author: Barnes, Judge. Blackburn, Presiding Judge,

text:
    A00A0191.
    STIVALI et al. v. AQUIPORT AYLESBURY, INC. et al.
    (535 SE2d 551)
   Barnes, Judge.

Alfred Stivali and his family sued the owners and management companies of Aylesbury Farms Apartments, alleging negligent dispossession, gross negligence, and intentional infliction of emotional distress. The defendants answered and moved for summary judgment, which the superior court granted. The court held that Stivali’s case was preempted by federal bankruptcy law, because his cause of action was based on an alleged violation of a bankruptcy court order. For the reasons that follow, we vacate and remand to the trial court with direction that this claim be dismissed without prejudice for lack of subject matter jurisdiction.

While the trial court purported to grant the defendants’ motion for summary judgment, we consider the substance and function of a motion rather than its name. Pettus v. Drs. Paylay &c., P.C., 193 Ga. App. 335, 336 (387 SE2d 613) (1989). In this case the appellants’ motion challenged the trial court’s subject matter jurisdiction, which is a matter in abatement, and the trial court’s order was not a grant of summary judgment, but a dismissal of Stivali’s claim. Id.

The parties do not dispute the underlying facts in this case. Stivali failed to pay his rent on an apartment, and the management company in charge of the property filed a dispossessory action. The company obtained a writ of possession against him when he failed to answer. In response, Stivali filed a Chapter 7 bankruptcy action, which stayed the state court dispossessory case and writ. The management company moved in bankruptcy court to lift the stay, then entered into a consent order with Stivali, in which Stivali agreed to pay his past due rent within a certain time and keep up with his current rent.

Stivali failed to pay anything to the management company, which again moved to lift the bankruptcy stay. The bankruptcy court granted the motion, issuing an order providing that ‘[t]he automatic stay is terminated as it applies tó the Movant, Northstar Management Company Inc. d/b/a Aylesbury Farms. The movant is entitled to commence dispossessory proceedings against the Respondent according to applicable state law.” Stivali’s bankruptcy was then discharged a few weeks later.

The management company applied for and was granted another writ of possession in the existing state court dispossessory action and subsequently evicted Stivali. Stivali then sued in superior court, claiming that, instead of “commencing” a new action as the bankruptcy order contemplated, the management company improperly continued the existing action, giving him no opportunity to leave the premises and secure his belongings. All of his belongings, he alleged, along with those of his wife and son, were stolen when they were set out on the street pursuant to the writ of possession.

1. The trial court held that:

[u]pon a review of the record, the Court finds that the underlying premise of the Plaintiff’s suit is based upon the Defendants’ alleged violations of the terms of two Orders entered on March 28,1997, and May 29,1997, by the Honorable Joyce Bihary, Judge of the United States Bankruptcy Court for the Northern District of Georgia. ... In light of the authority under Smith v. Mitchell Construction Co., 225 Ga. App. 383 [(481 SE2d 558)] (1997), cert. [dismissed, Smith v. Mitchell Constr. Co., 226 Ga. App. 909 (1997)], the Court finds that the case at bar is preempted by federal bankruptcy law.

In Smith v. Mitchell Constr. Co., supra, 225 Ga. App. at 385, we considered for the first time whether the Bankruptcy Code preempts state law claims for conduct violating a stay in bankruptcy. The Code provides: “An individual injured by any willful violation of a stay . . . shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 USC § 362 (h).

Smith’s creditor filed suit in DeKalb Superior Court and obtained a judgment against Smith, then served him with post-judgment discovery material. Smith filed a bankruptcy petition, but the creditor did not receive proper notice of the filing and successfully moved to have Smith held in contempt for discovery violations. Smith spent 29 hours in detention, and after his release, he moved the bankruptcy court for sanctions against the creditor for violating the automatic stay. The bankruptcy court granted the motion and sanctioned the creditor $5,000.

Smith then sued the creditor and its attorneys in Fulton County State Court, alleging false arrest, negligence, assault, and intentional infliction of emotional distress. The state court judge granted summary judgment to the defendants, announcing from the bench that the claims were barred by federal preemption. We affirmed that order, concluding that 11 USC § 362 (h) of the Bankruptcy Code preempted Smith’s state law claims against his creditor and its lawyers for the actions they took in violation of Smith’s bankruptcy stay.

The need for uniformity in bankruptcy matters was recognized even by the framers of the Constitution, who granted Congress the power to “establish . . . uniform Laws on the subject of Bankruptcies throughout the United States” in Art. I, § 8, cl. 4. [Cit.] From this long-recognized need for uniformity; from the comprehensive structure of the current Bankruptcy Code; and from Congress’ inclusion in that structure of § 362 (h), which provides a remedy for stay violations, we infer Congress’ intent to effectuate two related principles: Creditors should be held to a uniform standard of conduct when dealing with bankruptcy debtors, and the bankruptcy courts are the only institutions capable of fashioning such a uniform standard.

Smith, supra, 225 Ga. App. at 386.

Thus, even if Stivali’s claim that appellees violated the terms of the bankruptcy court’s order lifting the stay were true, his causes of action based on that alleged conduct are preempted by 11 USC § 362 (h). Smith, supra, 225 Ga. App. at 386. Consequently, the claim must be remanded to the trial court with direction that this claim be dismissed without prejudice for lack of subject matter jurisdiction. Gale v. Hayes Microcomputer Products, 192 Ga. App. 30, 32 (3) (383 SE2d 590) (1989).

2. The remainder of Stivali’s arguments are without merit.

Judgment vacated and case remanded with direction.

Johnson, C. J., Pope, P. J., Eldridge, Phipps and Mikell, JJ, concur. Blackburn, P. J., dissents.

Blackburn, Presiding Judge,

dissenting.

Because I believe that Alfred Stivali’s case is not preempted by federal bankruptcy law and that the trial court should have considered the efficacy of his claims against Aquiport Aylesbury, Inc., I must respectfully dissent.

Stivali contends that the order lifting the stay required the defendants to abandon the existing dispossessory proceedings which had been stayed and initiate a new proceeding. Based on the mechanics of a stay, this argument is totally without merit.

Decided June 9, 2000.

Matthew D. Gansereit, for appellants.

The bankruptcy court, having reviewed and considered Stivali’s wilful disregard for his rental obligations, decided to abdicate its authority to limit Aquiport’s remedies to federal law and explicitly granted Aquiport the right to pursue its state law claims and lifted the stay. Therefore, Stivali cannot argue that the defendants violated the automatic stay imposed in his bankruptcy proceedings, thereby implicating the preemptive provisions of 11 USC § 362 (h). At the time of the wrong claimed by Stivali, the stay was no longer in existence. For this reason, this case is distinguishable from Smith v. Mitchell Constr. Co., 225 Ga. App. 383 (481 SE2d 558) (1997). The bankruptcy court’s order states: “The automatic stay is lifted as it applies to the Movant, Northstar Management Company Inc. d/b/a Aylesbury Farms. The Movant is entitled to commence dispossessory proceedings against the respondent [, Stivali,] according to applicable state law.”

Black’s Law Dictionary defines a stay as “[a] stopping; the act of arresting a judicial proceeding by the order of a court.” A stay cannot, however, be equated to the termination of an action. A stay temporarily halts a certain action until the stay is lifted. A stay merely pauses an action during the existence of the stay. It does not eradicate it. Therefore, once the bankruptcy court lifted the stay on defendants’ dispossessory proceeding, there was no longer any limitation on the action being prosecuted. Under plaintiffs’ interpretation, the defendants would be required to file a duplicative dispossessory action in the same court in which its original action was already pending.

Therefore, because Aquiport did not violate the automatic stay and no rational construction of the bankruptcy court’s explicit order supports Stivali’s arguments, this case is not preempted by federal law pursuant to Smith, supra. Accordingly, I would remand this case for the trial court’s determination of Stivali’s claims in a manner consistent with this dissent.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., for appellees.

       The federal Bankruptcy Code provides: “An individual injured by any willful violation of a stay... shall recover actual damages, including costs and attorney! ] fees, and, in appropriate circumstances, may recover punitive damages.” 11 USC § 362 (h). Therefore, in cases involving allegations that a defendant has wilfully violated an automatic stay imposed by the Bankruptcy Code, federal law preempts state law, and the plaintiff must seek recompense in bankruptcy court.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A0298.
    FREEMAN v. THE STATE.
    (535 SE2d 349)
   Phipps, Judge.

A jury found Dwight Freeman guilty of burglary, aggravated assault, kidnapping, and criminal attempt to commit armed robbery. He was sentenced to terms of incarceration for each count, including a life sentence without parole for kidnapping. Freeman appeals, challenging the admission of identification testimony at trial, the admission of evidence of a prior felony conviction at sentencing, and the subsequent enhancement of the punishment for kidnapping. We find no error on any of the issues raised by Freeman, and therefore, we affirm.

Joann Curl, the victim, testified that on May 27,1998, at approximately noon, an intruder burst into the office trailer of the trailer park she managed. Curl was inside the trailer where she sometimes lived. Angela Anderson, a new employee and resident of the trailer park, was also there working. Curl testified that the intruder, who was wearing a sweater, a stocking over his head, and white socks on his hands, placed a knife at her throat and demanded money.

The intruder forced Curl into the bedroom where he tied her hands. He instructed Curl to tell Anderson where she kept money, and Curl said it was in her truck. Anderson attempted to search the truck, but it was locked. Moments later, Curl’s husband arrived, and the intruder dropped the knife and fled out the front door. Curl called the police. She later found a pillowcase in a bathroom of the trailer.

Anderson pled guilty to her participation in the crimes. At trial, she identified Freeman as the intruder and stated that on the morning of the crimes, he had been at her trailer with her husband, discussing plans to rob Curl. She testified that Freeman had acquired the knife and pillowcase from her house and that the sweater and white socks he wore during the crimes belonged to her husband.

Within ten minutes of Freeman’s flight from the trailer, police found him in nearby woods. He was holding the shirt that he had worn to Anderson’s home earlier that morning. Concerned for his safety, an officer asked Freeman about the knife he was reported to have. Freeman responded that the knife belonged to the woman and that he had left it at her residence. Freeman added, “I done it, I’m sorry.” Police later found the sweater Freeman had worn during the crimes between the trailer park and the woods where he was apprehended.

1. Freeman contends that the trial court erred in overruling his motion to suppress the identification of him by Jo Vickers, who lived next door to Curl’s office trailer. Vickers testified that on that day a man rattled the handle of her front door. She looked out and saw him standing on her steps, his head covered by a pillowcase with holes cut out for his eyes. When she screamed for him to leave, the man stepped back, removed the covering from his face, and told Vickers that he thought his sister lived there. Vickers testified that she clearly saw his face.

Vickers watched the man walk to Curl’s backyard. She telephoned Curl to warn her of a possible intruder but received no answer. She then called Curl’s husband and the police. When Curl’s husband drove up blowing his truck’s horn, the man ran out of Curl’s front door. Vickers testified that as the man ran into nearby woods, he passed her, he looked at her, and she took a good look at him.

Vickers testified that she saw the same man again “ten to fifteen minutes” later at a pasture on the other side of the woods. A police officer had taken her there, and she stated that the man apprehended and held in a one-person showup was the man she had seen earlier. A day or two later, Vickers selected Freeman’s photograph from, a six-man photographic display. Later that day, she again identified Freeman as she viewed him through a glass at the police station. In this second one-person showup, Freeman wore an orange jumpsuit. At trial, Vickers pointed to Freeman as the man she had seen at her trailer and in the pasture on May 27.

Freeman contends that the two one-person showups were impermissibly suggestive and resulted in misidentifications.

It is error to allow testimony concerning a pre-trial identification of the defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification.

We first consider whether the identification procedures were impermissibly suggestive and note that we have held that on-the-scene confrontations and identifications are inherently suggestive because of the presentation of a single suspect. In exercising its discretion to determine whether an in-court identification was tainted by a pretrial defect, the trial court must examine the totality of the circumstances. The court should consider: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the defendant; (4) the level of certainty demonstrated by the witness; and (5) the length of the time between the crime and confrontation. Where evidence supports the trial court’s ruling, we will not disturb that ruling.

At the hearing on the motion to suppress, the trial court permitted extensive examination and cross-examination of Vickers and the officer who was present at both showups. Vickers testified that when Freeman removed the pillowcase from his head, she focused on his face and eyes as he stood three feet from her on her doorstep. She watched him walk to the back of Curl’s trailer, and within minutes, she saw him exiting Curl’s front door. As Freeman ran into the woods, he passed within “probably four or five feet” of her. Vickers identified Freeman in the pasture approximately 15 minutes after she saw him flee the crime scene. She testified that when she viewed him at the pasture, she was approximately 40 feet from him, it was about 12:30 p.m., he was plainly visible, and she clearly saw his face. At the motion to suppress hearing, she pointed to Freeman without hesitation and testified that there was “no doubt in her mind” that he was the masked man who had come to her door, removed the pillowcase from his head, spoke to her, walked to Curl’s trailer, exited through Curl’s front door, fled into the woods, then stood alone in the two showups afterward. She further described how Freeman had changed his appearance since she had seen him on her doorstep and also identified clothing that he had worn at the time of the crimes. The trial court ruled that testimony regarding the first showup would be permitted but that testimony regarding the second showup would not be permitted.

The record shows that “ ‘[t]he trial court’s determination that there was, under the totality of the circumstances, no likelihood of irreparable misidentification is supported by the evidence, is not clearly erroneous, and is therefore affirmed. [Cit.]’ [Cit.]”

2. Freeman contends that the trial court erred in admitting a 1973 guilty plea to armed robbery, which formed the basis for the enhanced sentence of life imprisonment without parole pursuant to OCGA § 17-10-7 (b) (2). In Nash v. State, our Supreme Court revised the scheme regarding the allocation of burdens of proof in hearings to determine the voluntariness of guilty pleas used in sentence enhancement in a nondeath penalty case:

[T]he burden is on the State to prove both the existence of the prior guilty pleas and that the defendant was represented by counsel in all felony cases and those misdemeanor proceedings where imprisonment resulted. Upon such a showing, the presumption of regularity is then applied and the burden shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Defendant can attempt to meet his burden of production with a transcript, with testimony regarding the taking of the plea, or with other affirmative evidence. A silent record or the mere naked assertion by an accused that his prior counseled plea was not made knowingly and intelligently is insufficient. If the defendant is able to present evidence that a constitutional infirmity exists, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea. ... If the State introduces anything less than a “perfect” transcript, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three [Boykin v. Alabama] rights.

During Freeman’s sentencing hearing on May 25,1999, about six weeks prior to the Nash decision, the State tendered a certified copy of the guilty plea. Freeman objected on the ground that there was no showing that he made the plea voluntarily and knowingly. The trial court continued the hearing so that the parties could brief the issue. Nash was decided on July 6, 1999. When the sentencing hearing resumed on August 12, 1999, after referring to the recent Nash decision in its discussion with the attorneys, the trial court ruled that Freeman’s prior guilty plea was informed and voluntary, overruled his objection, and admitted the plea into evidence. Relying on Nash, Freeman maintains that the record is devoid of any showing that he knowingly waived his constitutional rights and that, therefore, the trial court erred in considering the guilty plea. We disagree.

Decided June 9, 2000.

Jimmy J. Boatright, for appellant.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.

Here, the State met its initial burden under Nash by proving the existence of the prior guilty plea and that Freeman was represented by counsel. The trial court correctly admitted the plea, and a “presumption of regularity” attached to it. The burden of production shifted to Freeman, who testified on direct that his plea was neither voluntary nor knowing. But on cross-examination, the State elicited his testimony that he committed the offense to which he pled guilty and that he was not forced to enter the plea. Because the record reflects that the trial court considered Nash in weighing the evidence, given Freeman’s testimony, a remand would serve no useful purpose. We further note that although the parties were operating under previous law during the May 25 hearing, Nash was decided more than a month before sentencing and Freeman never attempted to add evidence in light of Nash. The trial court did not err in considering the plea and enhancing the kidnapping sentence.

3. Freeman contends that the trial court erred in sentencing him to life imprisonment without parole for kidnapping. Our ruling in Division 2 addresses this contention.

Judgment affirmed.

Johnson, C. J., and Mikell, J., concur.

       (Citations omitted.) Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d 272) (1999).

       See Ferguson v. State, 221 Ga. App. 415, 418 (1) (471 SE2d 528) (1996); but compare Collins v. State, 232 Ga. App. 651, 654 (1) (502 SE2d 498) (1998) (prompt, on-the-scene confrontations and identifications, though inherently suggestive because of the presentation of a single suspect, nevertheless are permissible in aiding a speedy police investigation, and where possible doubts as to identification need to be resolved promptly, such on-the-spot identifications promote fairness by enhancing the accuracy and reliability of identification, thereby permitting expeditious release of innocent subjects).

        Lowe v. State, 264 Ga. 757, 758 (2) (452 SE2d 90) (1994).

       Id.

       Id.

        Ferguson, supra, 221 Ga. App. at 419 (1).

       271 Ga. 281 (519 SE2d 893) (1999).

       395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969).

       (Citations and punctuation omitted.) Nash, supra, 271 Ga. at 285.

       See Gillman v. State, 239 Ga. App. 880, 882-883 (2) (a) (522 SE2d 284) (1999).

       Id. at 882 (2) (a) (Under previous law, “once a defendant raised the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden was on the State to establish a valid waiver. The State was permitted to carry this burden in two ways: a showing on the record of the previous guilty plea hearing that the defendant was aware of the rights he was waiving and the possible consequences of the plea, or, alternatively, filling a silent record by using extrinsic evidence showing that the plea was knowing and voluntary”) (citations omitted).


text:
    A00A0484.
    BARTLETT v. HOLDER CONSTRUCTION COMPANY et al.
    (535 SE2d 537)
   Phipps, Judge.

Carlos Bartlett stepped into a hole and fell on the site of construction by Holder-Russell Construction Company, a joint venture of Holder Construction Company and H. J. Russell Construction Company. Bartlett sued Holder-Russell on negligence theories, and he appeals the trial court’s grant of summary judgment to them. Bartlett asserts that genuine issues of material fact exist regarding whether Holder-Russell may be liable under a premises liability theory. We agree and reverse the portion of the trial court’s judgment relating to Bartlett’s premises liability claim.

Holder-Russell procured a contract to construct Coca-Cola’s Olympic City before the 1996 Olympic Games. Bartlett worked as a security guard for Dupree Security Group, Inc., which provided security services at the construction site.

While walking across the site on April 19, 1996, Bartlett did not see an unmarked hole in the ground, stepped into it, and fell. He broke one leg and suffered significant injuries to the other.

Bartlett sued, asserting that Holder-Russell had dug the hole and had been negligent in maintaining the safety of the site. Holder-Russell filed a third-party complaint against Michigan Flagpole, Inc., with whom they had subcontracted to erect flagpoles on the property. They asserted that Michigan Flagpole had created the hole into which Bartlett stepped. Michigan Flagpole denied responsibility for the hole. Holder-Russell later moved for summary judgment against Bartlett. They argued that they had not dug the hole, were not vicariously liable for Michigan Flagpole’s acts because Michigan Flagpole was an independent contractor, and were not responsible for maintaining the safety of the site because they neither owned nor occupied the property.

On appeal, Bartlett claims that the trial court erred in granting summary judgment to Holder-Russell because genuine issues of material fact exist regarding (1) whether Holder-Russell had received possession and control of the property from Coca-Cola and (2) whether Holder-Russell had actual or constructive knowledge of the existence of the hole into which Bartlett stepped. We find that a genuine issue of material fact exists as to the first question. It is unnecessary to address the second question, because it does not appear to have been a part of the trial court’s basis for granting summary judgment to Holder-Russell.

Summary judgment is properly granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “[T]he opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cit.]”

OCGA § 51-3-1 imposes a nondelegable duty upon an owner or occupier of land to exercise ordinary care in keeping the premises and approaches safe where the owner or occupier has, by express or implied invitation, induced others or led others to come upon the premises for any lawful purpose. “Where a general contractor is in control of the premises, such contractor obtains the status of occupier so that it has a responsibility to invitees and others entering the premises which is equivalent to that duty owed by the owner of the premises. [Cits.]” The same rule applies when an owner surrenders only a portion of his premises to a contractor. As to that portion, the contractor incurs a duty to exercise ordinary care toward keeping the property safe for others who may be invited to it expressly or impliedly. When a general contractor has received full and complete possession of an area for construction, reasonable care may require that he constantly monitor the site for risk of danger to others or erect barriers to prevent others from traveling into areas where they may be exposed to danger. Such responsibility may extend even to portions of the site being worked upon by subcontractors. “ ‘Possession may be defined as having personal charge of or exercising the rights of management or control over the property in question. Custody and control are the commonly accepted and generally understood incidents of possession.’ [Cit.]” It is a question of fact whether full possession and control over a premises have been delivered by an owner to a contractor.

Here, the record shows that Holder-Russell was contracted to construct the Coca-Cola Olympic City, that it retained at least seven subcontractors to assist in the project, and that Holder-Russell’s sign was posted at the construction site. Construing the evidence most favorably toward Bartlett, the evidence additionally shows that Holder-Russell maintained a fence along the perimeter of the site on a daily basis, that each subcontractor and vendor was required to coordinate access to the site with Holder-Russell’s superintendent, that Holder-Russell procured night security for the project, that subcontractors were required to submit daily reports to Holder-Russell, and that Holder-Russell promulgated safety rules that were to be followed by the subcontractors. There are, therefore, material issues of fact on the question of whether Holder-Russell was in control of the premises to a degree to have attained the status of occupier.

Decided June 9, 2000.

James R. Argo, Jr., for appellant.

Noel H. Benedict, for appellees.

Holder-Russell’s reliance on Maddox v. Cumberland Distrib. Svcs. &c. is misplaced. There we affirmed the grant of summary judgment in a premises liability action to defendant Cumberland Distributing Services of Georgia which had provided staff, equipment, and supplies for the operation of a warehouse. We found that the record refuted the plaintiff’s claims that Cumberland, an independent contractor, was an “occupier” of the premises.

This does not mean, however, than an entity is prevented from being an “occupier” of a premises merely because it functions as an independent contractor. The linchpin of the analysis is the magnitude of possession and control conferred by the owner to the contractor. In Maddox, the warehouse was not operated by Cumberland, and the warehouse operator retained responsibility for maintaining the relevant portions of the premises.

We hold that the trial court erred in granting summary judgment to Holder-Russell on Bartlett’s claim of premises liability.

Judgment reversed.

Johnson, C. J., and Mikell, J., concur.

       Although Holder Construction Company and H. J. Russell Construction Company were sued individually, they will hereinafter be referred to as Holder-Russell.

       OCGA § 9-11-56 (c).

        Gill v. Cooper Tire &c. Co., 231 Ga. App. 482, 484 (1) (499 SE2d 85) (1998).

       Id.

        Reed v. Batson-Cook Co., 122 Ga. App. 803, 805 (178 SE2d 728) (1970).

        Towles v. Cox, 181 Ga. App. 194, 195-196 (1) (351 SE2d 718) (1986).

       See, e.g., id.

       See id.

       Id. at 196.

       See id.

       This information is taken from minutes of a meeting between Holder-Russell and its subcontractors. The minutes are included in the record as an exhibit to an affidavit from Bartlett. In a supplement to their motion for summary judgment, Holder-Russell asserted that the minutes were not admissible because they had not been authenticated by Bartlett. However, they did not move to strike the evidence or otherwise object to its being made a part of the record below. In light of the failure to assert this issue and elicit a ruling by the trial court, the evidence may be considered on appeal. See Mountain Bound v. Alliant Foodservice, 242 Ga. App. 557, 558-560 (1), (3) (530 SE2d 272) (2000); Everett v. Norfolk Southern R. Co., 218 Ga. App. 862, 863, n. 1 (464 SE2d 385) (1995); Glisson v. Morton, 203 Ga. App. 77-78 (2) (416 SE2d 134) (1992).

       236 Ga. App. 170 (511 SE2d 270) (1999).

       Id. at 171.

       See Braswell v. Walton, 208 Ga. App. 610, 611-612 (431 SE2d 417) (1993); Towles, supra; Reed, supra.

       Id.


author: Johnson, Chief Judge.

text:
    A00A0673.
    BAYS et al. v. RIVER OAKS CONSTRUCTION, INC. et al.
    (535 SE2d 543)
   Johnson, Chief Judge.

On March 29,1999, Joseph and Gina Bays sued River Oaks Construction, Inc., and Prudential Residential Services, L.P., after the home the Bayses purchased in February 1996 was found to have water damage allegedly caused by the faulty installation of synthetic stucco on the home’s exterior walls. The home, which was built by River Oaks, was certified for occupancy in January 1995 and sold to Troy and Susan Harris. Months later, the Harrises, with Prudential acting as their agent, sold the home to the Bayses. The suit alleged causes of action based on negligence in installing the stucco, negligence in constructing the home, breach of implied warranty of suitability, negligent misrepresentation, and fraud. River Oaks filed a motion to dismiss based on failure to state a claim. After converting the motion to a motion for summary judgment, the trial court entered judgment in favor of both defendants. The Bayses appeal.

1. The Bayses contend the trial court erred in granting summary judgment to River Oaks based on a motion to dismiss without giving the Bayses 30 days to submit evidence in opposition to the summary judgment motion. We agree.

The record shows that River Oaks filed a motion to dismiss with its answer on May 6, 1999. In the motion to dismiss, River Oaks contended that the complaint failed to state a claim upon which relief could be granted because River Oaks did not sell the home to the Bayses, River Oaks had no contact with the Bayses before they purchased the home, River Oaks made no representations to and owed no duty to the Bayses, and there was no privity on which to base a breach of warranty claim. The motion did not contain any evidence in support of the arguments.

The Bayses filed a response to the motion on May 17, 1999, asserting that even if there is evidence showing that they are subsequent purchasers of the home, and their breach of warranty claim does not survive, their remaining claims would survive since privity of contract is not required for a cause of action based on negligence.

The trial court held a hearing on the motion to dismiss on September 7, 1999. The Bayses filed a supplemental brief on September 13, 1999, asserting that the motion to dismiss should be denied because it did not appear from the pleadings that the Bayses could prove no set of facts which would entitle them to relief.

River Oaks filed a supplemental brief on September 20, 1999. It attached to the brief, for the first time, the unsigned affidavit of its president. In the affidavit, the president denied having had any contact with the Bayses or making any representations to them before they bought the house, denied having applied the stucco to the home, and denied being knowledgeable about or trained in the stucco application process. Although River Oaks had not mentioned a statute of limitation defense in its motion to dismiss, it raised the defense in the supplemental brief. In the brief, River Oaks asked the trial court to consider the affidavit and other evidence outside the pleadings and to treat its motion as one for summary judgment. River Oaks filed an additional supplemental brief on September 24, 1999, attaching the same affidavit from its president, though this time it wás signed.

On September 27, 1999, the trial court signed an order dismissing the entire complaint with prejudice, including the claims against Prudential, though Prudential had not moved for dismissal or summary judgment. In its order, the trial court states that it considered the arguments and the record, that the complaint discloses with certainty that the Bayses would not be entitled to relief under any state of facts asserted in the complaint, that the Bayses could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought, and that it could, in its discretion, treat a motion to dismiss as one for summary judgment. The trial court states that the motion to dismiss is granted and that the complaint is dismissed in its entirety.

The Bayses moved for reconsideration, requesting that the court give them 30 days in which to respond to River Oaks’ supplemental brief and to the affidavit filed with it. The motion was denied. This was error.

If, on a motion to dismiss for failure of the complaint to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the trial court, the motion is treated as one for summary judgment. Where the trial court treats a motion to dismiss as one for summary judgment, the trial court must give the respondent 30 days in which to respond to the motion. It is crucial that the party against whom summary judgment is sought has had a full and fair opportunity to meet and attempt to controvert the assertions against him, before judgment is entered.

When River Oaks filed its supplemental brief in- which it requested that the trial court treat its motion as one for summary judgment, it attached evidence for the court’s consideration. The evidence was not excluded by the trial court. Indeed, in its order the trial court states that it is authorized to treat the motion to dismiss as a motion for summary judgment, and that it considered the record. Because matters outside the pleadings were presented to and not excluded by the trial court in disposing of the motion to dismiss, the motion was converted into a motion for summary judgment.

Decided June 9, 2000.

Eugene C. Brooks IV, Russell M. Stookey, for appellants.

Pursley, Howell, Lowery & Meeks, Audrey R. Kohn, Paul A. Howell, Jr., Inglesby, Falligant, Horne, Courington & Nash, Glen M. Darbyshire, Hunter, Maclean, Exley & Dunn, Dennis B. Keene, Seslee S. Smith, for appellees.

Although the requirement that a party be given notice and a full and fair opportunity to respond to a summary judgment motion is clear, simple to meet, and necessary, the trial court in this case gave the Bayses neither notice of its intent to convert the motion nor a full opportunity to respond before ruling on the motion. We therefore remand the case so that the Bayses are given the requisite notice and opportunity to present evidence in opposition to summary judgment before any ruling is made on the motion.

We disagree with River Oaks’ contention that reversal is not required because there has been no showing of harm. The Bayses have shown that the decision was rendered before they were given a full opportunity to respond to the summary judgment motion, and they attempted thereafter to add to the record various affidavits and depositions purporting to show evidence of conversations between the Bayses and River Oaks’ president, the president’s knowledge of problems with the Bayses’ home, his general knowledge of problems related to stucco finishes, an expert’s assessment of the damage and stucco problems in construction, and circumstances which could toll the statute of limitation. Thus, harm has been shown.

2. Considering the trial court’s failure to give the Bayses the proper notice and opportunity to respond, we hold that the trial court also erred in dismissing the complaint as to Prudential, who, we note, did not move for dismissal or summary judgment.

3. In light of the foregoing, the Bayses’ other contentions are not ripe for adjudication.

Judgment vacated and case remanded with direction.

Phipps and Mikell, JJ., concur.

       OCGA § 9-11-12 (b).

       OCGA § 9-11-56; Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 92-94 (2) (483 SE2d 602) (1997).

        Aycock v. Calk, 222 Ga. App. 763, 764 (476 SE2d 274) (1996).

        White House v. Winkler, 202 Ga. App. 603, 606 (415 SE2d 185) (1992); Mica-Top Fixture Co. v. Frank G. Shattuck Co., 124 Ga. App. 100 (1) (183 SE2d 15) (1971).

        Aycock, supra at 764.

       Compare Christensen v. State of Ga., 219 Ga. App. 10, 12 (4) (464 SE2d 14) (1995).

        Jim Altman Ins. v. Zorn & Son Ins. Agency, 184 Ga. App. 575 (362 SE2d 142) (1987).


text:
    A00A0712.
    TODD et al. v. KELLY.
    (535 SE2d 540)
   Phipps, Judge.

William Gerald Todd and James Noble III appeal from the trial court’s order granting Glynn County Police Officer Jim Kelly’s motion for summary judgment on their malicious prosecution claims. Officer Kelly participated in an investigation of suspected animal cruelty at the Glynn County Animal Control Center, where Todd was the Center’s director and Noble was a Center employee. Officer Kelly believed that Todd and Noble had tampered with evidence to be used in prosecuting the animal cruelty claims and obtained warrants for their arrest. Todd and Noble were arrested, but the charges were dismissed at trial. After the criminal charges against them were dismissed, Todd and Noble filed a civil action against Officer Kelly for malicious prosecution. The trial court granted Officer Kelly’s motion for summary judgment, finding that he was protected by his official immunity as a police officer. Because Officer Kelly did not act with actual malice or actual intent to cause injury when making the decision to arrest Todd and Noble, we affirm'the trial court’s decision.

Kelly, a lieutenant with the Glynn County Police Department, assigned Officer Larry McDonald to conduct an investigation into suspected animal cruelty at the Glynn County Animal Control Center. The investigation began after a Georgia Bureau of Investigation officer witnessed Kenneth McClendon, a Center employee, spraying water on animals and the concrete pads where they were housed on December 23, when the temperature was frigid. Todd and Noble each sent a memorandum to Officer Kelly notifying him that they had found dogs and cats frozen to the floor in the animal control building on December 26, when they returned from the Christmas holiday.

As part of the investigation, Officer McDonald met with Todd and asked him for any records that would indicate when animals were brought in and released or euthanized or died by other means. Todd told Officer McDonald that he needed the animal intake reports for a meeting that evening and would provide them the next day. Before Todd gave the records to Officer McDonald, Noble and Ruth Howell, another employee of the Center, changed six of the reports by preparing new reports without the notation that the animals were very sick. After the new reports were made, Noble threw away the original reports which noted that the animals were very sick and was unable to locate them when Todd told him to retrieve them.

Officers Kelly and McDonald first discovered the reports had been altered during their interview of Howell. She provided them with the original reports, which she had taken out of the trash can at the Center. They also interviewed Debbie Bagley, another Center employee. Bagley told them that she had made the notations on the six original reports indicating that the animals were very sick and that Todd and Noble had told her that the reports would have to be changed. In his interview, Noble said that the reports were changed so that it would not appear that the Center kept sick animals for a long period of time.

Todd testified at deposition that he told Noble and Howell to change the reports so that they would accurately reflect that the animals were dead, not sick. In his deposition, Noble testified that he, Todd and Howell discussed it and agreed that they needed to make changes to the reports. Todd and Noble did not tell Officer Kelly or Officer McDonald at any time prior to their arrests that the reports had been changed.

During her interview with the officers, Howell told them that about a month before Christmas Todd had stated that he was going to try to find some way to get McClendon fired. Bagley gave the same information during her interview.

Based on his investigation, Officer Kelly concluded that Todd and Noble were motivated to alter the reports to limit the defense McClendon would have to the charge of cruelty to animals by precluding him from saying that they were sick at the time of their death. Officer McDonald prepared an affidavit setting forth the facts upon which he and Officer Kelly sought warrants for the arrest of Todd and Noble for tampering with evidence and presented it to the court.

We review the trial court’s grant of summary judgment de novo to determine if the evidence demonstrates any genuine issue of material fact. To prevail, the moving party must demonstrate that there are no genuine issues of any material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, support judgment as a matter of law. “A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.”

1. Todd and Noble contend that Officer Kelly is not protected by immunity because he did not have reasonably objective probable cause to seek warrants for their arrest. But that is not the appropriate standard. The Georgia Constitution provides that

all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.

The immunity provided by this provision also applies to officers and employees of counties.

An official function is one performed within the officer’s or employee’s scope of authority, including both ministerial and discretionary acts. No immunity is provided for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or intent to injure. A discretionary act “ ‘calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.’ [Cit.]”

Kelly, a county police officer, was acting within the scope of his authority when he participated in the decision to obtain warrants for the arrest of Todd and Noble. He decided to seek the arrest warrants after conducting an investigation into the facts regarding the altered documents and concluding that Todd and Noble had improperly tampered with evidence to be used in a criminal prosecution. Because that decision was a discretionary act, Officer Kelly has official immunity for it unless he acted with actual malice or actual intent to cause injury.

Todd and Noble do not contend that Officer Kelly acted with actual intent to cause injury. “Actual malice” as used in the context of official immunity requires a deliberate intention to do wrong. There is no evidence that Officer Kelly acted with actual malice. Both Todd and Noble testified that they knew Officers Kelly and McDonald prior to this incident and had no problems or conflicts with them. Although Officer Kelly’s actions in seeking warrants against Todd and Noble may have been misguided, there is no evidence that they were taken with actual malice. As a result, Officer Kelly is protected by his official immunity as a police officer, and his motion for summary judgment was properly granted.

Decided June 9, 2000.

Clark & Clark, Fred S. Clark, for appellants.

Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Brad S. McLelland, W. Gary Moore, for appellee.

2. In light of our holding in Division 1, remaining issues are moot.

Judgment affirmed.

Johnson, C. J., and Mikell, J., concur.

        Howell v. Styles, 221 Ga. App. 781, 784 (4) (472 SE2d 548) (1996).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Emphasis omitted.) Id.

       Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d).

        Gilbert v. Richardson, 264 Ga. 744, 747 (2) (452 SE2d 476) (1994).

       Id. at 753 (6).

       Id.

        Teston v. Collins, 217 Ga. App. 829, 830 (1) (459 SE2d 452) (1995).

       See Woodward v. Gray, 241 Ga. App. 847, 851 (c) (527 SE2d 895) (2000) (decision to arrest for disorderly conduct was discretionary act).

        Morrow v. Hawkins, 266 Ga. 390, 392 (2) (467 SE2d 336) (1996); Crisp County School System v. Brown, 226 Ga. App. 800, 802 (2) (487 SE2d 512) (1997).


author: Andrews, Presiding Judge.

text:
    A00A0137.
    A00A0138.
    HABERSHAM VENTURE, LTD. v. BREEDLOVE et al. P. E. ATLANTA, INC. v. BREEDLOVE et al.
    (535 SE2d 788)
   Andrews, Presiding Judge.

Pursuant to our grant of their applications for interlocutory review, we consider whether, as owner of the leasehold and operator of a nightclub, respectively, Habersham Venture, Ltd. (Habersham) and P E. Atlanta, Inc. d/b/a Bell Bottoms Nightclub (Bell Bottoms) were entitled to summary judgment on Larry Breedlove, Jr.’s and Marshall Bolinger, Jr.’s premises liability claims for injuries resulting from a fight in the parking lot of Bell Bottoms.

The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). Further, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

Clark v. Cauthen, 239 Ga. App. 226, 227 (1) (520 SE2d 477) (1999).

So viewed, the evidence was that on Friday, August 19, 1995, Breedlove, Bolinger, Ricky Brewer, and two women acquaintances met at Breedlove’s home before going to Buckhead for the evening to celebrate Brewer’s birthday. They arrived at Breedlove’s around 8:00 p.m., consumed some beer, and went to Bell Bottoms around 9:30 p.m. Bolinger had been to Bell Bottoms previously, although the others had not.

Bell Bottoms, which had opened in January 1995, was located in a shopping center off Pharr Road. Also located in the shopping center were a Lettuce Souprise You restaurant, Atlanta Blue Print Company, and another retail space then unused. Each of the businesses occupied a separate building, and the parking lot was used jointly by the businesses. Pursuant to the lease, Habersham was obligated to maintain the parking lot for the tenants.

Breedlove, Bolinger, Brewer, and the two women pulled into the parking lot and parked their two cars between Atlanta Blue Print and Bell Bottoms. There were no security personnel in the parking lot, nor were there any signs regarding security. The parking lot was lighted, but neither Breedlove nor Bolinger recalled a light near where they chose to park.

The group went into Bell Bottoms and stayed about two and one-half hours. During this time, Breedlove and Bolinger consumed three to four more beers each. There was no difficulty encountered by the party while in Bell Bottoms. Upon leaving, the five walked around Bell Bottoms to Bolinger’s car. As they walked to the car, they noticed three men standing in the parking lot near Lettuce Souprise You and heard a derogatory comment addressed to one of the women. No one in the group knew any of these three men, and they had not seen them in Bell Bottoms. Breedlove responded “[h]ey, a — holes;. . .hey, jerk; leave us alone. We don’t want any trouble. We want to get out of here. We’re trying to get in our car and leave. . . . [D]on’t screw with us.”

The group proceeded to Bolinger’s car where they stood talking and smoking for three or four minutes. Brewer and one of the women were standing on one side of the car, and Breedlove and Bolinger were standing on the other side looking toward Brewer, with the other woman sitting in the car. Comments from the other group continued, and Bolinger was then stabbed in the back of his head. He did not see his assailant approach. Breedlove, hearing Brewer shout about Bolinger, looked up and saw the two assailants, later identified as Hearing and Spivey, and realized that Bolinger was injured. Breedlove retrieved an aluminum softball bat from the trunk of his car and proceeded to strike Hearing in the shoulder and back. As Breedlove attempted to strike Hearing again, he was stabbed in the back twice by Spivey. Hearing then got the bat and struck Breedlove repeatedly, while Brewer jumped on Spivey’s back.

The location of the assaults was not visible from the door of Bell Bottoms, and at no point during the altercation did anyone attempt to go into Bell Bottoms to summon help. Finally, an off-duty Drug Enforcement Administration agent who was a customer at Bell Bottoms came out, the assailants ran, and police and paramedics were summoned.

Asked the basis for their contention that Habersham and Bell Bottoms were legally responsible for their injuries, Bolinger said “I think there should have been more sufficient lighting in the parking lot as well as security guards,” and Breedlove said “[l]ack of security provided for their [Bell Bottoms’] parking.” Both men acknowledged that, prior to this incident, they were unaware of any previous acts of violence occurring in the parking lot and that they did not consider the Buckhead area dangerous.

Caswell, in charge of leasing for Habersham at the time of the lease to P. E. Atlanta, Inc. and the time of the incident, was unaware of any criminal attacks on patrons in bars in the Buckhead area. Habersham had not provided any private security for the parking lot and had not been advised of any problems with the lighting of the lot.

Orr, Vice President of P. E. Atlanta, Inc. and in charge of running Bell Bottoms, had door staff who worked the door of the club to check for identification. These staff members were told, if a fight occurred in the club, to attempt to break it up. There had previously been only pushing and shoving incidents inside the club, and although he was unaware of any previous fights in the parking lot, had there been one, he would have called police. Orr did hire off-duty Atlanta police officers for weekend security inside Bell Bottoms, but the officer’s duty was pretty much to stay inside the door of the club and observe, as a deterrent. The officer was not at the club on the evening of the assault.

Case No. A00A0137

1. We consider first the issue of Habersham’s duty to the injured patrons and its contention that it was entitled to summary judgment.

A landlord’s duty to its tenants.arises under OCGA § 51-3-1. In Georgia that duty extends to protecting tenants from third-party criminal acts under certain circumstances. Doe v. Prudential-Bache &c. Realty Partners, L.P., 268 Ga. 604 (492 SE2d 865) (1997); Sturbridge Partners v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997). While the general rule is that a landlord is not an insurer of his tenant’s safety, the landlord does have a duty to exercise ordinary care to prevent foreseeable third-party criminal attacks upon tenants. The duty to guard against crime generally arises when, due to prior experience with substantially similar types of crime, the landlord has reason to anticipate criminal acts. A tenant will be precluded from recovery, even where such prior acts are known to the landlord, however, as a matter of law, when he or she has equal or superior knowledge of the risk and fails to exercise ordinary care for his or her own safety. Johnson v. Atlanta Housing Auth., 243 Ga. App. 157 (532 SE2d 701) (2000); Jackson v. Post Properties, 236 Ga. App. 701-702 (513 SE2d 259) (1999).

Here, prior to the incident at issue, Caswell, representing Haber-sham, was unaware of any reports of either property crimes or crimes against persons. Caswell’s statement that it “was possible” his father might have attended a meeting of the Buckhead Coalition during which police reports were discussed is of no worth to Breedlove and Bolinger in proving a factual issue regarding knowledge of police reports. First, it is based on hearsay which is probative of nothing. Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 707 (1) (505 SE2d 232) (1998); Whitmore v. First Fed. Sav. &c., 225 Ga. App. 768, 769 (1) (484 SE2d 708) (1997). Second, it is the law in Georgia that a property owner is under no obligation to investigate police files to determine whether criminal activities have occurred on his property. Sun Trust Banks v. Killebrew, 266 Ga. 109 (464 SE2d 207) (1995); Johnson, supra.

Both plaintiffs acknowledged that they were familiar with the area, had no knowledge of prior criminal incidents in the area, and did not consider Buckhead dangerous.

Plaintiffs’ argument to extend the rationale applied to automatic teller machines in Whitmore, supra, to bars and shopping center parking lots as a means of demonstrating a jury issue regarding foreseeability has previously been rejected. Carlock v. Kmart Corp., 227 Ga. App. 356, 358 (1) (489 SE2d 99) (1997); W. D. Enterprises v. Barton, 218 Ga. App. 857, 859 (463 SE2d 529) (1995).

The plaintiffs were unable to show superior knowledge on behalf of Habersham of the danger, and Habersham was entitled to summary judgment. Compare Doe, supra at 606, and Sturbridge, supra, with Woodall v. Rivermont Apts., L.P., 239 Ga. App. 36, 39-41 (1) (520 SE2d 741) (1999).

2. Habersham’s third enumeration deals with the trial court’s failure to rule on its motion to strike two expert affidavits submitted by plaintiffs in an effort to show a jury issue regarding foreseeability. We need not address this enumeration, however, because the affidavits do not comply with OCGA § 9-11-56 (e) in that they do not attach or specify the “evidence currently of record” upon which the experts’ opinions were premised. Further, the affidavits went only to the Whitmore argument, rejected in Division 1, supra.

Decided June 12, 2000.

Swift, Currie, McGhee & Hiers, Bradley S. Wolff, Law Office of Stacey A. Torpey, Leslie A. Lunsford, for appellants (case no. A00A0137).

Eric T. Johnson, for appellants (case no. A00A0138).

C. Suzette Ellis-Hoyle, for appellees.

3. The remaining argument, dealing with mutual combat, raised by Habersham is also raised by Bell Bottoms and is considered below.

Case No. A00A0138

4. Bell Bottoms’ first two enumerations are that it was entitled to summary judgment because thé acts were not foreseeable and, additionally, Breedlove engaged in mutual combat. They are considered together.

Just as the assaults were not foreseeable to Habersham, the entity which had control over the parking lot, neither were they foreseeable to Bell Bottoms, whose premises, pursuant to the lease, consisted only of the building. Doe, supra; Johnson, supra; Carlock, supra; W. D. Enterprises, supra.

Also, since Breedlove voluntarily chose to enter into mutual combat with the assailants, “the superior knowledge must always remain with the combatants, as they, by their voluntary participation, have selected the time, date, and place for the altercation.” Sailors v. Esmail Intl., 217 Ga. App. 811, 813 (1) (459 SE2d 465) (1995). Rappenecker v. L.S.E., Inc., 236 Ga. App. 86, 87 (1) (510 SE2d 871) (1999). Bell Bottoms was also entitled to summary judgment.

5. Bell Bottoms’ third enumeration is controlled by Division 2, supra, and the fourth enumeration is rendered moot by our decision in Division 4, supra.

Judgments reversed.

Ruffin and Ellington, JJ, concur.


author: Ruffin, Judge.

text:
    A00A0216.
    PERKINS v. THE STATE.
    (535 SE2d 802)
   Ruffin, Judge.

Benny Perkins was convicted in a bench trial of possession of marijuana with intent to distribute. He appeals, contending that the evidence was insufficient to show that he knowingly possessed the drugs. Because the evidence was sufficient, we affirm.

In considering a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to support the verdict, and the defendant is no longer entitled to a presumption of innocence. We do not weigh the evidence or determine the credibility of witnesses, but simply determine whether the evidence was sufficient to enable a rational trier of fact to conclude that the defendant was guilty beyond a reasonable doubt of the offense charged.

On Friday, February 13, 1998, Deputy Vincent Hester of the Cobb County Sheriff’s Office received a call from the manager of the Smyrna Airborne Express shipping center, who informed Hester of certain “suspicious” parcels that had been shipped from Texas. Hester went to the Airborne Express office in Smyrna and had his drug dog conduct a free air search of several parcels. The dog indicated that two of the parcels contained narcotics. Both packages were addressed to Vince Summerall at 18 Fredda Lane in Cartersville, Georgia. The sender was identified as “U. T. E. P. Home Study Program” in El Paso, Texas.

After obtaining search warrants, Hester opened the packages in the presence of Officer Kevin Cloninger of the Cartersville Police Department. Each package contained individually wrapped packages of marijuana. Altogether, there were 26 packages totaling more than 37 pounds of marijuana, which Hester testified had a wholesale street value of $37,000.

Cloninger and other officers then developed a plan to make a controlled delivery of the packages to the apartment at 18 Fredda Lane. Because Airborne Express would not let the police use one of their marked delivery vehicles, the police rented a plain green van with no markings to use in the delivery. Agent Mark Bertsch of the Drug Enforcement Administration posed as an Airborne Express delivery man and drove to the residence, arriving at about 2:15 p.m. Because the packages were large, he carried one of them to the door and left the other in the delivery van. He knocked on the door, and Perkins answered. According to Bertsch, Perkins “looked at the top of the box and he asked me . . . what office I worked out of.” Bertsch replied that he worked out of the Cartersville office. Perkins told Bertsch to put the packages on the porch. Bertsch set one package down and went back to the van to get the other one. When he returned, Perkins was inside the apartment. Bertsch called him out and asked him to sign the delivery log. According to Bertsch, Perkins “looked at me again and he looked at the package again and the truck again, and then he told me that the name on the package wasn’t him and that the person wouldn’t be back until three-thirty, and he asked me to redeliver the packages at three-thirty.” Bertsch then left and said that he would come back later. Jeff Shelton, a DEA agent conducting surveillance of the residence, testified that Perkins left about 10-15 minutes later in a white truck.

At about 3:00 p.m., Bertsch returned to the residence, but no one was home. Because the delivery instructions did not in fact require a signature, he left the two packages on the porch next to the front door. About an hour later, Perkins returned. According to Shelton, who was continuing his surveillance, Perkins went inside the front door, came back outside, picked up the packages, and took them inside. Shortly thereafter, Perkins drove to a gas station, where he made a telephone call from a pay phone. He returned to the residence about 15 minutes later and went inside. After a few minutes, he came back outside carrying a red duffle bag and got into his vehicle. The police arrested Perkins as he was starting to back out of his driveway. Upon searching him, they discovered $750 in cash in Perkins’ wallet.

The police then searched Perkins’ apartment pursuant to a search warrant. Upon entering the apartment, Officer Cloninger found the two packages just inside the front door. The packages had not been opened. Cloninger testified that the two-bedroom apartment was sparsely furnished. One bedroom simply contained two or three boxes of personal belongings, with no bed. In the other bedroom, Cloninger found a .380 caliber pistol and ammunition, a partially smoked marijuana cigarette, rolling papers, and metal pipe screens used in smoldng marijuana. In the living room, Cloninger found a black address book, which contained a local telephone number for Airborne Express. This same number was found written on the back of a card found in Perkins’ wallet. Cloninger testified that he called this number, and that it was an automated system used to track packages.

Agent Shelton testified that he had been involved in 50-100 controlled deliveries of contraband, and that in 99 percent of the cases the packages were addressed to a fictitious person. Agent Bertsch testified that he had been involved in more than 50 controlled deliveries, and that he had never seen a true name on a package. Deputy Hester testified that he had been involved in more than forty controlled deliveries, and that in no more than three cases had the package been addressed to a real person. He testified that the recipients of such packages often leave the residence immediately after the package is delivered to perform a “heat check” — i.e., “to check and see if they’re being observed, if they’re being followed, if they’re under surveillance.” He said that they often “get in the vehicle and leave. They’ll just drive around with no particular place to go.”

Perkins testified that he was originally from El Paso, Texas, but that he had moved to Georgia in September 1997. He said that he lived for a while with his aunt in Rome, but moved into the Fredda Lane apartment in December 1997. He testified that he worked in construction from September until the end of January, earning between $2,400 and $2,800 a month. His children and their mother lived in El Paso at the time, and he said he sent them about $300 once or twice a month. However, he had not worked in more than two weeks prior to his arrest on February 13, 1998.

Perkins claimed that he met Summerall at an Atlanta nightclub on Sunday, February 8, 1998, and learned that Summerall was also from El Paso. The two met again at Perkins’ apartment on Wednesday and decided to become roommates. Perkins admitted that he did not really know anything about Summerall other than that he was “some drunk guy [he] met at a bar.” According to Perkins, the two arranged to meet between 1:00 and 2:00 p.m. on Friday so that Summerall could sign the lease. However, Summerall did not show up at that time.

At about 2:15 p.m., Bertsch arrived to deliver the two packages. Perkins testified that he told Bertsch that Summerall was supposed to move in later that day, and that he would not sign for the packages because he did not want to be responsible if anything was broken. Even though he was supposed to meet Summerall to sign the lease, and the leasing office closed soon, Perkins testified that he then decided to drive to Rome, about 15 minutes away, to get a haircut. Perkins stated that he left the house at about 3:00 or 3:15, but Agent Shelton testified that he left about 2:20. Perkins claimed that he was gone for an hour and a half or two hours, and that he did nothing during that period other than drive to and from Rome and “wait[ ] in a line to get my haircut.”

Perkins testified that, when he returned and saw the packages sitting on the porch, he took them inside because he “thought [Summerall] had already signed for them.” Although Summerall did not have any keys to his apartment, Perkins said that “I thought maybe he was in the neighborhood or something.” He said that, as soon as he got into the house, he got paged by a friend. Because he did not have a phone in the apartment, he drove to a nearby store to return the call and left a message on the friend’s pager. When he returned to his apartment, he put some work boots in a duffle bag to take to his cousin. He left the apartment to deliver the boots and was arrested by the police.

Perkins admitted that the partially smoked marijuana cigarette and other paraphernalia found in the house were his, although he denied that he sold marijuana. With respect to the Airborne Express telephone number found in his wallet and in his address book, Perkins claimed that he had applied for a job with Airborne Express in the middle of January, and that “[t]he lady at the desk had told me that I was going to start on one of the Mondays, so she gave me this number and told me to call her and that she would set up everything for me to come in.” Perkins did not remember the lady’s name, however, and did not explain why he did not in fact start working for Airborne Express. He denied that the number was simply for the automated tracking service, claiming that it was a customer service number.

Perkins testified that he has not seen Summerall since his arrest. He testified that he had “[k]inda, sorta” tried to look for him, but only by going to the club where they allegedly met.

The sole issue in this appeal is whether the evidence was sufficient for the court to find that Perkins had knowledge of the contents of the two packages. Because the evidence of Perkins’ knowledge is circumstantial, the relevant question is whether, considering the evidence in its totality, a rational trier of fact could conclude that Perkins’ guilt is the only reasonable hypothesis consistent with the evidence. In considering this issue, we note that

[a] reasonable hypothesis . . . refers only to such reasonable inferences as are ordinarily drawn by ordinary [persons] in the light of their experience in everyday life; it does not mean that the act might by bare possibility have been done by someone else.

Furthermore,

[w]here the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the factfinder. Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court. Thus, this court will not disturb its finding unless the verdict is insupportable as a matter of law. If the totality of the evidence is sufficient to connect [the] defendant to possession of drugs, even though there is evidence to authorize a contrary finding, the conviction will be sustained.

In arguing that the evidence was insufficient, Perkins relies on Luke v. State, in which we reversed the defendant’s conviction for possession of marijuana. In that case, two UPS packages were addressed to the defendant’s father. The defendant, who was leaving his father’s house when the packages were delivered, signed for them at the request of the delivery man. The police then arrested the defendant and later arrested his father when he returned to the residence. On appeal, we reversed the son’s conviction, holding that there was “simply ... no evidence” that he knew the packages contained contraband. We noted that “[w]hile the evidence creates the gravest suspicion that defendant may be guilty . . . suspicion alone is not sufficient to support a conviction.”

If the only evidence in this case was that the packages were addressed to Summerall at Perkins’ address and that Perkins signed for the packages, we might agree that Luke is controlling and that the conviction must be reversed. However, the facts in this case are far different from those in Luke. For instance, the packages in this case were not addressed to a known occupant of the apartment, but to someone whose existence is evidenced only by Perkins’ self-serving testimony. In addition, Perkins was from El Paso, where the packages originated, and had family living there at the time of the arrest. There was expert testimony that Perkins’ conduct after the packages were delivered was consistent with that of someone who has just received drugs and wants to conduct a “heat check.” The fact that Perkins had marijuana paraphernalia and a gun in his house indicates that he was involved in drug activity. The fact that he had a large amount of cash in his wallet also tends to support such a finding, particularly since he had not worked in over two weeks before his arrest.

The trial court could also have found it very significant that Perkins had Airborne Express’ tracking number in his address book and in his wallet, since that suggests that he was expecting a package. Although Perkins claimed that the number had been given to him when he applied for a job, the trial court apparently found this explanation highly implausible under the circumstances. Perkins called no witnesses and presented no evidence to support this explanation, and the court could have considered it highly unlikely that he would have been given an automated tracking service number, or even a general customer service number, to call to find out when to report to work. Moreover, Perkins’ explanation suggested that he had been hired and was supposed to start work “one of those Mondays.” However, he gave no explanation for why he did not in fact start working for Airborne Express. If the court found Perkins’ explanation for why he had the number implausible, it could have concluded that the reason he gave such a false explanation was that the real explanation was incriminating — i.e., that he had the number in order to track the delivery of a package.

In addition, the trial court could have found Perkins’ conduct upon delivery of the packages difficult to reconcile with his purported lack of knowledge of their contents. In particular, Perkins’ first comment to Agent Bertsch was to ask what office he worked out of. This is a rather odd question to ask when receiving a package, and the trial court could have concluded that it indicated a level of wariness or suspicion as to the bona fides of the delivery man. Such wariness would not be expected if the recipient had no reason to suspect that the package contained contraband. The trial court also could have focused on the fact that, after initially indicating that he would accept the packages, Perkins changed his mind when he was asked to sign for them and then left the apartment for a period of time.

When considered in its totality, the above evidence at the very least creates a “grave suspicion” — far graver than in Luke — that Perkins was the intended recipient and was aware of the contents of the packages. It is not necessary, however, to decide whether such evidence alone is sufficient to support Perkins’ conviction. Perkins did not simply testify that he had no explanation for why drugs might be addressed to “Vince Summerall” and sent to his apartment. Rather, he testified at great length about his purported relationship with Summerall. If the trial court had grounds to disbelieve this testimony, then it could find that the only reasonable hypothesis consistent with the evidence was that Perkins was the intended recipient of the packages.

The trial court had ample reason to conclude that Perkins fabricated his account of his relationship with Summerall. In order to believe Perkins’ account, the trial court would have had to accept that Perkins asked Summerall to be his roommate, even though he knew nothing about Summerall except that he was “some drunk guy [he] met in a bar.” The trial court would also have had to believe that, after making arrangements on Wednesday to move in with Perkins on Friday, Summerall had $37,000 worth of marijuana delivered to his own name at Perkins’ residence and then failed to show up or otherwise contact Perkins in any way. Furthermore, although Perkins claimed that he and Summerall made very specific plans to meet on Friday so that Summerall could sign the lease, Perkins suddenly decided to drive to Rome that afternoon to get a haircut. At the time Perkins left, about 2:20 p.m., Summerall was only 20 minutes late for this alleged meeting, and Perkins testified that he was still expecting him to show. Moreover, according to Perkins, Summerall had to sign the lease to get a key, and the leasing office closed soon. Nevertheless, Perkins left around 2:20 p.m. and did not return until around 4:00 p.m., according to Shelton.

In addition to the implausibility of Perkins’ account, the trial court could have focused on contradictions in Perkins’ testimony. For example, Perkins testified on direct examination that he told Bertsch that Summerall “hasn’t moved in yet. He’s supposed to move in later today. . . . [Y]ou can come back around three-thirty; he should be here by then.” Bertsch, however, testified that Perkins said Summer-all “wouldn’t be back” until 3:30 p.m. and denied that Perkins said anything about Summerall not having moved in yet. When asked at trial where he came up with the 3:30 time, Perkins initially said, “Three-thirty? That’s about the time I left.” Upon further questioning, however, Perkins said, “Yeah, about three-thirty. I thought I’d be back from my haircut by then,” even though he previously claimed that he did not leave for the haircut until 3:00 or 3:15 p.m. Perkins also testified that, after telling Bertsch to return at 3:30 p.m., he said, “well, I tell you what you can do. Go ahead and take it back to the office and I’ll have [Summerall] come down there and get it. He said, okay. I said, what office is it? He said, the Cartersville station. I said, fine.” Bertsch, however, denied that Perkins said Summerall would come to pick up the packages and testified that Perkins asked what office he worked out of at the beginning of their conversation, immediately after Bertsch said he had a delivery for him.

In addition to the above contradictions and the general implausibility of Perkins’ account, the trial court could have found it highly unlikely that, if Summerall actually existed, Perkins would have made no real effort to locate him prior to trial. By his own admission, Perkins only “kinda, sorta” tried to find Summerall, and these minimal efforts simply consisted of going to the bar where they allegedly met.

Decided June 12, 2000.

McCrory & Baldwin, Aldous D. McCrory, for appellant.

T. Joseph Campbell, District Attorney, Pamela D. Brophy, Assistant District Attorney, for appellee.

In considering whether circumstantial evidence is sufficient to prove a defendant’s guilt beyond a reasonable doubt, the trier of fact is authorized to consider the totality of the evidence. Where the defendant offers an alternative hypothesis or explanation of the evidence, the reasonableness of that hypothesis is for the trier of fact to determine, and a reasonable hypothesis “refers only to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life.” For the reasons discussed above, the trial court was authorized to disbelieve Perkins’ testimony regarding his relationship with Summerall. Having done so, the trial court could conclude that the only reason Perkins concocted such an implausible explanation was that the true explanation was incriminating. Wfiien the evidence is considered in its totality — i.e., when the circumstantial evidence connecting Perkins with the package is considered together with Perkins’ false account about his relationship with Summerall — we believe that it was sufficient to authorize the trial court to conclude that Perkins was in fact the intended recipient of the packages and was aware of their contents. Accordingly, the evidence was sufficient to support Perkins’ conviction for possession with intent to distribute.

Judgment affirmed.

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

       The judge also found Perkins guilty of possession of marijuana, but merged the two counts for sentencing.

        Horne v. State, 237 Ga. App. 844-845 (1) (517 SE2d 74) (1999).

       See Luke v. State, 230 Ga. App. 712, 714 (3) (497 SE2d 376) (1998). Perkins does not challenge the sufficiency of the evidence with respect to the “intent to distribute” element, but simply contends that he had no knowledge of the contents of the packages.

       See OCGA § 24-4-6; Blair v. State, 216 Ga. App. 545, 546 (1) (455 SE2d 97) (1995) (conviction authorized if “totality of the evidence” connects defendant to possession of the drugs).

       (Punctuation omitted.) Sanford v. State, 193 Ga. App. 18 (1) (386 SE2d 899) (1989).

       (Citations and punctuation omitted.) Blair, supra.

        Luke, supra at 714-715 (3).

       Id. at 714 (3).

       (Punctuation omitted.) Id. at 715 (3).

       See Blaylock v. State, 242 Ga. App. 195, 197 (529 SE2d 203) (2000) (crack pipe found on defendant showed defendant was involved in drug activity at time of arrest).

       See generally Gremillion v. State, 233 Ga. App. 393, 396-397 (3) (504 SE2d 265) (1998) (large amounts of cash may be factor showing intent to distribute); Dent v. State, 233 Ga. App. 605, 606 (1) (506 SE2d 641) (1998) (large amount of cash found in defendant’s wallet and pocket supported conviction for possession with intent to distribute); Polke v. State, 203 Ga. App. 306, 310 (3) (417 SE2d 22) (1992) (large amount of cash found in house supported finding of intent to distribute).

       See Blair, supra.

       Id.

        Sanford, supra.


text:
    A00A0254.
    PARKER v. THE STATE.
    (535 SE2d 795)
   Andrews, Presiding Judge.

Gerald Parker was convicted of armed robbery by a jury. He was sentenced to a term of life imprisonment. On appeal, Parker raises 13 points of error. Finding no error, we affirm.

1. Parker first challenges the sufficiency of the evidence to support his conviction.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant ... 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)). Conflicts in the testimony of the witnesses, including the State’s witnesses, (are) a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311) ((1976)). Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130) ((1995)). (Furthermore,) the testimony of a single witness is generally sufficient to establish a fact. OCGA § 24-4-8.” (Citations and punctuation omitted.) Grisson v. State, 225 Ga. App. 816, 817-818 (484 SE2d 802) (1997).

Hagood v. State, 228 Ga. App. 693, 694 (2) (492 SE2d 606) (1997).

Applying this standard to the present case, we find sufficient evidence to support conviction for armed robbery. Kimbrough Dunaway, the victim, testified that Parker stole cash money from the register drawer of the convenience store, located in Emanuel County, where she was working on April 20, 1996. She further testified that, during the course of the theft, Parker produced a knife which he exposed toward her. She allowed Parker to take the money, and he then left the store.

Evidence was also introduced of two similar transactions where Parker robbed stores occupied by lone female clerks. Both of these clerks positively identified Parker as the person who robbed them with a knife. Both of these incidents took place in the months immediately preceding this robbery, and both transpired in a neighboring county.

The State further introduced into evidence a tape of an interview with Parker regarding the robbery. The interview was taped without his knowledge. It was made after Parker had been read his rights and was judged proper and admissible by the trial judge.

The evidence supporting the conviction can be summarized as follows: (1) The crime took place in Emanuel County, Georgia. (2) Parker was the perpetrator of the crime. (3) Property was taken. (4) The theft occurred in the “immediate presence” of the victim. See Welch v. State, 235 Ga. 243 (219 SE2d 151) (1975); Battle v. State, 155 Ga. App. 541 (271 SE2d 679) (1980); Wilson v. State, 207 Ga. App. 528 (428 SE2d 433) (1993). (5) Parker was in possession of an offensive weapon, a knife. (6) Parker “pulled a knife out” during the commission of the robbery. (7) Based on these facts, a reasonable jury could find the requisite intent on the part of Parker. These facts are sufficient to support a verdict of guilty of armed robbery.

2. Parker’s second enumeration is that the trial judge erred in failing to grant a new trial because the judgment was contrary to the weight of the evidence, based on OCGA § 5-5-21 which states: “The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.”

“A trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.” Ricketson v. Fox, 247 Ga. 162, 163 (2) (274 SE2d 556) (1981). As noted in Division 1, there is evidence supporting the verdict. The trial court’s decision will not be disturbed.

3. Parker’s third enumeration is that it was error to allow a police officer to testify in a similar transactions hearing about information he had gathered from witnesses. Hearsay testimony to establish the similarity of other transactions is allowed when given by a law enforcement official who actually investigated and has personal knowledge of the other transactions. Jackson v. State, 217 Ga. App. 485 (458 SE2d 153) (1995); Castellon v. State, 240 Ga. App. 85 (522 SE2d 568) (1999). Also, prosecuting attorneys are permitted to state directly to the court what evidence they are prepared to produce. Such a statement by the prosecuting attorney alone is sufficient in a pretrial hearing regarding the admissibility of similar transactions evidence. Houston v. State, 187 Ga. App. 335 (370 SE2d 178) (1988); Hall v. State, 181 Ga. App. 92 (351 SE2d 236) (1986). The trial court’s decision was correct.

4. Parker’s fourth enumeration is without merit. Appellant contends that the trial court committed error in admitting the evidence of similar transactions because the potential prejudice to him exceeded the probative value of the evidence.

Before it can introduce evidence of a similar transaction, the State is required to make three affirmative showings. The State must show: (1) that the evidence is not being introduced for some improper purpose but rather for an appropriate purpose which is an exception to the general rule of inadmissibility; (2) sufficient evidence to show the accused committed the other offense; and (3) sufficient connection or similarity between the other offense and the crime charged such that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991). In a hearing the court found:

the State seeks to introduce evidence of [similar transactions] to show identity, motive, plan, scheme, bent of mind, and course of conduct, and that . . . outweighs its prejudicial impact. And this is an appropriate purpose. There is sufficient evidence to establish that the accused committed these . . . acts and . . . there is a sufficient similarity between these [acts] and the crimes charged so that proof of the former tends to prove the latter.

We agree and conclude that the evidence was admissible.

The trial court has broad discretion to exclude otherwise admissible evidence if the probative value is outweighed by its tendency to cause undue prejudice, to confuse the issues, to unduly consume time, to mislead the jury, or unfairly surprise the opposing party. Candler v. Byfield, 160 Ga. 732, 739 (129 SE 57) (1925); Ludwig v. J. J. Newberry Co., 78 Ga. App. 871, 875 (2) (52 SE2d 485) (1949) (Ludwig points out that the mere fact that evidence will harm the case of the opposing side does not show undue prejudice); Frederick v. State, 226 Ga. App. 540, 542 (487 SE2d 107) (1997).

Moreover, Parker waived any claim that the potential prejudice exceeded the probative value of the evidence because no objection was made on this ground when the evidence was introduced at trial. When this evidence was introduced, the sole objections were to the similarity of the offenses and as to the form of the jury instructions regarding similar transactions evidence. The matter of undue prejudice was not raised to the trial judge and was not passed upon.

5. In his fifth enumeration of error, Parker asserts that the trial court erred in admitting a videotaped interview by a police officer with Parker. Parker had twice been advised of his Miranda rights and consented to an interview with the detective. He was unaware that he was being videotaped. At the hearing for new trial Parker raised this issue but noted:

I believe the case of the [Carswell v. State, 268 Ga. 531 (491 SE2d 343) (1997)], however, which has been rendered by the Supreme Court after we prepared this brief may keep us from raising that issue. I think the Supreme Court is pretty clear that it doesn’t matter if the defendant knows he’s being videotaped or not, apparently that’s not an error.

He was correct. Nonetheless, Parker has raised the issue again on appeal. Carswell stated the general proposition that there can be no “reasonable subjective expectation of privacy associated with a suspect’s statements made during an interrogation session held in a police station.” Carswell, 268 Ga. at 533. This holding was directly related to the admission of a videotaped interview of a suspect in the police station without the suspect’s knowledge that the interview was being taped. The admission of the videotaped interview was not error.

6. The sixth enumeration is that the trial court erred in admitting the tape because it contains information regarding drug use and past domestic problems thereby putting Parker’s character in issue.

While it is generally true that the defendant’s character cannot be put in issue in a criminal case unless the defendant chooses to put character in issue, material evidence does not become inadmissible simply because it incidentally places the defendant’s character in issue. Hall v. State, 264 Ga. 85 (441 SE2d 245) (1994); Moss v. State, 148 Ga. App. 459 (251 SE2d 374) (1978). Further, this evidence was independently relevant as it, at a minimum, explained the defendant’s motive. Hall, 264 Ga. at 86. In light of this standard, we cannot say that the admission of the videotape and its contents improperly put the defendant’s character in issue. There was no error.

7. In his seventh enumeration of error, Parker claims that the trial court committed error in admitting State’s Exhibit 10. That exhibit, however, was not admitted into evidence because the trial judge refused the State’s request to admit it.

8. The eighth enumeration of error is that the trial judge committed error in the jury charge regarding similar transactions. Parker urges that the jury charge of the trial judge was deficient with regard to similar transactions because it failed to properly inform the jury that, in order to consider similar transactions, it must first determine that the defendant was the perpetrator of the separate offenses and that the similarities between the transactions must be such that proof of the former tends to prove the latter. There was no error. The trial court gave the jury the applicable pattern charge which has been held to be sufficient. Farley v. State, 265 Ga. 622, 626 (3) (458 SE2d 643) (1995) (upholding the pattern charge).

Furthermore, with regard to similarity, the court made a specific finding that these transactions were sufficiently similar to be admitted into evidence. At that same time, the judge ruled that the State had made the three affirmative showings required by Williams, 261 Ga. 640. We find no error with the trial judge’s jury charge regarding similar transactions.

9. The ninth enumeration of error is that the trial judge improperly admitted into evidence a photographic lineup which included Parker, because the pretrial identification procedure was impermissibly suggestive. Parker argues that his picture was sufficiently different from the others in the lineup and, thereby, suggested to the witnesses that they should select him.

State’s Exhibit 13 was used to identify Parker as the perpetrator of the offenses introduced as similar transactions. Both of the victims of these transactions were shown this lineup separately and both identified Parker. Both were admonished that they did not have to select a person out of the lineup and that the perpetrator may not be in the lineup. The individuals in the photographs, including Parker, were described as being between 5’8” and 5T1” tall, between 155 and 175 pounds, between 32 and 35 years of age, medium complexion, short hair, light facial hair, and all were African-American males.

The trial court properly decided this matter under the standard set forth in Tiller v. State, 222 Ga. App. 840 (476 SE2d 591) (1996). That standard states:

Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. In fact, even where a pretrial identification has been found to be tainted, a subsequent in-court identification is admissible if it does not depend on the prior, tainted identification but has some other, independent basis.

(Citations omitted.) Id. at 841.

Parker does not challenge the actual procedure of the lineup but argues that the difference between his picture and the pictures of the other five men in the lineup is so impermissibly suggestive that it gives rise to a very substantial likelihood of irreparable misidentification. While it is true that Parker does not look identically like the other men in the lineup, admission of the State’s Exhibit 13 was not error. Moreover, even if the lineup had been improperly admitted, Parker has shown no harm. The in-court identifications were all based on actual recollection of Parker observed by the witnesses during his interaction with the witnesses.

10. In his tenth enumeration of error, Parker claims that State’s Exhibits 11 and 12 (a pack of chewing gum and a lottery ticket, respectively) were admitted without a proper foundation being laid. In Parker’s brief to this Court he asserts: “Nowhere in the transcript does it appear that a witness for the State identifies the pack of gum . . . or the lottery ticket. . . . [N]o foundation was ever laid by the State for the introduction into evidence of said items. . . The trial transcript reflects that during the State’s examination of the police investigator, the following transpired:

Q. I’m going to show you what’s marked State’s Exhibit 11.
A. Yes, sir.
Q. Can you identify that, please?
A. Yes, sir. That’s one pack of Wrigley’s Juicy Fruit gum.
Q. Okay, how can you — where did you receive that from?
A. I recovered that at the crime scene the night of the incident, which would have been the Time Saver across from the Post Office.
Q. Okay. Has that been in your possession since that time?
A. Yes, sir, it has.

Continuing on:

Q. Okay, do you have State’s Exhibit 12 up there?
A. Yes, sir, I do.
Q. Okay. Can you tell us what that is, please?
A. Yes, sir. Exhibit 12 is nothing other than a cash three lottery ticket that I also recovered at the crime scene laying on the same counter that the Juicy Fruit gum was laying on. . . .
Q. Has it been inside your custody since that time?
A. Yes, sir, it has.

An adequate foundation was laid.

Further, when these exhibits were admitted into evidence, no objection was made regarding foundation. Accordingly, the trial judge did not make a ruling on that issue for this Court to review.

11. As his eleventh enumeration of error, Parker claims error in the court’s failure to charge the jury on theft by taking as a lesser included offense. Parker is incorrect in asserting that evidence that the victim turned away from the counter for a moment before he reached into the cash register creates a question of fact regarding whether or not the crime was committed in the immediate presence of the victim. There was no evidence introduced at trial to indicate that the victim was ever out of Parker’s immediate presence during the commission of the crime. The victim was at all times during the robbery standing behind the counter in an enclosed space in the convenience store. Immediate presence does not mean “within arm’s length” or “facing.” Battle, 155 Ga. App. 541; Wilson, 207 Ga. App. 528.

Where the State’s evidence clearly warrants a jury instruction on armed robbery and there is no evidence of the lesser offense of theft by taking, it is not an error to refuse to charge the jury as to theft by taking. Shepherd v. State, 234 Ga. 75 (214 SE2d 535) (1975); Sanders v. State, 135 Ga. App. 436 (218 SE2d 140) (1975). Here, there was no evidence introduced at trial raising the lesser offense and, therefore, no error in refusing the requested charge. Mitchell v. State, 221 Ga. App. 183, 184 (3) (470 SE2d 771) (1996).

Decided June 12, 2000.

Lovett Bennett, Jr., for appellant.

Richard A. Malone, District Attorney, for appellee.

12. In his twelfth enumeration of error, Parker asserts that the trial court erred by sentencing him under the recidivist sentencing guidelines set out under OCGA § 17-10-7, contending that the trial court should have used the recidivist guidelines set out under OCGA § 16-8-41.

Although Parker argues that OCGA § 16-8-41, itself, contains recidivist provisions, it does not. To the extent OCGA § 16-8-41 deals with recidivism, it references OCGA §§ 17-10-6.1 and 17-10-7. The relevant language, therein, states that: “Any person convicted under this Code section shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.” OCGA § 16-8-41 (d). Therefore, given the timely and appropriate notice of intent to use prior convictions for recidivism purposes, the trial court had no choice but to apply the standards of OCGA § 17-10-7. We find no error.

13. Finally, Parker argues that the use of the recidivism provisions was inappropriate because there was no evidence that he knowingly entered a valid waiver of his constitutional rights at the time of his sentencing for burglary in 1984.

Though we question this argument in light of cases like Nash v. State, 233 Ga. App. 75 (503 SE2d 23) (1998) (discussing the effect of the presumption of regularity on convictions based on guilty pleas after judgment has become final) and Parke v. Raley, 506 U. S. 20 (113 SC 517, 121 LE2d 391) (1992), we need not address it. Parker questions one of his two prior convictions. He does not contest his 1985 conviction, a felony conviction for terroristic threats. That conviction. was, therefore, sufficient to activate the recidivism section used by the trial court in sentencing. See OCGA § 17-10-7 (a) (indicating that conviction of a felony is all that is required for the activation of the provisions of the subsection). The trial court committed no error.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.