text:
    A91A1908.
    KLEIN v. ALLSTATE INSURANCE COMPANY.
    (413 SE2d 777)
   Birdsong, Presiding Judge.

Appellant Michael Klein appeals from the order of the trial court granting appellee/defendant’s motion to dismiss.

Appellant was injured while a passenger in his father’s car, which was involved in a collision with a car whose driver was from Tennessee. The collision occurred on an interstate highway in Georgia. Appellant and his father are both nonresidents of Georgia. The car was insured by appellee, Allstate Insurance Company (Allstate), which does business in the state of Georgia and has an agent and a place of business in the county where the accident occurred. Appellant brought suit, based on an action ex contractu, alleging Allstate had failed to pay certain medical expenses, as required by Georgia law, under the personal injury protection (no-fault) coverage of the policy. Allstate asserts a lack of jurisdiction claiming the Georgia long arm statute does not apply because the policy was issued on the automobile in New Jersey, both appellant and his father are Georgia nonresidents, and appellee and its agents have conducted no business in this state in regard to the policy in question. In its motion to dismiss appellee Allstate alleged it is an Illinois corporation and not subject to suit as the insurance contract was not issued in this state and appellant does not reside herein. The trial court concluded it lacked jurisdiction, as the suit involved a foreign corporation with respect to a claim made by a nonresident of Georgia under a contract made in a foreign state. Held:

1. Appellant asserts, inter alia, that personal jurisdiction exists under the provision of OCGA § 33-4-1 (2). This statute is a venue statute (see George Washington Life Ins. Co. v. Peacock, 90 Ga. App. 296, 298 (82 SE2d 875); Jenkins and Miller, Ga. Auto. Ins. Law (rev. ed.), § 28-2), and does not operate to confer personal jurisdiction over the legal entity of a particular insurer. Appellant also contends the trial court erred concluding that the Georgia Motor Vehicle Accident Reparations Act was inapplicable because the vehicle was not required to be registered in this state. We do not construe the footnote of the trial court, found in its order, to constitute such a firm holding as attributed to it by appellant; however, assuming arguendo the court so held, we find any resulting error harmless, as this conclusion examined in context was mere surplusage and but tangentially related to the controlling issue of jurisdiction.

2. Appellant cites Louisville &c. R. Co. v. Meredith, 194 Ga. 106 (21 SE2d 101), in support of his contention that the trial court’s holding was contrary to law. Compare Southern R. Co. v. Parker, 194 Ga. 94 (21 SE2d 94). However, Parker and Louisville were decided before the “minimum contact” test was announced in International Shoe Co. v. State of Washington, 326 U. S. 310, 316 (66 SC 154, 90 LE 95). “Corporate presence can only be manifested by corporate activity and therefore a minimum contacts analysis seems appropriate” in the disposition of the issue of personal jurisdiction over a foreign corporation (Humphrey v. Langford, 246 Ga. 732, 733 (273 SE2d 22); compare Aiken Asphalt &c. Co. v. Winn, 133 Ga. App. 3, 5 (2 b) (209 SE2d 700) (evidence demanded a finding appellant was “doing business” in this state)). And, “notwithstanding other relevant considerations, the constitutional touchstone remains whether the defendant purposefully established minimum contacts in the forum State. Burger King Corp. v. Rudzewicz, 471 U. S. 462, 474 (105 SC 2174, 85 LE2d 528).” (Punctuation omitted.) Behar v. Aero Med. Intl., 185 Ga. App. 845, 849-850 (2) (366 SE2d 223).

In determining “minimum contact” this court must also take cognizance of the applicable provisions of the Georgia long arm statute (OCGA § 9-10-91) and due process considerations. Thus, we must determine whether Allstate was “doing business” in this state to the extent that it met “minimum contact” due process requirements, thereby satisfying both OCGA § 9-10-91 (1) and constitutional considerations for cases involving foreign corporations as defendants in ex contractu cases. Examination of recent appellate court precedent reflects a certain lack of uniformity of language in establishing parameters for a “minimum contacts” analytical model. Compare Beasley v. Beasley, 260 Ga. 419, 421-422 (396 SE2d 222) with First United Bank v. First Nat. Bank, 255 Ga. 505, 506 (340 SE2d 597). However, compatible with the trend toward abolition of the classic “doing business” test (see generally 36 AmJur2d, Foreign Corporations, §§ 471-473), our courts to the extent allowed by our long arm statute have placed an ever increasing emphasis on the “minimum contacts” test, which adequately insures that litigating a particular action will not offend traditional notions of fair play and substantial justice.

In Beasley, supra at 421, it was concluded that “[d]ue process requires that individuals have ‘fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign.’ ” (Emphasis supplied.) Harmonizing the precedent of Beasley and First United Bank, we find that in evaluating whether a defendant could reasonably expect to be haled into court in a particular forum, courts examine defendant’s contacts with the state, focusing on whether (1) defendant has purposefully done some act or consummated some transaction to avail himself of the law of the forum state; (2) the claim is related to those acts or transactions, or otherwise arises from or is connected with such acts or transactions; thus, under this second prong, the claim basically will arise out of, result from, or be reasonably linked to defendant’s forum related activities; and, (3) the exercise of jurisdiction is reasonable, that is, it does not offend notions of fair play and substantial justice. Most importantly, however, “[t]hese three elements do not constitute a due process formula, but are helpful analytical tools which ensure that a defendant is not forced to litigate in a jurisdiction solely as a result of ‘random,’ ‘fortuitous’ or ‘attenuated’ contacts.” (Emphasis supplied.) Beasley, supra at 421; compare Behar, supra. The three-prong test is not to be applied inflexibly, but is to be used to assist the jurist in determining whether the requisite “fair warning” of due process has been given.

In cases such as this, arising out of actions ex contractu, “an individual’s contract with an out-of-state party alone cannot automatically establish sufficient minimum contacts in the other party’s home forum. Prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing must be evaluated in determining whether the defendant has purposefully established minimum contacts with the forum.” (Citations and punctuation omitted.) Signet Bank / Virginia v. Tillis, 196 Ga. App. 433, 435 (396 SE2d 54).

Automobile insurance policies are relatively unique, as they “do not have a particular place where the object of the contract is to be performed.” Ga. Auto. Ins. Law, supra at § 1-3. “The protection provided by the policy follows the vehicle covered or follows the insured covered under the terms of the policy. In our mobile society it is not unusual for a Georgia court to be called upon to interpret the terms of an insurance contract delivered in a foreign state.” Id. In interpreting such contracts, the public policy of this state can at times become a paramount consideration. See General Elec. &c. Corp. v. Home Indem. Co., 168 Ga. App. 344, 348 (1) (309 SE2d 152).

Considering the above legal principles and applying thereto the facts before us we find: (1) Allstate purposefully availed itself of the laws of this state both by conducting automobile insurance business within this state and by issuing automobile policies outside this state containing coverage which would follow automobiles and/or their drivers into this state under the terms of the policies issued. Clearly a future consequence to be contemplated by this latter conduct is that incidents could transpire within this state necessitating the interpretation by our courts of policies issued outside this state, and, as required, the application of Georgia “conflicts of interest” law and public policy in resolving such issues of contract interpretation. (2) We further find that Allstate has met the second prong of this analytical guideline. Allstate is conducting, inter alia, an automobile insurance business within this state, and also is selling automobile insurance policies outside this state which provide certain coverage to the insured and the listed vehicle when in this state. Moreover, the business Allstate is doing in this state is inextricably linked to but a part of its overall automobile insurance venture. Further, considering that Allstate’s broad-based forum activities are not merely circumscribed to its doing business within this state but extend to its execution of contracts of insurance outside this state, the contemplated future consequences of which clearly include the reasonable potential for the terms of the policy to apply to an automobile accident occurring in this state involving an Allstate insured or a covered vehicle, we are satisfied the claim in this case adequately results from or is linked to Allstate’s broad-based forum related insurance activities. (3) Considering the nature of Allstate’s forum related activities, the public interest of this state in requiring drivers and vehicles on our roads to be adequately insured, and the future consequences which should have been contemplated by Allstate regarding the potential of any given automobile insurance policy issued by it to require interpretation ultimately by a court of our state due to the involvement of a particular insured person or covered vehicle in an automobile accident in this state, we find that Allstate’s conduct and connection with this state are such that it should reasonably anticipate being haled into court here. Accordingly, it does not offend the concept of due process to conclude that the requisite jurisdiction was obtained against Allstate, a foreign corporation, as it has obtained fair warning through “minimum contacts” in this state, so that the exercise of such jurisdiction is consistent with traditional notions of fair play and substantial justice. This holding is consistent with the well-established legal policy and principle that our long arm statute “confers jurisdiction over nonresidents to the maximum extent permitted by due process.” First United Bank v. First Nat. Bank, supra at 506.

Decided November 22, 1991

Reconsideration denied December 4, 1991

W. Douglas Adams, for appellant.

Dickey, Whelchel, Brown & Readdick, Terry L. Readdick, for appellee.

Judgment reversed.

Pope and Cooper, JJ., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A1422.
    CORNELIUS v. FINLEY.
    (413 SE2d 491)
   Andrews, Judge.

Finley filed a dispossessory action in DeKalb State Court against her tenant Cornelius. In response to the action, Cornelius filed an answer and a counterclaim in which he sought damages and sought to háve the action transferred to superior court because the case involved “questions regarding the purchase price of the property and what should be done with the purchase price of the property.”

The court issued a trial notice for February 13, 1991, and on that date heard Cornelius’ motion to transfer. Although Cornelius argued that a transfer was necessary since his counterclaim involved claims for equitable relief, his counterclaim as drafted set forth claims for legal relief. Because of this, the trial court allowed Cornelius a week to amend the counterclaim to reflect the equitable defenses. The trial court ordered that the hearing on the motion to transfer be continued until February 20, 1991, and that Cornelius pay the arrearage of rent into the registry of the court.

On February 15, 1991, Cornelius filed an amended counterclaim and a “Motion for New Trial.” In the meantime, because the payments mandated by the February 13 order had not been paid, Finley filed an application for writ of possession. On the same date, a rule nisi issued which indicated that the Motion for New Trial would be heard on February 25. The record contains a letter to Cornelius’ attorney, also dated February 15, which discusses the rule nisi.

On February 19, Cornelius filed a notice of appeal in which he appealed the “judgment” of February 13 and the granting of the writ of possession. On February 21, the court issued an order which stated that after a hearing Finley’s motion to enforce the writ of possession had been granted.

The case came before the court on February 25 and despite two telephone calls from the court and the notice above, Cornelius failed to appear. Pursuant to Finley’s motions to strike, Cornelius’ motion for new trial and motion to transfer were dismissed and his counterclaim was stricken. The trial court then heard evidence and entered judgment in favor of Finley for $9,100.41 plus court costs.

1. In his first enumeration of error, Cornelius claims that the trial court erred in completely resolving the case at the February 25 court date since he had insufficient notice that the trial would be held on that date.

At the outset, we note that there is no dispute that Cornelius received the trial notice for February 13 and a rule nisi for February 25. Further, there is a notation on the dispossessory warrant itself from the clerk’s office that the matter was “reset” from February 20 to February 25, 1991.

The trial notice provisions of OCGA § 9-11-40 and the concern for an expedient resolution of dispossessory actions from OCGA § 44-7-53 merge in the requirement under Uniform State Court Rule 8.3 of 24 hours trial notice in dispossessory cases. “If a tenant files an answer in a dispossessory action, as appellant herein did, a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record. OCGA § 44-7-53 (c). Under Rule 8.3 the state court’s trial calendar shall be distributed or published a sufficient period of time, but not less than 20 days, prior to the session of court at which the actions listed thereon are to be tried, except that the trial calendar for dispossessories shall be published at least twenty-four hours in advance of the hearing.” (Punctuation omitted.) Favors v. Arnold, 181 Ga. App. 286 (351 SE2d 641) (1986). “Moreover, the burden is on the one contending that no notice, or improper notice, was given to show error affirmatively by the record. Hancock v. Oates, 244 Ga. 175 (259 SE2d 437) (1979).” Automated Med. Svcs. v. Holland, 166 Ga. App. 57, 58 (1) (303 SE2d 127) (1983).

Such error does not appear affirmatively from the record here. See also Grindle v. Eubanks, 152 Ga. App. 58, 60 (262 SE2d 235) (1979), compare Bradshaw v. Jackson Hills Apts., 169 Ga. App. 447 (313 SE2d 734) (1984). It is clear from the record that Cornelius received a trial notice for February 13 and that he was aware of, but ignored, the February 25 court date. Because Cornelius had received a trial notice the situation differs from that in Whipper v. Kirk, 156 Ga. App. 218 (2) (274 SE2d 662) (1980), since here Cornelius was chargeable with notice that this dispossessory case was ripe for trial. Grindle, supra. Therefore, in light of the notice Cornelius received and his failure to appear or to offer any legal excuse for his absence, we find no error in the trial court’s actions.

Decided November 18, 1991

Reconsideration denied December 5, 1991

James Cornelius, pro se.

Rich, Bass, Kidd & Witcher, Merck K. Smith, for appellee.

2. In his second enumeration, Cornelius claims that the court erred by failing to grant his motion to transfer on February 13 since his counterclaim involved matters of equity and all the facts necessary for a determination were before the court that date. This enumeration is without merit since on the date of the hearing, the reason for the transfer was unclear. The trial court allowed Cornelius to amend his counterclaim and we find no error. See generally OCGA §§ 23-1-1; 23-1-3; Cantrell v. Henry County, 250 Ga. 822 (301 SE2d 870) (1983).

3. In his third enumeration of error, Cornelius claims that the court erred by requiring the payment of rent into the court in light of the pending Motion to Transfer. This enumeration is without merit. See OCGA § 44-7-54 (a).

4. In his fourth enumeration, Cornelius claims that the judgment is void because the judges who heard the case were appointed under OCGA § 15-1-9.1, which he claims has been abused by the county. Challenges similar to those which Cornelius raises were rejected in Dominguez v. Enterprise Leasing Co., 197 Ga. App. 664 (399 SE2d 269) (1990) and Hornsby v. Odum, 198 Ga. App. 472 (402 SE2d 56) (1991). We find no abuse of the statute here and therefore the judgment is not void.

Although we find no error in the proceedings below, Finley’s motion for damages for a frivolous appeal is denied.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

       The issue of Cornelius’ right to a jury trial in this case is not before us. See Hill v. Levenson, 259 Ga. 395 (383 SE2d 110) (1989).


author: Beasley, Judge.

text:
    A91A1726.
    RIDDLE v. THE STATE.
    (413 SE2d 494)
   Beasley, Judge.

Riddle was charged with running a red light in violation of OCGA § 40-6-20, which is a misdemeanor. OCGA § 40-6-1. He pled not guilty and defended himself. He was convicted and given a sentence of ten days’ imprisonment, suspended upon his paying a fine of $252 within 30 days. On appeal he argues that the fine is excessive in that the judge usually imposes a fine of $45 (plus $15.50 for court costs) for this offense “as an act of leniency to defendants who plead guilty,” but penalized him for asserting his right to trial.

Decided November 19, 1991

Reconsideration denied December 5, 1991.

James C. Riddle, Jr., pro se.

Spencer Lawton, Jr., District Attorney, June E. Fogle, James J. Cairns III, Assistant District Attorneys, for appellee.

Riddle’s fine is not excessive under state law, since a misdemeanor is generally punishable by a fine not to exceed $1,000 or a sentence not to exceed 12 months. OCGA § 17-10-3 (a) (1); Hill v. Stynchcombe, 225 Ga. 122, 125 (6) (166 SE2d 729) (1969). The fact that the trial court might generally impose lesser fines in other cases would not without more render a larger fine impermissible in a particular case. Riddle apparently was a recidivist, and there is no evidence other than the size of the fine itself which evinces that it was a penalty for defendant’s exercise of his right rather than for the offense, the full circumstances of which we do not know. The burden is on the appealing party to show error affirmatively by the record. See, e.g., Myers v. Dept. of Human Resources, 162 Ga. App. 885 (293 SE2d 480) (1982). Riddle has not established any violation of his right to due process of law. See Alabama v. Smith, 490 U. S. 794 (109 SC 2201, 104 LE2d 865) (1989), regarding vindictiveness in sentencing.

Finally, this court is not empowered to reduce the sentence, which is what appellant asks this court to do.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


author: Carley, Presiding Judge. Sognier, Chief Judge, Beasley, Judge,

text:
    A91A0899.
    HUNTER v. THE STATE.
    (413 SE2d 526)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of selling cocaine in violation of the Controlled Substances Act. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Appellant enumerates the general grounds.

Appellant was positively identified by the officer to whom the sale had been made. Appellant did not seek to suppress the officer’s identification testimony. Moreover, the record clearly discloses that there was no viable basis upon which suppression of the officer’s identification testimony could have been sought. It was only after the officer had already been given the name of the individual from whom he had purchased the cocaine that he viewed a photograph of appellant to confirm that appellant was in fact that individual. Thus, the photograph did not result in the officer’s identification of appellant as the suspect, but merely corroborated that the suspect had been properly identified to the officer as appellant. “This was not an impermissibly suggestive procedure such as a photo ‘line-up’ containing one picture, but was more a matter of detection.” Smith v. State, 192 Ga. App. 144, 145 (2) (384 SE2d 677) (1989). See also Curtis v. State, 183 Ga. App. 6 (1) (357 SE2d 849) (1987). The evidence adduced at trial, when construed most favorably for the State, was sufficient to authorize a rational trior , of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant made a motion for a “non-suggestive” lineup, urging in support thereof that his identification by the officer had been tainted by an impermissibly suggestive procedure. The denial of this motion is enumerated as error.

When it is alleged that identification testimony has been tainted by a purported impermissibly suggestive pre-trial procedure, the defendant is clearly entitled to file a motion to suppress that testimony. No reason is suggested as to why this remedy is not otherwise sufficient to protect the rights of an accused. In any event, there was no impermissibly suggestive pre-trial identification procedure employed in the instant case, for the reasons given in Division 1. Since the circumstance upon which appellant had predicated his motion did not exist, it was not error to deny that motion.

3. Appellant enumerates as error the admission into evidence of his prior drug conviction.

The State has the burden of adducing sufficient evidence of an accused’s guilt beyond a reasonable doubt and the trial court has the responsibility of determining whether the evidence upon which the State relies is admissible for the jury’s consideration. The State’s burden is implacable, but the trial court’s responsibility is not. The accused has a concomitant duty to object to the admission of any evidence upon which he contends the State erroneously relies in meeting its burden. “It is well settled that while evidence may be subject to objection yet if no objection is made in the trial court, or if the only objection made is not good, no reversible error is committed by the trial court in allowing the evidence to be submitted. [Cits.]” Salem v. State, 228 Ga. 186, 187-188 (3) (184 SE2d 650) (1971). The instant enumeration does not assert the general grounds and urge that the State failed to meet its burden of proof as to appellant’s guilt. The instant enumeration asserts error only as to an evidentiary ruling and urges that the trial court erred in allowing the jury to consider certain evidence. Accordingly, our consideration is necessarily limited to such specific objections to the admission of that evidence as were raised below. “ ‘ “In order to raise on appeal contentions concerning admissibility of evidence ‘the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed.’ [Cits.]” ’ [Cit.]” (Emphasis supplied.) Doughty v. State, 175 Ga. App. 317, 321 (5) (333 SE2d 402) (1985).

In Stephens v. State, 261 Ga. 467, 469 (6) (405 SE2d 483) (1991), the Supreme Court held that “the [S]tate’s establishment!, in a pretrial hearing conducted pursuant to Uniform Superior Court Rule 31.3 (b),] of a prima facie case of similarity [of prior crimes] does not satisfy its obligation to present proof on that issue at trial." (Emphasis supplied.) See also Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). A review of the record in the instant case clearly shows, however, that the evidentiary issue discussed in Stephens and Williams was not preserved for appellate review. Accordingly, the holding in Stephens and Williams is clearly not a viable predicate for reversing appellant’s conviction.

What the instant record shows is the following: At the pre-trial hearing to determine the admissibility of appellant’s prior conviction, appellant never objected on the ground that his prior conviction was not shown by the State to be sufficiently “similar” to the crime that he was charged with having committed in the instant case. Instead, appellant urged only that his prior conviction antedated the instant crime to such an extent that it was too “remote” to warrant its admissibility and that any limited relevancy that his prior conviction might have on the issue of identity would be outweighed by its prejudicial impact upon the jury. Over these objections, the trial court ruled that appellant’s prior conviction would be admissible at trial, but suggested that appellant might renew his objection when his prior conviction was offered for admission during the trial.

At trial, the State produced the testimony of a police officer and then tendered a certified copy of appellant’s prior indictment, plea of guilty and sentence. Again, appellant never objected on the ground that the State’s evidence was otherwise insufficient to show that his prior conviction had been for a crime sufficiently similar to the crime that he was charged with having committed in the instant case. Instead, appellant, apparently accepting the suggestion made by the trial court at the pre-trial hearing, urged only that he was “renewing] [his] objection.” (Emphasis supplied.) Thus, the only objections that appellant ever raised at trial were that his prior conviction was too “remote” and that the prejudicial impact of his prior conviction outweighed its limited relevancy on the issue of identity.

The very first time that appellant has ever urged that the State failed to meet its evidentiary burden of showing that his prior conviction was for a sufficiently “similar” crime is in the brief that he filed with this court in support of the instant appeal. However, nothing in Stephens or Williams suggests that the Supreme Court has determined to dispense with the long-standing rule that, to warrant appellate consideration, an objection to the admission of evidence must first have been raised in the trial court. If the argument that appellant advances in his brief had been raised in the form of an objection in the trial court, it is possible that Stephens and Williams might warrant a reversal of appellant’s conviction. In the absence of such an objection, however, any discussion of Stephens or Williams in the instant case is inappropriate.

With regard to the admission of appellant’s prior conviction, the only issues that are legitimately presented for resolution are whether it was too “remote” and whether it was more prejudicial than relevant. The prior conviction antedated the instant crime by only I-V2 years and the trial court was authorized to find that “remoteness” was not an impediment to the admissibility of the prior conviction. See generally Cox v. State, 197 Ga. App. 240 (2) (398 SE2d 262) (1990). Likewise, the trial court was authorized to find that the relevance of appellant’s prior conviction on the issue of identity outweighed its prejudicial effect. See generally Sanford v. State, 196 Ga. App. 103, 104 (1) (395 SE2d 373) (1990). Accordingly, when consideration of the instant appeal is confined to only those issues that are properly before us, a reversal is not mandated. Reversal of the trial court is not authorized on the basis of an evidentiary ruling that the trial court was never called upon to make.

4. Appellant enumerates as error the admission of certain testimony by a police officer, over the objection that such testimony related to “other transactions” and was irrelevant under OCGA § 24-2-2. Assuming, without deciding, that the testimony was irrelevant, it was not so prejudicial as to render its admission reversible error.

5. Appellant urges that he was denied his right to poll each juror individually.

If, on being polled, a juror’s response demonstrates that no unanimous verdict has been reached, the proper remedy is for the trial court to direct the jury to retire for further deliberations. Walker v. State, 159 Ga. App. 50 (1) (282 SE2d 697) (1981). There is no requirement that the poll be continued after one juror’s response has demonstrated a lack of unanimity. The record demonstrates that each juror was individually polled before the trial court accepted the jury’s ultimate and unanimous guilty verdict. Accordingly, there was no error.

6. Appellant enumerates as error the trial court’s giving of an Allen charge.

The charge was couched in language upheld in Spaulding v. State, 232 Ga. 411, 413 (4) (207 SE2d 43) (1974). Whether to give such a charge is generally a discretionary matter for the trial court. Banks v. State, 169 Ga. App. 571, 572 (2) (314 SE2d 235) (1984). We find no abuse of that discretion in the instant case.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Pope, Cooper, Andrews, JJ., and Judge Arnold Shulman concur. Sognier, C. J., and Beasley, J., dissent.

Sognier, Chief Judge,

dissenting.

I concur fully in the dissenting opinion, and write separately to add to the discussion concerning Division 3.

I find the scope of appellant’s objection below is not determinative of the applicability of Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) and Stephens v. State, 261 Ga. 467, 468-469 (6) (405 SE2d 483) (1991). In both of these cases, the Supreme Court held that the State bears the burden of affirmatively complying with the requisite procedures for admission of evidence of prior criminal transactions, and that when the State fails to meet this burden the conviction must be reversed. In each case, the court’s analysis focused not on whether the appellant’s objection had been precisely framed and preserved at trial, but whether the State had met its obligations so as to justify making an exception to the general rule that such evidence is not admissible. Indeed, in Williams the enumeration of error did not expressly raise the primary ground on which the judgment of conviction was reversed. Instead, the court formulated a procedure to be followed by the prosecution when seeking to introduce similar crimes evidence and then reversed the judgment because of the State’s failure to comply with these requirements. Given this analytical approach employed by the Supreme Court, I can only conclude that the instant judgment must be reversed on the same basis regardless of the scope of appellant’s objection below. Since, as Judge Beasley’s dissent discusses, the State failed to establish — and obtain the trial court’s express finding thereon — either the permissible purpose for which the evidence was proffered, Williams, supra at 642 (2) (b), or sufficient similarity between the prior offense and the charged crime, id. at (2) (b-d), appellant has shown reversible error. Id.; see Stephens, supra.

I am authorized to state that Judge Beasley joins in this dissent.

Beasley, Judge,

dissenting.

I respectfully dissent because of the ruling in Division 3.

“The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” OCGA § 24-2-2. “If a defendant in a criminal case . . . testifies, ... no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” OCGA § 24-9-20. It is the first of these two general rules on prior conviction evidence which is the starting point in our consideration of the evidence objected to in this case, as it was offered in the State’s case-in-chief and not in response to any issue of character injected by defendant.

In this connection, the Supreme Court stated that evidence that defendant had committed another “wholly independent” crime “is irrelevant and inadmissible,” as a “universally recognized . . . general rule.” Bacon v. State, 209 Ga. 261, 262 (71 SE2d 615) (1952). The reason it is inadmissible is that “it tends to put the defendant’s character into evidence. State v. Johnson, 246 Ga. 654 (272 SE2d 321) (1980).” Chastain v. State, 260 Ga. 789, 790 (3) (400 SE2d 329) (1991). The principle has been affirmed most recently in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

Certain exceptions have been recognized, however, for limited purposes and under prescribed conditions. The burden is on the State to establish its admissibility.

First of all, the evidence must be relevant to some issue in the case, such as that the prior conviction tends to show that the identification of defendant as the perpetrator of the crime on trial is correct, or that the defendant had a motive or a plan or a scheme, or was of a particular bent of mind, or followed a particular course of conduct. Chastain, supra; Todd v. State, 243 Ga. 539, 543 (255 SE2d 5) (1979). See also Williams, supra at fn. 2. Its admission must have a legitimate purpose.

In addition, the State must show that the evidence meets two conditions: “First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. [Cit.]” State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980).

The impact of this evidence has such significance in the trial that a procedure has been instituted to put the defendant on notice and require the State to establish admissibility at a pretrial hearing, whenever it wishes to introduce such evidence in derogation of the general rule. USCR 31.3. It is clearly stated in this Uniform Rule that “[t]he burden of proving that the evidence of similar transactions or occurrences should be admitted shall be upon the prosecution.”

The issue before us was raised in the following manner. Pursuant to Uniform Superior Court Rule 31.3, the State gave appellant notice of its intention to present evidence of a similar transaction consisting of a certified copy of his indictment, plea of guilty, and sentence to an indictment charging him with sale of cocaine in Coweta County in 1988, as well as the testimony of Officer Tony Brown, concerning the prior conviction. See Stephens v. State, 261 Ga. 467 (6) (405 SE2d 483) (1991); Banks v. State, 201 Ga. App. 266 (1) (410 SE2d 818) (1991); Howard v. State, 194 Ga. App. 443 (390 SE2d 662) (1990); Fambro v. State, 165 Ga. App. 445, 447 (3) (299 SE2d 114) (1983).

Although the uniform rule does not require it, the notice did not state the purpose for which this evidence was intended, that is, what issue in the case it was related to and would enlighten. See Williams v. State, supra. After the State filed notice of its intent, defendant responded in writing that the proposed evidence was not legally relevant, that it was remote in time and unconnected to the present charge, that its probative value was vastly outweighed by it prejudicial impact, and that its admission would require him to defend against collateral matters.

A hearing was held before trial. The State never stated the purpose for which it intended to offer the evidence, even though defendant asked what it was. Nor did the State establish “a prima facie case of similarity.” Neither did the court make a “finding of sufficient similarity.” See, in these regards, Stephens, supra at 468-469 (6). See also Williams, supra at (2b), which holds that “before any evidence of independent offenses or acts may be admitted into evidence, . . . the state must make [at the pretrial hearing] three affirmative showings as to each independent offense or act it seeks to introduce.” Nevertheless, despite the defendant’s repeated and “vehement” objection, the court ruled that it would probably permit the State to introduce the prior conviction “[f]or whatever weight the Jury might choose to give it as far as it might show scheme, bent of mind, or motive on the part of the defendant in this case.” Defendant had earlier argued that these and some of the other exceptional purposes were not issues in the case. His defense, he said in response to the court’s questioning, was based on an alibi. One of the arguments with which defendant repeatedly supported his objection that the intended evidence did not come within an exception to the general preclusionary rule was that “the prior transaction has no relevancy.”

At trial, the State did not articulate the purpose for which the evidence was offered but merely presented it over defendant’s objection. The court did not “make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act,” which Williams confirmed was required. Without a transcript of the State’s closing argument, we cannot determine whether and how it was connected to the issue of guilt.

When the evidence was presented, the court cautioned the jury that it was limited to the jury’s consideration of “intent or motive or knowledge or scheme or bent of mind of the defendant,” if it believed it relevant to any of these matters.

When finally charging the jury, the court instructed that “this evidence [of a prior crime] was admitted solely for the purpose of your considering it under those provisions of the law that provide that where knowledge, common design, modus operandi, motive, intent, bent of mind, plan, scheme, and course of conduct, identity, or other matters dependent upon a person’s state of mind are involved as material elements in the offense for which the defendant is on trial,” such evidence is “solely for your consideration as it might tend to illustrate the defendant’s state of mind in regard to the offense for which he is presently on trial, if you think such evidence does so illustrate that state of mind, and it is admitted for that purpose alone, and you should consider it for no other purpose.” See Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II, p. 33.

State of mind was not an issue. As defendant argued at the pretrial hearing, “in this case, intent, I would contend, would not even be an issue. In this case, a sale was made. It’s not did he want to sell or did he try to scheme. Bent is not an issue.” Identity was the issue. Defendant testified that he was working at his father’s bar the night of the alleged sale at a different location, and he presented alibi witnesses. Similar transaction evidence may be relevant when identity is an issue. Sanford v. State, 196 Ga. App. 103, 104 (1) (395 SE2d 373) (1990); Wilson v. State, 194 Ga. App. 261, 262 (2) (390 SE2d 609) (1990); Whitley v. State, 193 Ga. App. 192 (1) (387 SE2d 348) (1989). Thus, although appellant does not expressly complain of it, the evidence was not properly limited. See Hunter v. State, 177 Ga. App. 326, 327 (339 SE2d 381) (1985) (Beasley, J., dissenting). This is pointed out because it seems to be a commonly-occurring deficiency.

Appellant argues, inter alia, one of the aspects of relevancy, that the State’s proof of his prior conviction without proof of the details and manner in which the crime was committed does not establish a sufficient similarity or connection between the independent crime and the offense charged so that it can be said that proof of the former tends to prove the latter. In other words, he urges, “due to insufficient proof on similarity of the prior crime such evidence was not legally relevant to identity and did not connect Defendant with the pending charge, ...” The recent decisions of the Georgia Supreme Court in Stephens, supra, and Williams, supra, support this.

At trial, Officer Brown testified that appellant had pled guilty to a charge of “distribution of cocaine” in 1988, and that he was present as the prosecuting officer when the plea was entered. He did not elaborate on the factual basis. The indictment showed that on or about April 29, 1988, in Coweta County, appellant “did then and there unlawfully deliver, distribute, dispense and sell cocaine. . . A female and three males including Tony Brown were named as witnesses on the back of the indictment, with no description other than that Brown was “prosecutor.” The sentence showed that appellant was sentenced on September 20, 1988, to five years’ imprisonment on his plea of guilty to this charge.

Decided December 5, 1991.

Wood, Odom & Edge, D. Scott Cummins, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes T. McCabe, Assistant District Attorney, for appellee.

In Stephens, the appellant was convicted of the sale of cocaine. A prior conviction of sale of cocaine was admitted in evidence through certified copies of the indictment, guilty plea, and sentence. The exhibits in Stephens contained the bare allegation of the criminal act of the sale of cocaine, the date of the sale, the county in which the sale occurred, the guilty plea, conviction, and sentence. Banks, supra at 268. The Court in Stephens held this outline to be insufficient to establish “similarity.” In this case, it is even problematic whether the prior incident was a sale or a distribution or perhaps one of the other alternative acts charged.

It was recognized in Banks: “The majority [in Stephens] noted that had the State presented evidence of similarity in the case during trial as it had done in the USCR 31.3 (B) hearing at which the prosecutor stated in his place the relevant facts of the prior conviction, then the only question concerning a challenge on appeal as to similarity would be whether the trial court’s finding was clearly erroneous. The record in Stephens reveals that the prosecutor stated in his place that the prior crime was a hand-to-hand undercover sale involving a confidential informant, the approximate quantity of drugs sold, and a dollar amount of the sale.” Id. at 268.

There was no such showing of similarity in this case. Consequently, defendant was not “insure [d] of a fair and impartial trial before an unbiased jury.” Williams, supra at (2). The trial court erred in admitting evidence of the earlier crime, for which a foundation had not been laid. A new trial is required.

I am authorized to state that Chief Judge Sognier joins in this dissent.


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A1295.
    HAYES v. THE STATE.
    (414 SE2d 321)
   Carley, Presiding Judge.

After a bench trial, appellant was found guilty of possession of methamphetamine in violation of OCGA § 16-13-30. He appeals from the judgment of conviction and sentence entered on the trial court’s finding of guilt.

Appellant enumerates as error only the denial of his motion to suppress. The evidence adduced at the hearing on appellant’s motion authorized the trial court to make the following findings of fact: Officers, who were surveilling a certain house prior to executing a search warrant for methamphetamine, observed appellant stop his vehicle in front of the house. Although appellant never exited, his vehicle was close enough for him possibly to have spoken to a person who was on the premises. When appellant drove off, an officer followed with instructions to stop appellant and question him at a distance from the premises. When the officer turned on the blue lights of his patrol car, appellant did not immediately stop. Before appellant did eventually stop, the officer observed that appellant had opened the center console of his vehicle. Because the officer was concerned that appellant may have avoided stopping so as to enable him to retrieve a weapon out of the console, he asked appellant why he had not immediately responded to the blue lights and why he had reached into the console. Appellant responded that he merely had been getting a pack of cigarettes from the console and, in ostensible proof of his explanation, appellant produced a pack of cigarettes from his pocket. The officer nevertheless determined to conduct a pat-down of appellant for weapons. However, when the officer touched the outside of the left pocket of appellant’s pants, appellant grabbed the officer’s hand and pushed it away and turned his body sideways so as to prevent the officer from making contact with the outside of the pocket. The officer then told appellant to place his hands on the top of the car and, when appellant complied, the officer reached into appellant’s pocket. In so doing, the officer had no investigatory purpose, but was merely trying to determine whether appellant was armed. The officer discovered no weapon in appellant’s pocket, but did find the contraband which underlay appellant’s prosecution.

Appellant was observed when he stopped his vehicle in front of a house where execution of a search warrant was imminent. The warrant had been issued on probable cause to believe that drug activity was being conducted at the house. From the location where he stopped his vehicle, appellant had been close enough to speak to a person who was on the premises. Although this may not have been sufficient to establish probable cause to believe that appellant was actually engaged in the suspected drug activity, it was certainly sufficient to establish an articulable suspicion so as to authorize a brief investigatory stop of appellant. See Edwards v. State, 194 Ga. App. 571, 572 (1) (391 SE2d 137) (1990); Jackson v. State, 191 Ga. App. 439, 440 (1) (382 SE2d 177) (1989); Eisenberger v. State, 177 Ga. App. 673, 674 (2) (340 SE2d 232) (1986).

The officer who effectuated the investigatory stop testified that he suspected that appellant might be armed and, under the circumstances, that suspicion was not unreasonable. When he was stopped, appellant was not on foot, but was in his vehicle. The Supreme Court has “recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” Michigan v. Long, 463 U. S. 1032, 1047 (III) (103 SC 3469, 77 LE2d 1201) (1983). Moreover, the stop of appellant was predicated upon a suspicion of his possible involvement in drug activity and, prior to the stop, the officer had observed appellant opening the console of his vehicle. See United States v. Gilliard, 847 F2d 21, 25 (7) (1st Cir. 1988) (reasonable suspicion that suspect was armed where he was suspected of involvement with drugs and where officers knew that “firearms are ‘tools of the [drug] trade.’ ”) Appellant would summarily discount the officer’s observation that appellant had opened the console, because appellant had ostensibly explained the opening of his console by producing his cigarettes. However, appellant suggests no reason why the officer was constitutionally compelled to accept a suspected drug violator’s explanation, and we certainly know of no constitutional provision which would require that the officer stake his life on appellant’s explanation rather than upon the officer’s own determination of whether appellant was armed. Notwithstanding his “explanation,” appellant certainly could have secured a weapon from the console and certainly could have placed it beneath or behind his cigarettes or in a different pocket entirely.

Accordingly, the officer clearly was authorized to conduct a minimally intrusive pat-down to determine whether appellant was armed. The officer attempted to conduct just such a pat-down, but appellant frustrated that effort by grabbing and pushing the officer’s hands away and by turning his body sideways to prevent the officer from touching the outside of his pocket. Although appellant had already refused to subject himself to a pat-down, appellant urges that the officer was nevertheless constitutionally limited to engaging only in further attempts to conduct a pat-down of appellant. This is clearly erroneous. Having a reasonable suspicion that appellant might be armed and having already been frustrated in his efforts to conduct a minimally intrusive pat-down, the officer was certainly authorized to conclude that it was more “reasonable” for him to reach into appellant’s pocket in order to confirm or disprove his suspicions than it was for him to continue to leave himself vulnerable to a possible attack. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968) is not authority for the proposition that an officer who has effectuated an investigatory stop of a potentially armed individual is necessarily limited, under all circumstances, to conducting a pat-down. To the contrary, Terry merely held that it was not unreasonable for an officer to have conducted a pat-down of a potentially armed suspect who had actually submitted to that procedure. Although Terry “itself involved the stop and subsequent patdown search of a person, we were careful to note that ‘(w)e need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective search and seizure for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases.’ [Cit.]” (Emphasis supplied.) Michigan v. Long, supra at 1047 (III). “In evaluating the validity of an officer’s investigative or protective conduct under Terry, the ‘(t)ouchstone of our analysis ... is always “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’” [Cit.]” (Emphasis supplied.) Michigan v. Long, supra at 1051 (III). “[A] Terry investigation, such as the one that occurred here, involves a police investigation ‘at close range,’ [cit.], when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a ‘quick decision as to how to protect himself and others from possible danger. . . .’ [Cit.] In such circumstances, we have not required that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter.” (Emphasis omitted in part and supplied in part.) Michigan v. Long, supra at 1052 (III).

Accordingly, “Terry does not limit a weapon search to a so-called pat-down search. Any limited intrusion designed to discover guns, knives, clubs or other instruments of assault [is] permissible. [Cit.] We are of the opinion that[,] under the circumstances[, the officer’s act of] reaching into appellant’s [left]-hand pocket was not overly intrusive. Appellant’s conduct in pushing the officer’s hand away when he attempted to pa[t] down the [pocket], and his subsequent conduct in [turning his body sideways], coupled with the fact that [the officer had seen appellant, a suspected drug violator, reach into the console before stepping from the vehicle], would create a reasonable suspicion that appellant was armed.” State v. Warren, 603 P2d 550, 552 (1) (Ariz. App. 1979). Compare Brown v. State, 181 Ga. App. 768, 770 (la) (353 SE2d 572) (1987) (no evidence that defendant resisted frisk); Wyatt v. State, 151 Ga. App. 207, 210 (1a) (259 SE2d 199) (1979) (search of wallet by officer, having no reasonable suspicion that defendant was armed); Smith v. State, 139 Ga. App. 129, 133 (3) (227 SE2d 911) (1976) (no evidence that defendant resisted frisk). A holding to the contrary would have grave consequences for the safety of the law enforcement officers of this state. It “would require that police officers, faced with having to make quick determinations about self-protection and the defense of innocent citizens in the area, must also decide instantaneously what ‘less intrusive’ alternative exists to ensure that any threat presented by the suspect will be neutralized. [Cit.] For the practical reasons explained in Terry, [cit.], we have not in the past, and [do] not now, require police to adopt alternative measures to avoid a legitimate Terry-type intrusion.” (Emphasis supplied.) Michigan v. Long, supra at 1052 (III), fn. 16. The officer’s actions were a proportionate response to those of appellant and, accordingly, the denial of appellant’s motion was proper.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper, Andrews, JJ., and Judge Arnold Shulman concur. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

1. By supplemental brief, defendant asserts a violation of his state constitutional rights. It has earlier been observed that the underlying purpose of Georgia’s exclusionary rule, OCGA § 17-5-30, may be the protection of the right of privacy. State v. Johnston, 160 Ga. App. 71, 73 (286 SE2d 47) (1981), aff’d 249 Ga. 413 (291 SE2d 543) (1982) .

Even if a new ground could be raised in a supplemental brief, cf. Quick v. State, 166 Ga. App. 492, 493 (1) (304 SE2d 916) (1983), defendant merely cites the constitutional provision, Ga. Const. 1983, Art. I, Sec. I, Par. XIII. He supports it with no argument urging an independent state ground and cites cases dealing only with the federal provisions. Defendant ignores the United States Supreme Court instructions and principles of the federal structure of our government in this regard. Oregon v. Kennedy, 456 U. S. 667 (102 SC 2083, 72 LE2d 416) (1982); Massachusetts v. Upton, 466 U. S. 727 (104 SC 2085, 80 LE2d 721) (1984), Stevens, J., concurring in the judgment; Pennzoil Co. v. Texaco, 481 U. S. 1 (107 SC 1519, 95 LE2d 1) (1987). See Michigan v. Long, 463 U. S. 1032 (103 SC 3469, 77 LE2d 1201) (1983) . Consequently, we can consider only whether there was a violation of federal constitutional rights and bypass the issues of whether there was violation of state constitutional or statutory law. Taylor v. State, 177 Ga. App. 624, 628 (3) (340 SE2d 263) (1986); Mitchell v. State, 173 Ga. App. 560 (327 SE2d 537) (1985).

2. United States Supreme Court holdings sculpt out three tiers of police-citizen encounters. See Allen v. State, 172 Ga. App. 663, 665 (324 SE2d 521) (1984); McAdoo v. State, 164 Ga. App. 23, 26 (1) (295 SE2d 114) (1982). This case encompasses the second type, the Terry stop, which “must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” Tarwid v. State, 184 Ga. App. 853, 854 (1) (363 SE2d 63) (1987).

Defendant’s stop and possible conversation in front of the house about to be searched for a controlled substance constituted a sufficient basis for reasonable suspicion when considered in conjunction with defendant’s actions vis-a-vis the console in his vehicle. Thus the initial stop fell within the purview of Terry. That decision permits a frisk only if it is “supported by a reasonable belief that [the person is] armed and presently dangerous, a belief which [the United States Supreme Court] has invariably held must form the predicate to a patdown of a person for weapons. Adams v. Williams, 407 U. S. 143, 146; Terry v. Ohio, supra, at 21-24, 27.” Ybarra v. Illinois, 444 U. S. 85, 92 (100 SC 338, 62 LE2d 238) (1979). As the Court reiterated in Ybarra, supra at 93, “Under [the Terry] doctrine a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. See, e.g., Adams v. Williams, supra. . . . Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ or, indeed, any search whatever for anything but weapons. The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion [of the presence of weapons] directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.”

Unlike Ybarra, the State articulated circumstances, including context and the defendant’s actions, that would have justified a police officer at the scene in suspecting that Hayes was armed and dangerous. Although the trial court concluded that the rummaging in the console could not assist in supporting such a suspicion because Hayes explained it by producing his cigarettes, the ambiguous rummaging while defendant was evading the officer’s blue signal could also have been for the purpose of obtaining and hiding on his person a weapon before he stopped.

Thus the frisk was authorized, and it did not proceed to a search of the pocket before it could be said to have warranted a person of reasonable caution in the belief that the pocket contained a weapon. Terry, supra. Because the sole justification for the search is the protection of the police officer, an extended search exceeding the purpose of the search is constitutionally unreasonable. Wyatt v. State, 151 Ga. App. 207, 210 (1) (259 SE2d 199) (1979). Ordinarily the officer must pat down and then intrude beneath the surface only if he confirms his “reasonable belief or suspicion” by coming upon something which feels like a weapon. Smith v. State, 139 Ga. App. 129, 133 (3) (227 SE2d 911) (1976); Brown v. State, 181 Ga. App. 768, 770 (la) (353 SE2d 572) (1987). What is permitted is the use of the tactile sense to give the officer a reasonable belief that a concealed weapon is present. In this case, the act of the defendant interrupted the authorized pat-down.

Decided December 5, 1991.

William E. Frey, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

After his hand was pushed away, the officer did not proceed with the pat-down to ascertain the existence of something which felt like a weapon, although the defendant’s hands were on top of the car and were placed back there. Instead, he confirmed that what defendant obviously was hiding was not a weapon by removing the item, which was a plastic bag, from defendant’s pocket. The person’s evasive movement, to keep what he had hidden from the officer’s knowledge, coupled with his earlier activity, constituted a substitute for a pat-down which raises a belief that a weapon is hidden, so as to permit an invasive search. Thus, the officer’s action was “within constitutionally permissible bounds.” Brown, supra at 771. Terry is inapplicable to aid an “evidence-gathering function.” Ybarra, supra at 94.

Whether the circumstances, including defendant’s protective movements, gave rise to probable cause to believe that drugs were in the pocket, is not at issue. The officer testified that his purpose for searching the pocket was for weapons so as to assure his safety. According to Ybarra, supra at 94-96, a reasonable suspicion or belief that the pocket contained narcotics would not authorize a search. The higher standard of probable cause would be necessary. Terry is inapplicable to aid an “evidence-gathering function.”

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


author: Carley, Presiding Judge. Beasley, Judge, Andrews, Judge,

text:
    A91A1454.
    HEAD v. THE STATE.
    (413 SE2d 533)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of burglary, aggravated assault, and robbery. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. The victim testified that he had known appellant for a number of years and that, although he had been attacked from behind, he had recognized appellant’s voice. The “ ‘personal identity of [the] accused may be established by the testimony of a witness that he was familiar with [the accused’s] voice and recognized it.’ [Cits.] In the instant case we . . . have a witness who was ‘familiar with [appellant’s] voice and recognized it.’ ” Henderson v. State, 209 Ga. 238, 240 (1) (71 SE2d 628) (1952). This evidence, coupled with evidence of appellant’s fingerprint on a piece of glass from a broken window, was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Mercer v. State, 169 Ga. App. 723, 725 (1) (314 SE2d 729) (1984). See also Stevanus v. State, 185 Ga. App. 7, 10 (1) (363 SE2d 322) (1987). Accordingly, appellant’s enumeration of the general grounds is without merit.

2. Appellant urges that the aggravated assault count merged into the robbery count.

“ ‘ “Offenses merge as a matter of fact pursuant to OCGA § 16-1-6 (1) if one of them is established by proof of the same or less than all the facts required to prove the other. (Cits.) The only aggravated assault (committed by appellant) shown by the evidence in this case was that by which the commission of the . . . robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it follows that the evidentiary basis for the aggravated assault conviction was ‘used up’ in proving the . . . robbery. (Cit.) The entry of separate convictions for both offenses is thus barred by OCGA § 16-1-7 (a), which prohibits multiple convictions for the same conduct. (Cits.) The aggravated assault conviction is accordingly vacated.” [Cits.]’ [Cit.]” Smith v. State, 193 Ga. App. 208, 209 (1) (387 SE2d 419) (1989).

3. The' convictions and sentences for burglary and robbery are affirmed. The conviction and sentence for aggravated assault are reversed.

Judgment affirmed in part and reversed in part.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper, JJ., and Judge Arnold Shulman concur. Beasley and Andrews, JJ., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur in Division 1 but not in Division 2 in that there was not a merger of the aggravated assault charge with the robbery charge.

With respect to the crime wholly against the person, the indictment alleged that defendant “knowingly, willfully and intentionally” assaulted the victim “with a certain flashlight, same being a deadly weapon, in the manner then and there used. . . .” OCGA § 16-5-21 (a) (2). It was not alleged that he assaulted “with intent... to rob,” as prohibited by subsection (1).

Robbery is a crime which violates “the social interest in the safety and security of the person as well as the social interest in the protection of property rights.” Moore v. State, 140 Ga. App. 824, 827 (2) (232 SE2d 264) (1976). Aggravated assault is codified in the Code chapter on “Crimes Against the Person,” whereas robbery’s place is in the chapter on “Offenses Involving Theft.” The indictment alleged armed robbery, that defendant “unlawfully, knowingly, willfully and intentionally with intent to commit theft, take property, to-wit: cash, from the person of [the victim], by use of a certain flashlight, same-being an offensive weapon, in the manner then and there used. . . .” OCGA § 16-8-41 (a). That subsection also provides: “The offense of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.” The latter is defined as occurring “when, with intent to commit theft, [a person] takes property of another from the person ... by intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another; . . .” OCGA § 16-8-40 (a) (2). The court charged that “a person commits robbery when with intent to commit theft he takes property of another from the person or from the immediate presence of another by the use of force.” The court did not define or limit what was meant by “force.”

Robbery was the jury’s conviction. The jury rejected a conviction of armed robbery, which the court charged occurs when “with intent to commit theft [a person] takes property of another from the person or from the immediate presence of another by the use of an offensive weapon.”

The victim testified that he did not realize that anyone was still in his trailer home when he began to investigate what appeared to be a burglary. He had his flashlight in his hand. As he passed the bathroom, he was caught from behind by two men. One man wrapped his arms around the victim and the other covered his nose with a rag, smothering him. He could not do anything to protect himself or his property because he was partially paralyzed and used a cane and was alone. It is a reasonable inference that this was abundantly evident to the men who had broken into his home.

The assailants threw him down on his knees on the floor beside the bed, with his body across the bed and his head face down on the bed. One assailant beat him by striking him five or six times in the head with the victim’s flashlight and the other pinched his nose. They also beat his hands, fracturing and permanently disfiguring his right fifth finger and lacerating his right middle finger and his left hand. He lost over one-half pint of blood and partial use of his right hand.

The victim, obviously motivated by fear and desirous of avoiding further injury, “played ’possum,” in his words. This defensive measure succeeded and the aggravated assault stopped.

“[T]hey quit,” the victim stated, “and then they robbed me.” They took all the money he had by going through his pockets. Thus the robbery was effected by putting the victim in fear of further violence from the flashlight and otherwise so that he did not resist the rifling of his pockets and the taking of the money. The potent force of the flashlight’s destructive capacity in the hands of these two men, of which the victim was already painfully aware, was an ominous presence.

In this case, “[e]ach offense charged is clearly supported by its own set of facts.” Millines, 188 Ga. App. 655, 656 (1) (373 SE2d 838) (1988). Separate facts prove each crime, and the elements of each crime are separate, so the aggravated assault is not subsumed in the robbery. Miller v. State, 174 Ga. App. 42, 44 (5) (329 SE2d 252) (1985) . Considering the circumstances, the vicious assault was “additional., gratuitous violence employed against the victim,” unlike the circumstances in Smith v. State, 193 Ga. App. 208, 209 (1) (387 SE2d 419) (1989); Kelly v. State, 188 Ga. App. 362, 363 (3) (373 SE2d 63) (1988) ; and Young v. State, 177 Ga. App. 756, 757 (2) (341 SE2d 286) (1986) , which cases use that test.

The victim was a 67-year-old man who was “about seventy-five percent” paralyzed from the waist down, with an artificial hip and emphysema, and was using a cane which he needed for walking. It was after 9:00 p.m. and he was alone as he came into his trailer from his part-time job at a store. Two men, who had broken into the victim’s house trailer through a window, hid in the bathroom and grabbed him from behind as he walked past it. The jury could find that the repeated beating which was inflicted was a separate incident, involving different actions and a different specific objective or intent than the subsequent acquisition of the money he was carrying. Mil-lines, supra at 657 (2). The actions of the two men related to the assault evinced an intent to inflict serious bodily injury, far beyond and in addition to a mere intent to obtain money from this man who was obviously powerless even before the assault. The beating, in the manner and to the degree it was carried out, was patently not merely “an effort to subdue him prior to taking” his money, as was the assault in Chitwood v. State, 170 Ga. App. 599, 601 (4) (317 SE2d 589) (1984). Nor was it inflicted after a demand for money and failure to comply, as in Smith v. State, 193 Ga. App. 208 (1) (387 SE2d 419) (1989) . See Coaxum v. State, 146 Ga. App. 370, 371 (3) (246 SE2d 403) (1978), for a situation comparable to that here. As demonstrated by that case, the personal violence need not be subsequent to the robbery in order to support a separate conviction.

Decided December 5, 1991.

Whitehurst, Cohen & Blackburn, Steven B. Kelley, Ronald B. Warren, for appellant.

- H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

As in Evans v. State, 173 Ga. App. 655, 656 (2) (327 SE2d 784) (1985), had the assailants left after they beat and smothered him, they would have been guilty only of aggravated assault. But they moved from violence to the person with an object resulting in serious bodily injury, OCGA § 16-5-21 (2), to accomplish their additional and perhaps initial intention, the subsequent taking of property from his possession by placing him in fear of further injury by use of the flashlight, OCGA § 16-8-40 (a) (2). The convictions and sentences in this case did not deviate from the law as set forth in OCGA §§ 16-1-6 (1) and 16-1-7 (a) (1).

Andrews, Judge,

concurring in part and dissenting in part.

I concur in Division 1 but not in Division 2, nor am I able to join Judge Beasley’s dissent.

The aggravated assault count of the indictment charged “assault . . . with a certain flashlight.” The armed robbery count of the indictment charged “take property ... by use of a certain flashlight.” As to the armed robbery count, the court charged both armed robbery and robbery (by force). The jury convicted the defendant of aggravated assault and robbery (by force). Since the jury concluded the defendant assaulted the victim with the flashlight but did not take the money with it, it logically follows that the jury concluded the taking occurred without the use of the flashlight, i.e., after and separate from the assault.

Smith v. State, 193 Ga. App. 208 (387 SE2d 419) (1989) relied upon by the majority, involved convictions for aggravated assault and armed robbery and is thus inapposite. Under the facts of this case the jury was authorized and did conclude that “[t]hese were separate and distinct acts and supported separate convictions for two sequential but separate crimes against the same victim. [Cit.]” Bales v. State, 200 Ga. App. 97, 98 (406 SE2d 790) (1991).

       Although it was not charged in the indictment and thus was not part of the conviction, it could be said that robbery was also committed prior to the aggravated assault, when the robbers forcefully took the victim’s flashlight by grabbing him from behind and smothering him. See Millines v. State, 188 Ga. App. 655, 657 (2) (373 SE2d 838) (1988).


author: McMurray, Presiding Judge.

text:
    A91A1641.
    CONKLIN v. ZANT et al.
    (413 SE2d 536)
   McMurray, Presiding Judge.

This is the second appearance of this inmate civil action before this Court. In Conklin v. Zant, 198 Ga. App. 543 (402 SE2d 319), this Court reversed a denial of filing of plaintiff Conklin’s complaint under OCGA § 9-15-2 (d). Upon remand to the superior court, plaintiff’s complaint was filed and then dismissed on defendant’s motion. Plaintiff now appeals the dismissal of his complaint. Held:

“ ‘A motion to dismiss for failure to state a claim is not to be granted unless under the pleadings, construed in a light most favorable to the plaintiff, plaintiff can establish no set of facts that would entitle it to relief against the defendant. Thompson v. Frost, 125 Ga. App. 753, 755 (1) (188 SE2d 905) (1972); see News-Press Pub. Co. v. Kalle, 173 Ga. App. 411, 412 (2) (326 SE2d 582) (1985).’ Wehunt v. ITT Business Communications Corp., 183 Ga. App. 560, 561 (2) (359 SE2d 383).” W. M. Griffin &c. Farms v. Northrup King & Co., 191 Ga. App. 304, 305 (381 SE2d 441).

Plaintiff received a disciplinary report for the destruction of state property and was found guilty of the offense after a disciplinary hearing and was fined $59.25, which amount was seized from his inmate account. The three counts of plaintiff’s complaint, stating claims under civil “Georgia RICO (Racketeer Influenced and Corrupt Organizations)” conversion, and violation of Department of Corrections’ regulations and the due process clause of the Fourteenth Amendment of the United States Constitution, are all predicated on the hypothesis that it was improper for defendants to levy a fine against plaintiff and seize his inmate account. It is uncontroverted that neither the laws of Georgia nor the Rules and Regulations of the Department of Corrections authorize a prison disciplinary proceeding to impose monetary sanctions. However, the superior court concluded that defendants’ actions in seizing plaintiff’s funds were authorized by OCGA § 17-14-13.

OCGA § 17-14-1 et seq. was enacted to implement the public policy that “restitution to their victims by those found guilty of crimes is a primary concern of the criminal justice system.” OCGA § 17-14-1. Nonetheless, while a court of competent jurisdiction, the State Board of Pardons and Parole, or the Department of Corrections may order that an adult offender make restitution, such order of restitution may be entered only “as a condition of any relief ordered. . . .” (Emphasis supplied.) OCGA § 17-14-3. “ ‘Relief’ means any suspended or probated sentence, including probation imposed under Article 3 of Chapter 8 of Title 42; any parole or other conditional release from incarceration; the awarding of earned time allowances; reduction in security status; or placement in prison rehabilitation programs, in-eluding, but not limited to, those in which the offender receives monetary compensation.” OCGA § 17-14-2 (6). The statutory scheme does not contain any provision for an unconditional order to make restitution. Thus, the offender or inmate may avoid an order to make restitution by declining the relief upon which the restitution order is conditioned.

Decided December 5, 1991.

Robert Conklin, pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, John C. Jones, Senior Assistant Attorneys General, William F. Amideo, Assistant Attorney General, for appellee.

It follows that before OCGA § 17-14-13 becomes operative, there must be a restitution order which is a condition of any relief ordered and the relief must have been accepted by the offender or inmate. The pleadings are in conflict on the issue of whether these prerequisites were satisfied, defendants having denied plaintiff’s allegation incorporating by reference a disciplinary report unconditionally requiring plaintiff to pay “restitution” of $59.25. The resolution of this issue is a matter of evidence and proof.

There are conceivable facts upon the proof of which plaintiff could recover. Thus, there was no basis for the superior court to have decided that plaintiff could establish no set of facts under which he could recover. The superior court erred in granting defendant’s motion to dismiss plaintiff’s complaint and in awarding attorney fees to defendants. W. M. Griffin &c. Farms v. Northrup King & Co., 191 Ga. App. 304, 305, supra. ,

Insofar as the superior court may be viewed as having implicitly denied plaintiff’s motion for judgment on the pleadings, we find no error. “The granting of a motion for judgment on the pleadings under [OCGA § 9-11-12 (c)] is proper only where there is a complete failure to state a cause of action or defense. ‘For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.’ [Cits.]” Pressley v. Maxwell, 242 Ga. 360 (249 SE2d 49). See also Bacon v. Liberty Mut. Ins. Co., 198 Ga. App. 436 (401 SE2d 625).

Judgment affirmed in part and reversed in part.

Sognier, C. J., and Andrews, J., concur.


author: Sognier, Chief Judge.

text:
    A91A1716.
    BREUS et al. v. McGRIFF.
    (413 SE2d 538)
   Sognier, Chief Judge.

George E. McGriff, Jr. brought suit on a note against B & R No. 1, Inc., a general partner of the limited partnership that made the note, and against J. Alan Breus and Bertram Robinson as general partners and individual guarantors of the obligation. The trial court entered summary judgment for McGriff, and the defendants appeal.

On October 29,1985, the partnership and appellants executed the note and guarantees in favor of Habersham Federal Savings Bank. Habersham assigned its rights in the note to appellee on April 1, 1988, and as part of the same transaction financed appellee’s purchase of the note and made other loans to a corporation controlled by appellee. Appellee and the partnership, through appellants, executed a modification of the note sub judice whereby appellee agreed to extend the repayment period and change the interest rate terms. Upon the partnership’s default on the note in April 1990 and appellants’ failure to satisfy the debt due, appellee filed this action.

1. Appellants assert the trial court’s grant of summary judgment to appellee was error because a fact question remains as to whether the assignment of the note from Habersham to appellee was supported by adequate consideration. This contention is without merit. Appellants are strangers to the assignment contract between appellee and Habersham and thus have no standing to challenge its validity. “It is no defense by the maker of a note that the transfer of the note by the payee to the transferee is without consideration. The transferee, as the holder of a note indorsed to him by the payee, is the holder of the legal title, and can maintain suit thereon. It is immaterial to any right of the maker whether the transfer was made for a consideration.” Thompson v. Wright, 53 Ga. App. 875, 876 (4) (187 SE 311) (1936). Even assuming, without deciding, that appellee had some notice at the time of the assignment that the note was overdue and thus was not a holder in due course, see OCGA § 11-3-302 (1) (c), appellants nonetheless would be entitled to challenge only the adequacy of the consideration of the note they made with Habersham. See, e.g., Commercial Credit &c. Corp. v. Reeves, 110 Ga. App. 701 (139 SE2d 784) (1964); accord American Surety Co. v. Garber, 114 Ga. App. 532 (3) (151 SE2d 887) (1966) (assignee who is not a holder in due course takes note subject to defenses that could have been asserted by payor against original payee).

In addition, even if the assignment from Habersham to appellee did lack some essential element (a question on which we intimate no opinion), by executing the modification and dealing with appellee as they would have dealt with Habersham appellants effectively recognized appellee as the payee. Merchants Grocery Co. v. Shawnee Mill ing Co., 86 Ga. App. 848, 852 (72 SE2d 797) (1952). “This being so, regardless of whether there had been a proper assignment of the [note] to [appellee], such as would legally bind [appellants], . . . [appellants] will not now be heard to complain of the legality of this assignment and to question the right of [appellee] to proceed thereunder against [them]. [Having] dealt with [appellee] as having properly acquired this [note,] . . . [appellants are] therefore now estopped from raising the question.” Id.

Decided December 5, 1991.

McRae, Lambrecht & Wagner, C. David Johnston, Benjamin H. Pruett, for appellants.

Ford & Harrison, F. Carter Tate, James A. Dunlap, Jr., for appellee.

2. Appellants’ contention that the grant of summary judgment was improper because appellee’s supplemental affidavit purportedly contradicted his deposition testimony is similarly without merit, as the issue addressed in the challenged testimony is not material to this action and thus has no legal significance. Compare Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986) (contradictory testimony on material factual question may preclude summary judgment) with Barnett Mtg. Trust v. Woods Mill, 151 Ga. App. 133-134 (1) (259 SE2d 140) (1979) (summary judgment proper because disputed issue not material to the case). Moreover, appellee withdrew his affidavit before the trial judge ruled on the motion for summary judgment.

3. We decline appellee’s invitation to assess a frivolous appeal penalty.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Judge Arnold Shulman.

text:
    A91A1112.
    MAY v. CITIZENS & SOUTHERN NATIONAL BANK.
    (413 SE2d 780)
   Judge Arnold Shulman.

The appellee bank filed this action against the appellant, in his capacity as executor of the estate of George S. May, seeking to recover the balance due on an indebtedness evidenced by two promissory notes which May had executed during his lifetime. Each note was secured by a security deed covering a number of parcels of real property which May had owned. Following May’s death, the parties entered into a modification agreement pursuant to which the appellant agreed to make regular monthly payments on the indebtedness. He subsequently fell two months behind on these payments, prompting the bank to declare the loans in default and to file the present action to collect the remaining balance. The appellant counterclaimed, alleging that the bank had wrongfully refused to release certain parcels of property from the lien of the security deeds in contravention of the following provision contained therein: “The grantor reserves the right to sell any of the property secured hereby and pay off its proportionate share of the indebtedness with no prepayment penalty.” The trial court granted summary judgment to the bank, and this appeal followed.

1. In support of its motion for summary judgment, the bank vice-president in charge of the files relating to the loans in question submitted an affidavit stating: “[The appellant] has indeed requested that certain properties of the estate be released from the lien of the [bank’s] security deeds governing the respective properties but in no case was [the bank] to have received cash to reduce the indebtedness owing to [it].” In response, the appellant submitted his own affidavit averring as follows: “The [bank] has acknowledged that releasing its lien on certain properties in exchange for the net cash proceeds from the sale and/or an assignment of the note and deed to secure debt from the sale was a workable option. . . . [The acceleration of the indebtedness] would not have been necessary if proceeds from the sale of certain of the pieces of property . . . had been available. The sale of these properties, which was frustrated by [the bank], would have more than satisfied any obligation owing to [it] and would have prevented any acceleration of the debt at issue in this case.”

The appellant’s right to sell the property covered by the security deeds clearly was contingent upon his using the proceeds of such sales to “pay off” a “proportionate share” of the indebtedness. As the appellant’s affidavit describes no instance in which he was prevented from making a cash sale of any of the parcels in question due to the bank’s refusal to release the property from the lien of its security deed, the trial court properly concluded that it was insufficient to rebut the unequivocal averment of the bank’s vice-president that “in no case was [the bank] to have received cash to reduce the indebtedness owing to [it].” Where no factual basis is provided for an averment appearing in an affidavit, it may be deemed conclusory, “and ‘(i)t is axiomatic that “conclusory allegations by way of an affidavit. . . will not be sufficient to avoid summary judgment.” [Cit.]’ [Cit.]” Abrahamsen v. McDonald’s Corp., 193 Ga. App. 868, 870 (2) (389 SE2d 386) (1989).

It being apparent without dispute that the appellant was in default of his obligations under the notes as modified by the written modification agreement, it follows that the evidence of record conclusively negates the appellant’s allegations that the bank acted in bad faith in declaring the default, or that it unlawfully interfered with his contractual relations with others or imposed an unreasonable restraint on the alienation of the property in question. The appellant’s claim that the bank breached a fiduciary duty owed to the estate similarly fails to create any material factual issue. “ ‘(E)ven if a party places special trust and confidence in a bank or its officers, this does not create a confidential or fiduciary relationship. . . .’ Creditors deal with debtors at arm’s length, and do not stand in a fiduciary capacity in relationship to the debtor. [Cit.] ” Phillips v. Atlantic Bank &c. Co., 168 Ga. App. 590, 591-592 (3) (309 SE2d 813) (1983). Accordingly, the trial court did not err in granting the bank’s motion for summary judgment.

Decided November 25, 1991

Reconsideration denied December 9, 1991

Bouhan, Williams & Levy, B. H. Levy, Jr., Joseph A. Mulherin III, for appellant.

Inglesby, Falligant, Horne, Courington & Nash, Sam P. Inglesby, Jr., Dorothy W. Courington, for appellee.

2. The appellants’ remaining contentions are rendered moot by the foregoing.

Judgment affirmed.

Beasley, J., concurs. Carley, P. J., concurs in judgment only.


author: Birdsong, Presiding Judge. Pope, Judge,

text:
    A91A1772.
    ADEN’S MINIT MARKET et al. v. LANDON.
    (413 SE2d 738)
   Birdsong, Presiding Judge.

Aden’s Minit Market and Selective Insurance Company of the Southeast, the employer and insurer (collectively “Aden’s”), appeal from the superior court’s judgment affirming the State Board of Workers’ Compensation in favor of Irene K. Landon. The record shows Landon sustained a compensable injury while working for Aden’s in August 1988, and was paid temporary total disability benefits until March 1990, when those benefits were stopped and partial disability payments started because it was discovered that Landon had returned to full-time employment in January 1990. The record also shows that Landon’s physician did not clear her to return to work, and Landon did not give Aden’s notice of her return to work. Shortly thereafter, however, Landon’s new employer terminated her employment because it learned she was working for them full-time while at the same time receiving total temporary disability payments.

Landon then sought total disability payments, and an administrative law judge ordered those payments to be resumed notwithstanding a finding that the termination from Landon’s most recent employment was the result of her misconduct. Aden’s appealed this decision to the State Board of Workers’ Compensation and the superior court, and was unsuccessful as both of those authorities found that even though Landon was terminated for her own misconduct, she was thereafter unable to find suitable work because of her disability.

We granted Aden’s application for a discretionary appeal under OCGA § 5-6-35 (a) to consider whether the State Board and the superior court properly applied the controlling precedent. Held:

The controlling principle in appeals such as this is that disabled employees are entitled to resumption of benefits, even if terminated from subsequent employment because of their own misconduct, if their disabilities prevent them from finding further employment. Gilmer v. Atlanta Housing Auth., 170 Ga. App. 326 (316 SE2d 535); Georgia Power Co. v. Brown, 169 Ga. App. 45, 48 (311 SE2d 236). The burden is on the employees, however, to prove that their inability to find full-time employment was proximately caused by their disabilities. Brown v. Ga. Power Co., 181 Ga. App. 500 (352 SE2d 818).

In this appeal the record shows that Landon did not meet her burden. Although she is apparently capable of performing full-time work regardless of her physician’s determination that she is unable to work, there is little question that she remains disabled to some degree because of her prior compensable injury. Also, Landon’s testimony established that she sought employment with several possible employers and was rejected. This proof, however, is not sufficient to meet her burden as the record is silent on the reasons why she was not hired by any of these other employers. Then, the facts revealed in this record are different from those in Gilmer since Gilmer proved that his disability kept him from holding other jobs.

Additionally, this record shows that at least one of these potential employers, her most recent employer, refused to hire Landon, not because of her disability, but because she worked full-time while receiving total disability payments. We cannot presume that Landon was not hired because of her disability. Indeed, her former supervisor testified that he would hire her, but his supervisors would not permit it. An employee is not entitled to resumption of total disability payments merely because she was terminated from subsequent employment. Evco Plastics v. Burton, 200 Ga. App. 121 (407 SE2d 60) (1991). Georgia Power Co. v. Brown, supra.

Consequently, since there is no evidence in the record showing that Landon could not find other employment because of her disability, the superior court erred by affirming the State Board of Workers’ Compensation. Therefore, the judgment of the superior court is reversed with direction that the appeal be returned for determination of the appropriate award of partial disability benefits in accordance with this opinion.

Judgment reversed with direction.

Cooper, J., concurs. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

While I concur fully with the majority opinion, I write separately to make it clear that this court’s decisions in King v. Piedmont-Warner Dev., 177 Ga. App. 176 (338 SE2d 758) (1985) and Evco Plastics v. Burton, 200 Ga. App. 121 (407 SE2d 60) (1991) do not support the claimant’s position that the claimant does not have the burden of showing that her inability to secure employment elsewhere was proximately caused by her previous on-the-job injury. In Hartford Accident &c. Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978), the Georgia Supreme Court established the standard of p::oof a workers’ compensation claimant would have to meet before proving a change of condition authorizing a resumption of disability benefits. The standard established by the Georgia Supreme Court is the claimant must “show that his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury.” Id. at 288.

The subsequent decisions of this court have not modified or deviated from that standard. See, e.g., United States &c. Ins. Co. v. Giles, 177 Ga. App. 684 (340 SE2d 284) (1986); Gilmer v. Atlanta Housing Auth., 170 Ga. App. 326 (316 SE2d 535) (1984); Georgia Power Co. v. Brown, 169 Ga. App. 45 (311 SE2d 236) (1983). Our decisions in King and Burton cannot be read to relieve plaintiff of any part of that burden either.

In King, the claimant “testified that he had applied to various employers, but his inquiries never reached the stage of discussing his disability because no work was available.” King, supra at 177. This court held that the claimant was still able to meet his burden of proof including the causation requirement because the claimant was able to show through both medical evidence and his testimony that if work was available for which he was qualified, because of his disability, he would be unable to obtain employment. In fact, his former employer, who had laid King off for economic reasons, testified that “ ‘if a physician was to tell Andy that he could not lift heavy loads, and carry them — in other words, if he could not assist other people on the job to do that, if the only thing he could do was to nail nails . . . ,’ he would not hire him.” Id.

Decided November 4, 1991

Reconsideration denied December 9, 1991

Goodman, McGuffey, Aust & Lindsey, Edward H. Lindsey, Jr., Leslie Stewart, for appellants.

Hackel & Hackel, Thomas M. Hackel, for appellee.

In Evco Plastics v. Burton, supra, it was not necessary for this court to reach the question of whether the claimant in that case had shown proximate causation between her inability to secure other employment and his previous on-the-job injury, because the claimant failed to present any evidence that she had sought other employment. Id. at 122. In sum, these decisions do not change the claimant’s burden of proof in these cases.

The claimant further suggests that this burden of proof is virtually impossible to meet absent subpoenaing every potential employer approached by the claimant to require their testimony. For guidance on how this burden can be met without such drastic measures, claimant should consider the guidance provided by this court in decisions such as King, supra; Giles, supra, and Brown v. Ga. Power Co., 181 Ga. App. 500 (352 SE2d 818) (1987).

       In the next paragraph, however, the Georgia Supreme Court applied a less stringent standard of proof in that case. The court stated that “[i]n the present case the record contains some probative evidence that the claimant made a sincere effort to secure suitable employment elsewhere.” Id. at 288. For that reason, the Georgia Supreme Court affirmed the judgment of this court in that case. The court reached no conclusion regarding whether the claimant had met his burden of showing proximate causation between his previous accidental injury and his inability to secure suitable employment elsewhere. This inconsistency within that opinion may explain the apparent confusion among certain members of the claimant’s bar regarding what burden of proof a claimant must meet to prove a change of condition authorizing a resumption of disability benefits.


text:
    A91A0937, A91A0938.
    WIELAND v. WIELAND et al. (two cases).
    (414 SE2d 247)
   Andrews, Judge.

Appellant Louis Wieland and appellee Linda Wieland were divorced in 1983. A settlement agreement was entered into in 1983 by the Wielands dealing with alimony and child support for their son and daughter and was included in the final judgment of divorce. In February 1990, a guardian ad litem for the daughter was appointed and on May 3, 1990, an order was entered amending the final judgment regarding custody, visitation and child support and directing the father to pay a therapist after an attempted suicide by the child.

Case No. A91A0937 arose from the November 28, 1990, order finding the father in contempt pursuant to an application for citation of contempt brought by the mother on November 20, 1990.

Decided November 18, 1991

Reconsideration denied December 10, 1991

Turner, Turner, & Turner, Nelson G. Turner, for appellant.

Michael J. Bowers, Attorney General, Mark H. Cohen, Senior Assistant Attorney General, Lewis R. Slaton, District Attorney, Federal, Goetz & Cronkright, R. Keegan Federal, Jr., for appellees.

1. Although not raised by the parties, it is incumbent upon this court to consider our jurisdiction. Gale v. Hayes Microcomputer Prods., 192 Ga. App. 30, 31 (3) (383 SE2d 590) (1989). Case No. A91A0937 dealing with the contempt order is an appeal from a judgment or order “holding . . . persons in contempt of . . . child custody judgment or orders.” OCGA § 5-6-35 (a) (2). Having failed to file an application for appeal as required by that section, this court is without jurisdiction to consider the appeal and it is hereby dismissed. Hosch v. Hosch, 184 Ga. App. 370 (361 SE2d 686) (1987), cert, denied, 484 U. S. 1067.

2. Case No. A91A0938 arose from the court’s denial of the motion to recuse the judge, which was filed on December 3, 1990, and denied on December 4, after the filing on November 29 of the notice of appeal from the order of contempt. Pretermitting the question of whether a motion to recuse filed after the hearing is timely and of any effect, see USCR 25.1; Gallit v. Buckley, 240 Ga. 621, 622 (1) (242 SE2d 89) (1978), appeal of any such matter would also have to be by application. Citizens &c. Nat. Bank v. Rayle, 246 Ga. 727, 730 (4) (273 SE2d 139) (1980). Therefore, this appeal is also dismissed.

Appeals dismissed in Case Nos. A91A0937 and A91A0938.

Sognier, C. J., and McMurray, P. J., concur.

       In both appeals, appellant amended his notices of appeal, purporting to add as a party the State of Georgia on the premise that since this was a criminal contempt, it was required to be added. This is not the function of the notice of appeal. OCGA § 5-6-37. The State was never properly made a party below or here, Guhl v. Tuggle, 242 Ga. 412, 413 (1) (249 SE2d 219) (1978), has never appeared and was not required to since this was not a penal action. OCGA § 17-1-2. Therefore, the State’s motion to dismiss is unnecessary because the naming of it in the notice of appeal was a nullity.


author: Carley, Presiding Judge.

text:
    A91A1412.
    JACKSON v. THE STATE.
    (414 SE2d 262)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of armed robbery and possession of a firearm during the commission of a crime. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

Decided November 25, 1991

Reconsideration denied December 10, 1991.

Nancy K. Peterson, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Thomas S. Clegg, Gregory J. Lohmeier, Assistant District Attorneys, for appellee.

A potential juror was challenged for cause on the ground that he was a part-time magistrate. The trial court’s refusal to sustain this challenge is appellant’s sole enumeration of error.

Beam v. State, 260 Ga. 784, 785 (2) (400 SE2d 327) (1991) is not controlling. A magistrate is not a full-time employee of the office of the district attorney, but is, instead, a member of the neutral and independent judicial branch of government. Art. VI, Sec. Ill, Par. I of the Ga. Const, of 1983; OCGA § 15-10-1 et seq. There is no contention that the potential juror, acting in his official capacity as a magistrate, had received any affidavit, had issued any warrant, or had otherwise had any prior official involvement in appellant’s case. Compare Thomason v. State, 148 Ga. App. 513 (251 SE2d 598) (1978). “The mere fact that a juror might happen to be a [magistrate] would be no objection to his qualification as a juror, and, in fact, the intelligence and personal character of these magistrates is such as ordinarily to render them peculiarly qualified for jury service.” Evans v. State, 13 Ga. App. 700, 701 (1) (79 SE 916) (1913). The trial court did not err in refusing to sustain appellant’s challenge for cause.

Judgments affirmed.

Beasley, J., and Judge Arnold Shulman concur.