author: Beasley, Judge. Pope, Presiding Judge,

text:
    A98A1073.
    SMITH v. THE STATE.
    (510 SE2d 295)
   Beasley, Judge.

Ervin Smith, Bryant Wilburn and Arnell Rorie were indicted for possessing cocaine (OCGA § 16-13-30 (a)), possessing cocaine with intent to distribute (OCGA § 16-13-30 (b)), and possessing cocaine with intent to distribute within 1,000 feet of a public housing authority (OCGA § 16-13-32.5 (b)). Wilburn pled guilty; Smith and Rorie were tried before a jury.

At the close of the State’s evidence, the court granted directed verdicts to Rorie on the two counts of possessing cocaine with intent to distribute. Rorie then pled guilty to the remaining charge of possessing cocaine. The court denied Smith’s directed verdict motions, and the jury found Smith guilty of all three charges. The simple possession charge was merged into the possession with intent to distribute charge, and a total sentence of 35 years was imposed.

Smith asserts on appeal that the court erred in denying his directed verdict motions because there is insufficient evidence that he possessed any cocaine. That is not so. The jury’s verdict is entirely defensible under the law.

The standard for appellate review of the sufficiency of the evidence is set out in Jackson v. Virginia: The question is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” The convicted person “no longer enjoys a presumption of innocence.” The role of the appellate court, the members of which are remote from the live presentation, is commensurately narrow, for it “determines only the legal sufficiency of the evidence” given to the factfinder “and does not weigh the evidence or assess the credibility of the witnesses.” In examining the evidence so as to determine whether the denial of the motion was permitted by law, all the evidence adduced, including that which is presented after the motion is ruled on, is considered.

Police officers had a warrant to search Smith and his mobile home, as well as other occupants of it, for cocaine. Three of the officers went to the front door, knocked, announced they were police, and were greeted by sounds of someone running inside. It took two of them to break through the locked door by kicking. When Officer Frank Farr immediately approached Smith because he was lying on a sofa in the living room, Smith greeted him with “How ya doing, Frank?” He had made no effort to respond to the police knock but instead allowed a delay to occur before they gained entry. In the interval, the cocaine in packages (but for a package buried in the sofa and a package with only residue) almost disappeared down the sewer. Wilburn had run from the kitchen to the bathroom while the police were entering and dumped the packages. Two bags containing cocaine were found in Wilburn’s pockets. Smith had $1,027 in small bills in his pocket.

A portable telephone and the police scanner were found in the living room, where defendant alone was present when the police entered. The scanner was operating audibly, tuned to the frequencies for the local police department and sheriff’s office.

Rorie was in the bedroom. The police brought her to the living room and had her sit on a couch other than the one on which Smith had been lying. Before she sat down, the police searched it and found no cocaine. Later, when the police moved Rorie from the couch, they searched it again and found a bag of cocaine under the cushion where she had been sitting. A urine sample provided by Rorie tested positive for cocaine.

The power bill for the residence was in Smith’s own name. Although the phone bill was in the name of co-defendant Wilburn, who was Smith’s nephew, Wilburn lived with his sister on an adjacent street. The bill for the month of July was over $200, covered many long distance calls, and followed a bill for over $170 the month before. In the hour to hour and a half the police were there, at least five calls came in for cocaine. The police recognized the voices of two of the callers.

The cocaine residue wrapped in tinfoil was behind a trash can next to the freezer in the kitchen area adjoining the living room where Smith was reclining.

Smith’s defense was that although present when the search warrant was executed on his residence, Smith did not even have joint constructive possession of any of the cocaine which constituted the basis for the three charges.

His two witnesses testified that they had purchased Smith’s 1978 Chevrolet truck from him the same day as the incident on trial (October 6, 1995) and paid $1,200 in cash for it. That was offered to explain the $1,027 police found in his pocket in small bills and to eliminate the inference that the large amount of cash was proceeds of drug sales. No money was found on the person of co-defendant Wilburn or elsewhere on the premises; the female co-defendant was not searched.

One of the witnesses, Smith’s father, said he paid all of the $1,200. The other witness, Smith’s nephew and the brother of the co-defendant who was found flushing cocaine packets down the commode, testified that he and his grandfather bought the truck together. They had no documents with respect to the truck, it was not registered, tagged or insured, and they said it merely stayed on the farm.

The jury rejected the defense and excluded not only the theory promoted by defendant but any other reasonable hypothesis deducible from the evidence, in keeping with the trial court’s instructions. The State’s evidence implicating Smith, although circumstantial, permitted reasonable inferences that he was indeed criminally involved in the drug trade being conducted at the mobile home shared by him and his girlfriend, the co-defendant who pleaded guilty to possession mid-trial.

This evidence supports a finding of Smith’s joint constructive possession, as defined in Shropshire v. State, at the very least as an aider and abettor to Smith’s two companions, both of whose guilty pleas were known to the jury. The court fully instructed the jury on these principles, as well as on mere presence, mere association, and equal opportunity. Evidence of one of these relationships alone is not enough. But “[w]here there is evidence other than a defendant’s own equal access connecting an accused to contraband, as here, it is for the jury to determine guilt or innocence.” No objection was made to any of the charges or to the recharge on the same principles after the jury requested clarification.

There indeed was evidence “other than [Smith’s] own equal access connecting [him] to contraband,” and thus it was “for the jury to determine guilt or innocence.” Presence, companionship, and conduct before and after the offense are circumstances allowing an inference of criminal intent.

Judgment affirmed.

Andrews, C. J., McMurray, P. J., Blackburn, Ruffin and Eldridge, JJ, concur. Pope, P. J., dissents.

Pope, Presiding Judge,

dissenting.

I dissent from the majority view because I do not believe that the state’s circumstantial evidence against Smith was sufficient to prove beyond a reasonable doubt that Smith had joint constructive possession of cocaine found under the direct control of other people.

In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the verdict. Jordan v. State, 225 Ga. App. 424 (484 SE2d 60) (1997). Viewed in that light, the evidence shows that police officers executed a search warrant at the mobile home where Smith lived. When the police entered the home, Smith was lying on a couch in the living room, Wilburn ran from the kitchen to the bathroom, and Rorie was in a bedroom. The police brought Rorie from the bedroom to the living room and had her sit on a couch. Before Rorie sat on the couch, which was not the same couch on which Smith had been lying, the police had searched it and found no cocaine. Later, when the police moved Rorie from the couch, they searched it again and found a bag of cocaine under the cushion where she had been sitting. A urine sample provided by Rorie tested positive for cocaine.

Several officers chased Wilburn into the bathroom, where they saw him flushing plastic bags down the toilet. The officers seized one bag of cocaine from the toilet. They also found two bags containing cocaine in Wilburn’s pockets, seven $20 bills in his pocket and a packet containing cocaine residue behind a trash can in the kitchen. While the police were searching the home, two people called on the telephone for Wilburn and the police heard the callers ask Wilburn for cocaine.

The police searched Smith and found $1,027 in his pocket, but did not find any cocaine on him. They also did not find any cocaine on the couch where he had been lying. The officers did find a police scanner behind a chair in the living room. Smith did not testify in his own defense, but presented two witnesses who said they had purchased a pickup truck from him for $1,200, which they paid in cash.

“We have consistently held that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. [Cits.] Where there is evidence other than a defendant’s own equal access connecting an accused to contraband, it is for the jury to determine guilt or innocence.” Williams v. State, 207 Ga. App. 782, 784 (4) (429 SE2d 153) (1993). In the instant case, I disagree with the majority conclusion that there is evidence other than Smith’s occupancy of the house which connects him to the cocaine found in the possession of Wilburn and Rorie. Most of the cocaine was found under the direct control of Wilburn in the bathroom, while the cocaine residue was found in the kitchen immediately after Wilburn had rim from there to the bathroom. The other cocaine was found beneath the couch cushion where Rorie had been sitting. No cocaine was found in Smith’s possession.

The majority does not specify exactly what evidence other than Smith’s occupancy of the mobile home connected him to Wilburn’s and Rorie’s cocaine. Presumably the majority is persuaded by the state’s reliance on evidence of the money found on Smith, the scanner and the two callers asking to buy drugs from Wilburn. Contrary to the state’s claims, there is no evidence that the money is connected to the cocaine found on Wilburn and Rorie. The mere presence of the currency is insufficient to demonstrate a connection to illegal activity. See Quinn v. State, 268 Ga. 70, 72 (485 SE2d 483) (1997). Likewise, it is unclear from the state’s argument and the majority opinion how telephone calls for Wilburn and the presence of a scanner connect Smith to cocaine found in Wilburn’s and Rorie’s possession.

The majority states that the evidence supports a finding that Smith had joint constructive possession of the cocaine. However, “[a] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” (Citations and punctuation omitted.) Paden v. State, 216 Ga. App. 188, 189 (1) (453 SE2d 788) (1995). Here, although Smith’s occupancy of the home raised an inference that he constructively possessed cocaine found in the home, that inference was affirmatively rebutted by the proof of Wilburn’s and Rorie’s more than equal access to the cocaine. See Shreve v. State, 172 Ga. App. 190, 191 (322 SE2d 362) (1984). Thus, all that remains is Smith’s mere presence in the home while Wilburn and Rorie possessed cocaine. “As a matter of law, that presence is not enough to support a finding of criminal possession of the contraband beyond a reasonable doubt, to the exclusion of every other reasonable hypothesis.” Whipple v. State, 207 Ga. App. 131, 132 (1) (427 SE2d 101) (1993).

“[W]here a conviction for possession of contraband depends entirely on circumstantial evidence, it must both be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. When the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt beyond a reasonable doubt. While the determination of whether the circumstances are sufficient to exclude every reasonable hypothesis except that of defendant’s guilt is usually made by the jury and while we must view the evidence in the light most favorable to the jury verdict, we must not be blinded by that verdict when a reasonable hypothesis of innocence appears from the evidence or lack thereof, and may declare such as [a] matter of law.” (Citations and punctuation omitted.) Paden v. State, 216 Ga. App. at 189 (1). See Jordan v. State, 225 Ga. App. at 425-426.

Decided November 12, 1998

James W. Smith, for appellant.

Timothy G. Madison, District Attorney, Kevin J. Guidry, Robin R. Riggs, Assistant District Attorneys, for appellee.

In the present case, the state’s circumstantial evidence against Smith does not exclude the reasonable hypothesis that all of the cocaine was under the control of Wilburn and Rorie and that Smith was a mere occupant of the mobile home who did not possess the cocaine. Because there is no evidence connecting Smith to the cocaine other than his occupancy of the mobile home, the trial court erred in denying Smith’s motion for a directed verdict of acquittal due to insufficient evidence. See Morrison v. State, 220 Ga. App. 151, 152-154 (1) (a) (469 SE2d 686) (1996); Nations v. State, 177 Ga. App. 801, 802 (1) (341 SE2d 482) (1986).

       (Emphasis omitted.) 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

       (Citation and punctuation omitted.) Hight v. State, 221 Ga. App. 574-575 (1) (472 SE2d 113) (1996).

       (Citations and punctuation omitted.) Id.

         Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984); Coleman v. State, 229 Ga. App. 642 (494 SE2d 549) (1997).

       In this case, as frequently happens, a diagram was used during trial and not included in the record because it was not introduced into evidence. Such documents, even though not physically entered as an exhibit, should be part of the record because they constitute a vital visual aid to understanding the evidence when reference is made in testimony to “here” and “there” and spatial and relational information is pointed out. In this case a drawing of the interior of the mobile home prepared by two police officers on the scene was used as a demonstrative aid. Thus the jury could grasp evidence by seeing that to which this Court is not privy.

       OCGA § 24-4-6. See Blair v. State, 216 Ga. App. 545, 546 (1) (455 SE2d 97) (1995) (only reasonable hypotheses of innocence must be excluded).

       201 Ga. App. 421 (411 SE2d 339) (1991).

        Murrell v. State, 200 Ga. App. 231, 233 (1) (407 SE2d 460) (1991).

        Williams v. State, 207 Ga. App. 782, 784 (4) (429 SE2d 153) (1993).

       Id.; Poden v. State, 216 Ga. App. 188, 189 (1) (453 SE2d 788) (1995) (need connection other than spatial proximity); Whipple v. State, 207 Ga. App. 131, 132 (1) (427 SE2d 101) (1993) (need more than presence); Whitfield v. State, 217 Ga. App. 402, 405 (3) (457 SE2d 682) (1995) (example of facts in addition to spatial proximity).

        Lu v. State, 223 Ga. App. 336, 338 (477 SE2d 581) (1996).


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A98A1321.
    KAHN v. THE STATE.
    (509 SE2d 137)
   Andrews, Chief Judge.

Kim Kahn, charged with malice murder, felony murder, and possession of cocaine, was convicted of voluntary manslaughter and possession of cocaine and appeals.

1. The first two enumerations deal with denial of Kahn’s motion for directed verdict, thereby raising the issue of the legal sufficiency of the evidence. OCGA § 17-9-1; Martin v. State, 219 Ga. App. 277, 278 (1) (464 SE2d 872) (1995); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

(a) Regarding the voluntary manslaughter charge, viewed with all inferences in favor of the jury’s verdict, Bowman v. State, 222 Ga. App. 893, 896 (1) (476 SE2d 608) (1996), the evidence was that Kahn was leasing a four-bedroom house in which she lived with teenage brothers Jeremy Patton and Corey Patton and their younger sister, children of an acquaintance of Kahn’s. Lance Martin, the victim, moved into the house shortly before the incident. He had one bedroom and Kahn had another one, but occasionally he spent the night with Kahn.

On May 22, 1989, Kahn had been to Martin’s prior residence looking for him, contending that he owed her money. After the children returned home from school, Kahn and Michael Chester arrived and Kahn began preparing dinner for the children.

Jeremy Patton was outside feeding 19 dogs in pens near the driveway when he saw Martin drive up about 7:30 p.m., followed by Garland in a separate car. Garland had assisted Martin in repairing a flat tire and offered to follow him home to make sure he arrived. Martin pulled behind the house, and Garland pulled in behind him. Martin told him to wait and went into the house.

Jeremy Patton told Kahn that Martin had arrived and returned to feeding the dogs. Chester and Corey Patton were watching television when Martin came in, acting very erratic and saying he had to get out of there because someone was going to kill him. Martin went into his room followed by Kahn. He gathered some clothing and headed back outside, followed by Kahn who demanded to know where he was going. Jeremy Patton and Garland heard the two yelling at each other. Martin went back in the house, again followed by Kahn. They came back out, with Martin carrying more clothing, still arguing. At that point, Kahn went back into the house and retrieved a shotgun she kept in her bedroom. She returned to the driveway and told Martin he was not leaving until she got her money.

Martin and Kahn then struggled over the shotgun, and Martin threw it into the grass. Martin and Kahn then fought, hitting each other and wrestling in the driveway, during which Martin slammed Kahn’s head into a pickup parked there. Chester then came out and tried to stop the melee, but was knocked unconscious by Martin. While Martin was fighting with Chester, Kahn stood there until Chester was unconscious, whereupon she and Martin began fighting again.

At this point, Kahn told Corey Patton, who was now outside, to get her the shotgun. Martin then said “you want your gun, b — , I’ll get it,” and went back into the house. Kahn had a semi-automatic “mini .14” in the house, but when Martin came back out, he had nothing in his hands. While Martin was inside, Corey Patton retrieved the shotgun and gave it to Kahn. She broke down the shotgun to make sure it was loaded, popped it back up, and was holding it at her side when Martin came back out of the house. Opening the breech and closing it automatically engaged the safety, which then had to be manually removed. Martin stopped when he saw Kahn with the gun, and she told him if he came any further she would shoot him. Martin said “shoot me, you b — ,” and ran toward her with his fists raised. Kahn fired, striking Martin in his lower trunk, severing his right iliac artery.

Corey and Jeremy Patton ran to a neighbor and called police.

The evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Smith v. State, 231 Ga. App. 677, 679 (499 SE2d 663) (1998); In the Interest of F. L. P., 184 Ga. App. 164 (361 SE2d 43) (1987).

(b) After the police arrived, a sweep of the premises was made, and an officer found, on the dresser in Kahn’s bedroom, a plastic bag containing a white residue which tested positive for cocaine. Kahn also gave a urine sample after the incident which contained a trace amount of cocaine.

Kahn’s motion for directed verdict was premised on her and Martin’s joint access to her bedroom where the bag was found. That there was equal access by Kahn and Martin, however, does not preclude the jury’s concluding that there was at least joint possession of the contraband, justifying a conviction. As stated in Wilson v. State, 231 Ga. App. 525, 527 (1) (499 SE2d 911) (1998), “ There is no requirement that the State must in every case prove that contraband was in the exclusive possession of one who is shown to be the owner or lessee of the premises. While evidence that the defendant-owner or lessee shared the premises with another does not demand a conviction, it may nevertheless authorize the jury, as the trior of fact, to find that the defendant was in at least joint possession of the contraband.’ (Punctuation omitted.) Love [v. State, 227 Ga. App. 772, 773 (490 SE2d 527) (1997)].” Under such circumstances, denial of the motion for directed verdict was not error.

2. Kahn contends in her third enumeration that the trial court erred in denying her motion to exclude the testimony of the Georgia Crime Lab toxicologist regarding his testing of her urine because the report turned over to her did not quantify the nanograms per milliliter of cocaine found in the urine, as required by OCGA § 17-7-211 and Durden v. State, 187 Ga. App. 154 (1) (369 SE2d 764) (1988) and its progeny.

The lab report provided to Kahn stated that “immunoassay of the urine specimen indicates the presence of a trace amount of cocaine and-or cocaine metabolites, insufficient urine submitted for confirmation.” This was also the only testimony given by the toxicologist.

“ ‘The proscription of (OCGA § 17-7-211) was applied in Durden, supra at 158, because “the scientific evidence which was denied to the defense, in fact comprised the entire substance of the State’s case.” Here, the State’s evidence was not quantitative but related solely to whether the substance was or was not cocaine. Identity of the substance was the issue; quantity and quality were not. The report included what the expert testified, that the substance tested positive for cocaine. Carson v. State, 192 Ga. App. 52 (1) (383 SE2d 619) (1989) distinguished (Durden and the cases following it) as involving attempts to prove amount of substance and degree of impairment, so that merely reporting presence of substance was insufficient. In this case the State limited its examination of the expert to the identity of the substance, which conclusion was contained in the report. Carson controls.’ ” Mathis v. State, 204 Ga. App. 896, 898 (2) (420 SE2d 788) (1992).

Here, there was evidence that the plastic bag found on Kahn’s dresser, as well as her urine, contained cocaine. No amount of cocaine or degree of impairment by it was required for the offense charged and there was no error.

3. The two indictments charging Kahn, one for the murder, felony murder, and aggravated assault charges and one for the possession of cocaine, were joined for trial at the State’s request. Kahn’s fourth enumeration is that the trial court abused its discretion in denying her motion to sever the indictments.

The premise for Kahn’s argument regarding severance is that the trial court erred as urged in her second and third enumerations, which have been decided adversely to her in Divisions 1 and 2.

Additionally, there was no abuse of discretion in denial of her motion to sever the indictments for trial, since the charges all arose from the incidents of May 22, 1989, at her residence. Jarrell v. State, 234 Ga. 410, 412 (1) (216 SE2d 258) (1975); Agony v. State, 226 Ga. App. 330 (486 SE2d 625) (1997).

4. Finally, Kahn argues error in the court’s failure to recharge the jury on “the principals [sic] of self defense (justification)” when the jury requested recharge on the offenses of aggravated assault and voluntary manslaughter.

“When the jury requests a charge or recharge on a particular point, the trial court has discretion to also give or not give additional instructions. [Cit.]” Patterson v. State, 264 Ga. 593, 594 (2) (449 SE2d 97) (1994).

In determining whether the recharge was erroneous, this Court must consider the original charge given as a whole as well as the recharge in light of the original charge. Here, the original charge was proper and complete, the jury’s requests for reinstruction were very specific and the recharges given did include language regarding the defense of “justification.” There was no error in not including the additional language urged by Kahn. Miller v. State, 221 Ga. App. 718, 719 (1) (472 SE2d 697) (1996).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

Decided November 12, 1998.

Germano, Kimmey & Cheatwood, C. David Turk III, for appellant.

Garry T. Moss, District Attorney, Allen D. Morris, Assistant District Attorney, for appellee.

       She was convicted in 1990 and granted an out-of-time appeal by order of January 20, 1998.

       Although the specific ground argued here was not argued below in support of the motion for directed verdict and will not be considered here for the first time, we do address the legal sufficiency of the evidence.

       This discovery statute was repealed in 1994, Ga. L. 1994, p. 1895, § 1, and has been replaced by the procedures of OCGA § 17-16-4.


author: Smith, Judge.

text:
    A98A1335.
    DEPARTMENT OF HUMAN RESOURCES v. FENNER.
    (510 SE2d 534)
   Smith, Judge.

Following the divorce of Desiree and Darin Fenner, a withholding order was entered in Connecticut requiring Darin Fenner to make weekly child support payments of $189, plus weekly arrearage payments of $10 for three minor children. After the Connecticut order was entered, the Georgia Department of Human Resources (DHR) filed a petition on behalf of Desiree Fenner in superior court for registration of this order. During the hearing on DHR’s petition, Darin Fenner (Fenner) contended that the Connecticut order had been fraudulently obtained, maintaining that he learned after his divorce that he was not the biological father of two of the children.

Following the hearing, the trial court refused to enforce the Connecticut order and issued instead a temporary order requiring Fenner to pay child support for only one child and relieving him from paying any arrearage. The court ruled that the temporary order would “stay in effect until further proof is presented to this court, in the form of [a] blood test, that shows the paternity of” the other two children. We granted DHR’s application for interlocutory review to consider among other things whether, in light of the Full Faith & Credit for Child Support Orders Act, 28 USC § 1738B, Fenner was entitled to raise a defense of fraud. We conclude that although Fenner may have been authorized to raise a fraud defense, this defense was not meritorious. We therefore reverse.

1. At the outset, we consider DHR’s argument that under 28 USC § 1738B (a), the trial court was not authorized to consider Fenner’s fraud defense. That section requires that full faith and credit be given to child support orders of foreign states, reciting that each State “shall enforce according to its terms a child support order made consistently with this section by a court of another State.” 28 USC § 1738B (a) (1). A child support order is made “consistently with this section” if made in a court with proper subject matter and personal jurisdiction, and if proper notice and opportunity to be heard are given to the parties. See 28 USC § 1738B (c). As correctly argued by DHR, none of these criteria has been challenged by Fenner. For the purpose of this opinion, we therefore assume that the order was made “consistently” with 28 USC § 1738B.

But we do not agree with DHR that Georgia trial courts are categorically precluded by 28 USC § 1738B (a) (1) from considering a fraud defense in an action to register a foreign child support order. DHR’s narrow interpretation contravenes the Act’s explicit choice of law provision requiring a trial court to apply the forum state’s law in an action to enforce a support order. 28 USC § 1738B (h) (1).

2. In Georgia, an obligor in a registration proceeding is entitled to raise “matters that would be available to him as defenses in an action to enforce a foreign money judgment.” OCGA § 19-11-80 (a). In considering which defenses are available to such an obligor, we look to OCGA §§ 9-12-130 through 9-12-138, the Uniform Enforcement of Foreign Judgments Law. Under OCGA § 9-12-134 (b), a trial court may stay enforcement of a foreign judgment “[i]f the judgment debtor shows the court any ground on which enforcement of a judgment of the court of this state would be stayed.” In Georgia, relief from judgment is governed by OCGA § 9-11-60. Under § 9-11-60 (a), a party may collaterally attack a judgment void on its face, defined as a judgment lacking personal or subject matter jurisdiction. See Murphy v. Murphy, 263 Ga. 280, 282 (430 SE2d 749) (1993). Fenner has made no claim that the Connecticut order is void for lack of jurisdiction. We therefore must consider whether Fenner’s attack on the Connecticut judgment may be maintained under OCGA § 9-11-60 (b), which permits attack by motion for new trial or motion to set aside in the court of rendition.

But even if we assume, without deciding, that the Georgia court may be considered “the court of rendition,” rendering OCGA § 9-11-60 (b) applicable, Fenner’s contention that the Connecticut order was obtained by fraud is unavailing. OCGA § 9-11-60 (d) (2) permits a judgment to be set aside for “[f]raud . . . unmixed with the negligence or fault of the movant.” Under the facts of this case, Fenner cannot meet this requirement; he has shown neither actionable fraud nor that his failure to investigate paternity was unmixed with his own “negligence or fault.”

Although Fenner argued below that he learned after his divorce that he was not the father of all three children, he admitted that an issue arose at the time of his divorce concerning his paternity with regard to at least one child. He testified that he “addressed the issue of [A. F] not being mine at the time of my divorce. I was instructed by my attorney at that time because we fought like cats and dogs. And I wanted to be free of her because at that time I was getting ready to get married again. He said to me that I would be able to address the paternity issue at a later date. And then during several arguments with her and trying to have visitation rights to see my kids at the time . . . she said to me . . . you know that [A. F] is not yours.”

This evidence shows that Fenner’s failure to investigate paternity despite his suspicion was not caused by any alleged misrepresentation by Desiree Fenner. Instead, this failure was based on Fenner’s own desire to conclude divorce proceedings rapidly and his own decision to litigate paternity at a later time. He therefore has not shown reasonable reliance on an alleged misrepresentation or proximate cause, which are essential elements of fraud. Grice v. Detwiler, 227 Ga. App. 280, 282 (488 SE2d 755) (1997). Moreover, despite Fenner’s suspicion at the time of his divorce that he was not the father of at least one child born during his marriage, he failed to arrange for blood tests to establish paternity until four or five years after the divorce was final. And even had Fenner’s suspicion not arisen at the time of his divorce, putting him on notice that paternity might be an issue, Desiree’s statement to him that A. F. was not his child certainly did. Yet he waited approximately three years after this admission to challenge paternity of that child as well as another child born during the marriage. Fenner has not shown under these circumstances that his failure to investigate was the fault of anyone but himself. His fraud defense therefore fails. Because Fenner did not show “any ground on which enforcement of a judgment of a court of this state would be stayed,” OCGA § 9-12-134 (b), the trial court erred in staying enforcement of the Connecticut support order.

3. Our decision in Division 2 renders it unnecessary that we consider DHR’s contention that the trial court lacked jurisdiction to modify the Connecticut order.

Judgment reversed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

Decided November 12, 1998.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, William C. Joy, Senior Assistant Attorneys General, Katherine S. Davis, Assistant Attorney General, for appellant.

Kris K. Skaar, David A. Canale, for appellee.

       The Act further addresses choice of law issues concerning interpretation of support orders “including the duration of current payments and other obligations of support” and statutes of limitation in arrearage enforcement actions, 28 USC § 1738B (h) (2)-(3). These issues are not involved in this case.

       This law applies “to foreign judgments of other states only if those states have adopted the ‘Uniform Enforcement of Foreign Judgments Act’ in substantially the same form as this article.” OCGA § 9-12-138. Because Connecticut has enacted a statute entitled “Uniform Enforcement of Foreign Judgments” in substantially the same form as that enacted by Georgia, see Conn. Gen. Stat. §§ 52-604 through 52-609, application of the Georgia act is authorized.

       We note that the Georgia Foreign Money Judgments Recognition Act, OCGA §§ 9-12-110 through 9-12-116, does not apply in this case, as the foreign judgment sought to be enforced is one “for support in matrimonial or family matters.” OCGA § 9-12-111 (1). Furthermore, Connecticut is not a “foreign state” as defined in OCGA § 9-12-111 (2) (B). Contrary to Fenner’s argument, OCGA § 9-12-114 (5), listing fraud as a defense to a money judgment, is therefore inapplicable.


author: McMurray, Presiding Judge.

text:
    A98A1389.
    DEAL et al. v. CHILDREN’S WORLD LEARNING CENTERS, INC.
    (509 SE2d 134)
   McMurray, Presiding Judge.

In this renewal action, plaintiff Jettie J. Deal sued defendant Children’s World Learning Centers, Inc. to recover for personal injuries sustained when plaintiff slipped on defendant’s premises. Billy Deal sued to recover for the lost “society, services and companionship of his wife. . . Defendant denied the material allegations of negligence and moved for summary judgment, contending it had no actual or constructive knowledge of the hazard and further arguing plaintiff’s contributory negligence barred her claim. Viewed in the light most favorable to plaintiff as the non-movant, the record reveals the following evidence: According to her affidavit, plaintiff entered defendant’s premises, signed out her grandson and proceeded “with due care down the hall toward [her] grandson’s classroom. At that time, [plaintiff’s] right foot slid on the floor and went straight and [her] left leg buckled underneath [her], [her] knee hit the floor, and [her] elbow and arm scraped the wall. As [she] pulled [her] pant leg up to look at the injury to [her] knee, [plaintiff] noticed that [her] pant legs were wet. [Plaintiff] looked down at the floor and noticed that there was a puddle of water in the floor about the size of a dinner plate. After [she] slipped and fell, [plaintiff] noticed that there was a ring around the edge of the puddle indicating that it had been there for some time. . . . After [she] fell, [plaintiff] looked up and [defendant’s employee] Trish Carter was standing over [plaintiff] as [she] laid in the floor.”

Defendant’s original incident report indicates “a little water had dripped from a mop and [plaintiff] slipped on it,” although a subsequent incident report does not relate how the incident happened. Louise Kelly, a teacher in the infants room, was inside her classroom when plaintiff entered and told Kelly she had fallen. Louise Kelly “didn’t notice any water [on the floor] when [she] went out there [into the hall] to get [some] ice for [plaintiff].” Robin Marion Currie, defendant’s center director, “was not in the building when [this incident] occurred, . . . [but plaintiff] said there was water on the floor. . . . [Currie] looked at the area where it was supposed to have occurred[, but] there was no water there at that time.” Currie identified plaintiffs Exhibit 2 as the original incident report. She has no “information that says that [exhibit is] not an accurate statement. . . .” Kathy Socciarelli, defendant’s assistant director, was approached by employee Trish Carter who told Socciarelli that she, Trish Carter, “was down the hallway or on around the corner and she heard [plaintiff] fall. . . .” When Socciarelli asked why plaintiff had fallen, Trish Carter replied “that there might have been a little water from a mop. . . .” According to Socciarelli, “[i]t’s everybody’s duty in the building to make sure that it’s a safe place. . . . Each teacher took care of [her] own classroom . . .,” while Socciarelli and Robin Currie were responsible for the common areas. Socciarelli confirmed “there was no sweep sheet that [any]one completed on a daily basis to periodically show that [someone] had inspected the premises.”

The trial court concluded that plaintiff “failed to exercise care for her own safety by failing to avoid the puddle of water the size of a ‘dinner plate,’ ” and granted defendant’s motion for summary judgment. Plaintiff brings this direct appeal, urging genuine issues of material fact remain for jury resolution. Held:

1. Under the controlling authority of the recent decision of the Supreme Court of Georgia in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403), the trial court’s reasoning that plaintiff failed to exercise ordinary care for her own safety, as a matter of law applied to purportedly undisputed facts, is in error. “In Robinson, the Supreme Court of Georgia ‘disapprove(d) of the appellate decisions which hold as a matter of law that an invitee’s failure to see before falling the hazard which caused the fall constitutes a failure to exercise ordinary care.’ [Cit.] That Court held ‘an invitee’s failure to exercise ordinary care is not established as a matter of law by the invitee’s admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which led to his downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.’ [Cit.]” Sadtler v. Winn-Dixie Stores, 230 Ga. App. 731, 732 (498 SE2d 101). Thus a genuine issue of fact exists as to whether plaintiff in the case sub judice exercised ordinary care, even though she failed to avoid the hazard posed by a puddle of water the size of a dinner plate. But a judgment that is correct for any reason will be affirmed. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673). Whether this fact issue is material or ultimately immaterial depends upon whether there is evidence of defendant’s superior knowledge of the hazard.

2. “In support of a summary judgment motion, the defendant in a slip-and-fall action still bears the onus of establishing the nonexistence of every material fact, namely, disproving its actual knowledge and pointing out the absence of evidence of its constructive knowledge of the alleged hazard. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).” (Emphasis omitted.) McConnell v. Smith & Woods Mgmt. Corp., 233 Ga. App. 447, 449 (3) (504 SE2d 526).

(a) At her deposition, plaintiff testified that Louise Kelly “told [plaintiff] she [Kelly] almost slipped and fell in that very same place that morning, that — I guess it was that water. Mrs. Kelly said she had almost slipped that morning. That indicate[d] to [plaintiff] the water was already down there that morning[; whereas plaintiff] slipped and fell that afternoon at approximately 2:00 o’clock.” On appeal, she urges that this is evidence of defendant’s actual knowledge of the puddle.

“ ‘ “[A]n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.”. . . (Cit.)’ Edwards v. Campbell Taggart Baking Co., 219 Ga. App. 806, 807 (1) (466 SE2d 911) (1996).” Garrett v. NationsBank, N.A. (South), 228 Ga. App. 114, 116, n. 2 (491 SE2d 158). In our view, plaintiff’s guess that the same water she slipped in at 2:00 p.m. was the cause of Kelly’s unexplained near-mishap that morning is too speculative to authorize a finding of defendant’s actual knowledge of the hazard.

(b) “ ‘(C)onstructive knowledge may be established by showing that an employee of the proprietor [or occupier] was in the immediate area of the hazardous condition and could have easily seen the substance or that a foreign substance remained on the floor for such a time that ordinary diligence by the [premises occupier] should have effected its discovery.’ (Punctuation omitted.) Brown v. Piggly Wiggly Southern, 228 Ga. App. 629, 631 (3) (b) (493 SE2d 196) (1997).” Straughter v. J. H. Harvey Co., 232 Ga. App. 29 (1) (500 SE2d 353).

Defendant argues that its employee Trish Carter was in a breakroom when plaintiff fell and did not witness the fall. But the only evidence relied on by defendant to establish Trish Carter’s whereabouts is hearsay, through the statements of Louise Kelly and Robin Marion Currie. Moreover, plaintiff testified that when she entered defendant’s school, “Trish Carter was standing at the end of the desk. . . . [Plaintiff) walked past Trish Carter. Just as [plaintiff] walked past Trish Carter, . . . [plaintiff’s] right foot slid and slipped on the slippery floor. . . . Trish Carter “was facing this way. . . . She kind of turned around and she was looking at [plaintiff] when [plaintiff] came in. . . . And whenever [plaintiff] fell [Trish Carter] was looking at [her]. She was looking down at [plaintiff] on the floor.” Plaintiff “looked up and Trish Carter was standing about three feet from [plaintiff] looking down at [her] on the floor. . . .” This is evidence from which the jury could conclude that defendant’s employee Trish Carter was in the vicinity and could have discovered the hazard in time to warn plaintiff. Straughter v. J. H. Harvey Co., 232 Ga. App. 29 (1), 30, supra. Consequently, the record “does not conclusively establish the absence of defendant’s] constructive knowledge, due to the presence of the [employee] in the immediate vicinity where plaintiff fell. [Cit.]” McConnell v. Smith & Woods Mgmt. Corp., 233 Ga. App. 447, 449 (2), supra. The grant of summary judgment on this evidentiary posture was in error.

Decided November 12, 1998.

Thomas M. Farrell, for appellants.

Tinkler & Associates, William P. Tinkler, Jr., Deana L. Simon, for appellee.

Judgment reversed.

Blackburn and Eldridge, JJ., concur.


author: Blackburn, Judge.

text:
    A98A1706.
    NICHOLS v. WESTFIELD INSURANCE COMPANY.
    (509 SE2d 149)
   Blackburn, Judge.

Marsha Nichols, individually and as administratrix of the Estate of Harold C. Nichols (Estate), appeals the trial court’s holding of non-coverage and grant of summary judgment in favor of Westfield Insurance Company in its declaratory judgment action. Nichols contends that an insurance policy issued to the McDuffie County Overseas Veterans Association (MCOVA) by Westfield covers the accidental death of her husband despite a dramshop liability exclusion contained therein. For the reasons set forth below, we affirm.

“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., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

MCOVA is a fraternal, civic association chartered to “develop, encourage, promote and protect the interests of overseas veterans of McDuffie County; to promote recreational and social activities for overseas veterans of McDuffie County; and [to promote and sponsor] any other activities which are in the interest of overseas veterans of McDuffie County.” In order to pay its expenses, MCOVA operates a bar and hosts social events such as dances. MCOVA donates income not needed to cover its operating expenses to other charities.

On the evening of February 10, 1995, Bradley Usry attended a dance sponsored by and held on the premises of MCOVA. At the dance, MCOVA sold Usry a number of alcoholic beverages. While driving home from the dance, Usry ran into and killed Harold C. Nichols.

At the time of the accident, MCOVA had a general commercial insurance policy in effect with Westfield. This policy of insurance excludes from its coverage bodily injury for “which any insured may be held liable by reason of: (1) [c]ausing or contributing to the intoxication of any person; (2) [t]he furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3) [a]ny statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages” (Emphasis supplied.)

On January 20, 1997, the decedent’s wife, Marsha Nichols, filed suit against MCOVA for the death of her husband, asserting dram-shop liability. On February 13, 1997, Westfield conveyed a reservation of rights letter to MCOVA. On June 12, 1997, Westfield filed a complaint for declaratory judgment that the insurance policy did not cover Harold Nichols’ death because of the dramshop exclusion it contained. On December 15, 1997, Westfield filed a motion for summary judgment which was granted on March 6, 1998.

1. Nichols contends that the overall language of the dramshop exclusion is ambiguous and must be construed against Westfield. This Court has held that similar dramshop exclusions in other policies were neither ambiguous nor contrary to public policy. Hartford Ins. Co. &c. v. Franklin, 206 Ga. App. 193 (424 SE2d 803) (1992); Safeco Ins. Co. of America v. Shawnee Mechanical Contractors, 209 Ga. App. 165, 166 (433 SE2d 66) (1993).

2. Nichols next argues that the dramshop exclusion is ambiguous as specifically applied to MCOVA, arguing that MCOVA cannot be considered to be “in the business of” selling alcoholic beverages because: (a) MCOVA is a nonprofit organization; (b) the term “business” is ambiguous and must be construed against Westfield; and (c) a reasonable insured in MCOVA’s position would not have considered the policy’s “business” exclusions to be applicable to it.

(a) Nichols argues that MCOVA cannot be considered to be “in the business of” selling alcoholic beverages because it is a nonprofit organization and its net profits do not inure to the individual benefit of any of its members. Nichols maintains: (1) that the term “business” should be defined as “an activity regularly engaged in for profit, income, and livelihood” and (2) that an organization with nonprofit motives cannot be considered a business enterprise. In essence, Nichols contends that the analysis in cases such as this must narrowly focus on the profit motives of an organization rather than its activities. This argument is misplaced.

When asked to identify MCOVA’s primary source of income, Gerald L. Drew, MCOVA’s former chairman, answered “dances, the bar, different things like this.” Drew also testified that MCOVA employed a bar manager and a bartender. Furthermore, MCOVA keeps an inventory of its liquor stock on a monthly basis. This evidence supports a finding that the sale of alcohol is one of the primary sources of income for MCOVA, regardless of whether it generates a profit that individually benefits its members. MCOVA sold alcohol to its patrons on a regular basis from a bar which it operated in order to support itself. As such, MCOVA must be considered to be in the business of selling alcohol, even using the definition propounded by Nichols, regardless of how the profits were used after the sale occurred.

Moreover, the provisions of Westfield’s policy relate to the nature of risks resulting from the insured’s activities, not from its fraternal purposes. The policy clearly states that Westfield is not obligated to cover bodily injuries associated with the business of selling alcoholic beverages without regard to the purpose for which such beverages are sold. Therefore, as the bar operated by MCOVA subjects West-field to the same risks applicable to any other bar which regularly sells alcohol to the public, the policy exclusion regarding dramshop liability should be applicable to MCOVA. While the purposes of MCOVA and a local tavern differ, the risk excluded by the dramshop exclusion would be the same.

Furthermore, we point out that Georgia’s dramshop law, itself, is drafted broadly enough to encompass fraternal organizations such as MCOVA. The Georgia dramshop act, OCGA § 51-1-40, generally refers to “a person who willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages.” (Emphasis supplied.) The statute does not draw artificial distinctions between nonprofit and for-profit purposes.

(b) Nichols further argues that the term “business,” in and of itself, is ambiguous because MCOVA would interpret the term in a different way than Westfield would. Nichols chooses to stress a definition of “business” which requires the establishment of profit motives.

“The words used in policies of insurance, as in all other contracts, bear their usual and common significance, and policies of insurance are, as all other contracts, to be construed in their ordinary meaning. . . . [C]ourts are not called upon, because of the rule that contracts of insurance are to be strictly construed against the insurer, and because the contract itself is one of insurance, to call forth doubt, through construction of plain and unambiguous provisions of such a contract.” (Punctuation omitted.) Nalley v. Nationwide Mut. Fire Ins. Co., 221 Ga. App. 537, 538 (2) (472 SE2d 82) (1996).

“In considering a similar insurance policy exclusion, this court has held that in the absence of any indication to the contrary in the policy, the term ‘business’ as used in the exclusionary clause means business in the ordinary accepted sense — that is, an undertaking engaged in with some regularity and for profit and income. Ordinarily the word ‘business’ is that which occupies the time, attention, and labor of a person for the purpose of a livelihood or profit. Black’s Law Dictionary further defines occupation as that ‘which principally takes up one’s time, thought, and energies; especially, one’s regular business or employment; also whatever one follows as the means of making a livelihood.’ This conforms to the general rule of law that the words ‘engage in business’ imply an element of continuity or habitual practice.” (Citations and punctuation omitted; emphasis in original.) State Farm &c. Ins. Co. v. Seeba, 209 Ga. App. 328, 329 (433 SE2d 414) (1993).

Here, it is clear that MCOVA sold alcohol on a regular basis to the public as a means of making a livelihood. Once again, this supports a finding that MCOVA was in the business of selling alcohol.

(c) Nichols contends that a reasonable insured in MCOVA’s position would not have understood that MCOVA was considered to be a business enterprise for purposes of the insurance policy. However, the policy, titled a “Commercial Insurance Coverage Policy,” explicitly refers to its insured as a business entity. For example, Section II of the policy, which defines who is insured thereunder, bases its definitions on the assumption that an insured is operating a business of some kind. It follows that a reasonable insured would not purchase a policy which insures against loss and liability resulting from business activities unless it was indeed engaged in such activities. Thus, a reasonable insured in MCOVA’s position would understand that it was considered a business enterprise for purposes of the policy.

3. We note that other jurisdictions are split on the issues discussed herein. Some states have held that a business dramshop exclusion should not be applicable to nonprofit entities. See, e.g., Laconia Rod &c. Club v. Hartford Accident &c. Co., 459 A2d 249 (N.H. 1983); American Legion Post No. 49 v. Jefferson Ins. Co. &c., 485 A2d 293 (N.H. 1984); and Newell-Blais Post No. 443 &c. v. Shelby Mut. Ins. Co., 487 NE2d 1371 (Mass. 1986). Others have rejected such a narrow focus on the status of an entity and have considered the nature of the entity’s activities. See, e.g., Sprangers v. Greatway Ins. Co., 514 NW2d 1 (Wis. 1994); McGriff v. U. S. Fire Ins. Co., 436 NW2d 859 (S.D. 1989); Cormier v. Travelers Ins. Co., 618 S2d 1185 (La. App. 1993). For the reasons outlined above, the trial court did not err in granting summary judgment.

Decided November 12, 1998.

Nimmons & Malchow, Kenneth M. Nimmons, Mark S. Watson, Ross, Wallace & Hammond, John C. Hammond, for appellant.

Goodman, McGuffey, Aust & Lindsey, Michael A. Dalton, Leslie S. Sullivan, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Although MCOVA’s purposes are fraternal, it has not qualified as a tax-exempt charity for federal income tax purposes.


text:
    A98A1712.
    TURMAN v. BOLEMAN.
    (510 SE2d 532)
   Blackburn, Judge.

Sheila Mae Turman appeals from the denial of her motion to hold her ex-husband, Orville Joseph Boleman, in contempt for denying Turman visitation rights to their child. While the visitation provision was contrary to public policy and therefore unenforceable, its plain language did authorize Boleman’s conduct and precluded a finding of contempt at this time. We affirm the trial court’s denial of Turman’s motion for contempt.

Turman and Boleman were divorced on November 13, 1996. Their settlement agreement, which was incorporated into the final judgment and decree, provided that Boleman would have custody of their minor child. The agreement gave Turman certain specified visitation rights away from the father’s residence “on the condition [that] at no time shall [the child] be in the presence of William ‘Larry’ Little or any other African-American male except that [Turman] shall not be in contempt of court if she has casual contact with any African-American male other than William ‘Larry’ Little.” After Turman married Kenneth Turman, an African-American male, Boleman refused to allow Turman to visit with the child away from Boleman’s residence. Turman moved to hold Boleman in contempt for refusing to allow her to exercise her visitation rights. At the hearing on the contempt motion, Turman argued that the provision in the settlement agreement conditioning her visitation rights upon the child’s having no contact with any African-American male was unenforceable.

The trial court improperly upheld the validity of the visitation provision which prohibited the child’s contact with any African-American males. This provision is unenforceable as against public policy. “The only authentic and admissible evidence of public policy of a State is its constitution, laws, and judicial decisions.” Mut. Life Ins. Co. v. Durden, 9 Ga. App. 797, 800 (3) (72 SE 295) (1911). The visitation provision here violated the express public policy against racial classification and the public policy encouraging a child’s contact with his noncustodial parent.

The visitation provision of the divorce decree sanctioned arbitrary racial classification in determining visitation rights in violation of the Equal Protection Clause of the state and federal constitutions. The trial court-held that the provision was enforceable because it was a matter of private contract. However, after that private agreement was incorporated into the trial court’s order, enforcing the private agreement became state action. “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U. S. 429 (104 SC 1879, 80 LE2d 421) (1984). The courts of this State cannot sanction such blatant racial prejudice, especially where it also interferes with the rights of a child in the parent/child relationship.

The agreement between the parties clearly violated the State’s public policy to promote the best interests of the child. “It is the express policy of this state to encourage that a minor child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their children after such parents have separated or dissolved their marriage.” OCGA § 19-9-3 (d). Contrary to this policy, the agreement prevents the child from having contact with his natural mother solely on the basis of an arbitrary racial classification. Although a court may validly provide, under appropriate circumstances, that a child is to have no contact with particular individuals who are deemed harmful to. the child, such provision cannot be based solely upon racial considerations, as such ruling violates the public policy of the State of Georgia.

The trial court properly found that Boleman was not in contempt of court at this time. “The trial court’s discretion in [contempt] matters is broad[,] and its decision will be upheld if there is any evidence to support it.” (Punctuation omitted.) Dept. of Human Resources v. Cowan, 220 Ga. App. 230, 232 (2) (469 SE2d 384) (1996). “To hold in contempt, the court must find that there was a wilful disobedience of the court’s decree or judgment.” Beckham v. O’Brien, 176 Ga. App. 518, 522 (336 SE2d 375) (1985). The trial court properly denied Turman’s motion for contempt because Boleman never disobeyed the court’s order. A decision of a trial court which is right for any reason will be affirmed. Southern Electronics Distrib. v. Anderson, 232 Ga. App. 648 (502 SE2d 257) (1998).

Decided November 12, 1998.

Law Offices of John F Lyndon, Walter R. Finch III, for appellant.

Fitzpatrick & Camp, Barry L. Fitzpatrick, for appellee.

A party is entitled to rely on the plain terms of a court order until such provisions are modified by the court. Padgett v. Lael, 244 Ga. 180, 181 (2) (259 SE2d 441) (1979). Even where the terms of a court order are determined to be violative of public policy and thus unenforceable, reliance on the original terms will not support a contempt action prior to a judicial adjudication of such unenforceability. In this case, Boleman refused to allow visitation away from his residence after Turman married an African-American male. His actions did not violate the original terms of the divorce decree. Since there is no evidence of wilful disobedience of the terms of the decree, Bole-man cannot be held in contempt. However, having found that the visitation provision is unenforceable, Boleman cannot in the future rely on the original provision in providing visitation privileges to Turman, as otherwise set forth in the agreement. The trial court’s decision is affirmed.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A1752.
    WHITE v. CAUTHEN et al.
    (509 SE2d 140)
   Blackburn, Judge.

David White appeals the trial court’s grant of summary judgment to the defendants, Ellen Cauthen and Rush Utley, in the underlying breach of contract action. Because we have previously decided the issue presented by this appeal adversely to White, we affirm the decision of the trial court.

“A grant of a motion for summary judgment is proper when there is no issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). This Court applies a de novo standard of review to a grant of summary judgment, and the evidence must be viewed in the light most favorable to the nonmoving party. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” Griffin v. Travelers Ins. Co., 230 Ga. App. 665 (497 SE2d 257) (1998).

So viewing the evidence, it reveals that on October 14, 1996, White and the defendants entered into a contract by which White agreed to build a residential house for the defendants on a certain piece of property in Putnam County, Georgia. The contract estimated that the cost for the house was $233,000 including the builder’s fee. On May 5, 1997, White signed a “Contractor’s Affidavit Upon Final Payment” in which he averred that “the agreed upon price or reasonable value of the labor, services and materials has been paid and the Contractor waives and releases any and all liens or claims of liens it has upon the foregoing described property.” Such affidavit is regular on its face in that it bears the signature and stamp of a notary public. In reliance on White’s affidavit, the defendants closed on the subject property on May 16, 1997. On July 17, 1997, White filed the underlying action asserting that he was owed an additional $38,000.

In response to defendants’ motion for summary judgment, White filed an affidavit in which he averred that no witnesses were present when he signed the Contractor’s Affidavit in his home office. He further averred that he then mailed the document to the closing attorney’s office where it was later notarized. White contends that, because he did not sign the Contractor’s Affidavit in front of a notary public, it was not a sworn statement upon which the defendants were entitled to rely. We cannot agree.

White asserts that his affidavit should have no force or validity in the absence of a valid jurat. We addressed this issue in the similar case of Walk Softly v. Hyzer, 188 Ga. App. 230 (372 SE2d 500) (1988). In Walk Softly, a contractor brought suit asserting a labor and materialmen’s lien against the purchasers of a home he had constructed. At the closing of the sale on this home, the contractor executed a builder’s affidavit swearing that there were no outstanding bills or liens on the property. On appeal from the trial court’s grant of the defendant’s motion for summary judgment, the contractor asserted that he “did not know what he was signing and was not sworn as required by the statute” thereby precluding summary judgment on the basis of the affidavit. We rejected this argument and held that “an affidavit regular on its face, but challenged on the ground it was not properly sworn to or notarized, is as a matter of law sufficient if there is an absence of any evidence indicating that the owner was aware of the irregularity, or allegations and proof of fraud and/or collusion.” (Punctuation omitted.) Id. at 233.

“The issue is not whether the purchaser observed the execution of the affidavit alleged to be irregular, but whether the purchaser was entitled to rely on its validity. The record before us here shows that the documents executed at the closing contained a signed statement of facts, purporting to be the statement of the signer, followed by the certificate of an officer, authorized to administer oaths that it was sworn to and subscribed before him, which is a lawful affidavit.” (Punctuation omitted; emphasis supplied.) Id. Although the suit in Walk Softly was based on the existence of a lien, see OCGA § 44-14-361.2, rather than a breach of contract action, our determination regarding the proper procedure when an affidavit is challenged by the affiant applies equally to either situation. See also Balest v. Sim mons, 201 Ga. App. 605, 608 (411 SE2d 576) (1991) (contractor is estopped from asserting a claim for breach of contract in contravention to the sworn admissions in his affidavit).

Decided November 12, 1998.

Lawrence, Ford & Ridgeway, Francis N. Ford, for appellant.

Blasingame, Burch, Garrard, Bryant & Ashley, Lloyd N. Bell, for appellees.

White relies on Phoebe Putney Mem. Hosp. v. Skipper, 226 Ga. App. 585 (487 SE2d 1) (1997) cert. granted (physical precedent only), for the proposition that his affidavit was invalid because it did not contain a proper jurat. Phoebe Putney is not binding authority, and is distinguishable in any event. Therein, the opposing party, the defendant, claimed that the plaintiff’s affidavit filed pursuant to OCGA § 9-11-9.1 was invalid. The affiant himself did not challenge the validity of his own affidavit. Additionally, White averred that he told the defendants prior to the closing that he was owed more money. However, as in Balest, supra at 608, White’s affidavit executed in connection with this litigation contradicts his testimony in the Contractor’s Affidavit and it must be construed against him because no explanation for the contradiction was offered. See id. Additionally, White admits signing the Contractor’s Affidavit which therefore, can be used as an admission against him in the underlying action.

Based on the foregoing, the trial court properly granted the defendants’ motion for summary judgment.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Judge Harold R. Banke.

text:
    A98A1770.
    In the Interest of J. E. E., a child.
    (509 SE2d 147)
   Judge Harold R. Banke.

By and through counsel, four-year-old J. E. E. appeals the juvenile court’s denial of the petition for termination of his mother’s parental rights. He enumerates ten errors on appeal.

This case appeared before the court once previously. Our prior opinion vacated the juvenile court’s first denial of the petition to termínate the mother’s parental rights and remanded with direction to consider whether (1) factors other than incarceration caused J. E. E.’s current deprivation; and (2) present evidence of parental misconduct or inability existed. In the Interest of J. E. E., 228 Ga. App. 831, 835 (2) (493 SE2d 34) (1997). After an additional hearing, the juvenile court reconsidered the case and again declined to terminate the mother’s parental rights.

The record shows that despite a long history of drug abuse and incarceration, the mother appears to be rehabilitated. During her most recent incarceration, the mother took all the rehabilitation and parenting classes available to her. After her release into a transitional center, she obtained employment, remained current with her child support, continued her parenting classes, made progress in her relationship with J. E. E., regularly attended narcotics anonymous meetings and other drug rehabilitation, received no corrective or disciplinary notices, and saved over $5,000 from her wages and an annuity. She passed all drug tests and strip searches.

In its order refusing to terminate the mother’s parental rights, the juvenile court observed that the mother had “made a remarkable recovery which she has sustained over a period of two years. . . . Her appearance, demeanor, language and manner all demonstrate a determination to change her life and provide for her son a good nurturing home.” Held:

J. E. E. argues that the juvenile court erred in finding no evidence of present parental misconduct or inability. We disagree.

In analyzing this issue, we must determine whether a rational trier of fact could have found clear and convincing evidence, viewed in the light most favorable to the mother, sufficient to uphold the juvenile court’s decision. In the Interest of R. D. S. P., 230 Ga. App. 205 (495 SE2d 867) (1998). If any competent evidence supports that holding we must affirm, as this Court may not reweigh the evidence. See In re Application of Ashmore, 163 Ga. App. 194, 198 (4) (293 SE2d 457) (1982).

The juvenile court followed the statutory requirements for making termination decisions codified at OCGA § 15-11-81. The record refutes J. E. E.’s contention that the court failed to consider factors other than the mother’s incarceration in finding no evidence of current parental misconduct or inability. OCGA § 15-11-81 (b) (4) (A); In the Interest of J. E. E., 228 Ga. App. at 835 (2). It clearly considered such other factors as the mother’s history of drug and alcohol abuse and incarceration and their effect on her child.

Although the juvenile court found that J. E. E. was a deprived child, it rejected the State’s contention that a lack of proper parental control was the sole cause of his status as deprived. OCGA § 15-11-81 (b) (4) (A) (i) and (ii). In support of this finding, the juvenile court noted that the Department of Family & Children Services (“DFCS”) undermined the mother’s attempt to participate in a prison-sponsored parenting program with the child. The record contains no evidence that the mother was ever cruel or abusive to, or physically neglectful of any of her children. At the time of the hearing, the mother had been sober and drug free for two years, was presently employed and involved in drug rehabilitation and parenting classes.

The record shows that the mother was in good standing with her child support, availed herself of the opportunity to visit the child each time it arose, and improved her parenting skills with each visit. OCGA § 15-11-81 (b) (4)'(C). In addition, the record supports the trial court’s finding that the mother “made every bona fide effort to communicate with the child since her incarceration and . . . [took] advantage of every opportunity given her by DFCS . . . [notwithstanding the fact that] DFCS limited the contact of this [m]other with this [c]hild.”

The clear and convincing evidence supporting that finding undermines J. E. E.’s argument that the trial court did not properly consider OCGA § 15-11-81 (b) (4) (C) (i). Viewing the mother’s actions in the most favorable light, we find no support for a claim that the mother failed significantly for a period of a year or longer after her rehabilitation to communicate with the child or was arrears in child support. OCGA § 15-11-81 (b) (4) (C) (i) and (ii). The evidence also supports the trial court’s finding that the mother was currently in compliance with the case plan, with the exception of obtaining suitable housing inasmuch as she resided at the transitional center. OCGA § 15-11-81 (b) (4) (C) (iii).

Viewed in the mother’s favor, the evidence is clearly sufficient to support the juvenile court’s finding that present evidence of parental misconduct or inability did not exist. In the Interest of J. E. E., 228 Ga. App. at 835 (2). It is entirely appropriate to consider a parent’s progress in meeting the goals established by the case plan or the juvenile court when determining whether to terminate parental rights. See In the Interest of R. U., 223 Ga. App. 440, 442 (477 SE2d 864) (1996). This was our purpose in specifically acknowledging the propriety of considering additional relevant evidence on remand. In the Interest of J.E.E., 228 Ga. App. at 836 (2). “A finding of unfitness must be based on present circumstances.” In re N. F. R., 179 Ga. App. 346, 348 (2) (346 SE2d 121) (1986).

Decided November 12, 1998.

Carl E. Martin, for appellant.

Garland C. G. Moore, Sanders B. Deen, for appellee.

Notwithstanding the overlap and repetition in J. E. E.’s brief, this case actually turns on the viability of the juvenile court’s determination that the cause of his deprivation was unlikely to continue. OCGA § 15-11-81 (b) (4) (A) (iii). J. E. E.’s challenge to that finding and others is based solely on his mother’s actions prior to her rehabilitation and entirely ignores the clear and convincing evidence that she has remained clean, sober, employed, and desirous of parenting J. E. E. over a period of years. Even were we to find that the juvenile court erred in finding no parental misconduct or inability, we would still affirm due to the sufficiency of the evidence indicating that the cause of the deprivation was unlikely to continue. OCGA § 15-11-81 (b) (4) (A) (iv).

“ ‘There is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship.’ [Cit.]” Jones v. Dept. of Human Resources, 168 Ga. App. 915, 916 (1) (310 SE2d 753) (1983). The order at issue evinces a clear understanding of that precept while imposing strict conditions to protect the child should the mother relapse, including gradually increasing visitation and continuation of an out-patient treatment program. Because the record supports the juvenile court’s disposition of this matter, we affirm.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

       In the circumstances of this case, particularly in light of J. E. E.’s tender years, it is difficult to imagine that his desires are reflected in the decision to appeal the trial court’s order.

       The mother’s past is described in our previous opinion.

       The case plan required the mother to (1) undergo drug and alcohol treatment; (2) submit to periodic testing and remain drug free; (3) undergo a psychological evaluation; (4) maintain a stable residence; (5) pay child support; (6) consistently visit the child.


text:
    A98A1935.
    RUBIN v. CELLO CORPORATION.
    (510 SE2d 541)
   Blackburn, Judge.

Joseph Rubin appeals the trial court’s order granting defendant Cello Corporation’s motion for summary judgment in the underlying product liability action. The trial court determined that Rubin failed to exercise ordinary care for his own safety.

“It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).” (Citation and punctuation omitted.) Anderson v. Svc. Merchandise Co., 230 Ga. App. 551 (496 SE2d 743) (1998). “Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” Zeller v. Home Fed. Savings &c., 220 Ga. App. 843 (471 SE2d 1) (1996).

1. The evidence, when viewed in the light most favorable to Rubin, establishes that Rubin slipped and fell at the Medical College of Georgia in an area where a fellow employee was applying Cello’s product, Mop ‘N Strip. In Rubin’s complaint against Cello he asserts a claim for defective design contending that Cello should have added a colorant to its product. Cello contends that its product is not defective and that Rubin assumed the risk of injury.

(a) “In Banks [v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994)], the Supreme Court rejected the proposition that a product is not defective where it is reasonably suited for its intended purpose and where the presence or absence of a design feature does not prevent the product from functioning properly in its intended use. . . .” Id. at 733 (1), overruling Mann v. Coast Catamaran Corp., 254 Ga. 201 (326 SE2d 436) (1985). The court instead adopted a risk-utility analysis to be used in evaluating design defect cases, whereby the risks inherent in a product design are weighed against the utility or benefit derived from the product. Banks, supra at 734 (1). The court identified several factors relevant to such an analysis, including the usefulness of the product; the gravity and severity of the danger posed by the design; the likelihood of that danger; the avoidábility of the danger, i.e., the user’s knowledge of the product, publicity surrounding the danger, or the efficacy of warnings, as well as common knowledge and the expectation of danger; the user’s ability to avoid danger; the state of the art at the time the product is manufactured; the ability to eliminate danger without impairing the usefulness of the product or making it too expensive; and the feasibility of spreading the loss in the setting of the product’s price or by purchasing insurance the feasibility of an alternative design; the availability of an effective substitute for the product which meets the same need but is safer; the financial cost of the improved design; and the adverse effects from the alternative. Id. at 736-737, n. 6.

“Although Banks did not expressly address the open and obvious doctrine, the clear import of the decision is that no one factor absolutely controls the analysis as to whether a product is defective. Indeed, Banks identifies the user’s knowledge of the product, common knowledge and the expectation of danger, and the user’s ability to avoid danger as several factors to be included in the analysis, without indicating that any of such factors is controlling. Accordingly, it is clear that under Banks, the open and obvious nature of the danger is but one factor to be considered in determining whether a product is defective. See Raymond [v. Amada Co., Ltd., 925 FSupp. 1572, 1578 (N.D.Ga. 1996)] (concluding that Banks impliedly overruled the open and obvious doctrine in design defect cases). See also Maleski, Eldridge’s Georgia Law of Products Liability, § 6B-3 at 62 (Supp. 1991) (In jurisdictions that emphasize a policy of risk-utility balancing, the fact that some defect is open and obvious is merely one element to be weighed against all other relevant factors).” (Punctuation omitted.) Bodymasters Sports Indus. v. Wimberley, 232 Ga. App. 170, 172 (501 SE2d 556) (1998).

Therefore, the open and obvious nature of the product and the availability of an alternative design are not controlling because they are just two factors to be considered along with many others in determining whether a product is defective. The trial court erred in granting summary judgment on this issue.

(b) As we held in Bodymasters, supra at 173, the affirmative defense of assumption of the risk is still available to the defendant in a product liability action.

“ ‘The defense of assumption of the risk of danger applies when the plaintiff, with a full appreciation of the danger involved and without restriction of his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct. A defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.’ (Citations and punctuation omitted.) Cornwell v. Chambers of Ga., 228 Ga. App. 64, 65 (491 SE2d 132) (1997). ‘Whether a party assumed the risk of his injury is a jury question that should not be decided by summary adjudication unless the defense is conclusively established by plain, palpable and undisputed evidence.’ (Punctuation omitted.) Id. at 66.” Bodymasters, supra at 173-174.

In the present case, Rubin deposed that he was attempting to stay away from the portion of the floor that was obviously wet from being cleaned. He deposed that he could not distinguish that the area where he was walking was wet. Therefore, we cannot say, as a matter of law, that Rubin voluntarily exposed himself to a known risk. This is not such a case upon which assumption of the risk has been established by plain, palpable and undisputed evidence.

Decided November 12, 1998.

Louis Saul, Jay M. Sawilowsky, for appellant.

Timothy S. Mirshak, for appellee.

2. Rubin further contends that because he was looking where he was going when he slipped and fell on defendant’s product, Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), precludes summary judgment. Although for the reasons stated in Division 1 we reverse the trial court’s grant of summary judgment, we note that Robinson does not apply to the facts of this case in the manner sought by Rubin. The defendant herein is not the occupier or owner of the property where the incident occurred, but the manufacturer of a product. This is not a slip and fall case in the traditional sense, but a product liability action.

Judgment reversed.

McMurray, P. J, and Eldridge, J., concur.


author: Johnson, Presiding Judge.

text:
    A98A2126.
    GONZALEZ v. THE STATE.
    (509 SE2d 144)
   Johnson, Presiding Judge.

After a bench trial, Lauro Gonzalez was found guilty of possession of cocaine. He appeals from the denial of his motion to suppress.

In reviewing the trial court’s ruling on a motion to suppress, this Court’s responsibility is to ensure that there was a substantial basis for the decision; the evidence is construed most favorably to uphold the findings and judgment of the trial court. Bolt v. State, 230 Ga. App. 760, 761 (1) (497 SE2d 371) (1998).

The only witness to testify at the hearing on the motion to suppress was the arresting officer. He testified that on November 26, 1997, at 8:30 p.m., he was patrolling an area known for drug activity when he saw Gonzalez and another man standing in front of a closed business. Although the men stood next to a pay phone, he did not see either man use the telephone. A car pulled into the parking lot and either Gonzalez or the other man approached it, stayed for a moment and returned to the pay phone. Based on their conduct and his knowledge of the area, the 17-year veteran officer radioed for an officer in a marked car “to come over and make contact with” the men. When a marked patrol car arrived, the men began walking away. The officer in the unmarked car moved his car so as to “[head] them off,” and the marked car stopped behind the men.

The plainclothes officer told them to step to the rear of his car, which they did. The officer testified that he wanted to know who the men were and why they were standing in front of a closed business. As the uniformed officer questioned Gonzalez’ companion, the plainclothes officer asked Gonzalez for his name. Gonzalez mumbled a reply “as if he had something in his mouth.” The officer asked him to open his mouth, which he did. Seeing nothing, the officer asked Gonzalez to raise his tongue. When Gonzalez did so, the officer saw five to ten pieces of what later tested positive for crack cocaine.

Gonzalez challenges the validity of the stop. He does not challenge the authority of the officer to ask him to open his mouth and raise his tongue. Therefore, we do not reach that question. For the reasons which follow, we find no grounds for reversal.

There are “three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.” (Citations and punctuation omitted.) Holmes v. State, 222 Ga. App. 642, 643 (476 SE2d 37) (1996).

The officer’s action in blocking Gonzalez’ path in an effort to ascertain his identity and purpose for being at the location falls within the second type of encounter. “[I]f there is a reasonable suspicion of criminal wrongdoing, based upon specific and articulable facts from which it can be determined that the action of the police officer is not arbitrary or harassing, the police officer may make a brief, investigatory detention of the individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information.” (Citations and punctuation omitted.) State v. Wright, 224 Ga. App. 753, 754 (482 SE2d 441) (1997).

In determining whether a stop was justified by reasonable suspicion, we take into account the totality of the circumstances. Lambright v. State, 226 Ga. App. 424, 426 (1) (487 SE2d 59) (1997). Our analysis includes consideration of objective observations, patterns of operations of certain kinds of lawbreakers, and information from police reports, because a trained police officer draws inferences and makes deductions from these data. Id.

The veteran officer’s undisputed testimony was that Gonzalez was standing in front of a closed business at night in an area known for illegal drug sales; when a car pulled up in front of the business, Gonzalez or his companion approached the car briefly and walked back to the phone; and the men began walking away when the marked patrol car approached. The officer possessed the reasonable articulable suspicion of criminal conduct necessary to justify a brief investigatory detention to obtain more information. We find no error in the trial court’s order denying Gonzalez’ motion to suppress. See Thompson v. State, 230 Ga. App. 131, 132 (495 SE2d 607) (1998); Merriweather v. State, 228 Ga. App. 246, 247 (1) (491 SE2d 467) (1997).

Decided November 12, 1998.

Devon A. Orland, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Gregory K. Schwarz, Noah H. Pines, Assistant District Attorneys, for appellee.

Contrary to Gonzalez’ contention, State v. Banks, 223 Ga. App. 838 (479 SE2d 168) (1996) (physical precedent only), and Barnes v. State, 228 Ga. App. 44 (491 SE2d 116) (1997), do not require a different result. On appeal we construe the evidence most favorably to uphold the judgment of the trial court. Fritzius v. State, 225 Ga. App. 642, 646 (484 SE2d 743) (1997). In Banks, which is physical precedent only, the officers asked a man standing on a corner near an apartment complex his purpose for being there and then, dissatisfied with his response, proceeded to pat him down. Unlike in the instant case, there was no evidence that Banks was in a known drug area, that he was standing near a phone in front of a closed business, that he or a companion approached a car that pulled into the area, or that both men left as soon as a marked car arrived. Here there were more facts justifying a brief stop.

Similarly, the officer in Barnes had less information justifying a stop than the officer in this case. There, the officer testified that Barnes was standing on the corner in an area known for drug activity and started walking away upon seeing police. Barnes was holding a rag and “acting suspicious.” Police questioned him and tussled with him in order to recover the object from his hand. At the risk of being redundant, the officer in the case before us had information that the defendant, in addition to being in a known drug area and leaving when the police arrived, stood by a phone in front of a closed business at night, then briefly approached or stood with a man who briefly approached a car that pulled into the area. Moreover, the officer in this case observed Gonzalez long enough to be able to radio for backup and watch them until assistance arrived. Accordingly, Barnes does not require a reversal here.

Although the information possessed by the veteran officer in this case was insufficient to support a full arrest, it was adequate to justify the brief seizure conducted by the officer. The trial court did not err in denying Gonzalez’ motion to suppress. See generally McGaughey v. State, 222 Ga. App. 477, 479 (474 SE2d 676) (1997).

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A2157.
    DAVIS v. THE STATE.
    (510 SE2d 537)
   Judge Harold R. Banke.

Ricky Davis was convicted of three counts of possession with intent to distribute cocaine. In his sole enumeration of error, Davis argues that the trial court erroneously deprived him of his right to final closing argument by finding that reading a portion of a witness’ statement into the record for cross-examination purposes constituted the introduction of evidence within the meaning of OCGA § 17-8-71.

This case involves three separate incidents. In the first, which occurred in June 1994, traffic officers stopped Davis for weaving, arrested him for driving without a license or valid insurance, and discovered 30 little bags of crack cocaine during an inventory search.

The second offense occurred in September 1994 while police were surveilling an apartment where drug use was suspected. The arresting officer testified that he witnessed Davis and a co-defendant complete several transactions at the apartment, exchanging money for drugs at the door with individuals who delivered them to buyers waiting in their cars. The officer testified that he chased the co-defendant into the apartment and saw Davis sitting on a couch with drugs in his lap counting a large amount of currency. Davis dove through a closed window and the officer opted not to follow him, securing an arrest warrant instead.

The third charge arose while the arresting officer was executing the arrest warrant in January 1995. The officer spotted a car in which Davis was a passenger pulling into Capitol Homes and immediately approached, observing Davis placing a chunk of cocaine between the seat and the door.

During cross-examination of the arresting officer, defense counsel focused on the discrepancies between the officer’s written report of the September 1994 incident and his testimony. The officer agreed that the report failed to state that Davis was counting money with drugs in his lap. Counsel then read five sentences from the report and asked, “Isn’t that how you wrote that report?” The officer answered in the affirmative.

The State subsequently argued that admission of the five sentences read by defense counsel during cross-examination precluded Davis from opening and concluding the final argument to the jury. While astutely remarking on the law’s lack of clarity in this area, the trial court agreed, relying on Warnock v. State, 195 Ga. App. 537, 539 (2) (394 SE2d 382) (1990) and Steele v. State, 216 Ga. App. 276, 279 (5) (454 SE2d 590) (1995), disapproved, Kennebrew v. State, 267 Ga. 400, 404, n. 2 (480 SE2d 1) (1996). Held:

‘Which party is entitled to open and close is oftentimes unclear, based on whether . . . any admissible testimony or documentary evidence has been introduced by the accused.” Warnock, 195 Ga. App. at 539 (2). While recent case law offers some direction, this issue remains fact-driven and largely unsettled.

In Kennebrew v. State, 267 Ga. at 403 (4), the Supreme Court held that a defendant lost the right to open and close final arguments by playing, for impeachment purposes, the entire tape-recorded statement of a co-indictee. The trial court had forewarned Kennebrew that by playing the tape in its entirety, he would forfeit that right, notwithstanding the fact that the tape was not marked as an exhibit or formally tendered into evidence. The Supreme Court’s holding precluded defendants from “presenting evidence to the jury and retaining the right to open and close final arguments simply by failing or refusing to make a formal motion for the introduction of such evidence.” Id. at 404 (4). In so holding, the Court specifically disapproved of language in Steele, 216 Ga. App. at 279 (5), “suggesting that mere cross-examination of a witness constitutes the ‘introduction of evidence’ under OCGA § 17-8-71.” Id. at 404, n. 2.

In Whitehead v. State, 232 Ga. App. 140 (499 SE2d 922) (1998), the defendant was forced to tender into evidence a prior written statement the victim gave to police which contained no mention of guns before cross-examining her regarding her trial testimony that her attackers had guns. This Court reversed, relying in part on OCGA § 24-9-83, which codifies the proper method for impeaching with a prior inconsistent statement. Whitehead, 232 Ga. App. at 141 (2). Whitehead implicitly found that the use of a prior written inconsistent statement to impeach a prosecution witness did not affect the defendant’s right to final closing argument. Id. at 142 (2). See also Wilson v. State, 227 Ga. App. 59, 62 (2) (b) (488 SE2d 121) (1997).

While the facts in this case fall somewhere between Kennebrew and Whitehead, we find the latter’s analysis of the application of OCGA § 24-9-82 compelling. To lay the proper foundation for the admission of a prior written inconsistent statement under that statute, it must be shown to the witness “or read in his hearing.” OCGA § 24-9-83. Unless this foundational requirement is satisfied, such a statement is inadmissible as evidence. Sosebee v. State, 169 Ga. App. 370, 371 (3) (312 SE2d 853) (1983). “By its terms, the statute does not require that the prior inconsistent statement be admitted into evidence before it is used for impeachment purposes.” Duckworth v. State, 268 Ga. 566, 568 (1) (492 SE2d 201) (1997). We conclude that the five sentences Davis’ counsel read into the record were not evidence, but simply foundational language as contemplated by OCGA § 24-9-83. Id. The contrary approach ignores well-established precedent on the foundational prerequisites for prior inconsistent statements and creates an unnecessary tension between OCGA § 24-9-83 and OCGA § 17-8-71. Sosebee, 169 Ga. App. at 371 (3). Reversal is inappropriate, however, in light of the overwhelming evidence against Davis. Duckworth, 268 Ga. at 570 (2); Scott v. State, 243 Ga. 233, 235 (2) (253 SE2d 698) (1979); Seavers v. State, 208 Ga. App. 711, 713 (3) (431 SE2d 717) (1993).

Decided November 12, 1998.

Megan C. DeVorsey, for appellant.

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

Judgment affirmed.

Johnson, P. J, and Smith, J., concur.

       OCGA § 17-8-71 states in pertinent part, “If the defendant introduces no evidence, his counsel shall open and conclude the argument to the jury after the evidence on the part of the [Sjtate is closed.”

       The five sentences were as follows: “I ran behind him [the co-defendant]. Upon entering the apartment behind Mr. Gregory, Mr. Davis, Ms. Smith, and Ms. Boyce were sitting in the living room of the apartment; Mr. Davis saw me, ran to the back of the apartment and dove out the window. I was unable to apprehend Mr. Davis while arresting Mr. Gregory. I noticed a clear plastic bag with several hits of crack cocaine in it lying on the sofa with a large amount of money with it.”

        Warnock is distinguishable on its facts. The defendant successfully moved for the admission of the prior inconsistent statement and marked it as an exhibit, then tried to withdraw the motion. Warnock, 195 Ga. App. at 538-539 (2). We found that he could not withdraw it under the facts of the case. Id. at 539 (2).


text:
    A98A2183.
    HERNDON v. THE STATE.
    (509 SE2d 142)
   Blackburn, Judge.

Joseph Andre Herndon appeals the trial court’s order denying his motion for a new trial, contending he received ineffective assistance of counsel during his trial. Herndon has failed to show that trial counsel’s performance was deficient and that any of the alleged deficiencies prejudiced his defense. We affirm.

“In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), [Herndon] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. ... In addition, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted.) Redd v. State, 232 Ga. App. 666, 668 (4) (502 SE2d 467) (1998).

Herndon claims that counsel was deficient in: (1) failing to require the court reporter to take down opening statements, closing arguments or objections to her closing argument, which were sustained; (2) failing to question witnesses further due to the mistaken belief that certain narrative incident reports would go out with the jury; (3) refusing to accept the trial court’s offer to give a limiting instruction regarding deposition testimony introduced at trial; (4) failing to object to certain testimony by the state’s rebuttal witness; and (5) failing to preserve pretrial interviews with a key witness. Each of these alleged deficiencies is a strategic or tactical decision by trial counsel and therefore does not constitute ineffective assistance of counsel absent a contrary showing. “The extent of cross-examination and decisions as to which witnesses to employ, whether to interpose certain objections, and which requests to charge to submit, are all within the realm of trial tactics and strategy, and usually provide no basis per se for a reversal of appellant’s conviction. Bridges v. State, 205 Ga. App. 664, 665 (2) (423 SE2d 293) [(1992)].” Robinson v. State, 210 Ga. App. 278, 280 (3) (435 SE2d 718) (1993). Additionally, trial counsel testified at the motion hearing that Herndon did not have enough money to take down the arguments or to hire an investigator to conduct the witness interviews. It is generally a tactical decision of trial counsel to determine how to allot the resources available in the defense of her client. Unless defendant can demonstrate that he has been injured by his attorney’s failure to seek financial assistance from the court for an investigator, such failure cannot constitute ineffective assistance of counsel. “Review of counsel’s performance must be highly deferential; tactical decisions amount to ineffective assistance only if so patently unreasonable that no competent attorney would have chosen them. Howard v. State, 220 Ga. App. 267, 271 (4) (469 SE2d 396) (1996).” (Punctuation omitted.) Benefield v. State, 231 Ga. App. 80 (497 SE2d 650) (1998).

Herndon failed to establish that any of the alleged deficiencies prejudiced the defense. “The second component of the Strickland test requires the defendant to show prejudice. Concerning the prejudice component, the Court in Strickland held that the defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Punctuation omitted.) Wilson v. State, 199 Ga. App. 900, 902 (1) (406 SE2d 293) (1991). Herndon speculates that the combination of alleged errors generally prejudiced his defense. However, he has failed to demonstrate how the outcome of the trial would have been different but for those errors. Therefore, the trial court did not err in denying Herndon’s motion for a new trial.

Decided November 12, 1998.

Virginia W. Tinkler, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.