusions of law, the trial court found for ACCI and awarded damages as requested. Held:

1. At the onset, GMI asserts that “[w]hether or not ACCI . . . suspended the contract remains in dispute and is not the subject of this appeal.” We disagree. While such was a disputed issue at trial — with Meyers claiming the contract was rescinded and Smith vigorously denying same — this issue is not in dispute before this Court. It was clearly raised and litigated. The credibility of the witnesses for each party was solely a matter for the trier of fact to determine, and the trial court plainly stated its intention to rule on this issue: “I don’t find — Or, at least, I’ll be surprised, after I have reflected on this, that I arrive at a conclusion that the contract had been unilaterally rescinded by Mr. Smith.” And, in fact, if ACCI had rescinded the contract prior to the tournament as alleged and argued by GMI, then GMI’s defense on contract argument regarding the specific terms thereof need never be reached. The trial court necessarily resolved this issue adversely to GMI in order to even reach the topic that GMI now asserts is the “subject of this appeal.” The testimony by ACCI’s Smith that he never rescinded the contract, as well as substantiating evidence and argument offered by ACCI, supports the trial court’s determination that the contract was valid and enforceable at the time ACCI’s demand for reimbursement on the contract was made.

2. GMI contends the trial court erred in “not enforcing the plain conditions of the contract requiring two independent witnesses to the Hole-In-One at the main prize hole in order for ACCI to have the benefit of the contract.” We do not agree.

Pursuant to provisions of the contract regarding proof of the ace to support the loss of the car, ACCI submitted attesting statements from the ace winner, from his three playing partners, and from the tournament director. When the prize has a value of $50,001 to $100,000, as in this case, subsection B1 of the contract at issue also calls for attesting statements from two persons, over eighteen years of age and “independent in nature,” who witnessed the ace. ACCI did not submit such “independent” attesting statements to GMI as proof of the loss.

However, subsection C of the contract deals with claim notification and proof of the claim. In that regard, Cl states in all capital letters: “CLAIM NOTIFICATION — NOTICE OF CLAIM BY CLIENT MUST BE REPORTED TO THE CONTRACTING OFFICER OF GMI ON THE FIRST BUSINESS DAY AFTER THE EVENT.” It is undisputed that ACCI complied with this provision of the contract and informed GMI of the ace on the morning after the tournament. ACCI then sent GMI two separate letters discussing the ace and requesting reimbursement for the loss of the Mercedes sedan.

Subsection C2 is headed: “PROOF OF CLAIM” and specifically states in all capital letters under C2 (e) that “APPROPRIATE FORMS AND INSTRUCTIONS WILL BE FURNISHED TO CLIENT SUBSEQUENT TO EVENT AND CLAIM (per Cl).” The express terms of the contract preclude the necessity for ACCI to request forms and instructions, since GMI will furnish such forms after receiving notice per Cl, which notice was indisputably received by GMI in this case.

Testimony at trial further clarified that the forms and instructions GMI was to furnish to ACCI under subsection C2 (e) of the contract included those forms applicable to the “independent witnesses” requirement for proof of the ace. As stated by GMI’s Meyers:

And what we do is distribute what’s called testament forms, which, in this case, would have gone out to — There’s a yardage verification. There are three testament forms which apply to the playing partners. And, in this case, there would have been two additional forms which apply to the independent witnesses, who should have been supplied, and to the hole-in-one winner and the tournament director.

Testimony also showed that GMI President and CEO Kevin Kolenda specifically instructed Meyers not to send the forms to ACCI because of the rescission issue and that Kolenda had no intention of paying ACCI’s claim:

[Trial Court:] And then, when asked to supply the forms necessary to make the claim, Mr. Kolenda had told you “Don’t send those out?”
[Meyers:] Correct. . . .
[Defense Counsel:] Mr. Meyers was asked about a part of the contract down at “C, 2, e” where appropriate forms and instructions will be furnished to clients subject to event and claim. . . . Did you send them?
[Kolenda:] No. . . . Business was completely suspended. There was no need to go any further.

It is clear that ACCI’s receipt from GMI of the forms and instructions under subsection C2 (e) of the contract, including the attestation forms for the two required independent witnesses, was necessary for ACCI’s proper completion of the proof requirements. Since as discussed in Division 1, supra, the contract was not rescinded but was valid and enforceable at the time ACCI’s demand was made, it was GMI that failed to comply with the plain terms of the contract by failing to send ACCI the proof forms after receiving proper notification per subsection Cl of the contract, as well as subsequent written notice requesting reimbursement for the loss of the Mercedes sedan: “[GMI’s] own failure to furnish proof of loss forms in a timely manner after receiving written notice of the loss . . . would constitute a waiver of strict compliance with this [proof] requirement.” Accordingly, GMI’s claims regarding any deficiency in ACCI’s proof of the ace are waived, and there was no error in the trial court’s judgment.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

Decided August 30, 2000.

Drew, Eckl & Farnham, Clayton H. Farnham, for appellant.

Freisem, Macon, Swann & Malone, John A. Swann, for appellee.

         Plaza Properties v. Prime Business Investments, 240 Ga. App. 639, 640 (2) (524 SE2d 306) (1999).

       By brief, GMI argues that the instant contract was not an “insurance” contract governed by the Georgia Insurance Code, OCGA § 33-1-1 et seq. However, the instant contract sought to indemnify ACCI for loss occurring due to a specific, determinable contingency which may or may not occur, i.e., an ace on the 11th hole. The contract is referred to as a “policy”; the payment for the contract is referred to as a “premium”; the indemnification is referred to as “coverage”; and a request for payment under the policy is referred to as a “claim.” Thus, despite GMI’s assertions to the contrary, we find the contract at issue to be in the nature of an “insurance” contract per OCGA § 33-1-2 (2) and governed by the applicable Code section.

       During the 1997 ACCI tournament, no one was awarded an automobile. However, an ace was made on a different par three hole which carried the prize of a golf vacation, also underwritten by GMI. The winner thereof had difficulty redeeming his prize since, after the tournament, GMI informed the winner that the vacation could only be taken during Thanksgiving day weekend, a fact unknown to ACCI at the time of contract.

       OCGA § 24-4-4.

       The immediacy of this notice requirement would appear to preclude that such initial notification be in writing.

        Canal Ins. Co. v. Savannah Bank &c. Co., 181 Ga. App. 520, 521 (2) (352 SE2d 835) (1987). See OCGA § 33-24-39; Williams v. Southern Gen. Ins. Co., 211 Ga. App. 867 (1) (440 SE2d 753) (1994); Britt v. Independent Fire Ins. Co., 184 Ga. App. 225, 227 (2) (361 SE2d 226) (1987).


author: Andrews, Presiding Judge.

text:
    A00A1323.
    WHITE v. THE STATE.
    (538 SE2d 797)
   Andrews, Presiding Judge.

Susque White appeals from the judgment entered after a jury found him guilty of burglary. White claims that the evidence was insufficient to support the verdict, that his trial counsel was ineffective, and that the trial court erred in refusing to grant a mistrial and in allowing a “crack pipe” into evidence. Because there was no reversible error, we affirm.

The evidence at trial, taken in the light most favorable to support the verdict, was as follows. Bobby Daley and John Napier were staying at the Radisson Inn while they worked there laying new carpet. One evening, the two went back to Daley’s room and, when they opened the door, saw a strange man standing in the bathroom. Daley testified that the man had a bag packed full of his belongings. The man, identified at trial as defendant White, ran out of the room, and Daley chased him. When Daley caught White, he knocked him down and held him until a security man arrived. Daley testified that White had taken two bottles of cologne, a Sony PlayStation, clothes, and CDs.

White testified in his own defense. He stated that he met someone staying at the hotel and they started discussing drugs. The man said he wanted some drugs, and White agreed to bring him some cocaine. White said the man had no money to pay for it, so he took him up to a room in the hotel and told White he could take the Sony PlayStation, some cologne, clothes, and CDs. White said he filled a bag with the man’s belongings and also stuffed a lot of them under his jacket. White stated that the man left to find some men to buy the rest of the cocaine and, while he was gone, Napier and Daley came into the room. White told Napier and Daley that he had purchased the items from their “roommate.” When Daley said that he had no roommate, White claims he told them he did not want any trouble and tried to give back the bag. White said he left the room to go look for the man who bought the cocaine from him, not because he was running away.

1. The evidence was sufficient to support the verdict.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence; moreover!,] an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) [(1991)]; King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) [(1994)].

Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995). The jury, assessing the weight of the evidence and the credibility of the witnesses, chose not to believe White’s explanation of why he was taking the articles in Daley’s room. See Weems v. State, 267 Ga. 182, 183 (476 SE2d 585) (1996).

2. Next, White claims the trial court erred in refusing to grant his motion for mistrial. During trial, White told the court that after he remarked to one of the officers at the jail that another officer’s wife was on his jury, she said she would be sure to call that officer and tell him to have his wife find White guilty. The court immediately requested that the officers involved be brought to court and questioned. The evidence was that the officer never discussed the case with his wife. The wife who was serving on the jury was brought in and asked whether she had discussed the case with anyone or been approached by anyone about the case. She replied that she had not. Because the uncontroverted evidence showed that no phone call was ever made and no one discussed the case with any juror, the trial court did not abuse its discretion in denying the motion for mistrial. See Isaac v. State, 269 Ga. 875, 877 (505 SE2d 480) (1998) (whether to grant a motion for mistrial lies within the sound discretion of the trial judge and will not be disturbed on appeal absent a showing of abuse of discretion).

3. White also claims the trial court erred in allowing into evidence a “crack pipe” found at the scene. White argues that the pipe was immaterial to the case and left the jury with the impression that he was an habitual drug user.

This enumeration is without merit because White volunteered the information that he smoked crack and was involved in selling drugs. He denied the crack pipe was his, not because he did not smoke crack, but because a crack pipe was something that you “don’t carry . . . with you out there on the streets.” Therefore, White can show no harm from the court’s decision to allow the pipe into evidence.

4. In his last enumeration of error, White argues that his trial counsel was ineffective for failing to object to the admission of evidence in aggravation of the sentence. This evidence consisted of numerous prior convictions, all based on guilty pleas. White does not state what objection should have been made, only that counsel was ineffective for failing to make it. White also claims that counsel was ineffective for failing to object to the voluntariness of the pleas. Again, he makes no claim that the pleas were not voluntary, only that counsel should have raised the issue.

Decided August 30, 2000.

Diane M. McLeod, for appellant.

Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellee.

“To establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).” Gross v. State, 262 Ga. 232, 233-234 (1) (416 SE2d 284) (1992). The test is whether there is a reasonable probability the jury would have reached a different verdict absent the error of counsel. Id.

In analyzing a claim of ineffective assistance of counsel, we note at the outset that a trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990). Further, White must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66, 69 (8) (410 SE2d 173) (1991).

When introducing evidence of prior convictions based on guilty pleas, the burden is no longer on the State to prove the plea was voluntarily made. Nash v. State, 271 Ga. 281, 285 (519 SE2d 893) (1999). The State must initially prove only the existence of the prior guilty plea and that defendant was represented by counsel in all felony cases and all misdemeanor cases resulting in imprisonment. Id. The burden then shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity when the plea was taken. Id. Thus, in order to prove ineffective assistance on this issue, White must show that there was some irregularity when the pleas were taken, that he informed counsel of this, and counsel failed to make an objection. Because White fails to advance any reason why the convictions should not have been introduced, counsel was not ineffective for failing to object to them.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.


author: Ruffin, Judge.

text:
    A00A1329.
    STONE v. THE STATE.
    (538 SE2d 791)
   Ruffin, Judge.

Ricky Stone pled guilty to violating the Georgia Controlled Substances Act (VGCSA) by selling five pounds of marijuana to an undercover law enforcement officer. The State tendered three prior felony convictions in aggravation of punishment, and the trial court sentenced Stone to ten years in prison without parole under OCGA § 17-10-7 (c), which governs sentencing for repeat offenders. In his sole enumeration of error, Stone contends that the trial court erred in sentencing him under this Code section. Stone argues that two of the prior convictions were pleas that had been consolidated for trial under OCGA § 17-10-7 (d) and, thus, are deemed to be only one conviction. We agree and reverse.

Under OCGA § 17-10-7 (c), any person who, after having been convicted of three felonies, commits a subsequent felony, is required to serve the maximum sentence and is ineligible for parole. OCGA § 17-10-7 (d) provides that “[f]or the purpose of this Code section, conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.”

Stone’s three prior convictions included: a 1986 VGCSA conviction; a 1994 VGCSA conviction; and a 1994 conviction for possession of a firearm by a convicted felon. Stone argues the two 1994 convictions should be considered “consolidated for trial” under subsection (d).

In determining whether separate offenses should be considered “consolidated for trial” for purposes of recidivist sentencing, we look to the totality of the circumstances. In 1994, Stone was arrested for VGCSA and for possession of a firearm by a convicted felon. Both offenses occurred on October 21, 1994, and it is undisputed that both offenses arose out of the same conduct. Stone was charged under two separate accusations, and, on October 26,1994, he pled guilty to both offenses. We conclude that, under these facts, the two offenses were consolidated for trial.

The State argues that the two offenses were not consolidated for trial because Stone was charged under separate accusations and the trial court entered separate sentencing orders. It is true that if separate offenses are charged under separate charging instruments and a defendant is sentenced under separate orders, the offenses are generally not consolidated for trial within the meaning of OCGA § 17-10-7 (d). But the cases that set forth this principle do not involve multiple offenses arising from the same incident.

Decided August 30, 2000.

George L. Hoyt, Jr., for appellant.

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

When a single incident gives rise to multiple offenses, the offenses generally must be prosecuted in a single prosecution. Thus, had Stone opted to go to trial rather than enter a guilty plea, the State would have been required to consolidate the offenses for trial, and Stone would have been deemed to have had only one conviction for sentencing purposes. We see no reason to apply a different rule simply because Stone opted to plead guilty.

Accordingly, where multiple offenses arise from the same incident, the offenses are consolidated for trial within the meaning of OCGA § 17-10-7 (d). As the two 1994 offenses were consolidated for trial, they are deemed to be only one conviction for sentencing purposes. Thus, the trial court erred in sentencing Stone under OCGA § 17-10-7 (c), and his sentence is vacated and the case is remanded for resentencing.

Judgment reversed.

Andrews, P. J, and Ellington, J., concur.

       It appears from the transcript that Stone also pled guilty to three other violations of the Georgia Controlled Substances Act that occurred in another county, but the record does not contain either the accusations or the sentencing orders.

       See Cofer v. Hopper, 233 Ga. 155, 156 (4) (210 SE2d 678) (1974); Clark v. State, 167 Ga. App. 402, 403 (306 SE2d 702) (1983).

       See Philmore v. State, 263 Ga. 67, 70 (6) (428 SE2d 329) (1993); Robinson v. State, 232 Ga. App. 280 (2) (501 SE2d 536) (1998); Mims v. State, 225 Ga. App. 331, 332 (2) (484 SE2d 37) (1997).

       See OCGA § 16-1-7 (b), (c) (“If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution” unless ordered otherwise in the interest of justice.).

       OCGA § 17-10-7 (d).


author: Miller, Judge.

text:
    A00A1527.
    HARPER et al. v. GMAC MORTGAGE CORPORATION.
    (538 SE2d 816)
   Miller, Judge.

In this case the debtors in their Chapter 13 bankruptcy petition statement of financial affairs listed a state court lawsuit in which they were seeking injunctive and declaratory relief. The question we are presented with is, does judicial estoppel bar that portion of the state court action setting forth tort claims for damages, where the damage claims are not listed as assets on the bankruptcy asset schedule and where the debtors do not seek to amend the bankruptcy petition to include the claims? We hold it does and affirm. We further hold that the injunctive and declaratory relief claims survive, and therefore we reverse the dismissal of those claims.

Claiming Hayward and Shirley Harper defaulted on their mortgage payments, GMAC Mortgage Corporation scheduled a foreclosure sale. The Harpers sued GMAC in state superior court, seeking (1) to enjoin GMAC from proceeding with the foreclosure on the grounds the debt had been discharged by an earlier bankruptcy and there were no arrearages, (2) a declaratory judgment as to the amount of any debt due to GMAC, and (3) actual and punitive damages plus attorney fees. The superior court temporarily restrained GMAC from proceeding with the foreclosure sale. When the restraining order expired and GMAC recommenced foreclosure proceedings, the Harpers filed a joint Chapter 13 bankruptcy petition, stopping the foreclosure.

In the bankruptcy petition, the Harpers listed the pending suit in the statement of financial affairs and described it as being “Injunctive/Declaratory Relief,” but they did not list the damage claims in their schedule of assets. They also received permission from the bankruptcy court to appoint special counsel to pursue the state court action, albeit they misdescribed the court in which the action was pending. GMAC filed a proof of claim for $99,605.94, of which $16,399.37 was arrearages. Nothing in the record indicates how much of this claim was allowed by the bankruptcy court, although a cryptic footnote in an unfiled document submitted by the Harpers to the trial judge indicates that “the plan payout to GMAC itself is less than their filed proof of claim. . . .” The bankruptcy petition gave the bankruptcy court no reason to believe there were any contingent assets in the form of pending damage claims in the state court action, and therefore, the court confirmed the Harpers’ Chapter 13 plan even though the state court action was pending.

In the state court action, GMAC moved to dismiss all of the Harpers’ claims on the grounds that judicial estoppel and collateral estoppel barred the claims. The Harpers made no attempt to amend the asset schedule in the bankruptcy proceeding to include the damage claims. Two and one-half months later the state court dismissed the entire action, and the Harpers appeal.

1. Since 1994 we have followed the federal doctrine of judicial estoppel, which precludes a party from asserting in a judicial proceeding a position inconsistent with a position successfully asserted by it in a prior proceeding. Specifically, we have held that in light of the strict reporting requirements for Chapter 13 bankruptcy petitions, the failure to disclose an asset (such as a claim for damages) in the bankruptcy schedule amounts to a denial that such an asset exists and bars subsequent efforts to pursue the tort claim in a Georgia court. Wolfork v. Tackett explained that this duty to disclose requires a plaintiff/debtor to amend the relevant bankruptcy schedule once it becomes apparent a damage claim was omitted or has since accrued:

The duty to amend Chapter 13 bankruptcy schedules is clear. A debtor may not conceal property belonging to the estate. A debtor has an affirmative duty to supplement the list of assets with any claims arising during the pendency of the bankruptcy proceeding. Failure to timely amend or supplement the list of assets amounts to a denial that such a claim exists.

In Johnson v. Trust Co. Bank the plaintiff filed for Chapter 7 bankruptcy but did not list a claim he had against Trust Company Bank in his schedule of assets, even though he had informed his attorney and the bankruptcy trustee of the claim, and the claim was listed in the statement of affairs. When the plaintiff became aware that his potential claim against the bank was not in the asset schedule, he sought and was granted permission from bankruptcy court to reopen his bankruptcy case and to amend his asset schedule to include the claim. We held that under the circumstances he did not intentionally attempt to manipulate and deceive the court system and that because he amended the bankruptcy schedules, he gained no unfair advantage in bankruptcy court. Accordingly, judicial estoppel did not bar his claim.

Similarly, Clark v. Perino ruled that judicial estoppel did not bar a claim originally omitted from a pro se bankruptcy petition but later added. In 1991, Clark sued Perino and IBM as a result of an accident. In 1994, with that action still pending, Clark filed a Chapter 7 bankruptcy suit without identifying claims against Perino and IBM as potential assets. Clark was granted a bankruptcy discharge. After opposing counsel pointed out that the claim was omitted from the bankruptcy action, Clark successfully moved the bankruptcy court to reopen her bankruptcy to allow Clark to file amended schedules listing her claims. We held that because Clark successfully amended her claim once the mistake was noticed, she gained no unfair advantage in bankruptcy court.

In contrast, we upheld the dismissal of a damage action in Reagan v. Lynch because the plaintiff “neither amended his bankruptcy petition nor moved the bankruptcy court to reopen his estate to allow such an amendment,” even though he had early on informed the bankruptcy trustee of the action. Informing the bankruptcy trustee is insufficient because it is

not notice to the court or the creditors in the bankruptcy action. Therefore, if Reagan is allowed to proceed, he will have obtained an unfair advantage in the bankruptcy court because any recovery had in the present action will not inure to the benefit of his creditors which have not been fully compensated.

Reagan controls the present case. The Harpers’ refusal, despite the pending motion to dismiss, to amend their bankruptcy schedule to include the damage claims means that any recovery will not inure to the benefit of the creditors. The Harpers ignore the instruction that “a party like the plaintiff in this case can avoid the application of judicial estoppel simply by filing a motion to amend the debtor’s bankruptcy petition or a motion to reopen the debtor’s bankruptcy case to declare the omitted claim or cause of action.” Informing the bankruptcy court of only the equitable relief in the lawsuit does not suffice.

The Harpers claim that the confirmed Chapter 13 plan was a “100 percent payout,” and thus all creditors were to be fully compensated. The record, even as supplemented by the Harpers’ proposed plan (submitted to the trial court but not filed with the clerk), is unclear as to this point. Nevertheless, assuming the proposed plan was confirmed and paid out as the Harpers claim, such does not exempt the Harpers from the complete disclosure requirements of bankruptcy law. The proposed plan, which is contingent on money being available after paying secured claims, does not compensate creditors for interest accruing on their past due debts. Moreover, a creditor would likely rethink its consent or objections to the proposed long-term payout plan were it aware of additional assets. Similarly, a court would be less likely to force creditors to accept the long-term payout if it understood not all assets had been listed.

Decided August 30, 2000.

After the filing of the motion to dismiss, the Harpers were aware that they faced dismissal if they did not seek to amend their bankruptcy asset schedule. Despite the passage of ten weeks, they chose not to do so and thereby forfeited their right to pursue the damage claims. The trial court did not err in dismissing the damage portion of their claims.

2. The same is not true, however, of the injunctive relief and declaratory judgment claims, which were properly listed in the statement of financial affairs. GMAC argues that collateral estoppel bars these claims. It contends that because the bankruptcy court approved its proof of claim in its entirety (including the arrearages claim), and because the equitable claims hinge on the premise that the Harpers are not in arrears, the bankruptcy court’s finding of arrearages bars these equitable claims.

The fatal flaw in this argument is that nothing in the record indicates how much of GMAC’s proof of claim was approved other than a cryptic footnote in an unfiled submission that the payout was less than the proof of claim. Thus, the superior court had no basis to determine conclusively that the bankruptcy court had decided the issue of arrearages in favor of GMAC. Collateral estoppel mandates that the relevant issue actually be decided. Therefore, collateral estoppel cannot apply here to bar the injunctive and declaratory relief claims. Accordingly, we reverse that portion of the judgment dismissing the injunctive and declaratory relief claims.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Mikell, J., concur.

Michael C. Famiglietti, David E. Tuszynski, for appellants.

Morris, Schneider & Prior, Brian S. Tatum, for appellee.

       Since it referenced matters outside the pleadings, the motion should have been converted to a motion for summary judgment. OCGA § 9-11-12 (b). Cf. Reagan v. Lynch, 241 Ga. App. 642 (524 SE2d 510) (1999) (motion based on judicial estoppel was summary judgment motion). The Harpers, however, do not enumerate this as error.

        Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455 (442 SE2d 265) (1994); see Smalls v. Walker, 243 Ga. App. 453, 455 (532 SE2d 420) (2000).

       Id. at 456 (2).

       241 Ga. App. 633 (526 SE2d 436) (1999) (whole court).

       (Citations omitted.) Id. at 634.

       223 Ga. App. 650 (478 SE2d 629) (1996) (whole court).

       Id. at 651-652.

       235 Ga. App. 444 (509 SE2d 707) (1998).

       Id. at 445-446 (1).

       Supra, 241 Ga. App. at 645.

       Id.

       Id. at 645 (Barnes, J., concurring fully and specially).

       In each case the Harpers cited as an example of “100 percent payout” plans where judicial estoppel was not applied, the debtor amended his bankruptcy petition to include the missing damage claim. See Donato v. Metro. Life Ins. Co., 230 Bankr. 418, 422 (N.D. Cal. 1999); Elliott v. ITT Corp., 150 Bankr. 36, 40 (III) (B) (i) (b) (N.D. Ill. 1992).

        Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866-867 (2) (463 SE2d 5) (1995).


text:
    A00A1692.
    HART v. HART.
    (538 SE2d 814)
   Miller, Judge.

The issue presented is whether in a statutory partitioning of land, the court erred in granting the partitioners authority to hire a timber cruise to assess the value of timber. We discern no error and affirm.

Two brothers, E. R. Hart, Jr. and Charles H. Hart, together own approximately 680 acres of land. Charles (the plaintiff-appellee) owns an undivided three-fourths interest in this property, and E. R. owns an undivided one-fourth interest. Two previous attempts to partition the land were unsuccessful, and a third set of partitioners was selected. In instructing the partitioners the court stated:

You have the authority to hire a timber cruise to be done to aid you in the discharge of your duties. The cost of the timber cruise will be paid by the parties as the court orders it to be paid. A timber cruise bill must be turned in to the Clerk of the Superior Court.

E. R. contends the authority to hire a timber cruise is not granted by the applicable statute, which is in derogation of the common law and so must be strictly construed. He further argues that knowing the value of the timber will not aid in an in-kind division.

[T]he plain legal error standard of review applies, where the appellate court determines that the issue was of law, not fact, that there was no factual dispute, or that there was no discretion, so that the issue for review was whether the trial court made a plain legal error.

Decided August 30, 2000.

James C. Warnes II, for appellant.

Gregory, Christy & Maniklal, Hardy Gregory, Jr., Preyesh K. Maniklal, Lane Fitzpatrick, for appellee.

Although OCGA § 44-6-164 does not specifically grant the partitioners (or the court) the power to hire a timber cruise in the partitioning process, such is implicit in the language of the statute authorizing the partitioners to make a “just and equal partition” that is “most beneficial to the several common owners.” When partitioning land that has improvements or timber, the partitioners, to be just and most beneficial to all owners, must consider the value of the timber or improvements. Otherwise, in a 50/50 partition of four acres, one party could get the two acres of land with all the timber and the other could get the remaining two barren acres. Such would clearly not be just or most beneficial to all. Trees are part of the realty. And we have previously held that the existence of trees on land is a factor to be considered in determining its value.

Moreover, OCGA § 44-6-170 expressly contemplates unusual cases. That Code section provides: “[I]n any extraordinary case not covered by Code Sections 44-6-160 through 44-6-169, the court may frame its proceeding and order so as to meet the exigency of the case without forcing the parties into equity.” For whatever reason, two prior attempts at statutory partitioning have been unsuccessful. In our view, the court did not exceed its statutory authority by granting the partitioners the authority to hire a timber cruise in order to meet the exigencies of this third and hopefully successful attempt at partitioning the land.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       A timber cruise is used to estimate the value of timber on a tract based on the amount, size, grade and accessibility of the timber. See Adams v. State, 231 Ga. App. 279, 282 (2), n. 1 (499 SE2d 105) (1998).

       Statutory partitioning under OCGA § 44-6-160 et seq. is distinct from an equitable partitioning under OCGA § 44-6-140 et seq. OCGA § 44-6-164 provides that
      [t]he partitioners shall have the power to select a surveyor to aid them in the discharge of their duties. After giving all the parties, if possible, at least eight days’ notice of the time of executing the writ and after being sworn to execute the writ duly and impartially before an officer authorized by law to administer such oath, the partitioners or a majority of them shall proceed to make a just and equal partition and division of all the lands and tenements, either in entire tracts or in parcels, as they shall judge, according to the best of their skill, ability, and knowledge, to be in proportion to the shares claimed and to be most beneficial to the several common owners of the lands and tenements. . . .

       (Citations omitted.) Glover v. Ware, 236 Ga. App. 40, 45 (3) (510 SE2d 895) (1999).

        Norton v. Ga. R. Bank &c., 253 Ga. 596, 602 (2) (322 SE2d 870) (1984).

       See Dawson v. Dept. of Transp., 203 Ga. App. 157 (1) (416 SE2d 163) (1992).


author: Blackburn, Presiding Judge. Barnes, Judge,

text:
    A00A0471.
    INTERNATIONAL HARVESTER COMPANY v. CUNNINGHAM.
    (538 SE2d 82)
   Blackburn, Presiding Judge.

International Harvester Company (“International”) appeals from a jury verdict in favor of George Cunningham on his claim for injuries he received when a crank handle broke off a disc harrow and hit him in the face. On appeal, International contends that the trial court: (1) abused its discretion when it refused to compel Cunningham to produce the crank handle for an expert inspection; (2) erred when it admitted surgical photographs into evidence; and (3) erred when it denied International’s motion for a mistrial based on Cunningham’s closing arguments. Additionally, International contends the jury’s award was excessive. Because we find the trial court’s denial of International’s requests for the production of the crank handle, the very part Cunningham alleged was defective, was a clear abuse of discretion, we reverse.

1. In its first enumeration of error, International contends the trial court abused its discretion when it refused to compel Cunningham to produce the crank handle for inspection by an expert metallurgist retained by International, and we agree. The record shows that Cunningham’s expert had unlimited access to the crank handle. Yet, International had been given only one opportunity to test the crank handle early in the litigation, prior to the testing by Cunningham’s expert and prior to that expert’s availability for deposition. By preventing the parties from having equal access to the pivotal piece of evidence, the trial court’s denial of International’s request thwarted the very purpose of discovery.

Prior to suit, counsel for Cunningham had the broken crank handle examined by Robert Hochman, a metallurgical expert. Suit was filed in March 1994. In July 1995, before Hochman was available for deposition, Cunningham’s counsel agreed to allow International’s in-house engineer access to the crank handle for four or five weeks. This was the only time International had access to the crank handle before trial four years later.

Two years later, in late September 1997, Hochman was made available for deposition. Hochman testified that after his initial analysis in 1993, he had conducted a number of tests in 1995, some of which required a section of the crank handle to be removed. Shortly after Hochman’s deposition, International requested production of the crank handle so that its expert metallurgist could conduct tests on the crank handle as well. This request, made well within the discovery period, was met by objection. Despite the fact that his own expert had repeatedly tested the crank handle, Cunningham contended that a second production of the crank handle was unreasonable and an abuse of discovery. Although discovery was ongoing (depositions continued into May 1998), International’s subsequent motion to compel was denied by the trial court. The trial court denied International any additional access to the crank handle, finding that International should have had a metallurgical expert examine the handle in 1995, more than two years prior to the deposition of Hochman.

The case proceeded to trial on November 16, 1998. During the cross-examination of Hochman, International learned for the first time that he had conducted additional testing on the crank handle in June 1998, after his deposition. Because this testing had not been disclosed to International prior to trial, the trial court ordered a mistrial.

Following the mistrial in November, International was permitted to depose Hochman a second time regarding the bases for his opinion, including the previously undisclosed testing. In that deposition, Hochman testified that he had removed another section of the crank handle for this second series of testing. With regard to these tests, Hochman deposed that the only way that someone else could verify his results would be to conduct the tests again on a fresh piece of the crank handle:

Q: Dr. Hochman, is there any way for another metallurgist or engineer with metallurgical training to verify the results you’ve shown through these tests by looking at the photographs of the part?
A: Not by looking at the photographs. I mean, this is far more sophisticated than photography.
Q: And the only way someone could independently verify the results you’ve shown in these tests is to conduct the comparable tests themselves, is that correct?
A: That’s correct. And they would have to start with a fresh piece, because we have already cleaned this one, if they want to find that.
Q: Does the part still have areas where a fresh piece could be obtained?
A: It does.

International again requested production of the crank handle in light of this testimony by Hochman, but the trial court denied the motion. At the second trial in March 1999, counsel for Cunningham cross-examined International’s expert and challenged his credibility because the expert had not examined the crank handle prior to trial or conducted independent tests on the handle.

The goal of discovery is the fair resolution of legal disputes, “to remove the potential for secrecy and hiding of material.” Hanna Creative Enterprises v. Alterman Foods. In this case, International was denied the opportunity to test the evidence in the same manner that plaintiffs expert had tested it and was thus denied the ability to effectively cross-examine or refute plaintiffs expert’s testimony. This was done even though plaintiffs expert testified that testing was the only way the defendants could test his conclusions. International’s one opportunity to examine the crank handle arose prior to the testing by Cunningham’s expert and prior to either of his two depositions. Thus, at the time International looked at the crank handle, it had very little information about Cunningham’s theories. Our rules of discovery do not require International to guess what evidence may show; rather, they require that International have fair access to evidence. Cunningham’s expert testified that the only way to verify his tests were to conduct new tests, which is exactly what International requested. Ironically, while the trial court found that the imbalance of information due to Hochman’s undisclosed testing was sufficient to declare a mistrial, it refused to allow International the discovery necessary to rebut the results of the tests.

The trial court denied International’s request solely because International had inspected the handle once before, early in the litigation. This “one bite at the apple” reasoning is contrary to the nature of the discovery process. Discovery is an ongoing process, requiring parties to evaluate and reassess evidence as new evidence is presented. By prohibiting this legitimate discovery, the trial court frustrated the very purpose for discovery in our civil practice.

[Discovery [is] an integral and necessary element of our civil practice. Wide latitude is given to make complete discovery possible. The broad purpose of the discovery rules, under the Civil Practice Act, is to enable the parties to prepare for trial so that each party will know the issues and be fully prepared on the facts. Discovery is specifically designed to ftdfill a two-fold purpose: issue formulation and factual revelation. The use of the discovery process has been held to be broadly construed. Hickman v. Taylor, 329 U. S. 495, 500 (67 SC 385, 91 LE2d 451) [(1947)]; Reynolds v. Reynolds, 217 Ga. 234, 246 (123 SE2d 115) [(1961)].

Travis Meat &c. Co. v. Ashworth. That two-fold purpose was denied to International.

Discovery should ensure that a party is not placed at a disadvantage simply because it does not have custody of certain evidence or because it is diligent and examines evidence early in the litigation. While the extent of discovery is generally within the discretion of the trial court judge, Emmett v. Regions Bank, this discretion must be based on sound legal analysis with an eye to promoting the purpose of discovery and limiting its abuse. Discovery should not be prohibited where the effect is to frustrate that purpose and prevent legitimate discovery. Mead Corp. v. Masterack; see Intl. Svc. Ins. Co. v. Bowen. The trial court abused its discretion under the circumstances in this case. Accordingly, this case is reversed.

2. International contends that the trial court erred by allowing the admission of eight photographs depicting the surgery performed on Cunningham to reconstruct his face. International contends that these photographs were both irrelevant and inflammatory. Although we reverse this case for the reasons set forth above, we address this issue to give direction to the trial court for the new trial in this matter.

The admission of photographs into evidence is a matter within the discretion of the trial court. Thornton v. Thornton. Moreover

“[t]he law in Georgia is well-settled that photographs which are relevant and material to issues in a case are admissible and not excludable on the ground that they would inflame the minds of the jury. (Cit.)” Carter v. State, 244 Ga. 803, 804 (262 SE2d 109) (1979). It is not error to admit photographs that illustrate testimony, depict the extent, nature and location of the victim’s wounds, or show the scene of the crime. McKenzie v. State, 248 Ga. 294, 298 (14) (282 SE2d 95) (1981); Sanders v. State, 257 Ga. 239, 242 (4) (357 SE2d 66) (1987).

Reeves v. State.

Therefore, to be admissible in this case, the photographs offered by Cunningham should be directly demonstrative of the nature of his injuries. Brown v. State is instructive in determining which photographs were admissible here. In Brown, our Supreme Court considered the admissibility of post-autopsy photographs, and the following rule was set forth:

A photograph which depicts the victim after autopsy incisions are made or after the state of the body is changed by authorities or the pathologist will not be admissible unless necessary to show some material fact which becomes apparent only because of the autopsy. A photograph which shows mutilation of a victim resulting from the crime against him may, however gruesome, have relevance to the trial of his alleged assailant. The necessary further mutilation of a body at autopsy has no such relevance and may cause confusion, if not prejudice, in the minds of jurors.

Id. at 867 (5).

Analogizing this rule to the case at hand, those surgery photos which show injuries and fractures beneath Cunningham’s skin could be construed by the trial court to be necessary to show the extent of Cunningham’s injuries. A review of the transcript reveals that the first three surgery photographs offered by Cunningham were used by his surgeon to demonstrate the nature of his subcutaneous injuries.

The remaining five pictures appear to depict the reconstructive procedures taken to repair Cunningham’s jaw. While referring to the reconstruction work shown by these pictures, Cunningham’s surgeon did comment on the bone damage which he had to repair, thereby relating the pictures, at least tangentially, to the nature and extent of Cunningham’s wounds. As such, we cannot say that the trial court abused its discretion in admitting these photographs.

3. The remaining errors are rendered moot by our decision in Division 1.

Judgment reversed.

Pope, P. J., Smith, P. J., and Mikell, J., concur. Eldridge, Barnes and Phipps, JJ., dissent. Johnson, C. J., disqualified.

Barnes, Judge,

dissenting.

I respectfully dissent because the trial court did not abuse its discretion when it refused to compel the plaintiff to produce the crank handle. “The trial court’s discretion in deáling with discovery matters is very broad, and this court has stated on numerous occapinna that it will not interfere with the exercise of that discretion absent a clear abuse.” (Punctuation omitted.) Ostroff v. Coyner, 187 Ga. App. 109, 117 (6) (369 SE2d 298) (1988). An appellate court, “which is far removed from the unfolding development in the life of a case in court and does not participate in its ongoing journey,” must respect a trial court’s discretion and reverse only when it is “manifestly abused.” Gen. Motors Corp. v. Blake, 237 Ga. App. 426, 427 (1) (515 SE2d 166) (1999). “To say that as a matter of law that discretion was abused is a matter of no small moment,” Id.

In this case, the record shows that the nature of Cunningham’s product defect claims were made known to International from the moment suit was filed. In his complaint, Cunningham alleged that “the crank handle of the disc broke in two, flew off the disc harrow and struck the Plaintiff in his face.” He further alleged that the crank handle was defective because it “was not properly or adequately welded and the material which was used for the rod handle was not suitable for the purpose for which it was intended.” Over one year after Cunningham’s complaint was filed, the parties arranged for an unidentified expert of International to independently examine the crank handle and conduct nondestructive testing. International received custody of the crank handle from Cunningham’s counsel and retained it for over 30 days before notifying Cunningham’s counsel that “[o]ur expert has concluded his inspection of the crank handle. . . .”

Approximately two years later, International requested that Cunningham produce the crank handle again for inspection by an expert metallurgist not employed by either defendant. The expert who previously examined the crank handle was an in-house engineer employed by International’s co-defendant, Case Corporation. Cunningham objected to the request, and International filed a motion to compel. The trial court denied the motion to compel and two subsequent motions for reconsideration filed by International.

After carefully reviewing the discovery history of this case, we cannot say that the trial court abused its discretion by denying International’s motion to compel. Contrary to International’s assertion, it had more than one opportunity to examine the crank handle. As the trial court recognized, the issue in this case was simple and known by International from the lawsuit’s inception — did improper welding or materials cause the crank handle to fracture into two pieces? International made a tactical decision not to retain an outside metallurgist to answer this question at the time of its independent inspection. Cunningham should not be held responsible if International failed to use its opportunities to examine the crank handle effectively, and International cannot now convert its own conduct into an abuse of discretion by the trial court. See Gen. Motors, supra, 237 Ga. App. at 430 (trial court did not abuse discretion in denying continuance in product liability case where defendant avoided “learning the facts by lack of thoroughness and then claimfed] surprise”). Moreover, “[t]he trial court’s discretion in dealing with discovery matters is very broad, and this court has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse.” (Citation and punctuation omitted.) Reeder v. Gen. Motors Acceptance Corp., 235 Ga. App. 617, 620 (3) (510 SE2d 337) (1998).

Decided July 31, 2000

Reconsideration denied August 31, 2000

Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Donald L. Swift III, Hull, Towill, Norman, Barrett & Salley, Tara R. Simkins, for appellant.

Capers, Dunbar, Sanders & Bruckner, Paul H. Dunbar III, Ziva P. Bruckner, for appellee.

I am authorized to state that Judge Eldridge and Judge Phipps join in this dissent.

       Cunningham sued International and Case Corporation. The trial court directed a verdict in favor of Case Corporation, which is not a party to this appeal.

       Although International had requested in the spring of 1994 the identity of any experts expected to testify at trial, Hochman was not identified until sometime later.

       Discovery was extended numerous times by agreement of the parties.

       International’s motion to reconsider was also denied by the trial court.

        Hanna Creative Enterprises v. Alterman Foods, 156 Ga. App. 376, 378 (2) (274 SE2d 761) (1980).

        Travis Meat &c. Co. v. Ashworth, 127 Ga. App. 284 (193 SE2d 166) (1972).

        Emmett v. Regions Bank, 238 Ga. App. 455 (1) (518 SE2d 472) (1999).

        Mead Corp. v. Masterack, 243 Ga. 213, 215 (253 SE2d 164) (1979).

        Intl. Svc. Ins. Co. v. Bowen, 130 Ga. App. 140 (202 SE2d 540) (1973).

        Thornton v. Thornton, 232 Ga. 666 (208 SE2d 557) (1974).

        Reeves v. State, 233 Ga. App. 802, 806 (4) (505 SE2d 540) (1998).

        Brown v. State, 250 Ga. 862 (302 SE2d 347) (1983).

       The triad court directed a verdict in favor of Case Corporation, and it is not a party to this appeal.


author: Mikell, Judge.

text:
    A99A1677.
    MINNIX et al. v. DEPARTMENT OF TRANSPORTATION et al.
    (538 SE2d 846)
   Mikell, Judge.

In Minnix v. Dept. of Transp., 240 Ga. App. 524 (525 SE2d 704) (1999), we affirmed the dismissal of professional negligence claims brought by Jimmy Kay Minnix and Bonnie C. Minnix against the Georgia Department of Transportation (“DOT”), holding that the plaintiffs’ failure to attach an expert affidavit to their complaint was fatal to those claims. In Minnix v. Dept. of Transp., 272 Ga. 566 (533 SE2d 75) (2000), the Supreme Court reversed the judgment of this Court, holding that where a professional negligence action is filed against an employer based upon the action or inaction of its agent or employee, the expert affidavit requirement of OCGA § 9-11-9.1 (a), as amended in 1997, does not apply to employers other than licensed health care facilities.

Accordingly, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the superior court dismissing plaintiffs’ professional negligence claims against the DOT is reversed.

Decided August 31, 2000.

Doffermyre, Shields, Canfield, Knowles & Devine, Foy R. Devine, David S. Hagy, Mundy & Gammage, William D. Sparks, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Lawson, Davis, Pickren & Seydel, Paul R. Jordan, Alison H. Price III, G. Thomas Davis, for appellees.

Judgment reversed.

Johnson, C. J., and Phipps, J., concur.


author: Smith, Presiding Judge.

text:
    A00A1091.
    SMITH v. THE STATE.
    (538 SE2d 825)
   Smith, Presiding Judge.

Gregory Smith was convicted by a jury of the offense of burglary. His motion for new trial was denied, and he appeals. We find no reversible error with respect to Smith’s conviction. But because the record is unclear as to whether Smith was afforded an opportunity to challenge the validity of prior convictions used in sentencing him as a recidivist, we remand this case for resentencing in accordance with Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999).

1. Smith contends that the trial court erred in admitting his statement made during a custodial interrogation, before the interrogating officer administered any Miranda warnings.

Testimony admitted at trial and during the Jackson-Denno hearing shows that while on patrol, Officer James Joyner of the Athens-Clarke County Police Department saw a man, identified by Joyner at trial as Smith, carrying a television toward a car parked on the side of the road near an apartment complex. Smith was stepping over a guardrail toward the car when Joyner first noticed him. Joyner stopped and exited his vehicle as Smith was attempting to load the television into the car. Joyner identified himself as a police officer and told Smith to turn toward him so he could see his hands. Smith did not follow Joyner’s directions and remained in a crouched position, with his back toward Joyner. Smith appeared to be talking to the driver of the car, his girlfriend. After telling Smith several times to turn toward him, Joyner ordered Smith to the ground and placed handcuffs on him. Joyner told Smith “that he was not under arrest” but that Joyner was placing him in handcuffs for his protection until he “found out what was going on with the situation which [he] considered to be unstable and suspicious.”

Joyner asked no questions of Smith, but in reply to Joyner’s explanation as to why he handcuffed him, Smith told Joyner that he had seen a car parked on the side of the road, as well as two men “that were doing something in the woods.” According to Joyner, Smith said that when the men saw him, they drove away, and he found a television and VCR in the woods where the other car had been parked and “decided to take it.” Joyner placed Smith inside his patrol car while he investigated further and found evidence of a recent burglary at one of the apartments at the complex. Meanwhile, a backup patrol car arrived, and Smith’s girlfriend was questioned and placed inside. Near Smith’s car, “just over the guardrail within three or four feet of the car,” Joyner found a VCR, two remotes, and a small crowbar. Joyner also found evidence of forced entry into the apartment complex.

While Joyner was conducting his investigation, Officer Chris Guest arrived at the scene. After talking with Joyner, but before Joyner actually placed Smith under arrest for burglary, Guest asked Smith what was “going on.” Smith told Guest essentially the same story he earlier told Joyner — that he found the television after two other men had driven away. In response, Guest told Smith that “it doesn’t look good for you being as you were loading [the television] up” and that he wanted to talk further with Smith at the police department. Guest acknowledged that his intent during this conversation with Smith was to “cause him to rethink his statement and to give what [Guest] believed to be a more forthright statement.” Guest also explained that through this conversation, he was able to convince Smith to be honest with him. .

A short time after Guest’s initial conversation with Smith, while Guest was talking with Joyner, Smith motioned Guest toward Joyner’s patrol car and told Guest that he was unemployed, “was desperate for money,” and was ready to talk with Guest. According to Guest, Smith said, “[L]et’s go back to the police department.” Joyner then arrested Smith. Smith was taken to the police department, where Guest administered Miranda warnings to Smith, and where Smith signed a waiver of rights form acknowledging his willingness to answer questions. Smith then gave a statement to Guest. In this statement, reduced to writing by Guest and signed by Smith, Smith admitted to breaking into an apartment by using a crowbar and stealing a television and VCR. He also stated that his girlfriend was not involved in the burglary.

Smith argues that any custodial statement made by him without the benefit of Miranda warnings should not have been admitted. Indeed, “[w]here law enforcement officers conduct custodial interrogation of a suspect without the benefit of Miranda warnings, there is a presumption that the suspect’s answers are compelled.” Livingston v. State, 264 Ga. 402, 407 (6) (444 SE2d 748) (1994). Such statements must be suppressed. Id. at 407-408. And Smith’s on-the-scene statement was made in response to custodial interrogation.

The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

(Punctuation omitted.) Cottingham v. State, 206 Ga. App. 197, 200 (4) (424 SE2d 794) (1992). An officer’s intent may bear on whether the officer should have known that his “words or actions were reasonably likely to evoke an incriminating response.” Id. at 201 (4). Guest admitted he intended to invoke a “more forthright statement” when he told Smith that “it doesn’t look good.” In this circumstance, we must conclude Guest knew or should have known that his words to Smith were “reasonably likely to elicit an incriminating response” from Smith. Smith’s initial incriminating statement, made without the benefit of Miranda warnings, should have been suppressed.

This does not end our inquiry, however. After making his on-the-scene statement, Smith was taken to the police station, where he was given Miranda warnings by Guest and where he confessed to the crime. The admissibility of the latter statement depends on whether, under all the circumstances, it was knowingly and voluntarily given. Livingston, supra at 408. Guest testified he made no promises or threats to Smith in an effort to obtain a statement, that Smith did not appear to be under the influence of drugs or alcohol, and that after he informed Smith of the charge against him and read Miranda warnings to Smith, Smith appeared willing to talk and did not request a lawyer. Under these circumstances, we conclude that Smith’s statement made after he was administered Miranda warnings was freely and voluntarily given, and any error in admitting his previous statement was therefore harmless. See Jackson v. State, 272 Ga. 191, 194-195 (3) (528 SE2d 232) (2000).

2. Given Smith’s statement made at the police station, as well as testimony by the victim that her television and VCR were taken without her permission from her apartment, we find no merit in Smith’s contention that the evidence was insufficient to convict him. See, e.g., Hawkins v. State, 219 Ga. App. 484, 485 (1) (465 SE2d 527) (1995).

3. In three enumerations of error, Smith makes similar arguments concerning the use of three earlier convictions to sentence him as a recidivist. While we conclude that these arguments are moot, by virtue of the Supreme Court’s holding in Nash, supra, affirming Nash v. State, 233 Ga. App. 75 (503 SE2d 23) (1998), a brief recitation of the facts and Smith’s arguments is necessary to our analysis.

Following Smith’s conviction, the trial court conducted a sentencing hearing in which the State sought to introduce three prior convictions entered on guilty pleas. Because no plea hearing transcripts were available, and because the records in those cases did not otherwise show that Smith had been informed of his rights under Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969), Smith objected to the use of the pleas to sentence him as a recidivist. Relying on the then-controlling rule set out in Pope v. State, 256 Ga. 195, 209-210 (17) (345 SE2d 831) (1986), he argued that the State had failed to meet its burden of showing that the pleas had been knowingly and voluntarily entered. In Pope, the State sought to use prior guilty pleas to enhance Pope’s sentence and Pope objected to the use of these pleas on the ground that they were involuntarily made. The Supreme Court of Georgia held that the State bore the burden of proving the validity of the pleas. Id. at 209-210.

In response to Smith’s arguments, the prosecutor extensively argued concerning the practice in the circuit of entering pleas only after a lengthy colloquy between the prosecutor and judge to establish a knowing and voluntary waiver of the defendant’s rights, or after the defendant had signed a plea petition indicating his understanding of his rights. The prosecutor contended that the trial court could “take notice of the accepted and standard and utterly routine practice of taking guilty pleas in the superior courts of this circuit.”

Following further argument by Smith, the trial court announced that it would continue the hearing to allow the parties to submit briefs and stated that either side could present further evidence at the continued hearing. Approximately one month later, the hearing reconvened, and over Smith’s objection, the trial court allowed the prosecutor to question the three attorneys who represented Smith when he entered his previous pleas. Although the three attorneys testified to some extent concerning the usual custom or practice of taking pleas in the circuit, none testified concerning Smith’s actual pleas, either because they had no independent recollection of the specific pleas, or because they believed such testimony would violate the attorney-client privilege or would violate their duty to avoid testifying against their client.

Near the end of the hearing, defense counsel brought to the trial court’s attention the whole court decision of Nash v. State, supra, 233 Ga. App. 75, decided the day before the reconvened hearing. In Nash, the State sought to use a prior conviction in aggravation of punishment. Testimony was presented concerning the custom of the trial court of informing “defendants of all the rights they were waiving and the consequences of their pleas and to ensure that the pleas were knowingly and voluntarily entered.” Id. at 76 (2). Nash appealed the trial court’s ruling that his earlier plea had been knowingly and voluntarily entered. This court relied on Parke v. Raley, 506 U. S. 20 (113 SC 517, 121 LE2d 391) (1992), to affirm, concluding that the guilty plea, attacked by Nash in a collateral proceeding, as opposed to an appeal from a conviction entered on a guilty plea, was to be given the longstanding “presumption of regularity.” Nash, supra, 233 Ga. App. at 79. Here, based on this court’s decision in Nash, the trial court ruled that evidence of Smith’s prior convictions was admissible.

After the trial court entered its ruling in this case, the Supreme Court granted certiorari in Nash, affirmed, and overruled Pope, supra. Nash, supra, 271 Ga. 281. In so doing, the Supreme Court reallocated the burden of proving the validity of a guilty plea attacked in a collateral proceeding. Under the new analysis, once the State has shown that a defendant was represented by counsel in all felony cases and misdemeanor proceedings resulting in imprisonment, the “presumption of regularity” is applied, and the defendant must “produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.” Id. at 285.

Smith argues that “[t]he Nash holding should not have been applied to require [him] to come forward with evidence negating the voluntariness of prior guilty pleas.” We do not agree. It is true that during the initial hearing, Pope, supra, represented the controlling Georgia law on the issue of the burden of proving the validity of a guilty plea attacked in a collateral proceeding. The trial court declined to rule on the issue of the admissibility of Smith’s pleas, allowing the parties to present briefs on this issue. During the interim, Nash was decided by this court. This decision, later affirmed on certiorari, authorized the trial court to admit the pleas for the purpose of recidivist sentencing.

Contrary to Smith’s argument, we do not agree that the trial court’s decision to continue the initial sentencing hearing worked an abridgement of Smith’s due process rights. Parke v. Raley, supra, had been decided at the time of the initial sentencing hearing. Given the obvious differences between Pope and Parke, the state of the law on the issue was not clear at the time of the first hearing. The trial court’s decision to continue that hearing was made in an effort to allow both parties the opportunity to present further argument on an issue critical to a determination of Smith’s sentence. This decision could hardly be considered an abuse of the trial court’s inherent power to conduct the proceedings before it. See generally OCGA § 15-1-3.

Decided August 31, 2000

Augustus T. Curtis, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

Although we conclude that during his reconvened sentencing hearing, Smith was bound by the decision reached by this court the day before and is now bound by the Supreme Court’s affirmance of that case, we must take into consideration the fact that Nash was initially decided only one day before the reconvened hearing. It is not clear from the record whether Smith was afforded a chance to present evidence on the issue of the validity of his pleas. Out of an abundance of caution, we therefore remand this case to the trial court to allow Smith the “opportunity to attempt to meet his burden of production at a hearing to be held consistent with this opinion.” Nash, supra, 271 Ga. at 286. See also Brown v. State, 244 Ga. App. 544 (536 SE2d 253) (2000). Smith’s remaining arguments with respect to his sentencing hearing are rendered moot by our conclusion that he is bound by the Supreme Court’s decision in Nash, supra.

4. Smith claims he was denied effective assistance of counsel in several respects, but he has failed to meet his burden of showing that counsel’s performance was deficient or how any deficiency might have affected the outcome of his trial. See, e.g., Allen v. State, 271 Ga. 502-503 (2) (521 SE2d 190) (1999). His arguments concerning counsel’s performance during the sentencing phase of trial are rendered moot by our holding in Division 3.

Judgment affirmed in part and remanded in part with direction.

Johnson, C. J., and Phipps, J., concur.

       The prosecutor initially sought to introduce four prior convictions obtained by way of guilty pleas but apparently learned that Smith was not the same “Gregory Smith” named on one of the pleas. The prosecutor therefore introduced only three prior convictions.

       We caution Smith that “[a] silent record or the mere naked assertion by an accused that his prior counseled plea was not made knowingly and intelligently is insufficient” to successfully attack any prior plea. (Citation and punctuation omitted.) Nash, supra, 271 Ga. at 285.


text:
    A00A1157.
    RICHARDSON et al. v. SIMMONS et al.
    (538 SE2d 830)
   Andrews, Presiding Judge.

Robin Richardson and Ursula Lawler-Whiteman brought separate dental malpractice suits against their respective dentists in which they presented evidence contending that the dentists fraudulently altered or destroyed dental records to conceal the malpractice. The cases were tried in Gwinnett County Superior and State Court before juries which rendered verdicts in 1997 and 1998 in favor of the dentists. No appeals were taken from the judgments entered on the verdicts, and no motions to set aside the judgments because of fraud were filed in the trial courts pursuant to OCGA § 9-11-60.

Subsequent to these unsuccessful suits, Richardson and Lawler-Whiteman jointly filed a suit in Fulton County State Court in 1998 (the joint suit) against the dentists in the prior suits (John W. Simmons IV, D.M.D., and Shawn Senkbil, D.M.D.); the malpractice insurance carrier which provided a defense to both dentists in the prior suits (Continental Casualty Company d/b/a CNA Healthpro); the parent company of CNA Healthpro (CNA Financial Corporation); the insurance broker on the malpractice insurance policies issued to both dentists (Poe & Brown); the malpractice insurance claims supervisor for both dentists (Greg Dallas); and a dentist who testified as a witness for Dr. Simmons in the prior suit (Thomas David, D.D.S.). The joint suit alleged in various causes of action that the dentists in the prior suits, along with the other defendants, conspired to alter or destroy dental records to prevent payment of legitimate malpractice claims in the prior suits and sought to recover all amounts that would have been recovered in the prior malpractice suits plus attorney fees and punitive damages.

This appeal is from the trial court’s order granting summary judgment in favor of the dentists and the other defendants on all of the asserted causes of action in the joint suit.

The joint suit by Richardson and Lawler-Whiteman asserted independent causes of action which were all based on claims of fraud, spoliation of evidence, or perjury done for the purpose of altering or destroying evidence in the prior suits. Because these claims amount to impermissible collateral attacks against the judgments in the prior suits and cannot be brought as independent actions seeking damages arising from the prior suits, we affirm the grant of summary judgment by the trial court.

Although the joint suit styles its claims in various causes of action as spoliation of evidence, fraud, breach of legal and fiduciary duty, Racketeer Influenced & Corrupt Organizations Act violation, and abusive litigation, all of these causes of action are based on allegations that the defendants conspired to alter or destroy evidence and used these tactics to prevent Richardson and Lawler-Whiteman from obtaining malpractice judgments against the dentists in the prior suits. The means for asserting these claims, however, were not to file an independent action collaterally attacking the judgments in favor of the dentists but to file motions in the courts where the prior suits were tried seeking to set aside the judgments under OCGA § 9-11-60 (d) (2). A judgment not void on its face is not subject to collateral attack but can be attacked only by a direct proceeding brought in the trial court pursuant to OCGA § 9-11-60. Dean v. Schreeder, Wheeler & Flint, 222 Ga. App. 426, 429 (474 SE2d 648) (1996). Since the allegations in the joint suit would not render the judgments in the prior suits void on their face, the effect of the joint suit was to collaterally attack the judgments in the prior suits in violation of OCGA § 9-11-60. Shepherd v. Epps, 179 Ga. App. 685, 686 (347 SE2d 289) (1986); Zepp v. Toporek, 211 Ga. App. 169, 171 (438 SE2d 636) (1993); Horton v. Middle Ga. Bank, 203 Ga. App. 127 (417 SE2d 220) (1992).

Decided August 31, 2000

Neal H. Howard, Joann B. Williams, William D. James, for appellants.

Small, White & Marani, Gus H. Small, Jr., Goodman, McGuffey, Aust & Lindsey, Kathryn A. Cater, Jennie R. Halenza, Lokey & Smith, Malcolm Smith, for appellees.

Moreover, Georgia law does not recognize independent causes of action for damages fraudulently caused by spoliation of evidence or perjury in a prior suit. Owens v. American Refuse Systems, 244 Ga. App. 780 (536 SE2d 782) (2000); Shepherd, 179 Ga. App. at 686. Such actions undermine the principle that judgments are final and litigation must be brought to an end and is subject to being abused to harass or intimidate litigants with the threat of a subsequent collateral attack. Id.

We need not address the additional claim that the trial court erred by denying a motion to compel production of work-product and confidential matters since the grant of summary judgment rendered the motion moot.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


author: Johnson, Chief Judge.

text:
    A00A1201.
    JOEL v. THE STATE.
    (538 SE2d 847)
   Johnson, Chief Judge.

Matthew Joel files this interlocutory appeal from the trial court’s denial of his motion to exclude the results of a state-administered chemical sobriety test. Because the arresting officer was not justified in refusing to accommodate Joel’s request for an independent blood test, the trial court erred in denying the motion. Therefore, we reverse.

OCGA § 40-6-392 (a) (3) provides that a person who undergoes a chemical test at the request of a law enforcement officer is entitled to have a qualified person of his own choosing administer an additional test. Law enforcement officers have a corresponding duty not to refuse or fail to allow an accused to exercise the right to have an independent test. If the individual requests an independent test but is unable to obtain it, the results of the state-administered test cannot be used by the state as evidence against him unless the failure to obtain the test is justified.

Joel was driving his car in Forsyth County shortly after midnight when a deputy with the Forsyth County Sheriff’s Office stopped him for failing to dim his headlights and failing to stop at a stop sign. The deputy questioned Joel briefly, then, upon detecting an odor of alcohol, radioed an officer with the DUI task force to come to the scene.

The second officer arrived and requested that Joel perform field sobriety tests, which Joel did. The officers then placed Joel in the patrol car and read him the implied consent notice. Joel initially indicated that he would not submit to a chemical test, but, after hearing the notice three times, he agreed to be tested. Joel took the state-administered chemical test at the sheriff’s office in Forsyth County, then asked to be taken to Northside Hospital for an independent test. Joel selected Northside Hospital because he was born there, his mother works there, he knows some members of the staff, and he trusts the hospital personnel.

The officer told Joel he was not going to take him “inside of metro Atlanta with four — three other hospitals in the immediate area.” In the officer’s opinion, the request to take Joel to Northside Hospital was unreasonable because

we had Baptist Medical Center right here that’s a full facility. North Fulton, which is a full facility and Gwinnett Medical in Northeast Georgia. With him being in my custody in the back of my car, I did not want to transport him all the way inside of metro Atlanta to an unsafe area that I did not — was not familiar with. I wasn’t going to jeopardize myself or him with three other hospitals in this area that were willing to draw his blood.

The officer said it would be “too dangerous for me to take him that far into metro Atlanta.” When asked to explain why he thought it would be dangerous, the officer replied that it was a long way, that they could have an accident, that he could get lost, and that something could happen to him or Joel. When the officer was asked where in metro Atlanta Northside Hospital was located, the officer remarked, “I have no idea.” The officer took Joel to North Fulton Hospital for his blood test.

The officer testified that it would have been reasonable to drive Joel to Baptist Medical Center, which is in Forsyth County; Gwinnett Medical Center, in Gwinnett County; Northeast Georgia Hospital, in Hall County; or North Fulton Hospital, in Fulton County. According to the officer, North Fulton Hospital is 10-15 minutes from the sheriff’s office, Gwinnett Medical Center is 45 minutes from the sheriff’s office, and the Hall County facility is 20 minutes from the sheriff’s office. The officer did not know how long it would take to drive from the sheriff’s office to Northside Hospital, although Joel estimated that it would be a 20- to 25-minute drive. On cross-examination, the officer estimated the travel time between the sheriff’s office and the intersection at which Joel testified that Northside Hospital is located to be 20 to 30 minutes. Although it is unclear from the transcript whether the officer actually told Joel that Gwinnett Medical Center was one of his options, the officer testified that that hospital would have been a reasonable choice because he is familiar with the area. He testified that the Forsyth, Gwinnett, North Fulton, and Hall facilities are all “in this area.” He added that he “never went inside — I don’t go inside the perimeter. I live on the other side of [Forsyth County].” According to the officer, time was not the issue — safety was. The officer added that Joel had the means to pay for the additional test and that the officer was under no pressure to complete the arrest quickly.

Where an officer has failed to obtain an additional test requested by the accused person, it is incumbent on the trial court to determine whether that failure was 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 the independent test. Factors to be considered include, but are not limited to, the following: (1) availability of funds to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the request; (3) availability of police time and other resources; (4) location of the requested facility, e.g., whether the requested facility is in a different jurisdiction; and (5) opportunity and ability of accused to make arrangements personally for the testing.

In this case, the officer did not make a reasonable effort to accommodate Joel’s request to be taken to Northside Hospital for an independent test. As the officer admitted at the hearing, time was not an issue, since the requested hospital was no greater distance from the sheriff’s office than some of the hospitals which the officer thought would have been reasonable choices, and because the officer was not in any particular hurry to finish processing the arrest. Likewise, the fact that the requested facility was outside Forsyth County did not make the request unreasonable, since the officer testified that other hospitals located outside the county, including the one to which the officer drove Joel, would have been reasonable choices. And it is undisputed that Joel was able to pay for the test.

The officer’s sole basis for refusing to take Joel to a reasonably close facility of Joel’s own choosing is that he was unfamiliar with the area in which the hospital is located and, therefore, the request caused him safety concerns. His safety concerns are not supported by any specific evidence. There is nothing suggesting that the officer could not have readily found out the location of the requested hospital and gotten there without getting lost or having an accident. An officer’s unfamiliarity with the area is not, in and of itself, sufficient grounds to deny an accused’s request for an independent test by personnel of his own choosing. As this Court stated in State v. Hughes, the “of his own choosing” language in OCGA § 40-6-392 (a) (3) is not superfluous, and the fact that the accused was given an additional test at a facility other than the one he selected does not demonstrate the state’s compliance with the statute.

By asking for the independent test, Joel invoked his right to have such a test done; this gave rise to the officer’s corresponding duty to make reasonable efforts to accommodate that request. That duty continued until it was determined that, despite reasonable effort, such a test could not be obtained.

The state has the burden of showing it complied with the requirements of OCGA § 40-6-392 (a) (3). It has failed to meet this burden. The trial court erred in ruling that the officer’s failure to obtain the requested test was justified and in denying Joel’s motion to exclude the results of the state-administered chemical test.

Decided August 31, 2000.

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Leslie C. Abernathy, Solicitor, Laura A. Janssen, Assistant Solicitor, for appellee.

Judgment reversed.

Smith, P. J., and Phipps, J., concur.

        State v. Button, 206 Ga. App. 673, 674 (426 SE2d 194) (1992); see OCGA § 40-6-392 (a) (3).

        Button, supra.

        State v. Vandervoort, 215 Ga. App. 72, 73 (1) (449 SE2d 617) (1994).

       Id.

        O’Dell v. State, 200 Ga. App. 655, 656 (2) (409 SE2d 54) (1991).

       See Akin v. State, 193 Ga. App. 194 (387 SE2d 351) (1989) (request to take test in another county not unreasonable when officer offered to take defendant to another out-of-county facility of similar distance).

       181 Ga. App. 464, 467 (352 SE2d 643) (1987).

       See Button, supra at 675.

       Id.

        Hughes, supra.


text:
    A00A1320.
    SHAHEED v. THE STATE.
    (538 SE2d 823)
   Smith, Presiding Judge.

Amed Shaheed was indicted by a Fulton County grand jury on one count of theft by receiving stolen property, OCGA § 16-8-7 (a), one count of fleeing or attempting to elude a police officer, OCGA § 40-6-395 (a), and one count of theft by taking, OCGA § 16-8-2. A jury found him guilty of theft by receiving and fleeing or attempting to elude and acquitted him of theft by taking. Shaheed appeals, and we affirm.

1. Shaheed asserts the general grounds, contending that because the State charged him with both theft by taking and theft by receiving, it presented no evidence as to whether he stole or received the property. But while “[t]he crimes of theft by taking and theft by receiving are mutually exclusive, [cit.],” Robinson v. State, 215 Ga. App. 125, 126 (1) (449 SE2d 679) (1994), “the charges of theft by taking and theft by receiving were alternative charges for the jury to choose if the State failed to carry the burden on identity.” Rivers v. State, 225 Ga. App. 558, 560 (1) (484 SE2d 519) (1997).

Construed to support the verdict, the evidence shows that Shaheed stopped the car he was driving at a roadblock conducted by City of Atlanta police. When a police officer asked Shaheed for his driver’s license and proof of insurance, Shaheed did not respond but rolled up the car window and fled. Shaheed led the officers on a high speed chase, wrecked the car, and fled on foot. When he was apprehended after the foot chase, he had no identification or proof of insurance in his possession. Shaheed never offered any explanation for his possession of the car, which proved to be stolen.

“Unexplained possession of recently stolen property, alone, is not sufficient to support a conviction for receiving stolen property but guilt may be inferred from possession in conjunction with other evidence of knowledge.” (Citation and punctuation omitted.) Daras v. State, 201 Ga. App. 512, 514 (1) (411 SE2d 367) (1991). But “the fact that a suspect flees the scene of a crime points to the question of guilt in a circumstantial manner. Flight is circumstantial evidence of consciousness of guilt; the weight to be given such evidence is for the jury to decide.” (Citation and punctuation omitted.) Green v. State, 206 Ga. App. 42, 44 (3) (424 SE2d 646) (1992). The requirement of scienter in the offense of theft by receiving may be fulfilled by evidence of flight. See Wilkie v. State, 216 Ga. App. 557 (455 SE2d 103) (1995).

Decided August 31, 2000.

Elaine T. McGruder, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

While Shaheed now argues that he fled not because of knowledge that the car was stolen but because he feared the police for other reasons, he presented no evidence at trial supporting the explanation he now offers, and this issue was for the jury to resolve. In addition, Shaheed had no proof of insurance, and lack of proof of ownership of a vehicle at the time of arrest is “very relevant to the issues at trial” of theft by receiving a stolen vehicle. Mullinax v. State, 242 Ga. App. 561, 562 (1) (530 SE2d 255) (2000).

2. Shaheed also asserts as error the State’s comment during closing argument upon Shaheed’s failure to offer an explanation for possession of the stolen car, contending this comments on his pre-arrest silence. But the comment was made in the context of the State’s argument that Shaheed’s flight from police and failure to offer proof of ownership constituted evidence of guilty knowledge. And evidence of failure to come forward with proof of ownership does not violate the prohibition against evidence of pre-arrest silence stated in Mallory v. State, 261 Ga. 625, 629-630 (5) (409 SE2d 839) (1991), when it constitutes part of the res gestae or the circumstances of a defendant’s arrest. Mullinax, supra. Moreover, Shaheed never objected to the State’s argument and thus has failed to preserve this issue for review. Id. at 563 (1); Landers v. State, 270 Ga. 189, 190-191 (2) (508 SE2d 637) (1998). This enumeration of error is without merit.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.