text:
    A99A0134.
    CONDRA v. THE STATE.
    (518 SE2d 186)
   Pope, Presiding Judge.

Walter J. Condra appeals from his convictions for child molestation and aggravated sexual battery involving his four-year-old niece. We affirm.

1. Condra contends the trial court erred in allowing similar transaction testimony regarding sexual contact between Condra and his sister because it was hearsay. When Condra’s sister took the stand, she first refused to testify regarding sexual activity with Condra, stating, “No comment” in response to the prosecutor’s questions. However, upon further questioning, she denied telling the police investigator that Condra had talked her into performing oral sex when she was 11 years old. She also said that Condra had never fondled her breasts or vagina and that he had never had sexual intercourse with her. Condra’s counsel declined any cross-examination of the sister.

The trial court then allowed the police investigator to testify as to the sister’s prior statement, in which she said that Condra had “pursued” her into performing oral sex on him when she was around 11 and he was 13. The court also allowed Condra’s half-brother to testify that the sister had admitted to him that she and Condra had engaged in vaginal intercourse.

We find that this testimony was correctly admitted as a prior inconsistent statement by the sister. “[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.” Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982). While Condra’s sister refused to answer most of the prosecutor’s questions, she did deny having certain forms of sexual contact with Condra. The testimony regarding the sister’s prior statements directly contradicted her denials on the stand and thus was admissible as a prior inconsistent statement. See id.; Kapua v. State, 228 Ga. App. 193, 195 (1) (491 SE2d 387) (1997); Foster v. State, 216 Ga. App. 26, 28 (2) (453 SE2d 482) (1994).

2. Condra also asserts that the sexual incidents involving his sister were not similar to the crime with which he' was charged because they were too remote in time, because he was a juvenile when the incidents occurred, and because the incidents were different from the acts with which he was charged.

We will not disturb a trial court’s determination that similar transaction evidence is admissible absent an abuse of discretion. Livery v. State, 233 Ga. App. 332, 334 (1) (a) (503 SE2d 914) (1998).

In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.

(Citation and punctuation omitted.) Gibbins v. State, 229 Ga. App. 896, 899 (4) (495 SE2d 46) (1997).

The evidence showed the incident of oral sex between Condra and his sister occurred some 21 years prior to trial, and at least 20 years before the incidents with Condra’s niece. There was no evidence of the date of the acts of sexual intercourse, so Condra contends that such acts also could have occurred while both he and his sister were children and thus were too remote in time.

The rules regarding the use of similar transaction evidence are construed most liberally in cases involving sexual offenses. The lapse of time between the charged offense and the similar transaction must be considered when deciding whether to admit evidence of independent crimes; however, particularly in cases involving the sexual exploitation of young family members over generations, the remoteness in time is not wholly determinative, but goes to weight and credibility.

(Citations omitted.) Nichols v. State, 221 Ga. App. 600, 601-602 (3) (473 SE2d 491) (1996). In such cases, this Court has allowed evidence of incidents occurring as much as 29 years earlier. See Gibbins v. State, 229 Ga. App. at 899 (4); Nichols v. State, 221 Ga. App. at 602; Snow v. State, 213 Ga. App. 571, 572 (2) (445 SE2d 353) (1994); Starnes v. State, 205 Ga. App. 882, 883 (1) (424 SE2d 4) (1992). Here the evidence showed numerous incidents of sexual molestation by Condra involving young family members over that 21-year time span. Under these circumstances, we find the evidence relating to his sister was not too remote to be admissible.

Neither does the fact that Condra was a juvenile affect the admissibility of this evidence. We have held that a “defendant’s youth at the time of the similar transaction should be considered when deciding if the testimony should be admitted to show lustful disposition and inclination, i.e., bent of mind.” Stephens v. State, 205 Ga. App. 403, 404 (1) (422 SE2d 275) (1992). In the instance of oral sex, the evidence showed that Condra “pursued” his sister until she consented to perform oral sex upon him. Given defendant’s age and his persistence, his request for oral sex was “not the faultless act of an innocent child,” but rather demonstrates evidence of his bent of mind. Id.; Gilham v. State, 232 Ga. App. 237, 239 (1) (501 SE2d 586) (1998). Tire, same can be said for repeated acts of sexual intercourse with his sister.

Condra also notes that because the state did not provide a date when the incidents of sexual intercourse with his sister occurred, they could be acts of consensual sex between two adults and thus unrelated to the acts for which he was tried. As previously noted, the rules regarding the admissibility of prior acts are most liberally extended in the area of sexual offenses, particularly those involving children. Fields v. State, 233 Ga. App. 609, 610 (1) (504 SE2d 777) (1998). The evidence regarding Condra’s sexual intercourse with his sister was admissible to show his bent of mind and lustful disposition with regard to his younger family members. See Phagan v. State, 268 Ga. 272, 279 (4) (486 SE2d 876) (1997). Cf. Miller v. State, 219 Ga. App. 213, 217 (3) (464 SE2d 621) (1995).

Accordingly, we find no abuse of discretion by the trial court in allowing the admission of the evidence regarding Condra’s sister.

3. Condra also argues that it was error to allow testimony regarding his sexual contact with his half-brother. The half-brother testified that Condra had molested him and engaged in forcible sodomy with him on several occasions when he was six to eight years old. At the time of these incidents, Condra was in his early to mid-20’s and married. Condra argues that this evidence should not have been admitted as a similar transaction because it was too remote in time, occurring seven to nine years before the incidents involving his niece, and because the incidents, which involved the anal penetration of a male child, were not sufficiently similar to the charge that he touched his niece’s vagina, with no allegations of penetration.

For the reasons noted above, we find that these incidents were not too remote in time to be admissible. Moreover, “[t]he sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible.” Willett v. State, 223 Ga. App. 866, 872 (3) (a) (479 SE2d 132) (1996). Although the incidents here involved children of different sexes, they were substantially similar in that they all occurred at the home where Condra was staying and involved a much younger family member. See Swift v. State, 229 Ga. App. 772, 775 (2) (d) (495 SE2d 109) (1997); McCormick v. State, 228 Ga. App. 467, 468 (3) (491 SE2d 903) (1997); Hall v. State, 204 Ga. App. 469, 470-471 (1) (419 SE2d 503) (1992).

Decided May 20, 1999.

Charles G. Wright, Jr., for appellant.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney, for appellee.

We find, therefore, that the trial court properly admitted evidence of Condra’s sexual relations with his half-brother.

Judgment affirmed.

Smith and Eldridge, JJ, concur.

       It is logical to assume that the acts of sexual intercourse would have occurred at some point after Condra pursued his sister for oral sex. But even if they occurred before, they would have occurred within the time frame allowed in similar cases as the sister was only 11 years old at the time of the incident of oral sex.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A99A0313.
    A99A0355.
    ROOKS v. THE STATE. MONROE v. THE STATE.
    (518 SE2d 179)
   Pope, Presiding Judge.

Harold Rooks appeals from his convictions for armed robbery, aggravated assault, attempt to elude, reckless driving, speeding, and driving with no license or proof of insurance. Frederick Monroe appeals from his convictions for armed robbery and aggravated assault.

On or about August 24, 1995, four men arrived at the Corral Food Store in Milledgeville, Georgia. At around 3:30 a.m., Lee Wilkins, who was dozing outside the store, was awakened by a man ordering him out of the car and pointing a shotgun in his face. Two other men, at least one of whom held a pistol, were also present. The men demanded that Wilkins go behind the store. Wilkins refused and the men forced him into the store, where two clerks were inside. Three men, one armed with a shotgun and two armed with pistols, then demanded money. After the two clerks handed the money over, the men backed out of the store and took off. Rooks and Monroe were identified at trial as two of the gunmen in the store. The store employees then called 911 to report the crime. A short time later a shotgun blast was fired through the store’s window. After the crime was reported, the police observed a burgundy Ford Explorer exiting a parking lot from behind the store. A multi-county, high-speed chase ensued and ended only when the car crashed in Macon, Georgia, killing two of the passengers. Rooks and Monroe were pulled from the wreckage alive.

Case No. A99A0313

1. In his sole enumeration, Rooks asserts that the trial court erred in admitting an audiotape of the 911 call made from the store because the defense had not been allowed to listen to the tape at least ten days before trial as required by OCGA § 17-16-4 (a) (3). When the state tried to introduce the tape at trial, counsel for both Rooks and Monroe objected stating that they did not recall seeing the tape during the prior discovery exchange with the state. The prosecutor, on the other hand, recalled showing the tape to Rooks’ and Monroe’s counsel at the discovery exchange and discussing its contents. Monroe’s counsel conceded that the tape could have been there, noting that the prosecution had been “very truthful with me and very open with me. I just simply don’t remember it.” Defendants’ counsel listened to the tape shortly before the trial began.

Assuming arguendo that the state failed to comply with the discovery statute, we find no error in the admission of the tape. The discovery statute grants broad discretion to the trial court in remedying any violations of its provisions. Marshall v. State, 230 Ga. App. 116, 118 (2) (495 SE2d 585) (1998).

[T]he court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.

OCGA § 17-16-6.

In enacting this statute, the legislature did not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the State for failure to comply with the discovery mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to ensure a fair trial.

(Citation and punctuation omitted.) Peeples v. State, 234 Ga. App. 454, 456 (2) (507 SE2d 197) (1998).

In this instance, although Rooks now argues he was prejudiced because he was not prepared to address the discrepancies between the 911 tape and the victims’ testimony at trial, he never asserted this argument before the trial court and never requested a continuance to allow further preparation. The defendants objected only that the state had failed to produce the tape earlier. The trial judge then ascertained that counsel had had the opportunity to listen to the tape before allowing its admission into evidence. We find that the trial court acted within its discretion in allowing the 911 tape into evidence and that no abuse occurred. See McWhorter v. State, 229 Ga. App. 875, 876 (2) (495 SE2d 139) (1997); Hammitt v. State, 225 Ga. App. 21, 22 (482 SE2d 437) (1997) (physical precedent only).

Case No. A99A0355

2. In his first enumeration, Monroe argues his conviction for aggravated assault merged into his armed robbery convictions because the same evidence was used to convict him of both charges.

The offenses of aggravated assault and armed robbery do not merge as a matter of law. Brantley v. State, 230 Ga. App. 651, 652 (2) (497 SE2d 399) (1998). However, the offenses may merge as a matter of fact, and

“[t]he key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge.”

(Citation omitted.) Reeves v. State, 233 Ga. App. 802, 805 (2) (505 SE2d 540) (1998).

Monroe was convicted on two counts of armed robbery, each count relating to one of the two clerks in the store. His conviction for aggravated assault, however, was based upon a charge that he had assaulted Lee Wilkins with a firearm. The jury was unable to reach a decision on additional aggravated assault charges against Monroe as to the two store clerks, and a mistrial was declared as to those counts.

“If the pointing of a firearm places the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred. [Cits.]” (Punctuation omitted.) Dunagan v. State, 269 Ga. 590, 593 (2) (b) (502 SE2d 726) (1998). The evidence at trial supported a finding that the offense of aggravated assault was complete when Lee Wilkins was accosted at gunpoint in his truck, before the defendants even entered the store. The armed robbery of the two clerks then occurred after the men entered the store. Alternatively, the jury could have found that the aggravated assault occurred when the shotgun blast was fired through the window of the store, after the completion of the robbery. Either way, “ ‘the underlying facts used to prove each offense are different and the evidence showed that one crime was complete before the other occurred.’ ” (Citations omitted.) Reeves v. State, 233 Ga. App. at 805. Accordingly, no merger occurred. See id.; Guild v. State, 234 Ga. App. 862, 865 (3) (508 SE2d 231) (1998).

3. Monroe next asserts that the trial court erred when it allowed a statement made by his co-defendant Rooks into evidence in violation of Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). Rooks’ original statement directly implicated Monroe in the crimes. At trial, however, the only evidence of the statement came through the testimony of the investigating officer. The officer testified that Rooks told him that he was in the Ford Explorer that night with Monroe and the two other men when they stopped at the Corral Food Store. That was the only reference to Monroe by name. The officer then testified, “Mr. Rooks said he went into the store first and that the other men came in after he did. He said they had guns and that they began robbing the store.” The testimony then proceeded with continued references to “they” and “the other men.” Rooks did not testify.

Every defendant has the right under the Sixth Amendment to be confronted with the witnesses against him. Bruton holds that the right of confrontation is violated when several co-defendants are all tried jointly, one defendant’s confession is used to implicate another defendant in the crime, and the confessor does not take the stand. The result is that the accusing co-defendant cannot be cross-examined. . . .

(Citation and punctuation omitted.) Hodges v. State, 229 Ga. App. 475, 477 (2) (494 SE2d 223) (1997).

In a recent opinion, the U. S. Supreme Court further explained the protection offered by the Confrontation Clause. It stated that the Confrontation Clause is not violated by “statements that [do] not refer directly to the defendant himself and which [become] incriminating ‘only when linked with evidence introduced later at trial.’ ” Gray v. Maryland, 523 U. S. 185 (118 SC 1151, 1157, 140 LE2d 294) (1998). However, “statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial” do fall within the protection of Bruton. Id.

The Supreme Court of Georgia, “[flollowing the lead of the U. S. Supreme Court,” recently held

that, unless the statement is otherwise directly admissible against the defendant, the Confrontation Clause is violated by the admission of a nontestifying co-defendant’s statement which inculpates the defendant by referring to the defendant’s name or existence, regardless of the existence of limiting instructions and of whether the incriminated defendant has made an interlocking incriminating statement. A co-defendant’s statement meets the Confrontation Clause’s standard for admissibility when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant.

Hanifa v. State, 269 Ga. 797, 803 (2) (505 SE2d 731) (1998).

In this instance, the testimony was that Rooks told police that he was in the car that night with three other men, including Monroe. Rooks then said that the men arrived at the store and “the other men” began robbing it. The obvious inference was that Monroe was one of the “other men” and thus Rooks’ statement inculpated Monroe in the robbery. Accordingly, we find that the admission of this testimony was a violation of the rule outlined in Bruton. See id. at 804; McDonald v. State, 210 Ga. App. 689, 690-691 (2) (436 SE2d 811) (1993).

However, upon reviewing all the evidence, we find that the admission of the statement was not sufficiently harmful to support a reversal in this case, as there was other, overwhelming evidence of Monroe’s guilt. Monroe’s own statement placed him at the scene of the crime, and he was positively identified by one of the clerks as one of the gunmen participating in the robbery while the other clerk made a tentative identification. Monroe was pulled from the vehicle that left the store and crashed after a high-speed chase. And four guns were found in and around the vehicle at the crash site. Rooks’ statement did not implicate Monroe in the crimes more than this other evidence. Accordingly, we find that the admission of the statement was harmless error. Hanifa v. State, 269 Ga. at 804; McDonald v. State, 210 Ga. App. at 691.

4. Monroe also contends that the trial court erred in denying his motion to sever his trial from that of his co-defendant.

“Abuse of discretion amounting to a denial of due process must be shown before a trial court’s decision on a motion to sever in a non-capital felony case will be overturned. [Cit.]” (Punctuation omitted.) Hunnicutt v. State, 234 Ga. App. 560, 561 (1) (507 SE2d 802) (1998). “To be entitled to a severance, the appellant must have made a clear showing of prejudice resulting from joinder of these trials amounting to a denial of due process, rather than the mere possibility that a separate trial would improve appellant’s chance of acquittal.” (Citation omitted.) Autry v. State, 230 Ga. App. 773, 775 (3) (498 SE2d 304) (1998).

Monroe argues his trial should have been severed because he and Rooks presented antagonistic defenses, and because some of the evidence concerning the high-speed chase related to Rooks alone, but could have caused confusion among the jurors, resulting in their applying such evidence against Monroe. However, “[t]he mere fact that co-defendants’ defenses are antagonistic is not sufficient in itself to warrant separate trials. A showing of harm is necessary.” (Citations and punctuation omitted.) Hunnicutt v. State, 234 Ga. App. at 561.

Rooks was charged in this case with ten counts, including five counts relating to the high-speed chase. He was convicted on all ten counts. Prior to the introduction of any evidence relating to the chase, the trial court issued limiting instructions directing the jury to limit such evidence to Rooks. In contrast, Monroe was not charged with any offenses relating to the high-speed chase. He was indicted only on five counts of aggravated assault and armed robbery all relating to events occurring before the chase occurred. He was convicted of only three of those counts. This suggests that the jury was not confused by the evidence, and that “any purported tension between the defenses presented by the co-defendants did not result in harm to [Monroe].” Hanifa v. State, 269 Ga. at 806 (4). We find that the trial court did not abuse its discretion in refusing to sever. See Autry v. State, 230 Ga. App. at 775 (3); Skidmore v. State, 226 Ga. App. 130 (1) (485 SE2d 540) (1997).

5. In his remaining two enumerations, Monroe challenges the admission of his own statement. He argues the trial court erroneously found that the statement was freely and voluntarily given and thus incorrectly denied his motions to suppress the statement. Monroe asserts that his statement should have been suppressed because it was taken within hours after his involvement in the car crash and subsequent hospital treatment, and the investigating officer made no effort to determine if he was on any medication. He also notes that the officer failed to require proof that Monroe’s grandmother, who was present when his statement was made, was his legal guardian or to determine if either Monroe or his grandmother were literate.

A trial judge’s determination of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights will be accepted unless such determination is clearly erroneous. McCoy v. State, 234 Ga. App. 879, 882 (1) (a) (508 SE2d 224) (1998). To determine whether a defendant makes a voluntary and knowing statement a trial court must look at the totality of the circumstances.

When the accused is a juvenile, the totality of the circumstances is determined through an analysis of nine factors: (1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge and the nature of the accused’s rights to consult with an attorney and to remain silent; (4) whether the accused was held incommunicado or allowed to consult with relatives, friends, or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in the interrogation; (7) length of interrogation; (8) whether or not the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extrajudicial statement at a later date.

Id. at 880-881 (1) (a).

Monroe, who was I6V2 years old and in the tenth grade, was interviewed by an officer from the Baldwin County Sheriff’s Department at noon on the day of the robbery. Monroe was accompanied by his grandmother, who stated she was his legal guardian. The officer read Monroe his rights before speaking to him, and then allowed Monroe to read over a Miranda form, which informed him that he was suspected of armed robbery. Both Monroe and his grandmother signed the form. Monroe’s grandmother gave the officer permission to speak with her grandson. The officer once again advised Monroe of his rights before taking his statement. Monroe appeared to be coherent and indicated that he understood his rights and was willing to make a statement. He showed no signs of intoxication and did not appear to have any difficulty understanding what was going on.

Monroe did not offer any evidence showing that his grandmother was not, in fact, his legal guardian, or indicating that either he or his grandmother was illiterate. Nor did he present any evidence regarding his physical condition or medication at the time he gave the statement.

In addition to the testimony from the investigating officer, the trial judge reviewed both Monroe’s school records and a mental evaluation, which he had ordered performed on Monroe. Based upon his review of the record, the trial judge determined that the investigating officer had properly informed Monroe of his rights in front of his legal guardian and that Monroe had freely, knowingly and voluntarily waived his rights. Since the evidence supports the trial judge’s findings, we find no error in the admission of Monroe’s statement. See Hanifa v. State, 269 Ga. at 805 (3); Yorker v. State, 266 Ga. 615, 617 (4) (469 SE2d 158) (1996); McCoy v. State, 234 Ga. App. at 882 (1) (a); Skidmore v. State, 226 Ga. App. at 131 (2).

Decided May 20, 1999.

Bellury & Luton, Evelyn P. Luton, for appellant (case no. A99A0313).

Jerry Boykin, for appellant (case no. A99A0355).

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.

Judgments affirmed.

Smith and Eldridge, JJ., concur.

       Rooks claims coverage under the discovery statute pursuant to OCGA § 17-16-2 (a), which provides that in multidefendant cases, whenever one defendant elects to proceed under the statute, it applies to all defendants unless a severance is granted. Monroe filed a formal election to proceed under the discovery statute, which then applied to his co-defendant Rooks.


author: Eldridge, Judge.

text:
    A99A0743.
    QUILL v. NEWBERRY.
    (518 SE2d 189)
   Eldridge, Judge.

Plaintiff/appellant Robert Quill appeals from an order of the Superior Court of DeKalb County granting defendant/appellee Scott Newberry’s motion for summary judgment on Quill’s complaint in equity seeking to rescind a contract of sale for Newberry’s former residence based on fraud. Quill contends that said contract was induced by Newberry’s allegedly fraudulent misrepresentations about and concealment of an active termite infestation. Because the evidence in this case is in conflict and raises factual issues to be decided by a jury, we conclude that the trial court’s grant of summary judgment was error.

Viewed in a light most favorable to the non-moving party, i.e., Quill, the evidence shows that appellee Scott Newberry purchased a townhouse located at 892 Argonne Avenue in midtown Atlanta, DeKalb County. At that time, a wooden addition had already been added to the ground floor of the back of the house. The addition served as a sunroom/eating area annexed to the kitchen. The floor of the addition was of the same aged hexagonal tile that covered the kitchen floor.

Newberry lived in the house for five years, from February 1992 through July 1997. After moving into the house, Newberry had installed sheetrock walls in the kitchen and addition. By 1997, the sheetrock showed places where the drywall had been repaired since Newberry installed it. Also in January 1997, Newberry replaced a small area rag that for the prior five years had partially covered the center of the addition’s tile floor. In its stead, Newberry installed a wall-to-wall carpet that covered the addition’s tile floor from baseboard to baseboard. Newberry laid the carpet using carpet tacking strips around the entire perimeter of the floor to ensure that the carpet stayed down. “In the course of installing [the] carpet, [Newberry] saw every inch of the border of that room.” Shortly after installing the wall-to-wall carpet, Newberry placed the house for sale-by-owner.

Appellant Robert Quill saw the for-sale-by-owner sign and called about the house. Quill arranged to walk through the house with Newberry. At that time, Newberry told Quill that the residence was a “turnkey” house, meaning to both men that the house was in perfect condition and the purchaser could move in immediately. Newberry also told Quill that he had a continuous contract with an exterminator and that someone came and sprayed once a year.

Quill put a contract on the house. As required by law, Newberry provided to Quill a Seller’s Disclosure Form. In that form, Newberry specifically stated that he had no “knowledge of termites, dryrot, or pests on or affecting the property”; that he had no “knowledge of any damage to the property caused by termites, dryrot, or pests”; that his property is “currently under warranty or other coverage by a licensed pest control company”; and that he did not “know of any termite/pest control reports or treatments for the property in the last five years].]” ■In addition, Newberry wrote by hand, “Have regular House treatments.”

Prior to closing on the house, Quill had a licensed inspector, Ed Gibson, walk through the house. Although Gibson’s contract to inspect the house specifically excluded any inspection for termites or termite damage, he would have noted such damage in his report if it had been visible. Gibson noted no damage.

In addition, five minutes before the July 17, 1997 closing on the property was completed, Norman Terrell of Northwest Exterminating arrived with the requisite termite inspection letter, which letter stated that there was no evidence of active termite infestation in the residence. Terrell did not inspect the inside of the house prior to preparing the letter.

The closing was on Wednesday, July 16, 1997. On Saturday, July 19, 1997, Quill arrived at his new house with tools, painting equipment, and two friends to help him. Quill intended to repaint the walls and to refinish the floors. He started in the addition where he pulled up the new carpet. “In . . . th[e] far corner, it was immediately obvious that the floor was sunken. The floor along that one wall . . . was all soft and squishy. And that corner there was foam coming up around the hexagonal or whatever the shapes of the tile was. The tiles were loose and could be easily picked up, which I did pick up. And it was obvious to me that there was an insect infestation there which I believed to be termites.” At that time, Quill enlisted the aid of his friends, and they followed the infestation from the floor itself into the floorboards and up behind the sheetrock walls of the addition. “All three walls the floor and the ceiling [of the addition were] all affected with termite infestation and substantial damage.” As Quill pulled open the sheetrock, he followed the infestation into the kitchen and behind the kitchen cabinets. “It was an obvious trail of where the damage was and where the termite damage was, and I continued to explore. And in fact in the exploration in taking sheet-rock out and everything, the termites were falling out all over my arms and biting my arms. . . . There were thousands of them.”

Further investigation showed that holes had been drilled into the ground outside of the house behind the addition. The holes extended into the back of the house below the ground level. Structural insulating foam had been injected through the holes and up under the collapsed corner of the addition’s floor, thereby propping up the floor. The hardened foam had bits of wood in it, demonstrating that the floor was eaten through at the time the foam was injected. Thereafter, the holes on the outside of the house had been covered with concrete. Residual traces of the foam could be seen on the concrete. White landscape gravel had been placed over the concrete, thereby masking it. In the addition, besides the wall-to-wall carpet which concealed the condition of the wood floor, mesh tape had been placed over damaged areas of drywall and then patched and painted over. Estimates placed the amount of termite damage as high as $45,000. Upon order from the Department of Agriculture, Northwest Exterminators informed Quill that they would treat the back addition upon demolition or removal of the entire floor.

Quill immediately filed a complaint seeking to rescind the contract, obtain the money he put down on the house, and return to the status quo. Quill also filed a motion for an interlocutory injunction in order to restrain Newberry from disposing of the assets of the sale of the Argonne Avenue property prior to the outcome of the pending litigation on Quill’s complaint. Specifically, Quill sought to enjoin New-berry from selling a Briar Hills Drive residence that he had purchased with part of the proceeds from the sale of the Argonne Avenue property. Quill’s contention in the motion was that Newberry would subsequently dispose of or hide the assets from the sale of the Briar Hills Drive property, thereby frustrating any recovery Quill might obtain pursuant to his complaint.

The trial court denied Quill’s motion for an interlocutory injunction. The court made a specific factual finding that “[t]he evidence in this case is in conflict, and as previously stated, the court in its discretion denies the plaintiff’s request for an interlocutory injunction.” Thereafter, Quill filed a notice of lis pendens against the Briar Hills Drive property. In response, Newberry filed a motion for contempt against Quill.

Newberry also filed the instant motion for summary judgment based upon the record. Inter alia, the record includes:

(a) Newberry’s testimony that he did not know about the termite infestation and that, when he installed the wall-to-wall carpet in the addition just before he put the house on the market, he saw no loose tiles, no cracked tiles, no foam coming through the tiles, no damage to the floor around the baseboards, and the floor was solid.

However, the record also contains multiple pictures taken only six months after the carpet was installed and showing the extent of the termite infestation and damage to the floor of the addition, including the damaged appearance of the tiles, cracked tiles, the appearance of the insulating foam coming between loose tiles, and the extensively damaged flooring around the perimeter of the floor near the baseboards. Quill also testified regarding the fact that the damage to the floor of the addition was immediately apparent once the wall-to-wall carpet was removed. Further, Quill testified that the damage was estimated at $45,000.

(b) Evidence that prior to the sale of the house, Newberry represented to Quill, both orally and on the Seller’s Disclosure Form, that Newberry had a continuous pest control contract and that the house was “treated regularly.”

However, the record also contains Newberry’s testimony, subsequent to the sale, that he did not have the house treated regularly and that he never had a continuous pest control contract. Norman Terrell, the representative of Northwest Exterminating who New-berry previously alleged treated the house regularly, testified that he had treated the house only once several years earlier for black ants.

(c) Newberry’s testimony that a handyman he hired, Roger Amburgy, never “restructured” the back of the house at Newberry’s request: “No, [Amburgy] did not restructure the back of the house, no”; Amburgy would not “have done something [Newberry] had not asked him to do”; and if Newberry paid Amburgy for work, “it was not only completed but it was also completed at [Newberry’s] request.”

However, the record also includes a paid invoice from Amburgy to Newberry for 18.5 hours over two days spent “restructuring] the back of the house.”

(d) Newberry’s testimony that Amburgy did not “patch and paint drywall” in the kitchen and addition, the only rooms in the house that had sheetrock, not plaster.

However, the record also contains Amburgy’s paid invoice for “paint and patch drywall, ten hours.”

(e) Newberry’s testimony that during the inspection for the termite letter, Norman Terrell “went in and out of every room.”

However, the record also contains Terrell’s testimony that during the inspection for the termite letter, “I [Terrell] did not inspect the interior of the home.”

Although the trial court had found that “the evidence is in conflict” when previously denying Quill’s motion for interlocutory injunction, the trial court granted Newberry’s motion for summary judgment. In so doing, the trial court noted that Newberry had unequivocally stated that he did not know of the termite infestation. Citing our recent case of Supchak v. Pruitt, 232 Ga. App. 680 (503 SE2d 581) (1998), the trial court held that,

Plaintiff’s inferences disappear in the face of defendant’s uncontradicted and unimpeached evidence. The court finds that the evidence is undisputed that defendant Newberry did not know of the termite infestation and that there is no evidence sufficient to create a jury issue on the element of scienter.

Held:

1. In his first enumeration of error, Quill contends that the trial court erred in finding that Newberry’s sworn denial of knowledge of the termite infestation negated any circumstantial evidence to the contrary and thereby created no issue of fact for the jury to determine. Quill argues that,

[i]f, as is almost always the case, the defendant simply denies his fraudulent conduct under oath, under [the trial court’s] approach, absent an eyewitness to the fraudulent conduct, there is no recovery for fraud, as any contrary circumstantial evidence simply “disappears” in the face of a sworn denial.

We agree.

(a)

The standards applicable to motions for summary judgment generally are announced in Lou’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. Further, when reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

(Citations omitted; emphasis supplied.) Supchak v. Pruitt, supra at 682 (1).

(b)

Since fraud is inherently subtle, slight circumstances of fraud may be sufficient to establish a proper case. Proof of fraud is seldom ever susceptible of direct proof, thus recourse to circumstantial evidence usually is required. Moreover, it is peculiarly the province of the jury to pass on these circumstances showing fraud. Except in plain and indisputable cases, scienter in actions based on fraud is an issue of fact for jury determination.

(Citations and punctuation omitted; emphasis supplied.) Lloyd v. Kramer, 233 Ga. App. 372, 373 (1) (503 SE2d 632) (1998).

(c) Generally, if a defendant did not deny scienter as to what otherwise would be a fraudulent act, neither litigation nor subsequent appeal would even be necessary. Thus, if scienter in a fraud case is normally proved through circumstantial evidence raising inferences to contradict a defendant’s denial of scienter, then such inferences cannot be negated simply through the defendant’s denial, itself. This is why scienter is “peculiarly” a jury issue; it deals with the choice of what to believe regarding a subjective state of mind seldom capable of direct proof. Clearly, making a choice as to what to believe has no place in summary judgment, which is granted “only where the evidence is plain, palpable and undisputable.” Robinson v. Kroger Co., 268 Ga. 735, 739 (1) (493 SE2d 403) (1997).

(d) Our decision in Supchak v. Pruitt, supra, does not hold to the contrary. Supchak v. Pruitt was a negligence case, not a fraud case. The question was who, among the named defendants, owned a horse that had caused damage. In Supchak v. Pruitt, the evidence was plain, palpable and undisputable that a named defendant was the sole owner of the horse. No inference could be drawn otherwise, since the named defendant admitted against interest that he was the sole owner of the horse, and no evidence contradicted such admission. This type of objective, factual question is capable of direct proof. And our holding in Supchak v. Pruitt was addressed to those objective, factual issues that are capable of direct proof, not the credibility decisions that are inherently the essence of scienter. In Supchak v. Pruitt, we did not intend to negate the long standing, statutorily mandated principle that, upon motion for summary judgment, all inferences must be drawn in favor of the non-moving party. OCGA § 9-11-56 (c); Robinson v. Kroger Co., supra; Lau’s Corp. v. Haskins, supra.

(e) Here, the evidence includes the timing of the laying of the wall-to-wall carpet covering the termite damaged floor in relation to the sale of the home; the extent of the termite damage that was readily apparent when the carpet was removed; the taping, painting, and patching of the addition’s sheetrock walls which were otherwise ravaged with termite damage; Newberry’s false representation that the house was treated regularly for termites and that he had a contract therefor; Newberry’s “restructuring the back of the house” where the termite infestation and damage was at its worst; evidence of the extent of the infestation, including that there were “thousands” of termites in the floor, ceiling, and falling out of the walls; and evidence that $45,000 worth of termite damage had been done to the house, making necessary the removal of the entire floor. This evidence raises the inferences that Newberry was aware of the termite infestation, sought to mask it, and falsely represented to Quill that the house was without a termite problem in order to induce Quill to purchase the property. Contrary to the trial court’s finding, New-berry’s sworn statement that he did not know of the infestation does not make the above-referenced inferences “disappear,” but instead creates a jury issue as to scienter. The trial court’s grant of summary judgment was error.

2. Quill’s remaining enumerations of error are without merit.

(a)

Under OCGA § 44-14-610, a notice of lis pendens is authorized only as to a suit in which real property is “involved.” This refers only to the realty actually and directly brought into litigation by the pleadings in a pending suit and as to which some relief is sought respecting that particular property.

(Citations and punctuation omitted.) Moore v. Bank of Fitzgerald, 266 Ga. 190 (465 SE2d 445) (1996).

Lis pendens may not be predicated upon an action or suit which seeks merely to recover a money judgment. Rather, its purpose is to notify prospective purchasers that the property in question is directly involved in a pending suit, in the sense that the suit seeks some relief respecting that particular property.

(Citations and punctuation omitted; emphasis supplied.) Evans v. Fulton Nat. Mtg. Corp., 168 Ga. App. 600, 601 (309 SE2d 884) (1983). Here, Quill’s action is against Newberry for fraud, which action does not involve the Briar Hills Drive property. Quill seeks a monetary recovery from Newberry, and if a third party were to buy the Briar Hills Drive property from Newberry, Quill could not reach the Briar Hills Drive property to satisfy any money judgment he may obtain from Newberry. Instead, Quill would have to go after the proceeds of the sale. Accordingly, the trial court properly ordered the removal of the notice of lis pendens against the property.

Decided May 20, 1999.

Chad A. McGowan, for appellant.

Wood & Meredith, Hugh C. Wood, Dwight A. Meredith, for appellee.

(b) The trial court in its discretion properly denied Quill’s motion for attorney fees in defending against the contempt action filed by Newberry in response to Quill’s filing of an inappropriate notice of lis pendens. OCGA § 9-15-14 (b); Gibson v. Southern Gen. Ins. Co., 199 Ga. App. 776, 778 (3) (406 SE2d 121) (1991).

Judgment reversed.

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

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

       Under the terms of the contract pursuant to obtaining the termite letter for closing, Northwest was obligated to treat the house for termites.


author: Judge Harold R. Banke.

text:
    A99A0835.
    ZACHERY v. THE STATE.
    (517 SE2d 71)
   Judge Harold R. Banke.

Convicted of burglary, aggravated sexual battery, simple battery, false imprisonment, and two counts of aggravated sodomy, Rayford Zachery appeals on four grounds: (i) the court erred in denying his motion for mistrial; (ii) the court erred in admitting the victim’s pre-trial and in-court visual identifications of him; (iii) the court erred in allowing the victim, in rebuttal, to re-identify Zachery through his voice; and (iv) absent the identification testimony, the evidence was insufficient to sustain the convictions. Held:

1. The first two alleged errors concern the victim’s visual identifications of Zachery as her attacker. She testified that while he was waiting outside the courtroom for his preliminary hearing, she had visually identified him as her attacker to an employee of the prosecutor’s office. She also identified Zachery at trial. Zachery immediately moved for a mistrial, arguing that although the prosecutor had orally informed him of the pre-trial identification, (i) he had received nothing in writing about it in the discovery materials received from the State, and (ii) he was not aware the State intended to have her make a visual identification in court. The court denied the motion.

Absent a manifest abuse of discretion, we will not disturb a trial court’s ruling on a motion for mistrial. Milton v. State, 232 Ga. App. 672, 676 (3) (503 SE2d 566) (1998). We discern no abuse here for two reasons.

First, because the pre-trial identification was not recorded or summarized in a writing or on tape, the State was not required to disclose it in the written discovery material. Forehand v. State, 267 Ga. 254, 255 (3) (477 SE2d 560) (1996). Thus, the fact that the State’s voluntary oral disclosure of it was not reduced to writing and placed in the materials given in discovery is of no consequence.

Second, the disclosure of the pre-trial visual identification put Zachery on notice that the victim would likely identify him at trial, even though no law obligated the State to formally announce such to a defendant.

2. Zachery contends that admitting the pre-trial and in-court visual identifications violated his rights to counsel and to due process and constituted reversible error. His arguments, however, were not tested at the trial level. At no point did he object to the admission of the victim’s visual identifications of him, whether on these grounds or otherwise. He accordingly waived the opportunity to raise these issues on appeal. Pickstock v. State, 235 Ga. App. 451, 458-459 (5) (b) (509 SE2d 717) (1998).

Zachery points to his motion for mistrial as an objection. But the motion did not ask that the evidence be excluded; it simply asked the court to declare a mistrial. Even if it could be construed as an objection, the motion only complained of the State’s alleged failure in discovery to notify him that the victim would visually identify him at trial. It did not argue the lack of counsel, lack of due process, and impermissible suggestiveness grounds now raised on appeal. A trial objection on a specific ground waives appellate review of other grounds. McGee v. State, 205 Ga. App. 722, 726 (9) (423 SE2d 666) (1992); see Campbell v. State, 228 Ga. App. 258, 263 (3) (b) (491 SE2d 477) (1997).

3. Zachery claims the court erred in allowing the victim, in rebuttal, to bolster her testimony by re-identifying him, this time based on his voice from his trial testimony.

During Zachery’s testimony, he denied he was the attacker. The State had the right to call rebuttal witnesses to refute this evidence. Watkins v. State, 206 Ga. App. 701, 705 (5) (426 SE2d 238) (1992). After the defendant has testified, a victim’s in-court identification based on the sound of defendant’s voice is generally admissible in rebuttal. See Hornsby v. State, 210 Ga. App. 571, 573 (2) (436 SE2d 767) (1993). Even if rebuttal evidence tends to bolster the State’s case more than to directly impeach defense evidence, the trial court has the discretion to admit it. Evans v. State, 225 Ga. App. 589, 591 (3) (484 SE2d 320) (1997); see Watkins, supra, 206 Ga. App. at 705-706 (5).

Zachery attempts to distinguish the circumstances here on the ground that the in-court voice identification was tainted by an impermissibly suggestive voice identification conducted by the State on the eve of trial. The victim had described her attacker’s voice to police as higher pitched with a fast cadence. While being prepared on the day before trial, she reminded the prosecutor that she could readily identify the attacker’s distinctive voice. The prosecutor then played a videotape (with the monitor facing the wall) of an interview with Zachery, and the victim immediately identified the voice as that of her attacker. The prosecutor notified Zachery of the identification.

Zachery successfully moved the court to exclude the pre-trial voice identification because it was impermissibly suggestive and because defense counsel was not allowed to attend. The court stated it would reserve ruling on whether to allow in-court voice identification. After hearing the victim’s testimony as to the lengthy period of time she listened to her attacker’s voice and her unhesitating visual identification of Zachery, the court decided to allow the in-court voice identification.

Convictions based on eyewitness identification at trial following a questionable pre-trial identification will be set aside only if the pretrial identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Tiller v. State, 222 Ga. App. 840, 841 (476 SE2d 591) (1996). The factors to be considered include the witness’ opportunity to hear the defendant’s voice at the time of the crime, her degree of attention, the accuracy of her prior description of the voice, the level of certainty demonstrated by her at the confrontation, and the length of time between the crime and the confrontation. See Neil v. Biggers, 409 U. S. 188, 199 (93 SC 375, 34 LE2d 401) (1972).

Even if the pre-trial voice identification is tainted, a court may allow in-court voice identification that does not depend upon the prior identification but has an independent origin. Tiller, supra, 222 Ga. App. at 841; State v. Frye, 205 Ga. App. 508, 510 (3) (422 SE2d 915) (1992). This is a question for the trial court, id., whose determination will be overturned only if clearly erroneous. Smith v. State, 235 Ga. App. 134, 138 (1) (508 SE2d 490) (1998).

Here the victim testified that she based her in-court voice identification on her distinct memory of her attacker’s voice from the crimes. See Clark v. State, 226 Ga. App. 176, 179 (3) (486 SE2d 393) (1997). Based on the totality of the circumstances, including the victim’s lengthy conversation with her attacker, her accurate description of the distinctive manner and tone of his voice, her statement that she could readily identify his voice, her unequivocal visual identification of Zachery at the preliminary hearing before she even heard his voice, and her immediate identification of Zachery’s voice from the videotape, the court did not clearly err in finding that irreparable misidentification was not substantially likely and that the in-court identification had an independent origin. Compare Towns v. State, 136 Ga. App. 467 (221 SE2d 631) (1975).

Decided April 29, 1999

Reconsideration dismissed May 21, 1999.

Thomason & Blackmon, Dennis T. Blackmon, Anthony B. Williams, for appellant.

Peter J. Skandalakis, District Attorney, Stephanie Duncan-Brent, Assistant District Attorney, for appellee.

4. The presence of Zachery’s keys at the scene of the crime, the DNA evidence consistent with his having attacked the victim, and the victim’s identification evidence sufficed to sustain the convictions under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Johnson, Chief Judge.

text:
    A99A0184.
    HOMEBUILDERS ASSOCIATION OF GEORGIA v. MORRIS.
    (518 SE2d 194)
   Johnson, Chief Judge.

This is a workers’ compensation case of first impression involving the application of OCGA § 34-9-11.1 (b), which provides that an employer’s insurer shall have a subrogation lien against an injured employee’s right of action against a person other than the employer. The issue presented by this case is whether evidence of the employee’s comparative/contributory negligence or assumption of the risk is relevant in determining an insurer’s recovery pursuant to this Code section. We conclude that under the plain terms of OCGA § 34-9-11.1 (b) such evidence is irrelevant to an insurer’s subrogation claim.

Morris worked on a construction crew placing prefabricated trusses on the roof of a building. He stepped on a truss that had been placed across an open span between the building’s walls. A joint in the truss gave way causing Morris to fall ten feet to the ground. Homebuilders Association of Georgia, Inc., the workers’ compensation insurer, paid medical benefits on behalf of Morris totaling $117,902 and income benefits to Morris totaling $62,620.

Morris sued Georgia Mountain Components, Inc., the designer of the truss and joint, for breach of warranties and negligent design. Pursuant to OCGA § 34-9-11.1, Homebuilders moved to intervene on the ground that it had a subrogation lien up to the amount of workers’ compensation benefits paid to Morris. The trial court granted the motion and allowed Homebuilders to intervene. Georgia Mountain and Morris subsequently settled their dispute for $200,000, and Georgia Mountain was dismissed from the suit.

Morris contested Homebuilders’ subrogation claim on the ground that OCGA § 34-9-11.1 (b) requires an injured employee to be “fully and completely compensated” for all his economic and noneconomic losses before an employer/insurer is entitled to any portion of the employee’s recovery against a third-party tortfeasor. Morris insisted that the $200,000 settlement with Georgia Mountain had not fully and completely compensated him for his losses. To resolve the issue, the trial court allowed the case to proceed to trial with only Morris and Homebuilders as parties.

On the day of trial, Morris made a motion in limine to prevent Homebuilders from introducing any evidence of Morris’ contributory or comparative negligence or his assumption of the risk. The trial court granted the motion on the ground that OCGA § 34-9-11.1 (b) does not permit consideration of any evidence of the employee’s contributory/comparative negligence or assumption of the risk in the court’s calculation of whether the employee had been fully and completely compensated for his injuries.

The suit proceeded to trial, and the jury returned a special verdict awarding Morris a total of $924,902 in compensatory damages, which consisted of $117,902 in past medical expenses, $75,000 in past pain and suffering, $112,000 in past lost earnings, $175,000 in future medical expenses, $225,000 in future pain and suffering, and $220,000 in future lost earnings. The trial court entered judgment on the verdict and ordered that Homebuilders, as intervenor, take nothing from the settlement funds. Homebuilders appeals from the judgment, challenging the court’s exclusion of evidence of Morris’ comparative/contributory negligence and assumption of the risk.

The admission or exclusion of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. American Petroleum Products v. Mom and Pop Stores, 231 Ga. App. 1, 7 (3) (497 SE2d 616) (1998). However, “ ‘the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.’ [Cit.]” Id.

Homebuilders argues the court abused its discretion in granting the motion in limine because Morris’ losses in his tort action against Georgia Mountain must be determined with regard to state tort law principles. Under those principles, Homebuilders claims, if Georgia Mountain had remained a party in the case the court properly would have allowed the jury to hear evidence of Morris’ contributory/comparative negligence and assumption of the risk of injury. Thus, even after Georgia Mountain was dismissed from the case the jury still should have heard that same evidence because Homebuilders stood in the shoes of tortfeasor Georgia Mountain.

Homebuilders, however, does not stand in the shoes of Georgia Mountain as a tortfeasor. Rather, its subrogation rights are derived exclusively from OCGA § 34-9-11.1 of the Workers’ Compensation Act, not from general tort law principles. The Act specifies that an employer/insurer is only entitled to proceeds after the employee has been ftdly and completely compensated. Accordingly, the question is whether Morris was fully and completely compensated for his losses within the meaning of OCGA § 34-9-11.1 (b), not within the meaning of general principles of tort law.

OCGA § 34-9-11.1 (b) instructs courts, in determining whether an employee has been fully and completely compensated, to consider both the workers’ compensation benefits the employee has received and the amount of the employee’s recovery against the third-party. These are the only instructions provided by the legislature. The statute does not direct courts to take into account the employee’s contributory/comparative negligence or assumption of the risk, and we must assume the omission was intentional.

This omission “invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare taciturn, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. [Cits.] The omission of any such reference from [the Code subsection] must be regarded as deliberate.” (Punctuation and emphasis omitted.) [Cit.]

Padgett v. City of Moultrie, 229 Ga. App. 500, 503 (1) (494 SE2d 299) (1997).

This construction of OCGA § 34-9-11.1 (b) is buttressed by the legislative concern evidenced in the statute that the injured employee be made whole — regardless of any fault on his part — before the employer is allowed to recover the amount of workers’ compensation benefits paid out. Bartow County Bd. of Ed. v. Ray, 229 Ga. App. 333, 334 (494 SE2d 29) (1997). See also North Brothers Co. v. Thomas, 236 Ga. App. 839, 840-841 (513 SE2d 251) (1999). Moreover, it comports with the overall purposes of the Act. “Although the Workers’ Compensation Act is in derogation of common law, it is highly remedial in nature. ... It must be construed liberally in favor of the claimant in order to accomplish its beneficent purposes. [Cit.]” Subsequent Injury Trust Fund v. Lumley Drywall, 200 Ga. App. 703, 704-705 (409 SE2d 254) (1991).

Decided May 21, 1999.

Whiteman, Smith & Hamilton, Charles C. Hamilton, for appellant.

Douglas E. Smith, for appellee.

Accordingly, we find the trial court properly considered only the workers’ compensation benefits Morris had received and the amount of the settlement with Georgia Mountain in determining whether Morris had been fully and completely compensated for his losses. Evidence of Morris’ contributory/comparative negligence and assumption of the risk was properly excluded.

Judgment affirmed.

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


text:
    A99A0684.
    MAXWELL v. THE STATE.
    (518 SE2d 432)
   Judge Harold R. Banke.

Tammy Maxwell was convicted of forgery in the first degree and possession of cocaine and given two concurrent five-year sentences. Held:

1. Maxwell challenges the sufficiency of the evidence to support her conviction of possession of cocaine.

The State’s evidence showed that in July 1996, Maxwell used a stolen check to pay for merchandise at an Auto Zone Store in Riverdale, Georgia. Police were alerted and given a description and tag number for the getaway car. The vehicle was observed in the parking lot of a nearby Wal-Mart. When the investigating officer arrived on the scene, Maxwell was in the front passenger seat, and her co-defendant Maurice Edogun was in the driver’s seat. The officer approached the vehicle and began to question both occupants. After exiting the car at the officer’s request, Edogun stated that the car was a rental vehicle and gave his consent to search it. Maxwell, who remained seated in the car, was then approached by the officer and asked about the location of other stolen checks. After hesitating momentarily, she retrieved the remaining checks from under her seat.

The ensuing search of the car revealed a package underneath the driver’s seat containing one gram of cocaine. A residue-laden device used to smoke crack cocaine and suspected marijuana were found in another bag on the floor of the back seat, but the contents of the bag were not tested.

Similar transaction evidence was presented showing that in December 1995, a City of Lawrenceville police officer stopped Maxwell for speeding and found a pipe with cocaine residue in her purse.

The trial court gave as its reason for denying Maxwell’s motion for directed verdict on the cocaine possession charge that its grant would leave her free to testify that the cocaine was hers, thereby absolving both defendants of criminal liability. No motion for new trial was filed. Testimony given by the investigating officer at a Jackson v. Denno hearing is not properly considered in determining the sufficiency of the evidence, as this hearing was held outside the presence of the jury.

The evidence does not show actual possession by [Maxwell], and to support a finding that [s]he was in constructive possession of the contraband the circumstantial evidence must be both consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. [Cit.]

Shirley v. State, 166 Ga. App. 456, 457 (1) (304 SE2d 468) (1983). Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, are insufficient to support a conviction. Reid v. State, 212 Ga. App. 787, 788 (442 SE2d 852) (1994). A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Id.

We have found the requisite connection lacking where hidden contraband drugs were found in a vehicle in which defendant was merely a co-occupant, and there was no evidence that defendant had knowledge of the contraband’s existence. Shirley v. State, supra; Whipple v. State, 207 Ga. App. 131, 132 (1) (427 SE2d 101) (1993); see also Reid v. State, supra; Luke v. State, 230 Ga. App. 712, 714 (3) (497 SE2d 376) (1998), rev’d on other grounds, 236 Ga. App. 543 (512 SE2d 39) (1999). On the other hand, the evidence has been found sufficient where the drugs were both in the vicinity of and visible to the defendant. Chitwood v. State, 166 Ga. App. 62 (1) (303 SE2d 307) (1983); Lowe v. State, 223 Ga. App. 172 (477 SE2d 341) (1996); Shropshire v. State, 201 Ga. App. 421 (411 SE2d 339) (1991).

Here, there is no evidence the cocaine was visible to Maxwell. Since she was a mere passenger in the car, there arose no presumption that she possessed the cocaine. Reid, supra. The fact that she had accessed the area underneath the seat in which she was sitting did not reasonably give rise to an inference that she had knowledge of the presence of something hidden underneath the driver’s seat. Nor does the fact that cocaine was found in Maxwell’s possession during an earlier traffic stop show that she had knowledge of cocaine hidden underneath the driver’s seat on this occasion. Therefore, Maxwell’s conviction of possession of cocaine must be reversed under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided May 21, 1999.

Faye W. Hays, Patricia A. Buttaro, for appellant.

Robert E. Keller, District Attorney, Adrian Britt, Assistant District Attorney, for appellee.

2. Maxwell challenges her sentencing. She was given a mandatory minimum sentence of five years for possession of cocaine, as this was her second conviction of this offense. OCGA § 16-13-30 (e). Since statements made by the trial court at sentencing raise doubts as to whether it would have given Maxwell a five-year sentence for her forgery conviction alone, her sentence for this offense is vacated and the case remanded for resentencing.

3. The remaining issues are moot.

Judgment affirmed in part, reversed in part, and case remanded.

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


author: Smith, Judge.

text:
    A99A0098.
    HARRISON v. BECKHAM.
    (518 SE2d 435)
   Smith, Judge.

The facts underlying this case have appeared before us in a previous appeal. In Harrison v. Digital Equip. Corp., 219 Ga. App. 464 (465 SE2d 494) (1995) (Harrison I), we affirmed the trial court’s holding that Brenda Harrison’s pro se action against her employer, an architect, and a contractor for damages resulting from “sick building syndrome” was barred by the applicable statute of limitation. Harrison then brought suit against attorney Walter H. Beckham III, alleging that he committed legal malpractice by failing to advise her regarding the applicable statute of limitation in her first action. The trial court granted Beckham’s motion for summary judgment on the basis of expiration of the statute of limitation for legal malpractice, and Harrison appeals. Because this statute of limitation also expired before Harrison brought suit, we affirm.

1. The statute of limitation on Harrison’s claim for legal malpractice began to run when the statute of limitation on her original personal injury claim expired without suit being filed against the defendants. Plumlee v. Davis, 221 Ga. App. 848, 851 (1) (473 SE2d 510) (1996). Since this action was filed on September 10, 1996, if Harrison’s malpractice cause of action accrued before September 1992 all her claims are barred by the four-year statute of limitation. In turn, if the statute of limitation on Harrison’s underlying tort claim expired before September 1990 that claim is likewise barred. We therefore examine the underlying tort action to determine the date on which that earlier statute of limitation began to run.

“The test for determining when the statute of limitation began to run against plaintiffs is not when they were diagnosed with symptoms consistent with . . . poisoning, it is when they suspected that their alleged injuries may have been caused by [defendants’] conduct. [Cits.]” (Emphasis supplied.) Thomason v. Gold Kist, 200 Ga. App. 246, 247 (1) (407 SE2d 472) (1991). While Harrison now insists that she was unsure of the cause of her illness until September 1990 and has filed an affidavit to that effect, her earlier testimony in a workers’ compensation claim against her employer directly contradicts this assertion. There, she testified that as soon as she entered the new building on her first day of work in July 1989, she started having a runny nose. During the next six weeks, she began to experience fatigue, tightness in her chest, throat problems, eye irritation, and an inability to concentrate. She also noted that when she left the building for lunch, her symptoms improved. By September 1989, she had experienced flu-like symptoms, pneumonia, and double pneumonia. Dr. Horowitz, the physician who treated her for pneumonia, released her to return to work, but as soon as she returned to work she was “totally unable to breathe” and had to go to the emergency room, where her symptoms quickly subsided. Harrison described this as “a situation . . . that led us to believe that it was a hundred percent the building . . . that’s when we figured it back to the building and he sent me, referred me to an allergist.” She also stated that Dr. Horowitz “knew something was wrong at that building.”

Harrison was not satisfied with the first allergist she consulted, because “by then I was very, very suspicious of the building, and his attitude towards me was he didn’t have the belief structure that aligned with that at all. And so I yanked my medical records and walked out of his office.” In January 1990, she consulted another allergist, Dr. Melby. In his initial evaluation of Harrison, Dr. Melby wrote, “Temporally there is a clear relationship between her symptoms and her new work place and I would be very suspicious of the ‘sick building syndrome’ as being the cause of her deterioration.” On April 12, 1990, after Harrison’s return to the building caused another relapse, Dr. Melby’s progress notes stated: “IMPRESSION: 1. Sick building syndrome with recent exposure. 2. Background of atopy and probable hyperreactive airways. PLAN: 1. Stay out of the building.”

According to Harrison, Dr. Melby told her “to get the hell out of that building ... he felt like the building was lethal for me and he wrote a note to my manager and sent it to my manager telling [them] to get me out of the building and they moved me at that time.” A copy of Dr. Melby’s letter of May 3, 1990 to Harrison’s employer was attached as an exhibit to Harrison’s deposition in this case. In this letter, which showed a copy sent to Harrison that she acknowledged receiving, Dr. Melby told the employer that he examined Harrison in January 1990. From that examination, he stated, “It was my conclusion that she had an episode of hyperreactive airways and symptoms compatible with ‘sick building syndrome’ related to her exposure to your new facility in Alpharetta.” He noted that he advised Harrison at that time to stay out of the building. He mentioned her relapse in April upon re-exposure to the building and stated that he “again advised her to stay out of the building since it appeared that her symptoms were clearly related to some exposure there.”

In her earlier deposition, Harrison also stated that she believed that the building was causing her problems before she complained to her supervisor in December 1989. In September 1989, Harrison told the company nurse that the new building was causing the problems she was experiencing. According to Harrison, a number of employees were experiencing problems with the new building and complained about it to the nurse, and “[everybody seemed to be abnormally sick.”

Harrison also wrote memoranda to her employer concerning her problems with the building as early as December 1989. These letters were identified and attached as exhibits to her deposition in this case. In her deposition, Harrison acknowledged writing a December 1989 interoffice memorandum recounting her symptoms in detail, as well as her observation that they were alleviated when she left the building. She noted that “almost everyone you talk to” had experienced similar health problems since moving to the new facility, and concluded by stating, “I would like you to elevate my concerns to the highest levels. I believe my long term health is being jeopardized by this building.”

In April 1990, Harrison wrote another memorandum titled “BUILDING SICKNESS” to her supervisor. She reported that she had met with Dr. Melby regarding her most recent six hour visit to the building and her subsequent breathing problems. After discussing the steps her employer already had taken to measure various chemicals in the building, she stated, “According to my doctor, Dr. Kenneth Melby, it does not look like the building has been fixed for me to come back to work.” This evidence clearly supports a finding that Harrison suspected that her illness may have been caused by her employer’s building as early as September 1989 and certainly no later than April 1990.

2. Harrison attempts to contradict this earlier testimony by an affidavit filed in opposition to Beckham’s motion for summary judgment. But the rule regarding the construction of self-contradictory testimony on summary judgment is well established: Unexplained contradictory testimony must be construed against the party providing it. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28-30 (1) (343 SE2d 680) (1986). The sworn testimony of a personal injury litigant in an earlier workers’ compensation action is subject to the Prophecy Corp. rule. Hudgens v. Broomberg, 262 Ga. 271-272 (416 SE2d 287) (1992). “Whether such testimony is contradictory, and whether a reasonable explanation has been offered is a question of law for the trial court. [Cits.]” Worley v. State Farm &c. Ins. Co., 208 Ga. App. 805, 807 (432 SE2d 244) (1993).

Harrison’s contention that testimony from her earlier deposition constituted “unsworn, extrajudicial, and erroneous statements taken from an alleged deposition supposedly taken in another case” is so wholly without merit as to border on the frivolous. The record in this case shows conclusively that this contention is not only meritless but also totally false. Harrison testified extensively under oath in this litigation regarding her workers’ compensation claim and her earlier testimony. More importantly, her present counsel stipulated on the record in this case to the certified transcript of the workers’ compensation deposition, and he marked and introduced it as an exhibit to the deposition of a witness in this case.

In her affidavit, Harrison avers that she attended a “special clinic” two months before she gave her deposition in the workers’ compensation case and “learned a great deal about my illness which caused me to reflect differently in hindsight.” In her second deposition, Harrison offered as a general explanation for the changes in her testimony that “what I know in retrospect is definitely tainting my knowledge of the situation. What I know now is definitely tainting what I know happened.” In response to questioning about her statement in the earlier deposition that “we had a situation happen that led us to believe that it was 100% the building,” she stated she did not remember “who I was thinking of in terms of W specifically for sure at that time,” that the deposition was taken “almost a year and a half after the time frame,” and she would “tend — I can sometimes give an effusive answer and not be very clear. And I don’t know at that point what I was answering, I mean, in terms of my recollection today.”

These broad and confusing statements do not constitute a reasonable explanation within the meaning of Prophecy Corp. It appears that Harrison is claiming a generally unclear state of mind or memory, or claiming that her testimony was “effusive” or exaggerated rather than accurate, perhaps due to nervousness or simply her habit of speech. But a general state of nervousness or confusion “generally will not constitute a reasonable explanation of any self-contradictory statements allegedly arising therefrom. To accept such an explanation as being reasonable would totally erode the Prophecy Corp. rule; we decline to promote such an erosion.” Hallberg v. Flat Creek Animal Clinic, 225 Ga. App. 212, 214 (483 SE2d 671) (1997).

If the attendance at the “special clinic” had occurred between Harrison’s original testimony and her later deposition in this case, and it had caused her to rethink her earlier testimony in light of .additional knowledge she gained at the clinic, such knowledge might constitute a reasonable explanation for the change in her testimony. But Harrison attended the clinic before she gave either deposition, and no evidence shows that her knowledge underwent any relevant change between her two depositions. The only change was in the legal consequences of her testimony in the second cause of action.

More importantly, her assertion does not explain why she testified originally that, as early as September 1989, her physician “knew something was wrong at that building,” that she was “very, very suspicious of the building,” and that she “figured” or “believed” that her illness was “one hundred percent the building,” if she did not gain that knowledge until September or October 1991. It also does not explain her conduct in late 1989 or early 1990 in “yank[ing] [my] medical records and walking out of [the] office” of an allergist who did not accept her conclusion that the building was the cause of her illness. Nor does it explain her contemporaneous memoranda attributing her illness to her employer’s building, or her physician’s clinical notes or his letter to her employer in May 1990. Even in her second deposition, Harrison acknowledged that her physician had advised her to stay out of the building in January and again in April 1990, and that she “believed it was a possibility at that time” that her symptoms were related to exposure to the building.

When her self-contradictory testimony is construed against her, it is clear that Harrison was “suspicious” that her illness “may have been caused,” Thomason, supra, by her employer’s building when she declined the services of the first allergist she consulted because she was “very, very suspicious of the building” and he did not agree. “Plaintiffs cause of action accrued when, in the exercise of reasonable diligence, she discovered or should have discovered that she had been injured and that her injury may have been caused by defendants’ conduct. [Cit.]” (Emphasis supplied.) Harrison I, supra at 465. Dr. Melby filed a second affidavit with Harrison’s brief in opposition to Beckham’s motion, in which he asserts that despite his clinical notes he had only been “speculating” that Harrison’s symptoms were “compatible with ‘sick building syndrome’ ” and “did not give a diagnosis of her condition.” But this affidavit creates no issue of fact. “A specific and accurate diagnosis of plaintiff’s affliction was not necessary to begin the running of the statute of limitation. [Cits.]” Id. The absence of positive test results on the presence of chemicals in her employer’s building likewise has no effect on the commencement of the period of limitation.

It is apparent from Harrison’s testimony, her correspondence, and Dr. Melby’s clinical notes and correspondence that she was fully aware of the causal connection between her employer’s building and her illness at least by May 1990, even though the exact medical and chemical details of that connection were not yet known.

3. Harrison’s contention that her exposure to the building constituted a continuing tort and tolled the statute of limitation is without merit. “Georgia courts have consistently held that in a continuing tort a cause of action accrues when a plaintiff discovers, or with reasonable diligence should have discovered, both the injury and the cause thereof.” (Citations and punctuation omitted.) Waters v. Rosenbloom, 268 Ga. 482, 483 (2) (490 SE2d 73) (1997). And Harrison’s assertion that Beckham’s alleged erroneous advice “may well have constituted fraud” is foreclosed by the Supreme Court of Georgia’s recent decision in Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844 (507 SE2d 411) (1998). “[Wjhere the gravamen of the underlying action is not a claim of fraud, but rather of malpractice, the statute of limitations is tolled only upon a showing of a separate independent actual fraud involving moral turpitude which deters a plaintiff from filing suit.” (Citation, punctuation, and footnote omitted.) Id. at 847 (1). Even in the context of a confidential relationship, a showing of actual fraud, including intention to conceal or deceive and deterrence from bringing suit, is required. Id. at 849.

Harrison speculates that Beckham may have learned of his mistake during his alleged representation and continued to advise Harrison that the statute of limitation was not a problem, and that this “may well have constituted” a tolling fraud. But this speculation is unsupported by any citation to the record. Harrison has failed to plead fraud with particularity, as required by OCGA § 9-11-9. Moore v. Bank of Fitzgerald, 225 Ga. App. 122, 127, n. 3 (483 SE2d 135) (1997).

Deans v. Dain Mgmt., 201 Ga. App. 466 (411 SE2d 354) (1991), cited by Harrison, is inapposite here. In Deans, the plaintiff suffered from a persistent sensitivity to formaldehyde caused by earlier exposure in a different workplace to a product manufactured and sold by the defendants. We held that while the plaintiff may have believed that something in the workplace was causing her health problems in 1986, she “neither knew, nor through the exercise of reasonable diligence should have known, that her symptoms were the result of having been sensitized to formaldehyde between 1984 and 1985.” Id. at 470 (2). In contrast, no issue of hypersensitivity in one workplace caused by earlier overexposure at another is presented here. Harrison almost immediately experienced illness and discomfort upon moving to her employer’s new building, and those symptoms consistently abated when she left the building. These observations were reported contemporaneously by Harrison to her employer in memoranda attributing her symptoms to the building; they were further supported by her doctor’s clinical notes and letters in which he reached the same conclusion. Harrison has presented no evidence of any alternative cause for her illness.

While Harrison insists that this court’s holding in Harrison I, supra, forecloses a finding of her knowledge of the underlying tort claim earlier than September 1990, that issue was not presented or decided in Harrison I. Harrison’s underlying tort action against her employer was filed in May 1994, and this court in the earlier appeal determined only that the applicable two-year statute of limitation had commenced to run before May 1992. Harrison I, supra at 465. “[T]he filing of a workers’ compensation claim in September 1990 shows that by that date plaintiff had knowledge that the new building may have been a cause of her injuries.” (Emphasis supplied.) Id. Whether Harrison had knowledge in May or January 1990 or even in December 1989 was irrelevant to the determination in Harrison I that the statute had commenced to run at least by September 1990 and in any event before May 1992. That holding does not foreclose a later determination from the evidence that Harrison had knowledge before September 1990.

The trial court correctly granted summary judgment on the basis of expiration of the relevant statute of limitation.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

Decided May 24, 1999 — Cert. applied for.

B. Louise Bugg, Mike Bothwell, for appellant.

Troutman Sanders, Robert L. Pennington, Daniel S. Reinhardt, Tracy M. Nelson, for appellee.

       Beckham denies that he ever represented Harrison, but for purposes of this appeal we assume the truth of Harrison’s allegation.

       A malpractice claim sounding in contract is governed by the four-year statute of limitation in OCGA § 9-3-25, while a malpractice claim sounding in tort is governed by the two-year limitation in OCGA § 9-3-33. Id. at 851-852 (2).

       But Harrison also concedes in another portion of her brief that “the statute of limitations in the underlying case began to run sometime between 1989 and September of 1990.”

       Dr. Melby had provided an earlier affidavit for Beckham’s motion for summary judgment, in which he stated that he evaluated Harrison in January and April 1990, concluded she suffered from symptoms compatible with “sick building syndrome,” and advised her to stay out of the building.


text:
    A99A0211.
    THE STATE v. FOLK.
    (521 SE2d 194)
   Smith, Judge.

The State appeals the trial court’s order granting Gregg Erin Folk’s motion to suppress marijuana seized from the passenger compartment of his car. Because the trial court erred in concluding that the officer’s initial approach to Folk’s vehicle was impermissible as not based upon articulable suspicion, we reverse. We also conclude that, under the circumstances presented here, the odor of burning marijuana provided sufficient probable cause for a search of Folk’s car.

The facts of the stop and search are not disputed. On June 28, 1997, at approximately 12:50 a.m., a Gwinnett County police officer on routine patrol pulled into a convenience store parking lot. He observed three individuals in a white Buick Century parked in front of the store, which was open at the time. The white Buick was the only car in the lot. The officer watched the car for several minutes and noticed that no one entered or exited the vehicle. He then pulled up to the Buick, exited his vehicle, and approached the driver, Greg Folk.

The officer asked Folk what they were doing. Folk responded that they were waiting for a friend. While speaking with Folk, the officer smelled an odor coming from inside the car, which, based upon his prior training and experience, he concluded was that of burning marijuana. He asked all the occupants for identification, had them exit the vehicle, and then proceeded to search the vehicle without asking for Folk’s consent. The officer found a baggie of marijuana underneath some clothing on the floorboard behind the driver’s seat. Prior to his arrest, Folk admitted that the marijuana belonged to him, and the officer released the other two occupants.

At the suppression hearing, the officer was the only witness. After presentation of all the evidence, the trial court determined that three people sitting in a car at an open convenience store at 1:00 a.m. did not provide enough “articulable suspicion” for the officer to approach the car. The court further reasoned that since the officer’s initial approach was impermissible, then “anything that happened after he approached can’t be admitted because it is fruits of a poisonous tree.” The trial court therefore granted Folk’s motion to suppress the marijuana.

On appeal, the State argues that the trial court erred in granting the motion to suppress, because it incorrectly required the officer to have a reasonable and articulable suspicion to approach Folk’s car. We agree.

At least three types of police-citizen encounters exist: verbal communications which involve no coercion or detention; brief “stops” or “seizures” which must be accompanied by a reasonable suspicion; and “arrests” which can only be supported by probable cause. Verhoeff v. State, 184 Ga. App. 501, 503 (362 SE2d 85) (1987). The issue presented here is whether the officer’s approach to Folk was a first-tier encounter, a verbal communication absent coercion or detention, or a second-tier encounter, a brief “stop” or “seizure” requiring the officer to have reasonable suspicion.

A first-tier encounter never intrudes upon any constitutionally protected interest since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. Verhoeff, supra at 503. On the other hand, a second-tier encounter may violate the Fourth Amendment if the officer briefly “stops” or “seizes” a citizen without reasonable suspicion. Reasonable suspicion exists when an officer has a particularized and objective basis for suspecting that a citizen is involved in criminal activity. See Painter v. State, 227 Ga. App. 875, 877 (490 SE2d 544) (1997). Moreover, a “seizure” within the meaning of the Fourth Amendment only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave. Moran v. State, 170 Ga. App. 837, 840 (1) (318 SE2d 716) (1984).

It is well established that an officer’s approach of a stopped vehicle and inquiry as to what is going on does not constitute a “stop” or “seizure” and “clearly fall[s] within the realm of the first type of police-citizen encounter.” McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997). Under the facts shown here, the State properly asserts that the initial police approach was a first-tier encounter, neither requiring reasonable suspicion nor invoking Fourth Amendment protection for the appellee. The record reflects that the officer approached Folk’s parked car, simply asked him “what they were doing,” and Folk willingly responded. There is no evidence that the officer asked this question in either a threatening or coercive manner. Because Folk’s car was already stationary when the officer approached, he did not actually have to stop Folk before making this inquiry. No “stop” occurred within the meaning of the Fourth Amendment.

In addition, no evidence was presénted that, at the time of this inquiry, the officer restrained Folk’s movement by means of any physical force or show of authority or instructed him to roll down his window or open the car door, thereby “seizing” him. State v. Smith, 137 Ga. App. 101, 102 (223 SE2d 30) (1975). Nor is there any evidence that the officer did anything to prevent Folk from driving away from the convenience store. See State v. Bryant, 203 Ga. App. 69, 71 (416 SE2d 368) (1992). Given the casual and conversational nature of the encounter, the record simply does not show that Folk had any objective belief that he was not free simply to disregard the officer’s inquiry. For this reason, Folk’s claim that he was “seized” when the officer approached the car and made a simple inquiry is not supported by the evidence in the record, and the trial court’s ruling to the contrary was clearly erroneous.

But this does not end our inquiry. In view of our holding that the officer’s initial approach to Folk’s car was permissible, we must now consider whether the facts and circumstances before the officer established probable cause to search the vehicle. In making this determination, we focus on the odor of burning marijuana detected by the officer.

Our decisions have recognized that “there is some controversy as to whether or not the odor of burning marijuana by itself supplies sufficient probable cause for a search or an arrest.” (Punctuation omitted.) O’Keefe v. State, 189 Ga. App. 519, 526 (3) (376 SE2d 406) (1988). See also Albert v. State, 236 Ga. App. 146 (511 SE2d 244) (1999); State v. Medders, 153 Ga. App. 680, 681 (266 SE2d 331) (1980); Rogers v. State, 131 Ga. App. 136, 139 (3) (205 SE2d 901) (1974). Those decisions consider the odor as part of totality of circumstances supporting probable cause. But here, we must consider for the first time the odor of burning marijuana, standing alone, in the context of the warrantless search of an automobile.

A warrantless arrest is lawful if the underlying offense was committed within the “immediate knowledge” of the arresting officer. OCGA § 17-4-20 (a). And the officer is not required to see the crime taking place, but may use any of his senses to acquire knowledge that an offense is being committed. Youhoing v. State, 226 Ga. App. 475, 476-477 (1) (487 SE2d 86) (1997).

Odor as well as sight, hearing, taste or touch can be used in establishing probable cause. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.

Decided May 24, 1999 — Cert. applied for.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Emilien O. Loiselle, Jr., Assistant Solicitors, for appellant.

(Citations and punctuation omitted.) O’Keefe, supra at 526.

The odor of burning marijuana emanating from the interior of an occupied vehicle provides a strong indication that the vehicle contains illegal contraband. We previously have found the “alert” of a trained narcotics dog, standing alone, sufficient to provide probable cause for the search of a vehicle. See Roundtree v. State, 213 Ga. App. 793, 794-795 (446 SE2d 204) (1994); Donner v. State, 191 Ga. App. 58, 60 (380 SE2d 732) (1989). We now hold that a trained police officer’s perception of the odor of burning marijuana, provided his ability to identify that odor is placed into evidence, constitutes sufficient probable cause to support the warrantless search of a vehicle.

The “automobile exception” to the warrant requirement of the Fourth Amendment applies to the search of a vehicle when probable cause exists to believe it contains contraband. Wells v. State, 212 Ga. App. 60, 63 (2) (441 SE2d 460) (1994). While the better practice might have been for the officer to request consent to search the vehicle, he would not have been required to abandon his investigation if refused. “Obviously it would have been a ‘failure of justice’ (OCGA § 17-4-20 (a)) if the police had left appellant in the car, perhaps to drive away, while they went looking for a magistrate.” Lufburrow v. State, 206 Ga. App. 250, 251 (425 SE2d 368) (1992).

Brewer v. State, 129 Ga. App. 118, 120 (199 SE2d 109) (1973), involved police officers’ unlawful entry into a private residence rather than a permissible “first tier” inquiry to the driver of a vehicle.. And a later full panel decision by the author of that opinion specifically disavowed as obiter dictum the statement in Brewer that “ ‘[t]he odor of marijuana is not in itself sufficient circumstantial evidence to constitute probable cause.’ ” Rogers v. State, 131 Ga. App. 136, 139 (205 SE2d 901) (1974); see also Cunningham v. State, 131 Ga. App. 133, 135-136 (205 SE2d 899) (1974) (Clark, J., concurring specially). But to the extent Brewer holds that the odor of burning marijuana lawfully perceived by a trained police officer in the vicinity of a vehicle is insufficient to constitute probable cause for a search of that vehicle, it is disapproved.

Judgment reversed and remanded.

Johnson, C. J, McMurray, P. J., Pope, P. J., Blackburn, P. J., Andrews, Ruffin, Eldridge, Barnes, JJ, and Senior Appellate Judge Harold R. Banke concur.

Lenzer & Lenzer, Robert W. Lenzer, Thomas R Lenzer, Phyllis Miller, for appellee.