text:
    A01A1832.
    BENEDICT v. SNEAD et al.
    (560 SE2d 278)
   Andrews, Presiding Judge.

At issue is whether the trial court properly dismissed an amendment to a complaint on the basis of res judicata. Because we find that final judgment had been entered on the original complaint, and the amendment attempted to relitigate a claim between the parties concerning the same subject matter which could have been litigated as part of the original complaint, we affirm the trial court’s dismissal.

Samuel Benedict entered into a contract to buy real property from James and Cheryl Snead. When the Sneads refused to sell citing Benedict’s failure to close by the date specified in the contract, Benedict sued the Sneads for specific performance of the contract and sued his real estate broker for negligence. The trial court granted summary judgment on the claim against the Sneads, leaving the claim against the broker pending. Although the trial court did not direct entry of final judgment as to the Sneads pursuant to OCGA § 9-11-54 (b), Benedict elected to pursue an immediate appeal of the summary judgment to the Supreme Court pursuant to OCGA § 9-11-56 (h). In Benedict v. Snead, 271 Ga. 585 (519 SE2d 905) (1999), the Supreme Court affirmed the trial court’s grant of summary judgment to the Sneads.

After the Supreme Court opinion was issued, Benedict amended his complaint in the trial court by adding a new claim against the Sneads for return of $3,000 he paid as earnest money under the contract. The trial court dismissed the amendment on the basis of res judicata, and Benedict appeals claiming res judicata does not apply.

Under OCGA § 9-12-40 the principle of res judicata is defined as follows:

A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

Thus where there is identity of parties and subject matter, res judicata bars relitigation of matters that were or could have been litigated in an earlier action. Labovitz v. Hopkinson, 271 Ga. 330, 332 (519 SE2d 672) (1999). This principle applies to attempts by amended complaint to relitigate matters that were or could have been litigated in the same action. Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865-866 (463 SE2d 5) (1995); Labovitz, 271 Ga. at 331-332.

Accordingly, we find that res judicata bars the amended complaint in this case. There was identity of the parties and subject matter as well as a final adjudication (summary judgment affirmed by the Supreme Court) on Benedict’s claim seeking specific performance of the contract. Benedict’s amendment to the complaint seeking return of earnest money he paid pursuant to the contract could have been asserted as an alternative remedy and litigated as part of the original complaint. CenTrust Mtg. Corp. v. Smith & Jenkins, P.C., 220 Ga. App. 394, 396-398 (469 SE2d 466) (1996); Clayton v. Deverell, 257 Ga. 653, 654 (362 SE2d 364) (1987).

Decided January 30, 2002

Reconsideration denied February 15, 2002.

Joseph H. King, Jr., for appellant.

We find no merit to Benedict’s claim that there was no final judgment on the claim against the Sneads (and thus no res judicata effect) because another claim remained pending in the case against the broker, and the trial court did not direct entry of final judgment as to the Sneads pursuant to OCGA § 9-11-54 (b).

[E]ntry of a judgment as to one or more but fewer than all of the claims or parties is not a final judgment under [OCGA § 5-6-34 (a) (1)] and lacks res judicata effect unless the trial court makes an express direction for the entry of the final judgment and a determination [pursuant to OCGA § 9-11-54 (b)] that no just reason for delaying the finality of the judgment exists.

Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (248 SE2d 641) (1978). However, an exception to this finality rule is provided in OCGA § 9-11-56 (h), which allows but does not require an immediate appeal from the grant of summary judgment to one of the parties even though the judgment is not final under Code sections 5-6-34 (a) (1) and 9-11-54 (b). Id. at 243.

If no appeal is taken pursuant to OCGA § 9-11-56 (h), the effect is that the grant of summary judgment as to that party is not a final judgment during the pendency of the suit and is “subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” OCGA § 9-11-54 (b). On the other hand, if an appeal is taken pursuant to OCGA § 9-11-56 (h), the trial court is divested by the appeal of the power to revise the summary judgment, and the judgment as to that party becomes final with res judicata effect after it is affirmed on appeal and the right to appellate review has been exhausted. Lexington Developers v. O’Neal Constr. Co., 143 Ga. App. 440, 441 (238 SE2d 770) (1977). It follows that the summary judgment granted to the Sneads became a final judgment with res judicata effect when it was affirmed by the Supreme Court. The trial court properly dismissed the amendment to the complaint on the basis of res judicata.

Judgment affirmed.

Miller, J., concurs. Eldridge, J., concurs in the judgment only.

McGee & Oxford, Donald L. Cook, Webb, Zschunke, Miller & Dikeman, Dennis J. Webb, for appellees.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A01A1846.
    CODY v. COLDWELL BANKER REAL ESTATE CORPORATION et al.
    (560 SE2d 275)
   ANDREWS, Presiding Judge.

Channon R. Cody appeals from the trial court’s order dismissing two appeals pursuant to OCGA § 5-6-48 (c) on the basis that she caused an unreasonable and inexcusable delay in the transmission of the record to this Court by failing to timely pay costs in the trial court. We find no abuse of discretion and affirm the trial court’s dismissal of the first appeal. Because dismissal of the first appeal rendered this Court without jurisdiction to consider the second appeal, Cody’s contentions as to the second dismissed appeal are dismissed as moot.

On August 23,1999, Cody filed a timely notice of appeal from the trial court’s grant of summary judgment in favor of Coldwell Banker Real Estate Corporation and David Evans on Cody’s claim for return of an earnest money deposit. On the same day, Cody was notified pursuant to OCGA § 5-6-48 (c) of $246.50 in costs due in the trial court associated with the appeal. On September 8, 1999, Cody filed an affidavit of indigence which made the cursory assertion that, “[b]ecause of my indigence, I am unable to pay the $246.50 costs. ...” A hearing was scheduled to consider Cody’s assertion of indigence along with motions filed by Coldwell Banker and Evans for the award of attorney fees pursuant to OCGA § 9-15-14. Cody failed to appear at the hearing and produced no evidence in support of her claim of indigence. Her attorney, who appeared on her behalf, told the court he had spoken to Cody and that she was at work and had forgotten about the hearing because her life was in chaos. The attorney explained that he had no evidence to support the indigence claim because he was expecting Cody to bring supporting documents to the hearing. After the hearing, the trial court entered an order on February 4, 2000, granting the motions for attorney fees under OCGA § 9-15-14, concluding that Cody was not entitled to indigent status, and requiring Cody to pay the court costs. Cody filed a second notice of appeal on March 3, 2000, from the award of attorney fees, and on March 10, 2000, Cody was notified pursuant to OCGA § 5-6-48 (c) that unpaid court costs had increased from the $246.50 associated with the first appeal to $421 in light of her second appeal.

On April 5, 2000, Coldwell Banker moved for dismissal of Cody’s appeals pursuant to OCGA § 5-6-48 (c) attaching an affidavit from the clerk of the trial court showing that Cody had failed to pay the original $246.50 in costs billed in August 1999 and that no record had been transmitted to the appellate court because costs had not been paid. Two days later on April 7, 2000, Cody paid the $421 due as court costs for both appeals. On April 20, 2000, the trial court granted the motion to dismiss and dismissed both appeals pursuant to OCGA § 5-6-48 (c). The dismissal order was subsequently vacated by this Court on appeal in Cody v. Coldwell Banker Real Estate Corp., 248 Ga. App. 180 (546 SE2d 299) (2001), because the order did not contain the court’s findings pursuant to OCGA § 5-6-48 (c), and the case was remanded to the trial court for entry of a new order setting forth the necessary findings. The present appeal is from the trial court’s new order entered on remand dismissing both appeals pursuant to OCGA § 5-6-48 (c).

Under OCGA § 5-6-48 (c), the trial court may order an appeal dismissed if

there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence; provided, however, that no appeal shall be dismissed for failure to pay costs if costs are paid within 20 days (exclusive of Saturdays, Sundays, and legal holidays) of receipt by the appellant of notice, mailed by registered or certified mail or statutory overnight delivery, of the amount of costs.

The trial court exercises a legal discretion in deciding whether these elements exist, which we review for abuse. Wood v. Notte, 238 Ga. App. 748, 749 (519 SE2d 923) (1999).

We find no abuse of discretion in the trial court’s dismissal of Cody’s first appeal from the grant of summary judgment instituted by the notice of appeal filed on August 23, 1999. Cody received notice of $246.50 in costs associated with this appeal on August 23, 1999. Although Cody filed an affidavit of indigence on September 8, 1999, pursuant to OCGA § 5-6-48 (c), it provided only an unsupported, cursory statement of indigence, and Cody failed to appear at a subsequent hearing to address her indigence claim. We find no abuse of discretion in the trial court’s rejection of the indigence claim in its order of February 4, 2000. Saylors v. Emory Univ., 187 Ga. App. 460, 461 (370 SE2d 625) (1988). Having received notice that her indigence claim was rejected, Cody waited over 40 days (exclusive of Saturdays, Sundays, and legal holidays) after her indigence claim was rejected before paying the costs for this appeal on April 7, 2000. The trial court did not abuse its discretion in determining that Cody’s failure to timely pay the costs was inexcusable and caused an unreasonable delay in the transmission of the record to this Court. Bouldin v. Parker, 173 Ga. App. 526, 527 (327 SE2d 760) (1985) (delays of over 30 days are prima facie unreasonable and inexcusable).

Decided January 30, 2002

Reconsideration denied February 15, 2002

Arthur F Millard, for appellant.

King, Taylor & Stovall, James F. Stovall III, Weissman, Nowack, Curry & Wilco, Charles B. Waters, Jr., for appellees.

The trial court also dismissed Cody’s direct appeal from the award of attorney fees under OCGA § 9-15-14 instituted by notice of appeal filed on March 3, 2000. Cody was properly notified of court costs associated with this appeal on March 10, 2000, and she paid these costs on April 7, 2000. However, we need not decide whether the trial court abused its discretion in dismissing this appeal pursuant to OCGA § 5-6-48 (c). An appeal from the award of attorney fees under OCGA § 9-15-14 requires an application for appeal pursuant to OCGA § 5-6-35 (a) (10). A direct appeal is allowed only in those cases where the appellate court already has jurisdiction of a direct appeal in the underlying case. Mitcham v. Blalock, 268 Ga. 644, 646-647 (491 SE2d 782) (1997). Because we found that the trial court properly dismissed Cody’s underlying direct appeal from the grant of summary judgment, we have no jurisdiction to consider Cody’s direct appeal from the award of attorney fees under OCGA § 9-15-14. Accordingly, Cody’s contentions as to the second dismissed appeal are dismissed as moot.

Judgment affirmed in part and dismissed in part.

Eldridge and Miller, JJ, concur.


author: Andrews, Presiding Judge.

text:
    A01A2334.
    FINLON v. W & J FACTORS, INC.
    (560 SE2d 273)
   Andrews, Presiding Judge.

Kenneth C. Finlon appeals from a judgment against him and in favor of W & J Factors, Inc. in a collection action. He claims the trial court erred by denying his motion to dismiss for lack of service of process. Because the record shows that Finlon was not properly served with the action, we reverse.

Instead of serving Finlon personally with the summons and complaint, the specially appointed process server attempted to serve Finlon pursuant to OCGA § 9-11-4 (e) (7), which provides that the defendant may be served “by leaving copies [of the summons and complaint] at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. . . .” For this form of service to be valid, it was necessary that the process server leave the copies at Finlon’s residence with a person who resided there with Finlon. Yelle v. U. S. Suburban Press, 216 Ga. App. 46 (453 SE2d 108) (1995). To show return of service, the process server filed an affidavit stating that,

I did personally serve Kenneth C. Finlon with a summons and complaint by handing same to Erika Norris, a person of suitable age and discretion at his residence on the 29th day of February, 2000 at 8:50 P.M. at 4012 Sudderth Road, Buford, Georgia 30518. Ms. Norris, identified as Mr. Finlon’s, girlfriend, then immediately notified Mr. Finlon of the service via Nextel Radio/Telephone and accepted service for him.

At the hearing on the motion to dismiss, Finlon testified that Norris was his girlfriend and was occasionally at his residence, but she did not reside with him. The process server testified that, when he attempted to serve Finlon personally at his residence, Norris answered the door, identified herself as Finlon’s girlfriend, and said Finlon was not there. He said Norris stepped back inside apparently to telephone Finlon and then came back a few minutes later and said “okay.” The process server stated that he handed the copies to Norris “because it appeared to me she was able to accept for him.” When asked if Norris indicated that she lived there or did not live there, the process server testified, “She didn’t indicate to me one way or the other.”

There was also testimony from the process server that Norris told him the Lotus sports car parked at Finlon’s house had been jointly purchased by her and Finlon. The process server said he later attempted additional service on Finlon at his residence as the agent of other corporate defendants in the suit and saw (twice in the evening and once in .the morning) the Lotus, two pickup trucks, dump trucks, and several demolition vehicles at Finlon’s residence. He said he could see shadows moving in the residence, but he did not see any individuals. Although the statements attributed to Norris by the process server were inadmissible hearsay (Due West Assoc. v. Renfroe Mining &c. Co., 194 Ga. App. 397, 398 (391 SE2d 13) (1990)), Finlon confirmed in his testimony that the Lotus automobile belonged to him and Norris. He said the Lotus was kept at his residence, that Norris rarely drove it, and that she owned a pickup that she normally drove.

Decided January 30, 2002

Reconsideration denied February 15, 2002.

Daniels & Taylor, Jerry A. Daniels, for appellant.

Wagner, Johnston & Rosenthal, C. David Johnston, Michael S. Rosenthal, for appellee.

Based on this evidence, the trial court concluded that Norris resided at Finlon’s residence and that Finlon was properly served pursuant to OCGA § 9-11-4 (e) (7) when the process server handed the copies to Norris. To the contrary, we find the above evidence does not support the conclusion that Norris resided with Finlon when service was attempted. The return of service made by the process server does not state that Norris resided at Finlon’s residence when service was attempted. It states only that Norris was at Finlon’s residence, that she was his girlfriend, and that she notified Finlon of the service by telephone and accepted the service. Thus, the return of service on its face fails to constitute prima facie proof that service was made pursuant to § 9-11-4 (e) (7) on a person residing with Finlon. Compare Yelle, 216 Ga. App. at 47. In support of his motion, Finlon testified based on personal knowledge that Norris did not reside with him. None of the evidence with respect to automobiles seen at the residence or Norris’s presence there on one occasion supported a conclusion that she resided there, and it was sheer speculation to conclude otherwise. Moreover, even if Finlon was aware that Norris was served with the action, as asserted in the return of service, this does not demonstrate compliance with the service statute. “[T]here is no authority to dispense with the clear requirements of OCGA § 9-11-4 (d) (7) [currently codified at § 9-11-4 (e) (7)] merely because the defendant may otherwise obtain knowledge of the filing of the action.” Bible v. Bible, 259 Ga. 418, 419 (383 SE2d 108) (1989).

Because there was no evidence to support the trial court’s conclusion that Norris resided with Finlon when she was served with the summons and complaint at the residence, the trial court erred by denying Finlon’s motion to dismiss asserting lack of service. Due West Assoc., 194 Ga. App. at 397.

Judgment reversed.

Eldridge and Miller, JJ., concur.

       There was no evidence that Norris was an agent authorized to accept service on behalf of Finlon. See Exum v. Melton, 244 Ga. App. 775, 778 (536 SE2d 786) (2000).


text:
    A01A1628.
    HEAD v. THE STATE.
    (560 SE2d 536)
   Andrews, Presiding Judge.

James Virgil Head was found guilty by a jury of false imprisonment and simple assault. The State produced evidence that Head violently assaulted his ex-wife and, by use of threats, physical attack, and possession of a knife, held her captive while forcing her to accompany him. Head does not challenge the sufficiency of the evidence supporting the convictions. For the following reasons, we find no merit in the errors asserted by Head on appeal and affirm the judgment entered on the convictions.

1. Head claims the trial court erroneously denied his motion for a mistrial after a witness for the State gave testimony improperly bolstering the credibility of the victim.

During direct examination, a “victim advocate” testifying for the State about physical bruising she observed on the victim’s body gave an unresponsive comment that she believed the victim. Because a witness’s credibility is exclusively a matter for the jury and cannot be bolstered by the opinion of another witness, this was improper testimony. Castro v. State, 241 Ga. App. 546, 548-550 (527 SE2d 12) (1999). The trial court denied Head’s motion for a mistrial and immediately gave a curative instruction to the jury that it was improper for the witness to comment on the believability of the victim, that the credibility or believability of witnesses was for the jury to decide, and that they were instructed to disregard and give no weight or consideration to the witness’s comment that she believed the victim.

A mistrial under these circumstances is not mandated; rather, it lies within the sound discretion of the trial court to determine whether a mistrial is the only corrective measure which can preserve the right to a fair trial, or whether the error can be corrected by proper instructions to the jury. Stanley v. State, 250 Ga. 3, 4 (295 SE2d 315) (1982). On the present facts, given the trial court’s immediate instruction to the jury to disregard the testimony, we find no abuse of discretion in the refusal to grant a mistrial. Id.

2. Head contends the trial court erred by denying his motion to disqualify the district attorney and his entire staff from the prosecution of his case.

Head moved for disqualification on the basis that the chief investigator in the Gwinnett County District Attorney’s office dated and subsequently married the victim in this case during the time the case was being investigated and prosecuted. Evidence was presented at the hearing on the motion that the chief investigator, a former police officer employed by the district attorney to conduct and supervise criminal investigations, met the victim in a social setting unrelated to the case. The investigator told the victim where he worked, and the victim revealed that she had a pending case. The victim’s case was being handled by another investigator at the time, and the chief investigator was not personally aware of the case, which was one of thousands handled each year by the district attorney’s office. Before dating the victim, the investigator told the district attorney about the victim’s pending case and asked if there would be any problem if he dated her. The district attorney responded there would be no problem as long as the investigator had no involvement in the victim’s case. Thereafter, the investigator did not personally investigate the case, did not discuss the case with other investigators or prosecutors, and took no part in the decision of prosecutors to indict Head. The investigator said his only contact with the case was while he was out socially one evening with the victim and she saw a man who she thought might have some information about the case. The investigator testified that he spoke briefly with the man, who said he knew the victim and Head but had no information about the case.

Head contends the investigator’s close personal relationship with the victim disqualifies the district attorney and every prosecutor on his staff. It is possible for a disqualifying conflict of interest to arise where a prosecutor has acquired a personal interest or stake in the defendant’s conviction. Williams v. State, 258 Ga. 305, 314-315 (369 SE2d 232) (1988). For example, a prosecutor’s close personal relationship with the victim in a case may create at least the appearance of a prosecution unfairly based on private interests rather than one properly based on vindication of public interests. Christopher Vaeth, Annotation, Disqualification or Recusal of Prosecuting Attorney Because of Relationship with Alleged Victim or Victim’s Family, 12 ALR5th 909 (2001). In that case, the individual prosecutor who has the conflict may be disqualified from participation in the case, but not all the other prosecutors who work with him. See Frazier.v. State, 257 Ga. 690, 693-695 (362 SE2d 351) (1987).

There was no evidence of any conflict of interest or resulting misconduct in this case by the district attorney or any prosecutor on his staff, and we will not presume or find the appearance of such conflict solely because an investigator who works for the district attorney has a close personal relationship with the victim. Moreover, to insure that no conflict of interest or the appearance of one might develop, the district attorney took the prudent step of ordering the investigator to take no part in the investigation or prosecution of the case. The trial court did not abuse its discretion by denying the disqualification motion.

3. There is no merit to Head’s contention that the trial court improperly sentenced him under the recidivist provisions of OCGA § 17-10-7 (c) because he did not have three prior felony convictions as defined by the provisions of OCGA § 17-10-7 (d).

Section 17-10-7 (c) provides that any person with three prior felony convictions who commits a subsequent felony must serve the maximum sentence and is not eligible for parole. Although the State produced evidence at the sentencing hearing that Head had been convicted of twelve prior felonies in separate indictments or accusations, Head argues that eleven of the twelve felonies were consolidated for trial and are deemed under OCGA § 17-10-7 (d) to be only one conviction. Section 17-10-7 (d) provides that “[flor the purpose of this Code section, conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.”

The totality of the circumstances is considered in determining whether separate offenses have been consolidated for trial under OCGA § 17-10-7 (d). Stone v. State, 245 Ga. App. 728 (538 SE2d 791) (2000). All 12 felony convictions produced by the State were charged on separate indictments or accusations and had separate sentencing orders. One felony conviction was disposed of by a guilty plea entered on February 25, 1982, for a burglary committed on September 9, 1981. The remaining eleven felony convictions were disposed of by guilty pleas entered on September 30, 1977, for seven burglaries committed on July 31, 1977, one burglary committed on March 22, 1977, a motor vehicle theft committed on July 27, 1977, a forgery in the first degree committed on July 20, 1977, and a second degree forgery committed July 20, 1977. All eleven of these felony convictions show identical sentences imposed on the same day for eighteen years, eight to serve in prison and the remainder on probation.

Head contends that, since the felony convictions for first and second degree forgery carried maximum sentences of less than eighteen years, the court actually imposed one consolidated sentence of eighteen years for these eleven convictions, and they should be considered one conviction consolidated for trial under OCGA § 17-10-7 (d). The record, however, shows that a separate order of sentence was entered on each separate accusation or indictment. The fact that the sentences were entered on the same day or that they may have been intended to run concurrent with each other does not require the conclusion that they were consolidated for trial within the meaning of OCGA § 17-10-7 (d). Philmore v. State, 263 Ga. 67, 70 (428 SE2d 329) (1993). The trial court did not err by imposing sentence pursuant to the recidivist provisions of OCGA § 17-10-7 (c).

Decided February 15,2002.

David L. Whitman, for appellant.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

4. Contrary to Head’s contention, the State’s written notice to him pursuant to OCGA § 17-10-2 (a) of the State’s intent to use the 12 prior felony convictions in aggravation of punishment was sufficient notice to allow the State to introduce the prior convictions to support recidivist sentencing. Stanford v. State, 251 Ga. App. 87, 90 (553 SE2d 622) (2001).

Judgment affirmed.

Eldridge and Miller, JJ., concur.

       Head also contends that, if excessive, void sentences were imposed on his prior convictions for first and second degree forgery, they cannot be used to support recidivist sentencing. Assmning without deciding the truth of this contention, the remaining convictions were sufficient to support recidivist sentencing.


author: Phipps, Judge.

text:
    A01A1887.
    TURNER v. THE STATE.
    (560 SE2d 539)
   Phipps, Judge.

A jury found David Turner guilty of false imprisonment and two counts of child molestation for confining twelve-year-old T. C. in a room and placing his hand and his mouth on her breast. On appeal, he contends that the trial court erred by allowing a videotape of T. C.’s interview about the incident to go out with the jury during its deliberation, by refusing to redact commentary on the videotape which he claims improperly bolstered T. C.’s credibility, and by failing to merge the false imprisonment count into the child molestation counts. He also contends that the prosecutor engaged in misconduct during closing argument, that the evidence was insufficient to support his conviction for false imprisonment, and that he received ineffective assistance of counsel. Because the record demonstrates no reversible error, we affirm.

The evidence showed that on Friday, February 12, 1999, T. C. stayed after school waiting to attend a program scheduled for that evening. At about 7:00 p.m., she entered a computer lab to use a telephone there. Turner, then a janitor at the school, was using the telephone and asked T. C. to wait. T. C. testified that after Turner ended his telephone conversation, he closed the door, turned off the light, approached her, and asked whether she had ever fantasized about having sex with him. She answered, “No.” She testified that she was then sitting on a table and that Turner stood in front of her, pushed her back, lifted her shirt and bra, and touched her breast with his mouth and hands “hard enough to where it hurt.” She stated that “[t]here was nothing [she] could do.” T. C.’s aunt, who was 15 years old at the time of trial, testified that T. C. told her about the incident that same evening and made her promise to keep it secret.

The following Tuesday, T. C.’s mother was called to the school. Her mother testified that when she arrived, T. C. was “very upset and crying really hard” and told her that Turner had cornered her the previous week and had fondled her breast with his hands and mouth. Police were called to the school, and T. C. reported the incident to an officer. Photographs taken that day were introduced at trial and showed bruising on T. C.’s breast, which T. C. attributed to Turner.

About two weeks after the incident, an employee of the Georgia Center for Children conducted a forensic interview with T. C. A videotape of the interview, played for the jury, showed T. C. describing her encounter with Turner.

Turner testified at trial that he had worked for the school system for 15 years. He testified that he was using the telephone in the computer lab that evening around 7:00 when T. C. walked in and asked to make a call. He stated that he allowed her to do so and that she thanked him and hugged him. He recalled that the hug “wasn’t like a regular hug. And [he] pushed her off.” He denied touching her breast and stated that the lights remained on. In addition, Turner presented witnesses who testified that he was of good character and good reputation and that they would believe him under oath.

1. Turner contends that the evidence was insufficient to support his conviction for false imprisonment. He urges there is no evidence that he “locked the door, barred the exit or ever told [T. C.] she was not free to leave.” On appeal, we do not weigh the evidence or assess the credibility of witnesses but determine only whether the evidence, viewed in a light most favorable to the verdict, was legally sufficient under the standard of Jackson v. Virginia.

“To prove false imprisonment all that is required is there be an arrest, confinement or detention of the person, without legal authority, which violates the person’s personal liberty (i.e., against his or her will).” There was evidence that Turner confined 12-year-old T. C. by closing the door, turning off the light, standing in front of her as she sat on a table, and pushing her back, rendering her unable to resist. This evidence is sufficient to sustain Turner’s conviction for false imprisonment. Further, the evidence of Turner placing his hands and mouth on T. C.’s breast and his comments to her about sexual fantasies meet the Jackson v. Virginia standard to support the jury’s finding that Turner was guilty beyond a reasonable doubt of two counts of child molestation.

2. Turner contends that the trial court erred by failing to redact from the videotaped interview commentary which he claims bolstered T. C.’s credibility. The videotape showed that within the first two minutes of the interview, the interviewer explained to T. C. that she wanted the truth and that T. C. should not “guess” or “fill in the blanks” or “make up stuff.” The interviewer then asked T. C. what she thought was the difference between “don’t know” and “don’t remember.” T. C. answered that “don’t know” means that “you don’t know at all, like, or it probably didn’t happen,” and that “don’t remember” means “it happened but you don’t actually, like, remember when, or. . . .” The interviewer then stated, “you can’t think of it. . . . OK.” Thereafter, the interviewer said, “Yeah, very good definition. OK. So let me know if you don’t remember.” Turner maintains that the interviewer bolstered T. C.’s credibility by stating that T. C. had provided a “good definition.”

“In no circumstance may a witness’ credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.” But that is not what happened here. The interviewer did not say that she believed T. C. or that T. C. was not likely to lie. Rather, she commented on T. C.’s understanding of the difference between “not knowing” and “not remembering.” Because the videotape shows that no bolstering occurred here, the trial court did not err in refusing to redact that portion of the videotaped interview.

3. Turner contends that the trial court erred in allowing the videotape to go out with the jury during its deliberation because doing so violated the “continuing witness” rule. The record shows that no such objection was made when the videotape was introduced or when it was sent to the jury room. Consequently, this issue has not been preserved for appellate review.

4. Turner maintains that the State engaged in prosecutorial misconduct by presenting “misleading” statements during closing argument. The record shows that no objection was made during or after closing argument. Consequently, this issue has not been preserved for appellate review.

5. Turner received a sentence of fifteen years, to serve five, for the two counts of child molestation and ten years, to serve five, for the false imprisonment count. He contends that the false imprisonment count should have merged with the two counts of child molestation because the same facts supported all three offenses and the acts occurred at the same time and place and therefore constituted one continuous act.

Although the acts constituting false imprisonment and the acts constituting child molestation were committed at the same time and place, they did not merge. In determining whether multiple offenses merge, the key question is whether the same facts proved the different offenses. In this case, the indictment charged that Turner committed false imprisonment by violating T. C.’s personal liberty by confining her and that he committed child molestation by placing his hand and mouth on her breast with the intent to arouse and satisfy his sexual desires. Since the false imprisonment count could be proved by facts different from the child molestation counts and sufficient evidence was adduced of those different facts to support the jury’s findings of guilt, the trial court did not err by not merging the false imprisonment count into the child molestation counts.

6. Turner contends he received ineffective assistance of counsel. To succeed on this claim, Turner must demonstrate that his attorney’s performance was deficient and that the deficiency prejudiced his defense. We need not address both prongs of this test if the showing on one prong is insufficient, nor must we address them in any particular order. Turner’s post-trial attorney filed an amended motion for new trial, alleging ineffective assistance of trial counsel. After a hearing, the trial court denied the motion. We review a trial court’s finding that a defendant has been afforded effective assistance of counsel under the clearly erroneous standard.

First, Turner complains that his trial counsel inadequately investigated his case because counsel did not interview various members of the school staff that he claims were “potential witnesses” who may have been able to impeach T. C.’s testimony. But the content of their testimony is mere speculation because the potential witnesses did not testify at the motion for new trial hearing. Without such evidence, Turner cannot meet his burden of affirmatively showing how trial counsel’s failure affected the outcome of his case.

Second, Turner complains that his trial counsel did not subpoena A. B., one of T. C.’s friends. At the motion for new trial hearing, Turner presented A. B.’s pretrial statement to police, wherein he stated that a girl said that she had seen the incident, that T. C. told him that “Mr. Green,” another school janitor, had tried to have intercourse with her, that T. C. later told him that she “was just playing,” and that T. C. told another girl that “it was true.” A. B. did not testify at the hearing on the motion for new trial, however, and his statement constitutes hearsay. The trial court determined, “[A] written statement, made by a child under who knows what circumstances, not subject to explanation or cross-examination, is not sufficient evidence to persuade this court to grant a new trial.” The trial court did not clearly err.

Third, Turner complains that his trial counsel was ineffective by failing to object to the prosecutor’s remarks made during closing arguments which he complains were misleading. During the trial, Turner’s counsel asked T. C., “[I]f [A. B.] says you told him Mr. Green was the one that had done something to you, he would have been mistaken then; is that what you’re saying?” T. C. answered, “yes,” at which point, the transcript indicates that Turner’s counsel handed something to T. C. to see whether it would refresh her memory. T. C. then stated, “Well, I don’t know if [A. B.] got Mr. Green and Mr. Turner mixed up.”

During closing argument, the prosecutor addressed this exchange, telling the jury:

[A] reference to Mr. Green was made during this trial, and it was made by the defense attorney in the case. There is no evidence that the victim in this case, [T. C.], ever said Mr. Green did this to her. Absolutely none. That was a reference by [the defense attorney]. You have no evidence before you that she ever said anybody other than Mr. Turner did this to her.

Turner complains that such argument was “blatantly false and misleading,” pointing to A. B.’s written statement to police. But the statement was not introduced into evidence, and the record demonstrates that the prosecutor permissibly argued the state of the evidence before the jury. It follows that trial counsel was not deficient by not objecting.

Decided February 15, 2002.

Virginia W. Tinkler, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Charles C. Flinn, Assistant District Attorneys, for appellee.

Finally, Turner contends that his trial counsel was ineffective because he failed to make a “continuing witness” objection regarding the videotape of T. C.’s interview going out with the jury. However, we cannot consider this portion of Turner’s claim because his motion for new trial did not complain of it and this argument was not made at the motion for new trial hearing. Because Turner failed to make this argument at the earliest practicable opportunity, it is waived.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Gordon v. State, 244 Ga. App. 265, 266-267 (1) (535 SE2d 289) (2000).

       (Citation and punctuation omitted.) Armstrong v. State, 244 Ga. App. 871, 872 (1) (537 SE2d 147) (2000); OCGA § 16-5-41 (a).

       See Jackson, supra; Rehberger v. State, 235 Ga. App. 827-828 (1) (510 SE2d 594) (1998).

       Supra.

       See Hudson v. State, 251 Ga. App. 592, 593 (1) (554 SE2d 781) (2001) (11-year-old’s version of what occurred between her and defendant, as told to her mother, the examining physician, and the juiy, was sufficient to support a conviction for child molestation); Anderson v. State, 237 Ga. App. 382-383 (1) (515 SE2d 195) (1999).

       (Citations and punctuation omitted.) Price v. State, 220 Ga. App. 176, 177 (2) (b) (469 SE2d 333) (1996).

       See generally Edwards v. State, 253 Ga. App. 479, 483 (5) (a) (559 SE2d 506) (2002); compare Price, supra at 176-177 (2) (mother’s statement that “she believed her daughters” improperly bolstered the daughters’ credibility).

        Mason v. State, 274 Ga. 79, 81 (3) (548 SE2d 298) (2001).

        Miller v. State, 267 Ga. 92 (2) (475 SE2d 610) (1996).

        Gooch v. State, 249 Ga. App. 643, 648 (5) (549 SE2d 724) (2001).

       See Division 1, supra.

       See Peavy v. State, 159 Ga. App. 280, 283-284 (3) (283 SE2d 346) (1981) (no merger for kidnapping and enticing a child for indecent purposes, where each offense had elements not contained in the other and each offense was proved using different facts).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Anderson, supra at 383-384 (2).

        Cowan v. State, 243 Ga. App. 388, 396 (10) (531 SE2d 785) (2000).

       Id.

       See Bruce v. State, 252 Ga. App. 494, 499 (2) (a) (i) (555 SE2d 819) (2001).

       See Brice v. State, 242 Ga. App. 163, 167 (6) (529 SE2d 178) (2000).

       See Spear v. State, 270 Ga. 628, 630 (3) (513 SE2d 489) (1999).

       Whether counsel was ineffective in failing to raise this argument is an issue we do not reach.

       See Render v. State, 240 Ga. App. 762 (a) (525 SE2d 134) (1999); Green v. State, 240 Ga. App. 650, 654 (3) (523 SE2d 632) (1999); Curry v. State, 238 Ga. App. 511, 520 (3) (c) (519 SE2d 269) (1999).


text:
    A01A1928.
    SOUTHERN GENERAL INSURANCE COMPANY v. CREWS et al.
    (560 SE2d 331)
   Andrews, Presiding Judge.

Southern General Insurance Company (Southern General) appeals from the trial court’s dismissal of its action for interpleader and declaratory judgment. Because the trial court correctly determined that Southern General’s petition failed to set forth a cause of action, we affirm.

This case arose out of an automobile accident in which Jamie Hall and Sheila Jones were killed, and Hall’s child, Tessa Jo Howard, was injured. Hall, Jones, and Howard were all riding in Hall’s car when it collided with another car. There is a question as to whether Hall or Jones was actually driving the car, and there appears to be evidence that whoever was driving may have been negligent. Southern General insured Hall and the car under a policy with minimum limits of $15,000. Southern General also insured Jones under a policy with $15,000 minimum limits.

As a result of the accident, numerous claims were raised by representatives of both women. Jones’s representatives filed suit against Hall’s estate for wrongful death and pain and suffering based upon evidence that Hall was driving. Hall’s representatives filed claims against Jones’s estate based upon evidence that Jones was driving.

Southern General filed a petition for interpleader and declaratory judgment, alleging that the conflicting claims “render[ed] it doubtful or dangerous for Petitioner to act, and unless equity intervenes, Petitioner may be subject to conflicting claims, penalties and a multiplicity of suits or actions.” The petition requested that the court order all the civil suits to be stayed and require the respondents to set up and establish their respective claims in one proceeding at which the court would determine who was driving the car. Southern General did not put into the registry of the court the policy limits of both its insureds, but instead tendered only $15,000, claiming that only one person was driving the car.

The respondents filed a motion to dismiss the interpleader or, in the alternative, to order Southern General to put $30,000 into the registry of the court. They argued that Southern General had two policies at stake and, therefore, should defend all suits. We agree.

Interpleader is appropriate when there are claims against the plaintiff that could expose it to double or multiple liability. OCGA § 9-11-22. There is also an equitable interpleader statute which provides that “[w]henever a person is possessed of property or funds or owes a debt or duty, to which more than one person lays claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead.” OCGA § 23-3-90 (a).

Therefore, the insurance company is entitled to a petition of interpleader if it is in a position in which it is liable to one of two or more persons, who claim from it the same debt or duty; and the company claims no right in opposition to the claimants and does not know to whom it “ought, of right, to render the debt or duty.” (Punctuation omitted.) Phillips v. Kelly, 176 Ga. 111, 114 (167 SE 281) (1932).

This is not a case where there are multiple claimants to the same stake or where the company could be liable for more than the policy limits. Southern General faces no uncertainty; it simply has to defend the lawsuit brought against its insured and pay up to its policy limits if judgment is rendered against her. That it insures both women is immaterial.

In addition, Southern General’s claim for declaratory judgment presents no justiciable controversy, and the trial court correctly dismissed it. The Georgia declaratory judgment statute, OCGA § 9-4-2 provides in pertinent part:

(a) In cases of actual controversy, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such, (b) In addition to the cases specified in subsection (a) . . . , the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for the declaration, whether or not further relief is or could be prayed, in any civil case in which it appears to the court that the ends of justice require that the declaration should be made; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.

Thus, a declaratory judgment may not be granted in the absence of a justiciable controversy. “The plaintiff must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest.” (Punctuation omitted.) Chattahoochee Bancorp v. Roberts, 203 Ga. App. 405, 406 (416 SE2d 875) (1992).

In Gunnells v. Cotton States Mut. Ins. Co., 117 Ga. App. 123 (159 SE2d 730) (1968), there was also a dispute over who was actually driving the car. The insurance company obtained a stay of all proceedings and filed a declaratory judgment action to determine who was driving the car. The Supreme Court noted in its opinion that no one had attacked the action as failing to show a justiciable controversy even though “declaratory judgment proceedings are not available merely to settle a disputed issue of fact arising between parties which could be decided when necessary in the course of other litigation.” Id. at 124 (1). Although not necessary to the holding in the case, the Court certainly indicated that, had the declaratory judgment action been challenged, it should have been dismissed for failing to set forth a cause of action. See also State of Ga. v. Hosp. Auth. of Gilmer County, 213 Ga. 894, 898 (102 SE2d 543) (1958); Gibbs v. Forrester, 204 Ga. 545, 549 (50 SE2d 318) (1948).

In this case, the declaratory judgment action has been challenged, and we see no peril to Southern General in defending suits against both its insureds. What Southern General is seeking from the Court in this case is simply a factual determination as to who was driving Hall’s car. Accordingly, Southern General has failed to set forth a cause of action for declaratory judgment or interpleader. The trial court did not err in dismissing the petition.

Decided February 15, 2002.

Dillard & Bower, Terry A. Dillard, Bryant H. Bower, Jr., for appellant.

Karsman, Brooks & Callaway, Stanley Karsman, Killian & Boyd, Robert P. Killian, William T. Ligón, Jr., Vincent D. Sowerby, for appellees.

Judgment affirmed.

Eldridge and Miller, JJ, concur.


author: Pope, Presiding Judge.

text:
    A01A2001.
    PERSINGER et al. v. STEP BY STEP INFANT DEVELOPMENT CENTER.
    (560 SE2d 333)
   Pope, Presiding Judge.

James Persinger, an 18-month-old child, broke his left femur while in the custody and care of a day care center called Step By Step Infant Development Center. The child’s parents filed suit, but the trial court granted summary judgment in favor of Step By Step. The parents appeal contending that they have presented an issue of fact for the jury as to Step By Step’s liability.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Jackson v. Post Properties, 236 Ga. App. 701 (513 SE2d 259) (1999).

The child’s teacher, Wendy Philliber, testified that James was looking out of a window when she called him to join the other children for storytime. She testified, “He turned from the window and he ran towards me. And then he fell down, twisting his leg when he fell.” She also testified that the area was carpeted, that there were no toys or other items on the floor where he fell and that he appeared to simply stumble and twist his leg on the carpet. Lana Jamieson, a co-owner and officer of Step By Step, testified that through a glass window in the classroom she saw James go away from the other children then turn and start to go toward them. She then saw him fall and twist his leg. She said that the fall was not extraordinary or unusual. However, in her written statement made shortly after the injury, she did not indicate that the child had twisted his leg in the fall.

The parents offered their affidavits and that of an orthopedic surgeon. The parents testified that James was in good health prior to the accident and that he had never been diagnosed with any type of condition that could make breaking a bone more likely. The orthopedic surgeon, Dr. Anthony Alter, testified that based on his review of the x-rays and medical records, the fracture of James’ femur resulted from “a significant twisting, such as the leg being caught in a crib slat, or at minimum, a fall from a height greater than the height of the child.” He went on to opine that this injury “would not have reasonably occurred simply by the child walking or running across a floor absent some contact with an external object or the child stepping into a hole.” He added that James’ foot would have to have been “locked,” that is held in place, in order for James’ leg to be broken the way it was.

“In Georgia, the essential elements of a cause of action for negligence are: (1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between the breach and the injury.” (Citation omitted.) Vaughan v. Glymph, 241 Ga. App. 346, 348 (526 SE2d 357) (1999).

In this case the legal duty is established and the injury is not disputed. The duty of a child care provider is “to exercise reasonable care for the safety of the child . . . gauged by the standard of the average reasonable parent.” (Citation and punctuation omitted.) Laite v. Baxter, 126 Ga. App. 743, 745-746 (2) (191 SE2d 531) (1972). See also La Petite Academy v. Turner, 247 Ga. App. 360, 362 (1) (543 SE2d 393) (2000) (“that care which a prudent person would exercise under like circumstances”) (footnote omitted). A day care provider does not insure the safety of the child “and has no duty to foresee and guard against every possible hazard.” Id. at 361-362 (1). Finally, “[a]n injury, without more, does not create the presumption of negligence.” (Citation omitted.) Palacios v. Abercrombie, 236 Ga. App. 54, 55 (1) (510 SE2d 908) (1999).

The more problematic aspect of this case is whether there is any evidence that the duty was breached and that the breach caused the injury. The Persingers offer two arguments, the first of which is easily dispatched. They claim that James’ teacher, Philliber, failed to prevent James from running. Philliber testified that it was her practice to “try not to allow them to run in the classroom.” But this testimony does not show that allowing a toddler to run under these circumstances was a breach of duty. In fact prudent parents allow their children to run all the time. See La Petite, 247 Ga. App. at 362 (not negligent to allow toddler in day care to ride a tricycle quickly).

Other than the above, the Persingers have not offered any evidence to show how the day care center might have breached its duty of care. Instead, they have offered an expert’s opinion that based on the nature of the break, the accident could not have resulted from a fall while running, and that the break indicated a “significant twisting” with the foot locked in place or a fall from a height greater than that of the child. The Persingers contend that this opinion creates an issue of fact concerning whether Step By Step breached its duty of care to James. They imply that the caregivers are actually hiding the true cause of the injury. They therefore argue that a jury could conclude that Step By Step failed to adequately supervise the child or otherwise care for the child and that this failure caused the injury.

Without any evidence of a breach of duty, summary judgment would be warranted unless the doctrine of res ipsa loquitur can be applied to these facts.

Under Georgia law, “[i]n arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved.” OCGA § 24-4-9. This statute is the basis for the Georgia law of res ipsa loquitur. Hosp. Auth. &c. of St. Marys v. Eason, 222 Ga. 536, 539 (1) (150 SE2d 812) (1966). “The principal basis for application of the rule ... is that the occurrence involved would not have occurred but for negligence, and this negligence may properly be charged to the person in exclusive control of the instrumentality.” (Citations and punctuation omitted.) U. S. Fidelity &c. Co. v. J. I. Case Co., 209 Ga. App. 61, 64-65 (3) (432 SE2d 654) (1993). “The rule is one of necessity in cases where there is no evidence of consequence showing negligence on the part of the defendant.” Parker v. Dailey, 226 Ga. 643, 645 (1) (177 SE2d 44) (1970).

“The elements of [the] doctrine are: (1) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” (Citation omitted.) Fender v. Colonial Stores, 138 Ga. App. 31, 38 (3) (225 SE2d 691) (1976). See also Kmart Corp. v. Larsen, 240 Ga. App. 351, 352 (522 SE2d 763) (1999). Unless the plaintiff can show these elements, he or she is not entitled to present the issue to the jury. The mere fact that the plaintiff sustained an injury does not establish negligence and therefore does not justify a trial. See Coppock v. Gooden, 205 Ga. App. 763 (423 SE2d 708) (1992).

Res ipsa loquitur is simply a rule of circumstantial evidence that allows an inference of negligence to arise from the happening of an event if the above elements are shown. Parker v. Dailey, 226 Ga. at 645; Macon Coca-Cola Bottling Co. v. Chancey, 216 Ga. 61, 64 (1) (114 SE2d 517) (1960). It “does no more than to allow the jury to decide the case and to make or reject the inference authorized as it sees fit — it does not create a presumption to that effect for the defendant to overcome.” (Citation and emphasis omitted.) McCurley v. Ludwig, 215 Ga. App. 798, 800 (2) (452 SE2d 554) (1994). “[T]he sufficiency of the circumstantial evidence, and its consistency or inconsistency with alternative hypotheses, is a question for the jury. . . . [Y]et before there is, in legal contemplation, any evidence, the circumstances shown must, in some appreciable degree, tend to establish the conclusion claimed.” (Citations omitted.) Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232-233 (367 SE2d 539) (1988).

We find that the doctrine is applicable here and that the case may proceed to the jury. First, there is evidence to support the conclusion that this injury ordinarily does not occur in the absence of someone’s negligence. According to the Restatement of Torts, this finding may be based on the common knowledge of the community or on expert testimony “that such an event usually does not occur without negligence.” Restatement (Second) of Torts, § 328D, comment d.

We simply cannot conclude that it is common knowledge that the type of injury James suffered ordinarily does not occur in the absence of someone else’s negligence. Compare Ward v. Mt. Calvary Lutheran Church, 178 Ariz. 350 (873 P2d 688, 693-695) (App. 1994) (not common knowledge that a four-year-old child can run and fall and break his femur in the absence of someone else’s negligence). A child that can run and fall can certainly break a bone. This distinguishes cases from other jurisdictions involving an injury to a very young infant, a very serious injury, or an injury obviously caused by an outside agency. See Ward v. Forrester Day Care, 547 S2d 410 (Ala. 1989) (negligence inferable where 11-week-old child suffered unexplained broken arm in day care); Zimmer v. Celebrities, Inc., 44 Colo. App. 515, 516-519 (615 P2d 76) (1980) (negligence inferable where 25-month-old child sustained a skull fracture while in day care); Myers v. Moore, 240 Mo. App. 726 (217 SW2d 291) (1949) (negligence inferable where five-week-old child sustained animal bites while under the care of a nursery).

But Dr. Alter’s affidavit is sufficient to make the point. He opined that the injury could not have resulted from a fall while running and that it must have resulted from a fall from a height greater than that of the child or from a significant twisting while the child’s foot was locked into place. Cf. Mt. Calvary, 873 P2d 688 (plaintiffs not allowed to rely on res ipsa loquitur where they failed to introduce expert testimony that a four-year-old child could not break a healthy femur in a fall while running).

Decided February 15, 2002.

Leonard & Clark, William M. Clark, Kenneth T. Israel, for appellants.

Goodman, McGuffey, Aust & Lindsey, Edward H. Lindsey, Jr., Thomas J. Lehman, for appellee.

Dr. Alter’s statement raises the direct inference that the accident did not happen the way the defendants claim it did. And a significant twisting, such as the leg being caught in a crib slat, or a fall from a height greater than the height of the child does not ordinarily occur absent the negligence of others. It is true that the child may have fallen inside his crib, of his own accord, and twisted his leg in the slats without the negligence of others. But, the doctrine of res ipsa loquitur does not require elimination of all other possible occurrences; it must only “render less probable all inconsistent conclusions.” (Citation and punctuation omitted.) White v. Exec. Committee of the Baptist Convention, 65 Ga. App. 840, 842 (16 SE2d 605) (1941).

With regard to the second element of res ipsa loquitur, the instrumentalities at issue are the day care workers themselves, who had complete authority and responsibility for the children. Furthermore, the parents testified that the child was in good health when he was placed at the facility. As for the final element, there is no evidence that James contributed to the kind of injury that the expert testified happened.

We are mindful that it is the law in Georgia that res ipsa loquitur “should be applied with caution and only in extreme cases.” Williams v. American Med. Systems, 248 Ga. App. 682, 684 (2) (548 SE2d 371) (2001). See also Eason, 222 Ga. at 541. But, given the expert testimony offered by the plaintiffs, the doctrine is applicable here. This expert testimony distinguishes the cases upon which Step By Step relies. In La Petite, 247 Ga. App. at 360, there was no expert testimony about the nature of the child’s broken leg to contradict the story offered by the defendants. In Palacios, 236 Ga. App. at 55 (1), a doctor’s statement that implied the child’s injury was caused by negligence was inadmissible hearsay.

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.

       “Circumstantial evidence can be described as evidence which does not constitute direct proof with regard to the issue of fact or the hypothesis sought to be proven by the evidence; rather, circumstantial evidence constitutes proof of other facts consistent with the hypothesis claimed.” Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232 (367 SE2d 539) (1988).


text:
    A01A2178, A01A2179.
    ROSS et al. v. EDWARDS; and vice versa.
    (560 SE2d 343)
   Andrews, Presiding Judge.

Alveno Ross, as executor of the estate of Alphonso Ross, and other plaintiffs brought an action claiming a local landfill constituted a nuisance. After a jury rendered a verdict in favor of the landfill defendants finding no nuisance and awarding no damages, Ross and the other losing plaintiffs (collectively referred to as Ross) brought the present legal malpractice action against Lonzy Edwards, the attorney who represented them in the nuisance action. The trial court granted summary judgment in favor of Edwards concluding Ross failed to show that any alleged failure by Edwards proximately caused the claimed harm, and that there was no basis for the additional claim that Edwards defrauded Ross. In Case No. A01A2178, Ross appeals from the grant of summary judgment, and in Case No. A01A2179, Edwards cross-appeals from the trial court’s earlier denial of his motion to dismiss. For the following reasons, we affirm the trial court’s grant of summary judgment.

Case No. A01A2178

1. The gravamen of Ross’s legal malpractice claim is that Edwards negligently failed to present expert engineering testimony during the nuisance trial and that this failure caused the adverse verdict and the loss of his claim for damages caused by the alleged nuisance. To establish this claim, Ross must prove not only that the attorney he employed was negligent but also that this negligence was the proximate cause of the claimed harm. Szurovy v. Olderman, 243 Ga. App. 449, 451 (530 SE2d 783) (2000). In other words, assuming without deciding that Edwards was negligent, Ross must show that, but for this negligence, he would have won a plaintiff’s verdict on the nuisance claim and would have received an award of damages. Morris v. Atlanta Legal Aid Society, 222 Ga. App. 62, 65 (473 SE2d 501) (1996); Houston v. Surrett, 222 Ga. App. 207, 209 (474 SE2d 39) (1996).

In awarding summary judgment to Edwards, the trial court found that it need not address the negligence issue because, even if there was evidence of negligence and this negligence caused the adverse verdict on the nuisance claim, there was an absence of evidence that Ross suffered any damages which could have supported an award by the jury. As the trial court pointed out and Ross concedes on appeal, there is no evidence of medical damages or diminution in property values, but Ross argues that evidence was presented as to the nature of the nuisance which shows that he would have been entitled to an award of damages for loss of enjoyment of the property and annoyance and discomfort caused by the alleged nuisance. See City of Columbus v. Myszka, 246 Ga. 571, 573 (272 SE2d 302) (1980).

We need not resolve the damage issue to conclude that Ross failed to sustain his burden on the issue of proximate cause. Ross presented expert testimony from an attorney that Edwards was negligent in failing to present expert engineering testimony in support of the nuisance claim and that the outcome of the trial would have been different if he had done so. However, Ross produced no evidence that an engineer could have given testimony that would have changed the result of the trial. In the absence of expert testimony from an engineer, Ross failed to show that, but for the failure of Edwards to present this testimony, the jury would have found the landfill was a nuisance. An opinion by an attorney that Ross would have prevailed in the nuisance trial if expert engineering testimony had been presented by Edwards does not establish that any such testimony was available or what it would have shown. In a case of this type, an attorney could consider expert opinion testimony given by an engineer and give an expert legal opinion that, if this engineering testimony had been presented in the underlying nuisance trial, it would have provided the evidence necessary for the jury to render a different verdict. But without expert engineering testimony to place in the context of the evidence produced in the nuisance trial, an attorney’s opinion that an engineer’s testimony would have produced a different verdict is pure conjecture and establishes nothing. It follows that the trial court was right, although for a different reason, in concluding there was an absence of evidence necessary to establish that the alleged negligence caused the harm. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. The trial court also correctly granted summary judgment to Edwards on the claim that he defrauded Ross by representing that he would present expert engineering testimony, then failing to do so, by failing to timely inform him that the defendants had made a settlement offer of $50,000, and by failing to make a counteroffer to settle for $5,000,000. On appeal Ross combines these complaints to argue that he was defrauded when he rejected the $50,000 settlement offer in reliance upon a statement by Edwards that the case was worth $5,000,000 and that he would present expert testimony to prove it.

Ross conceded that Edwards never assured him that he was going to produce expert testimony at the nuisance trial. He testified that he assumed Edwards would do so when he hired an expert prior to trial. As to the settlement offer, the record shows that when Edwards told Ross about the $50,000 offer, Ross rejected it as “an insult” stating that he wanted $15,000,000 but eventually lowering his demand to $2,000,000. Moreover, the record shows that the settlement offer was conditioned on Ross obtaining an agreement from a nonparty neighborhood association that it would not proceed with litigation over the landfill. As to the counteroffer, Ross said he expected Edwards to make a counteroffer to settle for $5,000,000 based on a comment by Edwards that it looked like there were “two zeros missing” from the defendants’ offer.

Decided February 15, 2002

Ballard, Stephenson & Waters, Eugene D. Butt, for appellants.

Edwards & Youmas, Lonzy F. Edwards, pro se.

There is no basis for concluding that Edwards made misrepresentations concerning expert testimony or settlement of the case, nor is there any evidence that Edwards fraudulently induced Ross to reject the $50,000 settlement offer. To the contrary, Ross categorically rejected the $50,000 settlement offer when he was informed of it, and even if he had wanted to accept it, he never produced evidence that he satisfied the condition precedent in the offer regarding the neighborhood association.

Case No. A01A2179

3. In light of the holding in Case No. A01A2178, Edwards’s cross-appeal is dismissed as moot.

Judgment affirmed in Case No. A01A2178 and dismissed as moot in Case No. A01A2179.

Eldridge and Mikell, JJ., concur.


author: Blackburn, Chief Judge.

text:
    A01A2317.
    EDGELL v. THE STATE.
    (560 SE2d 532)
   Blackburn, Chief Judge.

Following a bench trial, Ted J. Edgell appeals his conviction for misdemeanor possession of marijuana, contending that the trial court erred by denying his motion to suppress evidence of the contraband. For the reasons set forth below, we reverse.

On appeal from a denial of a motion to suppress, this Court must construe the evidence most favorably to uphold the ruling of the trial court. State v. Winnie. Furthermore, the trial court’s application of law to facts which are undisputed is subject to de novo review. Id.

Viewed in the light most favorable to the trial court’s ruling, the evidence shows that, at approximately 12:50 p.m. on January 5, 2001, Officer Purkey stopped a car being driven by Mark Hill-Pope because it had an expired tag. Edgell was riding as a passenger in Hill-Pope’s car. Because of the expired tag, Officer Purkey immediately called for a wrecker to impound the car. Officer Purkey then approached the car and asked Hill-Pope for his driver’s license and proof of insurance. After running the tag number through his computer, Officer Purkey determined that the tag did not match the vehicle being driven by Hill-Pope. Further checking, however, confirmed that the car being driven by Hill-Pope had not been stolen. Officer Purkey testified that, after checking the license and registration of the car, he did not suspect Edgell of any criminal activity.

Officer Purkey then approached Hill-Pope, asked him to step to the rear of the vehicle, and patted him down for weapons. Hill-Pope told Officer Purkey that there were no drugs or weapons in his car. At that time, Officer Purkey began to explain to Hill-Pope that his car was going to be impounded and that he needed to get it properly registered before he drove it again.

Officer Purkey next approached Edgell and asked him for his identification. He testified that Edgell was nervous and fidgety. Officer Purkey then asked Edgell if there were any weapons or drugs in the car, and Edgell responded that he did not know for sure because the car did not belong to him.

At that time, Officer Purkey left Edgell, returned to the rear of the car, and told Hill-Pope that, although he was going to issue him a ticket and impound his car, he would not arrest him. Edgell then attempted to leave the car and call someone for a ride, but Officer Purkey stopped him and instructed him to stay seated.

Officer Purkey then returned to the passenger side of the car and asked Edgell to exit the vehicle. According to Officer Purkey, Edgell was placing his hands in his pockets when he exited the car. As Edgell stood up, Officer Purkey immediately began a pat-down search. Officer Purkey stated that it was his habitual practice to automatically perform a pat-down “anytime anybody gets out of [a] vehicle.” During this pat-down, Edgell protested, asking Officer Purkey to explain what he had done wrong.

As he executed the pat-down, Officer Purkey felt a hard object in Edgell’s pocket. When Edgell refused to allow Officer Purkey to reach inside the pocket and remove the item, Officer Purkey then placed both Hill-Pope and Edgell in handcuffs, called for a supervisor, and waited for him to arrive. Once his supervisor arrived, Officer Purkey approached Edgell and asked him if he had a crack pipe in his pocket. Officer Purkey then reached into Edgell’s pocket and removed the crack pipe. Edgell admitted that he used the pipe to smoke marijuana on occasion. Officer Purkey then removed a small amount of marijuana from the pocket of Edgell’s jeans. Officer Purkey placed Edgell into custody and released Hill-Pope.

Officer Purkey admitted that Edgell did nothing to make him concerned for his safety while he was talking to Hill-Pope and that he had no reason to believe that Edgell might be armed at that time. Officer Purkey further admitted that, other than his routine concern for his safety at any traffic stop, there was not anything in particular that Edgell had done which made him feel as if he were in danger.

Edgell now contends that, because Officer Purkey automatically patted him down without any suspicion that he was armed, the pat-down was improper and the pipe and marijuana should have concomitantly been suppressed. We agree.

As an initial matter, we point out that, when Edgell initially attempted to exit the car in order to phone someone to pick him up, Officer Purkey had no articulable suspicion that Edgell was engaged in any criminal activity and, as such, had no authority to detain Edgell at that time. See, e.g., Holt v. State.

Moreover, even if the detention were justified, the pat-down was not under the facts of this case. “In Terry v. Ohio, the [United States Supreme Court’s] emphasis upon the procedures followed by the officer indicates that a two-step process must ordinarily be followed: (1) The officer must pat down first, and (2) then intrude beneath the surface only if he comes upon something which feels like a weapon.” (Punctuation omitted.) Clark v. State. “More invasive procedures have been approved where an officer has had a reasonable basis for concluding that a suspect was armed or was otherwise a threat to his personal safety.” State v. Newton. Implicit in this rule of law, however, is the prerequisite determination that the officer actually concluded that the suspect was armed or a threat to personal safety and the officer can articulate a basis for his conclusion so that a Terry protective pat-down would not be unreasonable in the given set of circumstances. Hayes v. State.

[E]ven a particularized and objective basis for suspecting that a person is engaged in criminal activity is not sufficient to authorize a pat-down of the suspect for weapons. An officer who has lawfully detained a citizen is authorized to conduct a Terry pat-down for weapons only if the officer has a reasonable belief preparatory to an intended pat-down that the suspect is armed and presents a danger to the officer or others. A Terry pat-down is authorized when the officer reasonably believes that it is necessary to protect the officer from attack.

Decided February 15, 2002.

Dovre C. Jensen, Jr., for appellant.

Steven L. Harris, Solicitor-General, for appellee.

(Citation omitted.) State v. Banks.

In this case, Officer Purkey testified that he had no fear that Edgell was either armed or engaged in criminal activity prior to the pat-down. And, although Officer Purkey testified that he performed the pat-down of Edgell for his safety, he further explained that it was his general practice to automatically pat down any person he asked to exit a car. Thus, it was this automatic response which Officer Purkey apparently employed in this case, which he justified as a standard safety measure.

An individual’s rights under the Fourth Amendment are not automatically waived, however, simply because he or she is asked to step out of a vehicle. The safety of officers is of extreme importance to this Court. Nonetheless, our constitution requires an officer to provide evidence to show that an act alleged to be performed for his safety was actually performed for that purpose in conformance with the requisite standards of Terry. Without appropriate evidence that the “officer . . . had a reasonable basis for concluding that [the suspect subject to the search] was armed or was otherwise a threat to his personal safety,” Newton, supra, the intrusive search of the type in this case is unconstitutional.

Because the evidence in this case does not show that Officer Purkey had a reasonable basis for concluding that Edgell was armed or dangerous prior to performing his automatic and habitual pat-down, the pat-down was constitutionally improper, and the trial court should have granted Edgell’s motion to suppress.

Judgment reversed.

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

        State v. Winnie, 242 Ga. App. 228, 229 (529 SE2d 215) (2000).

       Edgell does not contend that the initial stop of Hill-Pope’s car was improper, and, as such, we do not consider this issue.

        Holt v. State, 227 Ga. App. 46 (487 SE2d 629) (1997).

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

        Clark v. State, 208 Ga. App. 896, 900 (2) (432 SE2d 220) (1993).

        State v. Newton, 227 Ga. App. 394, 396 (1) (489 SE2d 147) (1997).

        Hayes v. State, 202 Ga. App. 204, 206 (414 SE2d 321) (1991).

        State v. Banks, 223 Ga. App. 838, 840 (479 SE2d 168) (1996).


text:
    A01A2328.
    GARRETT v. THE STATE.
    (560 SE2d 338)
   Pope, Presiding Judge.

A Forsyth County jury convicted Donald Garrett of trafficking in methamphetamine. Garrett appeals, claiming the trial court erred in (1) denying his motion to suppress evidence gathered by police in their search of his home, (2) denying his motion for a mistrial after the State introduced evidence of his bad character, (3) allowing similar transaction evidence concerning his 1990 methamphetamine possession conviction, (4) denying his motion for a new trial due to the insufficiency of the evidence, and (5) giving certain jury charges. Garrett also claims he was tried under a defective indictment. For reasons which follow, we affirm.

Viewed favorably to the jury’s verdict, the record shows that on January 22, 1998, police executed a search warrant on Garrett’s home. The police found Garrett and two others in the garage. An officer found a bag of powdery substance in Garrett’s pocket which the officer suspected to be methamphetamine or cocaine. He then placed Garrett under arrest. Shortly thereafter, police found a bulging sock on a dryer located in the garage which contained a bag holding 165.6 grams of methamphetamine. After the police discovered the drugs in the sock, Garrett exclaimed, “that’s all I got.” Garrett told the officers he kept his packaging material in a kitchen drawer. A detective looked in the drawer and found a set of digital scales, plastic baggies, and a notebook containing a list of names and numbers.

1. Garrett claims the trial court erred by denying his motion to suppress. He argues that the affidavit submitted by Officer Barrett to support the issuance of a search warrant was insufficient to provide probable cause for the search. In reviewing a trial court’s ruling on a motion to suppress evidence seized during the execution of a search warrant:

First, the trial judge sits as the trier of facts, and his findings are analogous to a jury verdict and should not be disturbed if there is any evidence to support the findings. Second, the trial court’s decisions on the credibility of witnesses and questions of fact must be accepted unless clearly erroneous. Third, the appellate court must construe the evidence most favorably to the upholding of the trial court’s findings and judgments.

(Footnote omitted.) Roberson v. State, 246 Ga. App. 534, 535-536 (1) (540 SE2d 688) (2000).

Evidence from the hearing on the motion to suppress shows that Officer Barrett was contacted by a confidential informant who told Barrett that he was willing to purchase methamphetamine from Garrett at Garrett’s home. Barrett considered the informant to be reliable because he had previously given Barrett information leading to eight drug-related arrests, including five for drug trafficking. Barrett decided to let the informant purchase methamphetamine from Garrett. After confirming that the informant had no money or drugs on his person, Barrett provided the informant with the “buy” money and drove him to Garrett’s house, which the informant entered before returning with a quantity of methamphetamine. Barrett’s affidavit supporting the issuance of the search warrant, which was submitted to the magistrate within 24 hours of the drug buy, also reflects these events.

Based on this testimony and Barrett’s affidavit, we find the trial court did not err in finding that the magistrate had probable cause to issue a search warrant of Garrett’s home. The affidavit contained information sufficient for the magistrate to make a common sense decision that, because drugs were purchased at Garrett’s residence within the previous 24 hours, there was a fair probability that evidence of a crime would be found at that location. See Kessler v. State, 221 Ga. App. 368, 369 (471 SE2d 313) (1996). Garrett argues that the information contained in Barrett’s affidavit is insufficient, noting that it fails to contain information showing how the purchase was made, the price paid for the drugs, how the informant knew of Garrett, whether the informant saw evidence of drug activity at the residence, or whether there were other people present at the drug purchase. But these things were not required for the magistrate to issue the warrant to search the residence.

Garrett also argues that Fiallo v. State, 240 Ga. App. 278 (523 SE2d 355) (1999), is controlling, and that Barrett’s failure to corroborate the information provided by the informant renders any finding of probable cause erroneous. However, the affiant in Fiallo testified that he did not consider the informant reliable. Id. This is in contrast to the informant used here, who had proved to be reliable on numerous occasions. Furthermore, Barrett searched the informant before he entered Garrett’s home and after he left, providing an independent basis, other than the word of the informant, that the informant had purchased methamphetamine inside the residence with the money provided by Barrett.

2. Garrett also maintains that the trial court erred in denying his motion for a mistrial after Officer Barrett testified that he came to Garrett’s address after he “received some information from a reliable informant,” and that he had previously “purchased something from the house through means of investigation and got a search warrant.” Garrett claims that this testimony constituted impermissible evidence of his bad character. See Chandler v. State, 204 Ga. App. 816, 818 (1) (421 SE2d 288) (1992). But there is no testimony of a previous bad act by Garrett, only of a purchase of “something” made at Garrett’s house, and without identifying Garrett as the seller. This is insufficient to put his character into issue. See Gates v. State, 252 Ga. App. 20, 21 (1) (555 SE2d 494) (2001). Garrett’s reliance on Lowe v. State, 208 Ga. App. 49, 52 (2) (430 SE2d 169) (1993), disapproved on other grounds, Kelly v. State, 212 Ga. App. 278, 282 (2) (442 SE2d 462) (1994), is misplaced. A basis of our reversal in Lowe was testimony referencing a completely unrelated crime committed by defendant, and there is no such testimony here.

3. Garrett next claims the trial court erred in admitting similar transaction evidence related to his 1990 conviction for possession of methamphetamine. Similar transaction evidence is admissible if

(1) it is presented for an appropriate purpose, (2) there is sufficient evidence to show the accused committed the independent offense, and (3) there is a sufficient similarity between the independent offense and the crime charged so that the proof of the former tends to prove the latter. A trial court’s admission of similar transaction evidence will be upheld on appeal unless its ruling is clearly erroneous.

(Footnotes omitted.) Urness v. State, 251 Ga. App. 401, 402 (1) (554 SE2d 546) (2001). See Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

The State filed a “Notice of Similar Transaction” with respect to its intent to introduce evidence of Garrett’s previous conviction for possession of methamphetamine. The trial court ruled that the similar transaction evidence was admissible, finding that the evidence was presented for the appropriate purpose of showing identity, motive, intent, and common scheme and mode of operation. See Jones v. State, 236 Ga. App. 330, 332 (1) (b) (511 SE2d 883) (1999). The court also found the State had proffered sufficient evidence as to identity, and that the previous crime was sufficiently similar to the crime charged. At trial, the State presented the testimony of Deputy Bailey, who recounted a 1990 search of Garrett’s residence, in which police found several individually wrapped bags containing a white powder suspected to be methamphetamine. The State also entered a copy of Garrett’s conviction for possession of methamphetamine arising from the incident into the record.

Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.

(Punctuation and footnote omitted.) Evans v. State, 235 Ga. App. 577, 581 (3) (510 SE2d 313) (1998). The similar transaction evidence is similar inasmuch as the prior transaction involved the presence of methamphetamine at Garrett’s home. The evidence is relevant to show that the methamphetamine, although discovered in the presence of two other individuals, belonged to Garrett. As the record shows the presence of all factors required to authorize the admission of the similar transaction evidence in question, we find no error by the trial court admitting it.

Garrett argues that the 1990 incident was too remote to show motive, intent, or bent of mind. Although there is a substantial lapse of time between the prior transaction and the crime for which Garrett is charged, the lapse of time does not eclipse the striking similarity in the two incidents:

Mere lapse of time between the commission of any prior similar crime and the commission of the offense currently at trial does not render the evidence automatically inadmissible; lapse of time is but one factor to be taken into consideration in determining admissibility. It is, moreover, the similarity of the offenses within the meaning of Williams v. State, [261 Ga. at 640], that determines the admissibility of such evidence, not whether the span of time between offenses is brief.

(Citations and punctuation omitted.) Johnson v. State, 247 Ga. App. 157, 163 (13) (a) (543 SE2d 439) (2000).

Garrett also argues that the trial court abused its discretion in allowing the State to reopen its case in order to submit evidence of Garrett’s conviction. We disagree because the trial court has wide discretion to allow the State to reopen its case, see Ford v. State, 232 Ga. 511, 514 (4) (207 SE2d 494) (1974), and Garrett cannot show that he was unfairly prejudiced.

4. Garrett also assigns error to the trial court’s denial of his motion for a directed verdict and for a new trial on the grounds that the evidence was insufficient to support his conviction. We must determine if no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Garrett claims that the evidence was insufficient because the methamphetamine was found in the presence of two other individuals and because the State failed to present the actual drugs at trial. We disagree. The drugs were found in Garrett’s home, and after the police pulled a bag of powder from Garrett’s person and then located the methamphetamine in the sock, Garrett said, “Barrett, that’s all I got.” The State’s failure to produce the actual drugs seized at the residence is not fatal to its case. The State established a chain of custody showing that the drugs seized at Garrett’s home were taken to the crime lab, where they were identified as being 165.6 grams of methamphetamine. The illegal drug itself need not be introduced into evidence in order to convict a defendant. See Slade v. State, 222 Ga. App. 407, 408 (1) (474 SE2d 204) (1996). We conclude that the evidence was sufficient under the standard of Jackson v. Virginia to support Garrett’s conviction.

5. Garrett claims the indictment was fatal in that it failed to assert that he “knowingly” possessed a trafficking amount of methamphetamine. Without deciding whether the omission of the word “knowingly” is a defect in the indictment, Garrett made no objection to the form of the indictment before pleading to it and so has waived any “right to be tried [under] an indictment which is perfect in form and substance.” Williams v. State, 237 Ga. App. 814, n. 1 (515 SE2d 875) (1999).

6. Finally, Garrett claims the trial court erred in giving the State’s request to charge regarding trafficking and another involving circumstantial evidence. The trial court instructed the jury: “there is no requirement in the trafficking statute that the State allege and prove the defendant distributed the methamphetamine. Trafficking in methamphetamine requires only that the threshold amount be shown and proven beyond a reasonable doubt by the State.” Garrett maintains that the charge, while based on excerpts from Partridge v. State, 187 Ga. App. 325, 327 (370 SE2d 173) (1988), and Hamlin v. State, 193 Ga. App. 453, 454 (388 SE2d 48) (1989), is not appropriate for a jury instruction because it is derived from argumentative excerpts of appellate opinions, as opposed to being a plain statement of the law. See Leonard v. State, 133 Ga. 435, 437 (66 SE 251) (1909). Garrett particularly complains that the instruction fails to address the “knowingly” possess component of the offense, and because it goes on to state that trafficking “requires only” that possession of the threshold amount be shown. When taken in context with the other charges given, however, we find no error because the elements of the offense were sufficiently explained. Among other things, the trial court recited the offense as defined in the Georgia Controlled Substances Act and defined both knowledge and possession. “[T]he charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.” (Citation and punctuation omitted.) Leigh v. State, 223 Ga. App. 726, 731 (3) (478 SE2d 905) (1996).

The trial court also instructed the jury that “knowledge and possession can be proven by circumstantial evidence.” The trial court had previously instructed the jury on circumstantial evidence, and we fail to see the basis for Garrett’s claim of error in connection with this charge.

Decided February 15, 2002.

Dreger & McClelland, Troy R. McClelland III, for appellant.

Philip C. Smith, District Attorney, Rand J. Csehy, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.


text:
    A02A0016.
    GEORGIA LOTTERY CORPORATION v. FIRST NATIONAL BANK OF GRADY COUNTY.
    (560 SE2d 345)
   Blackburn, Chief Judge.

In this case regarding the alleged conversion of lottery proceeds, Georgia Lottery Corporation (Lottery) appeals the trial court’s grant of summary judgment to First National Bank of Grady County (Bank), contending that OCGA § 50-27-21 mandates a finding that the Bank disposed of lottery proceeds without authority, thereby converting them. For the reasons set forth below, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewed in this light, the record shows that two separate corporations, Pack & Sack Food Centers, Inc. and Pac-a-Sac Food Centers, Inc., (collectively Retailers) owned and operated a chain of convenience stores in Georgia. Both corporations contracted with the Lottery to be retailers of lottery tickets in 1993. After entering this contract, each of the Retailers opened a special lottery account at the Bank to hold proceeds from the sale of lottery tickets.

Joane M. Bishop, the Director of Operations for both of the Retailers, averred that each store commingled the proceeds from the sale of lottery tickets with the proceeds from the sale of general merchandise. These consolidated funds were then deposited in banks in the city where each individual store was located, and, afterward, the funds were transmitted to the headquarters of the Retailers, both of which were located in Cairo. Once there, the funds were forwarded to the Retailers’ general accounts at the Bank. Then, when Bishop received information from the Lottery regarding its share of the proceeds from ticket sales, she would draw checks on the Retailers’ general accounts and deposit them into the lottery accounts at the Bank. Thereafter, the Lottery would remove the funds from the accounts by an electronic transfer.

Sometime in late July or early August 1997, the Retailers informed the Lottery that they no longer wished to sell lottery tickets. Auditors for the Lottery determined that Pack & Sack owed a final balance of $91,390.72 and Pac-a-Sac owed $14,590.49. On August 11, 1999, checks were drawn on the general accounts of the Retailers in these respective amounts and deposited in the appropriate lottery accounts. Shortly thereafter, through the Bank’s internal auditor, the Retailers requested a stop payment on these checks because they questioned the amounts requested by the Lottery. Sharon Wells, the Assistant Cashier for the Bank, testified that the stop payment on the lottery funds was requested by Bishop, who told Wells that she believed that the amount of funds requested by the Lottery might be incorrect.

David Fiorita, Manager of Financial Services for the Lottery in 1997, testified that, on August 12, 1997, the Lottery initiated a final electronic funds transfer on the lottery accounts of the Retailers. The next morning, Fiorita called the Bank to ensure that the funds had been transferred. Wells informed Fiorita that both drafts had cleared and that there was enough money in the general accounts to cover the drafts. A few hours later, Wells informed Fiorita that the drafts were being returned because the Retailers questioned the amount owed to the Lottery.

The Bank’s records showed that the Retailers’ checks actually were deposited into the lottery accounts on August 11, 1997. The following day, the Lottery’s sweep of funds in the accounts is shown, and, on August 13, 1997, a reimbursement of the Lottery’s sweep is indicated. Finally, on August 14, 1997, the records show the lottery funds being reversed out of that account. Wells testified that this was necessary because, despite her mistaken statement to Fiorita, there were insufficient funds in the Retailers’ general accounts to cover the checks to the Lottery.

Charles Stafford, the President of the Bank, testified that he personally instructed his staff not to honor the checks to the Lottery. He stated that Bishop had told him that the Retailers expected a $200,000 refund from the Lottery. Based on this information, Stafford determined that the payments requested by the Lottery had to be erroneous. He stated: “I knew that was wrong and I wasn’t going to pay that.”

Contrary to the findings of the trial court, these facts mandate a finding that the Bank converted the Lottery’s funds in violation of OCGA § 50-27-21. “Conversion is the unauthorized assumption and exercise of the right of ownership over personal property belonging to another.” GLW Intl. Corp. v. Yao.

OCGA § 50-27-21 (a) provides:

All proceeds from the sale of the lottery tickets or shares shall constitute a trust fund until paid to the corporation either directly or through the corporation’s authorized collection representative. A lottery retailer and officers of a lottery retailer’s business shall have a fiduciary duty to preserve and account for lottery proceeds and lottery retailers shall be personally liable for all proceeds. Proceeds shall include unsold instant tickets received by a lottery retailer and cash proceeds of the sale of any lottery products, net of allowable sales commissions and credit for lottery prizes sold to or paid to winners by lottery retailers. Sales proceeds and unused instant tickets shall be delivered to the corporation or its authorized collection representative upon demand.

Based on the clear, unambiguous language of this statutory provision, it is clear that, at the moment that a lottery ticket is sold, the proceeds therefrom are held in trust by the retailer for the Lottery. In addition, OCGA § 50-27-21 (b) provides further:

The corporation shall require retailers to place all lottery proceeds due the corporation in accounts in institutions insured by the Federal Deposit Insurance Corporation not later than the close of the next banking day after the date of their collection by the retailer until the date they are paid over to the corporation. At the time of such deposit, lottery proceeds shall be deemed to be the property of the corporation. The corporation may require a retailer to establish a single separate electronic funds transfer account where available for the purpose of receiving moneys from ticket or share sales, making payments to the corporation, and receiving payments for the corporation. Unless otherwise authorized in writing by the corporation, each lottery retailer shall establish a separate bank account for lottery proceeds which shall be kept separate and apart from all other funds and assets and shall not be commingled with any other funds or assets.

Decided February 15, 2002.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, John B. Ballard, Jr., Senior Assistant Attorney General, Shereen M. Walls, Assistant Attorney General, Owen, Gleaton, Egan, Jones & Sweeney, David C. Will, for appellant.

Jonathan K. Chason, for appellee.

The Bank’s records, themselves, indicate that the funds owed to the Lottery were deposited into the Retailers’ segregated lottery accounts. The statute unequivocally states that “[a]t the time of such deposit, lottery proceeds shall be deemed to be the property of the [Lottery].” OCGA § 50-27-21 (b). Therefore, once the funds had been deposited into the lottery account, neither the Retailers nor the Bank had any authority to reverse the Lottery’s sweep of funds. Nevertheless, the Bank’s president made the decision to remove funds from the Lottery’s account and allow the Retailers to apply them to other debts.

The bottom line in this case is that, contrary to statutory mandates, the Bank prevented the Lottery from receiving its own property and allowed that property to be used for unauthorized purposes. This is the very essence of conversion, and the trial court erred by granting the Bank’s motion for summary judgment. To the contrary, the trial court should have granted the Lottery’s motion for summary judgment on its conversion claim.

Judgment reversed.

Johnson, P. J., and Miller, J., concur.

       The Lottery also made a motion for summary judgment, which the trial court denied.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

         GLW Intl. Corp. v. Yao, 243 Ga. App. 38, 42 (3) (b) (532 SE2d 151) (2000).