text:
    A98A2380.
    GINN v. THE STATE.
    (512 SE2d 338)
   Judge Harold R. Banke.

After a bench trial, Kevin Ginn was found guilty of running a stop sign and two counts of violation of the Georgia Controlled Substances Act. Ginn received First Offender treatment. On appeal, Ginn’s sole claim of error is the denial of his motion to suppress.

The underlying case arose after a City of Riverdale police officer observed the vehicle that Ginn was operating disregard a stop sign. The officer activated her lights and siren and attempted to stop Ginn, but Ginn continued driving for about two miles before finally coming to a halt. When the officer approached, Ginn appeared extremely nervous. Lacking any backup, the officer asked Ginn to step from the van to see his license and proof of insurance. The officer noticed that Ginn slurred his speech. When she asked for consent to search for weapons on his person, Ginn agreed. However, when she inquired whether he had any weapons or narcotics inside the van, Ginn hesitated then responded “no.”

At this point, the officer decided to conduct a pat-down search for her personal safety. In one of Ginn’s front pants pockets, she detected something hard and square. As she started to retrieve the object from inside the pocket, Ginn grabbed her hand to prevent her from doing so. The officer testified that for her own safety she wanted to determine what that object was. She testified that she suspected that it might be a razor. She retrieved a metal cigarette case. As she started to open the case, Ginn blurted out, “it’s just crank.” Inside the metal case was a bag containing a small white rock and a straw.

After Ginn was placed under arrest, police discovered a bag of marijuana and a second smaller bag containing marijuana inside a backpack. Ginn appeals the trial court’s denial of his motion to suppress evidence of the contraband found on his person and in his vehicle. Held:

When reviewing a trial court’s ruling on a motion to suppress, we must construe the evidence most favorably toward upholding the court’s findings and judgment unless they are clearly erroneous. Ledford v. State, 220 Ga. App. 272, 273 (469 SE2d 401) (1996). Since the trial court sits as the trier of fact, its findings are analogous to a jury verdict. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

Once a defendant has been stopped for violating a traffic law, a police officer is entitled to execute a pat-down search for weapons. Buffington v. State, 229 Ga. App. 450, 451 (494 SE2d 272) (1997). This pat-down search based on Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968) does not require consent. Id. Ginn’s resistance and failure to fully cooperate with the pat-down process were irrelevant. See Hayes v. State, 202 Ga. App. 204, 205-206 (414 SE2d 321) (1991). Having considered the evidence in the required manner, we cannot say that the denial of the motion to suppress was clearly erroneous. Sutton v. State, 223 Ga. App. 721, 722 (1) (478 SE2d 910) (1996).

Decided February 12, 1999.

Steven M. Frey, for appellant.

Robert E. Keller, District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Smith, J., concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A0177.
    KNUCKLES v. THE STATE.
    (512 SE2d 333)
   Eldridge, Judge.

In July 1997, blank checks were stolen from Joe Threlkeld. On July 17, 1997, Hubert Grogan, a clerk at the Circle M store called Threlkeld and told him that Melvin Knuckles was attempting to pass check no. 142 and asked if the check was good. When he learned that the check was stolen, the clerk called the police. Also, clerks at Citizen’s Pharmacy, who knew Threlkeld, caught Knuckles passing another check of Threlkeld’s payable to and endorsed by “Randy Brown.”

On December 30, 1997, Melvin Lamar Knuckles was charged by accusation with three first degree forgery counts and one misdemeanor theft by taking count.

After trial, the defendant was convicted on two counts of first degree forgery. Defendant timely appeals.

1. Defendant’s first enumeration of error is that the trial court erred in finding that, after a Batson challenge and the district attorney’s race-neutral reasons, the trial court accepted the allegedly pretextual reason for striking juror no. 112, Rosa Bailey and did not replace her on the jury.

Voir dire was taken down. There were six African-Americans on the jury, one of whom was excused for cause. The State used two peremptory strikes to remove two of them. The defense made a Batson challenge. While denying a prima facie case had been made, because only two of six strikes used were against African-Americans, the district attorney went forward to give his race-neutral reasons for the use of the two peremptory strikes.

The first juror was no. 94, Mr. Mays. The second juror was no. 112, Rosa Bailey. Both jurors had served on a jury the previous day that returned a defendant’s verdict of not guilty.

The district attorney gave the following race-neutral explanations. “The reason why the state struck Mr. Mays was because he was on the jury yesterday that found the defendant not guilty . . . and the reason why the state struck Ms. Bailey was also because she was on the jury that found the defendant not guilty yesterday as well as we noticed that she had a nose ring.”

The defense then argued that the reason of prior jury service was pretextual, because there were white jurors from the former trial that were on the defendant’s jury who had not been struck.

The district attorney responded that the State had insufficient strikes to remove all jurors that had voted to acquit on the previous case; however, all strikes except one were used on such jurors. The one exception was a juror struck by the prosecutor because his brother-in-law had a forgery conviction.

The hearing was continued over the luncheon recess so that counsel could do research, and the trial court allowed extensive argument prior to ruling. After lunch, the defense raised the issue of an Hispanic juror, Mr. Acosta, who had also been excluded for the same reasons by a peremptory strike.

The trial court found that the State engaged in a purposeful pattern of discrimination in disparate striking of the minorities for that reason, while retaining some white jurors subject to the same reason. For this reason, the trial court replaced Mays and Acosta.

While the trial court found that a prior acquittal by these jurors was a legitimate race-neutral reason, the State had excluded the minority jurors prior to the white jurors in the same situation so that the “defendant has carried its burden of proving purposeful discrimination.” However, the trial court found that the peremptory strike of Bailey for the nose ring was not purposeful discrimination.

(a) The defense raised a Batson challenge which the trial court partially overruled. The trial court initially found that the State’s explanation was race-neutral, i.e., jurors were excluded who had acquitted in a trial the previous day. However, the trial court found that the State used such reason to exclude similarly situated African-Americans prior to excluding whites. Although two whites also were excluded for such reason, in the exercise of discretion, the trial court found that the State had demonstrated a pattern of discrimination by the order in which similarly situated jurors were excluded, i.e., three minority jurors were excluded, but only two whites for the same reason, and one white was left on the jury who had also been on the prior jury.

On appeal, the defendant urges that, if the trial court finds as to an excluded juror a racially motivated explanation, this vitiates any legitimate race-neutral explanation as to such juror. We do not agree.

Defendant’s argument would be correct if the explanation was clearly racially motivated on its face. See Lingo v. State, 263 Ga. 664, 668 (1) (c) (437 SE2d 463) (1993). In Lingo, the Court held “[t]he dissent correctly cites Strozier v. Clark, 206 Ga. App. 85, 88 (424 SE2d 368) (1992), a recent Court of Appeals case, for the rule that where racially-neutral and neutrally-applied reasons are given for a strike, the simultaneous existence of any racially motivated explanation results in a Batson violation.” Id. In Strozier, the second reason given was facially and impermissibly racially motivated, which pervaded the exercise of the strike, no matter what other reasons were given. “An assumption [without voir dire support] that the prospective juror in the instant case would likewise act ‘along racial lines’ and engage in ‘misconduct’ would constitute ‘an impermissible assumption ultimately arising solely from the juror’s race.’ [Cit.]” Strozier, supra at 88. Lingo also held that no presumption arises “that any reason for striking a black juror, not also used against a white juror — regardless of other reasons for striking a black juror — is, per se racially motivated. This is not what Batson or Strozier hold, or even imply. Rather, there is a Batson violation only where the prosecutor’s explanation is determined to be racially motivated. Where there are multiple reasons for striking a juror, white or black, it cannot be presumed that a reason applied to one juror, of one race, but not applied to another juror, of another race, is racially motivated.” (Footnote omitted; emphasis in original.) Lingo, supra at 668-669 (1) (c).

In this case, the explanation regarding jury acquittal was facially race-neutral. But the trial court, in the exercise of discretion, chose to find purposeful discrimination in the State’s disparate treatment. However, the same trial judge found that the second reason was also racially neutral. Therefore, factually and legally, this case is placed outside Strozier, and the trial court’s determination was not negated by the finding as to the first explanation.

(b) Further, Lingo and Strozier were rendered prior to Purkett v. Elem, 514 U. S. 765 (115 SC 1769,131 LE2d 834) (1995), which made clear that appellate courts should not substitute their belief as to reasonableness of the explanation for the trial court’s determination, because the trial court sits as finder of fact with all the facts and circumstances before it. See also Hernandez v. New York, 500 U. S. 352, 358-359 (111 SC 1859, 114 LE2d 395) (1991). Thus, appellate courts must give great deference to the trial court’s determination. Purkett, supra; Gamble v. State, 257 Ga. 325, 326 (357 SE2d 792) (1987). Although this Court may have upheld the explanation that the previous day’s acquittals was racially neutral, under Purkett the trial court’s exercise of discretion was not wrong. While no explicit racial reason for the strikes was present in this case, and the reason was legitimately racially neutral, the priority in which the reason was applied was found to exclude minorities more than whites. “A prosecutor’s failure to explain the apparently disparate treatment of similarly situated white and black jurors certainly diminishes the force of [the] explanation for striking a black juror.” Ford v. State, 262 Ga. 558, 559-560, n. 1 (423 SE2d 245) (1992); accord Freeman v. State, 268 Ga. 181, 182 (1) (486 SE2d 161) (1997).

Yet, where the prima facie case is not strong, and there are minorities on the jury, the reasons given do not have to be as strong, as in this case, for the trial court to accept the reasons as racially neutral. See State v. Mallory, 261 Ga. 625, 634 (409 SE2d 839) (1991) (Benham, J., concurring). “A court may be less troubled by one relatively weak explanation for striking a black juror when all the remaining explanations are persuasive. . . . Because the prosecutor’s reasons for striking the prospective jurors were racially neutral, related to the case to be tried, and presented clear and specific reasons for exercising the challenges, the trial court did not err in denying the Batson challenge.” (Citations and punctuation omitted.) Berry v. State, 263 Ga. 493, 494-495 (435 SE2d 433) (1993).

In light of Purkett, the trial court determined, after having the opportunity to observe the prospective juror, that wearing a nose ring was a legitimate racially neutral reason for the use of a peremptory strike by the district attorney. Such unusual way to wear jewelry, as well as other unconventional methods of self-adornment in attire, hair style, hair color, shaving the head, jewelry, tattoos, or scarification, may indicate youthful rebellion against authority and convention, or anti-social attitudes, or identification that would extend across gender and racial lines. Such may constitute a race/ gender-neutral reason to strike. However, if such matters were shown to be unique to a racial or gender identification, then it could constitute an impermissible explanation. However, such exclusive identification with race or gender would be part of the movant’s ultimate burden of persuasion. Berry v. State, 267 Ga. 605, 608 (5) (481 SE2d 203) (1997).

When the reasons articulated for the challenged exercise of peremptory strikes are concrete, tangible, and non-racial, the trial court does not abuse its discretion in denying the challenge, even where the explanation is not persuasive or even plausible, where the trial court is persuaded that the explanation does not deny equal protection. See Crowder v. State, 268 Ga. 517, 519 (4) (491 SE2d 323) (1997); Freeman v. State, supra at 182; Russell v. State, 267 Ga. 865, 867 (2) (485 SE2d 717) (1997); Berry v. State, 267 Ga. 605, 608, supra; Barber v. State, 267 Ga. 521, 522 (3) (481 SE2d 813) (1997). “[W]e cannot conclude that that finding was clearly erroneous.” Id.; see also Trammel v. Cameron, 265 Ga. 156, 157-158 (454 SE2d 501) (1995).

2. The defendant’s second enumeration of error is that the trial court erred in failing to declare a mistrial after the State, in closing argument, commented that the defendant’s failure to speak to police was evidence of his intent to defraud.

Defendant testified in his own defense that he possessed and presented the checks without knowledge that they were forged. When the Circle M clerk called Threlkeld, the defendant tore up the check, left the store, and went home. When he got home, a police officer arrived looking for him, and he spoke to the officer and went inside to put his beer in the refrigerator. When he came outside, the policeman was gone. A neighbor told him that the police had been looking for him at a different residence.

In closing argument, the State said, “[w]hat else do we have? Well, he avoided Deputy Rainer who wanted to talk to him.” The defense moved for mistrial on the grounds that it was prejudicial and gave rise to an inference that he intended to avoid the officer as part of the fraud and that he had no duty to speak; the trial court denied the motion. The trial court gave a curative instruction as follows: “[m] embers of the jury, the last statement that was made by the prosecution should be disregarded by you. The law is that no person has a duty or obligation to respond to a police officer unless specifically requested to stop or are [sic] under arrest.” The defendant renewed his motion for mistrial.

“The trial court’s ruling will not be disturbed on appeal absent an abuse of discretion, which does not exist if the curative instructions given can serve to prevent the alleged harmful [argument] from having any prejudicial impact.” Crawford v. State, 256 Ga. 585, 587 (2) (351 SE2d 199) (1987). “The granting of a motion for mistrial is within the discretion of the trial court, and the trial court’s ruling will not be disturbed on appeal unless a mistrial is required to preserve [defendant’s] right to a fair trial. [Cit.] Absent evidence to the contrary, we find the remedial measures taken by the trial court were sufficient to ensure that [the defendant] received a fair trial, and the trial court did not abuse its discretion in denying [defendant’s] motion.” Jones v. State, 267 Ga. 592, 594-595 (1) (b) (481 SE2d 821) (1997). “The curative instruction was adequate to avoid harm to [defendant] and to avoid any prejudice to [defendant].” Watts v. State, 223 Ga. App. 412, 417 (3) (477 SE2d 852) (1996).

Decided February 12, 1999.

Summer & Summer, Elizabeth B. Reisman, for appellant.

Lydia J. Sartain, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       The prosecutor also stated that “I did not feel comfortable with someone who had a nose ring sitting on the jury. There are people of all different skin colors that wear nose rings. I’ve seen lots of white people wearing nose rings. I don’t feel comfortable with that.”

       This Court previously has held that such reason was race-neutral. See Richard v. State, 223 Ga. App. 98, 99 (476 SE2d 849) (1996); Aldridge v. State, 222 Ga. App. 437 (475 SE2d 195) (1996); Jackson v. State, 220 Ga. App. 98 (469 SE2d 264) (1996).

       Thus, the exclusion of minorities over whites for the same reason was three to two, with one white accepted despite the same reason. Had this white juror also been excluded, rather than the juror with the brother-in-law with a forgery conviction, then an equal number of whites and minorities would have been excluded, so there would have been no apparent disparate treatment. Even if there had been only three minorities in the panel and all were stricken with an equal number of whites for the same race-neutral reason, then there would be no basis for an allegation of pre-textual use of strikes for racial discrimination where all were struck serially.


text:
    A99A0287.
    TALMADGE v. THE STATE.
    (512 SE2d 329)
   Eldridge, Judge.

Defendant Maurice Talmadge appeals from his 1996 conviction for obstructing a law enforcement officer. We affirm.

“On appeal],] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In evaluating the sufficiency of the evidence, “the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Id. at 319.

Viewed in such light, the facts are as follows: At approximately 3:10 p.m. on November 26, 1995, an officer from the Monroe County Sheriff’s Department stopped the defendant during a routine road check on Old High Falls Road in Monroe County. The defendant told the officer that he did not have a driver’s license. The officer placed the defendant under arrest and attempted to put handcuffs on him while the defendant was still in the car; the officer testified that he placed himself between the car door and the defendant because the defendant “had always tried to flee” from officers when stopped in the past. The defendant pulled away from the officer and attempted to crawl across the passenger side, apparently in an effort to escape through the window. At this time, the defendant also seemed to be reaching for the vehicle’s glove compartment, from which a loaded .38 caliber handgun was recovered during a subsequent inventory search. The officer, who had received assistance by this time, attempted to pull the defendant back into the car. Other officers surrounded the car. At this time, the defendant was “actively fighting” with the arresting officer. A scuffle ensued, during which the defendant kicked the officers and attempted to grab the weapons of the officers. The officers subdued the defendant after spraying him with mace and charged him with felony obstruction of a law enforcement officer, OCGA § 16-10-24 (b).

Following an October 1996 jury trial, the jury found the defendant guilty of felony obstruction. He was sentenced to five years imprisonment. On November 14,1996, trial counsel filed a motion for new trial, asserting only the general grounds. The defendant timely appeals from the denial of such motion. Held:

1. In his first two enumerations of error, the defendant asserts that similar transaction evidence should have been excluded from trial for various reasons. We disagree.

On October 10, 1996, the State gave the defendant notice of its intention to present evidence of similar transactions. These transactions included (1) a guilty plea for a June 5,1993 charge of, inter alia, obstruction of a law enforcement officer; (2) a guilty plea for a July 3, 1993 escape charge; and (3) a pending warrant for a June 27, 1996 charge for obstruction of a law enforcement officer. The State asserted during the pre-trial Uniform Superior Court Rule 31.3 (B) hearing that the purpose of introducing the evidence was to demonstrate the defendant’s bent of mind or course of conduct, i.e., “that when he comes upon a license check he is going to attempt to run.”

(a) During the pre-trial USCR 31.3 (B) hearing, and again at trial, trial counsel specifically stated that he did not object to the introduction of either the June 5, 1993 or June 27, 1996 obstruction charges. Accordingly, any objections as to the admission of the June 1993 and June 1996 similar transactions are waived. Smith v. State, 268 Ga. 42, 43 (3) (485 SE2d 189) (1997); Watson v. State, 230 Ga. App. 79, 82 (5) (495 SE2d 305) (1998); Hunter v. State, 202 Ga. App. 195 (413 SE2d 526) (1991).

(b) However, during the pre-trial hearing, trial counsel objected to the introduction of the July 3,1993 escape incident, asserting that it had been erroneously characterized as an obstruction charge in the State’s October 10,1996 notice of intent to introduce similar transactions and that it was “not similar” to the obstruction incident for which the defendant was being tried. Trial counsel admitted that the erroneous characterization was an “apparent mistake” or a typographical error. In response, the trial court noted that a copy of the indictment for the July 1993 charge had been attached to the similar transaction notice; a copy of the defendant’s plea agreement also was attached. Accordingly, we find that the trial court properly determined that the defendant had been given the required notice of the State’s intention to introduce the similar transactions. See USCR 31.1; 31.3 (B).

(c) Further, during the pre-trial hearing, the State presented facts regarding the July 3, 1993 incident that the evidence would prove at trial. According to the State, the evidence would show that, after being stopped by a routine license check roadblock, the defendant told an officer that his license had been suspended. As the officer attempted to arrest and handcuff the defendant, the defendant ran away.

The trial court found that the facts of the incident were sufficiently similar to the present obstruction charge to allow its admission for the purpose of demonstrating the defendant’s bent of mind or course of conduct. This Court agrees. “Having reviewed the record, we find the State satisfied the requisites of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).” Watson v. State, supra at 82 (5).

(d) However, the defendant also asserts that the trial court erred in failing to make an express finding that the probative value of the similar transaction evidence outweighed its prejudicial value. “Notwithstanding [the defendant’s] contention to the contrary, the trial court was not required to conduct an on the record balancing test. Fetterolf v. State, 223 Ga. App. 744, 746 (3) (478 SE2d 889) (1996).” Watson v. State, supra at 82 (5); see also Newman v. State, 233 Ga. App. 794, 795 (2) (504 SE2d 476) (1998). The fact that the trial court decided to admit the evidence indicates that it so found. See Swift v. State, 229 Ga. App. 772 (495 SE2d 109) (1997). Further, the defendant did not object to the “similar transaction testimony on these grounds, either at the similar transaction hearing or when the testimony was offered at trial. Accordingly, he cannot raise this issue on appeal. [Cits.]” Newman v. State, supra at 795 (2).

(e) The defendant also asserts that he was denied the “right” to present evidence during the pre-trial hearing to show that the July 1993 incident “happened somewhat differently” than as presented by the State. However, the defendant admits that he was, in fact, the perpetrator of the July 1993 escape and that he had pled guilty to such crime, for which he served a year in prison. The defendant has not proffered, to either the trial court or this Court, how his version of events differed in any way from the State’s version.

Under the circumstances, the trial court correctly found that the defendant had the right to cross-examine the witnesses at trial regarding the specific facts of this incident and to present his version of the facts during the defense’s case, if he should choose to do so. This is because such evidence goes to the weight, not the admissibility, of the similar transaction evidence. See Farley v. State, 265 Ga. 622 (458 SE2d 643) (1995); Williams v. State, supra; Burris v. State, 204 Ga. App. 806 (420 SE2d 582) (1992); Sams v. State, 201 Ga. App. 109 (410 SE2d 330) (1991); Cooper v. State, 173 Ga. App. 254 (325 SE2d 877) (1985).

As to the sufficiency of the pre-trial similar transactions hearing, we note that during such hearing, the trial court “may receive evidence on any issue of fact necessary to determine [the issue of admissibility]. The burden of proving that the evidence of similar transactions or occurrences should be admitted shall be upon the prosecution.” (Emphasis supplied.) USCR 31.3 (B). “A hearing in which the State relies upon the statements of the prosecuting attorney to make the required showing for the admissibility of similar transaction evidence is sufficient to satisfy the requirements of USCR 31.3 (B). Some cases differentiate a hearing in which the prosecutor simply states the evidence in her place from an evidentiary hearing. USCR 31.3 clearly grants the trial court the discretion as to the reception of evidence. There is no per se right to an evidentiary hearing, only to a hearing, nor any mandatory obligation to produce testimonial evidence. The statement in place as to what was expected to be shown revealed facts so as to constitute sufficient similarity between the prior acts and the offenses on trial to permit the admission of such evidence.” (Citations and punctuation omitted; emphasis supplied.) McClarity v. State, 234 Ga. App. 348, 354-355 (4) (506 SE2d 392) (1998). Accordingly, we find no error in the admission of the State’s evidence of similar transactions by the defendant.

Decided February 12, 1999.

Wanda G. Johnson, for appellant.

Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Assistant District Attorney, for appellee.

2. The defendant also claims that the trial court erred in allowing the admission of allegedly improper character testimony. However, we need not address the merits of whether the evidence was admissible. The testimony about which the defendant now objects was elicited on cross-examination by trial counsel. Accordingly, “[a] party cannot complain of error resulting from its own conduct or tactics. [Cits.]” Sommers v. State Compensation Ins. Fund, 229 Ga. App. 352, 355 (4) (a) (494 SE2d 82) (1997); Harmon v. State, 224 Ga. App. 890, 892 (1) (482 SE2d 730) (1997).

3. The defendant’s remaining enumeration was not supported by citations to authority or argument and is deemed abandoned. See Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

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

       Under OCGA § 16-10-24 (b), “Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer or legally authorized person is guilty of a felony and shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.”

       During the October 8, 1997 motion hearing, the trial court expressly denied the motion; it issued a written order the same day. However, the written order denying the motion was not sent to the defendant, and on June 25, 1998, he filed a motion to set aside the order pursuant to OCGA § 9-11-60 (g). The trial court set aside the order denying the defendant’s motion for new trial and reissued such order on August 25,1998.

       The defendant did not object to the introduction at trial of the July 1993 incident, so that any objections to such evidence could be found to have been waived. See Division 1 (a), supra; see also McClarity v. State, 234 Ga. App. 348 (506 SE2d 392) (1998); Jackson v. State, 223 Ga. App. 207, 208 (1) (477 SE2d 347) (1996); Sapeu v. State, 222 Ga. App. 509, 510 (4) (474 SE2d 703) (1996). Further, such objection was not raised in the defendant’s motion for new trial and was, therefore, waived. However, because the defendant herein raises issues regarding the procedural sufficiency of the USCR 31.3 (B) hearing, we will address the defendant’s pre-trial objections on the merits. See White v. State, 213 Ga. App. 429, 430 (445 SE2d 309) (1994); Riddle v. State, 208 Ga. App. 8, 9-11 (430 SE2d 153) (1993).

       At trial, the defendant admitted that he had run away from police officers on July 3, 1993, and that he had hidden in his sister’s home until he was arrested the next day.

       Notably, when the evidence was presented at trial, trial counsel did not object further; trial counsel cross-examined the witnesses regarding the July 1993 incident; and the defendant testified regarding his version of the events, which did not differ in any significant way from the State’s version.


text:
    A99A0193.
    GUEST v. THE STATE.
    (511 SE2d 880)
   Eldridge, Judge.

Appellant Clarence Lewis Guest filed this appeal challenging his May 11, 1998 guilty plea for possession of a firearm by a convicted felon. He was sentenced on June 23, 1998, to five years imprisonment, two to serve. On July 22, 1998, he filed a pro se appeal to the Supreme Court of Georgia, which was transferred to this Court on September 11, 1998. We affirm.

Decided February 3, 1999

Reconsideration denied February 15, 1999.

Clarence L. Guest, pro se.

Daniel J. Porter, District Attorney, for appellee.

“A direct appeal from a judgment of conviction and sentence entered on a guilty plea is only available if the issue on appeal can be resolved by reference to facts on the record. . . .In this case, [Guest] has not shown that the issues he seeks to raise on appeal can be resolved by reference to facts in the record.” Echols v. State, 231 Ga. App. 501 (498 SE2d 66) (1998). Accordingly, we affirm.

Judgment affirmed.

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

       Guest also filed a pro se motion to withdraw his guilty plea on July 22,1998. However, since a direct appeal had been filed by Guest, the trial court lacked jurisdiction over the matter and properly denied such motion on July 24,1998.


author: Johnson, Chief Judge.

text:
    A98A1681.
    CLEVELAND v. BRYANT et al.
    (512 SE2d 360)
   Johnson, Chief Judge.

Gloria Cleveland sued Darrel Bryant and Woodbuilding Components, Inc. (collectively “Bryant”), for injuries she sustained in a car accident. The jury returned a verdict in favor of the defendants. Cleveland appeals from the judgment entered on the verdict and the denial of her motion for new trial.

The evidence conflicts as to the cause of the accident. Cleveland testified that she was traveling on 20th Street and approached the intersection of 20th and Highway 280. Highway 280 is a four-lane highway divided by a grassy median. Cleveland stopped at a stop sign at the intersection, crossed the two southbound lanes of Highway 280, and stopped in a paved section of the median. She saw Bryant’s tractor-trailer approaching in the right-hand lane and decided there was enough distance between them that she could turn. She turned left into the inside (left) lane of the highway and proceeded 100 to 150 feet north before Bryant’s tractor-trailer struck her car. Cleveland claimed the truck came into her lane and hit her car.

Bryant testified that he was traveling northbound on Highway 280 in the lane nearest the median and that as he passed the intersection at 20th Street, he glanced in his side mirror and saw the front of Cleveland’s car going underneath his trailer. He also introduced expert testimony that the evidence from the accident was consistent with a 40-45 degree angle impact and “absolutely totally inconsistent with a sideswiping action.” An eyewitness told an investigator just moments after the collision that he saw Cleveland pull out of the median directly into the side of the truck.

1. Because there are conflicts in the evidence as to the cause of the collision, and the evidence does not demand a verdict in Cleveland’s favor, the trial court did not err in denying her motion for directed verdict on the issue of liability. See Flournoy v. Brown, 226 Ga. App. 857, 861 (4) (487 SE2d 683) (1997).

2. Cleveland enumerates as error the trial court’s admitting into evidence an animated videotape illustrating an expert witness’ opinion as to how the accident occurred. She argues the re-enactment shown on the videotape was not supported by the evidence in the case. We find no grounds for reversal.

At trial, an expert in accident reconstruction testified that he visited the accident scene, made measurements, inspected the tractor-trailer, reviewed photographs of the damaged truck and car, witnessed the truck traveling on the roadway in an experiment and examined a car of the same make as Cleveland’s. He then gave his opinion as to how the collision occurred. The expert concluded that the accident occurred in the lane nearest the median and that Cleveland’s car went beneath the trailer at a 40-45 degree angle. After giving this testimony, the expert testified that he prepared a computer-generated animation illustrating his opinion as to how the accident occurred. He stated that the animation reflected a fair and accurate representation of his opinion as to how the collision occurred.

Cleveland complains that the videotape was not accurate because it showed her car leaving the intersection at an angle, her car going backwards rather than counterclockwise, the truck traveling down the lane before the collision, and damage to certain parts of her car; none of this, she claims, was supported by the evidence.

Re-enactments of events which are substantially different from the facts of the case and which, because of the differences, might be prejudicial and misleading, should not be used at trial. Pickren v. State, 269 Ga. 453, 455 (2) (500 SE2d 566) (1998). However, a computer-generated animation is admissible if it is a fair and accurate representation of the scene sought to be depicted. Such a matter addresses itself to the discretion of the trial court, which will not be controlled absent abuse. See Cornell v. State, 265 Ga. 904, 905 (2) (463 SE2d 702) (1995). Based on our review of the record, including photographs, trial testimony and the videotape, the animation was sufficiently similar to the evidence introduced at trial. It also appears to be an accurate representation of the expert’s opinion as to how the collision occurred. We find no abuse of discretion. See generally Stephens v. State, 214 Ga. App. 183, 185 (4) (447 SE2d 26) (1994).

3. Cleveland claims the police officer should not have been permitted to testify that Cleveland told him at the scene that she did not see the truck before the collision occurred. We disagree. Cleveland’s statement to police, made just minutes after the accident, was admissible as a prior inconsistent statement, inasmuch as Cleveland testified at trial that she saw the truck before she turned. See generally Knight v. State, 266 Ga. 47, 48 (2) (464 SE2d 201) (1995). It was also admissible as a statement against interest. See OCGA § 24-3-31. The trial court’s decision to allow the testimony was not clearly erroneous. See Gilbert Corp. &c. v. Yetman, 219 Ga. App. 320, 322 (2) (464 SE2d 822) (1995).

4. Cleveland asserts it was error to permit the police officer to testify that an eyewitness told him at the scene that Bryant was driving in the left lane and that Cleveland drove into the side of the truck after “not really stop [ping]” in the median. The statement was made within minutes of the collision by a witness whom police identified and presumably could have been called as a witness. Besides being arguably admissible as part of the res gestae exception to the hearsay rule, see OCGA § 24-3-3; see generally Kirkland v. State, 206 Ga. App. 27, 30 (9) (424 SE2d 638) (1992), the statement was merely cumulative of other evidence properly before the jury. This enumeration presents no grounds for reversal.

5. Cleveland claims the trial court erred in admitting a photograph of a skid mark purportedly made by Bryant’s truck when there was no evidence that the tractor-trailer made the skid mark. Contrary to Cleveland’s contention, there was such evidence. The officer testified that in his opinion Bryant’s truck made the skid mark. The officer then gave his basis for the opinion: the freshness of the skid mark, the presence of glass on the mark and the location of the mark. The accident reconstruction expert also testified, without objection, that the skid mark shown in the photograph was caused, in his opinion, by the tractor-trailer. This Court will reverse a trial court’s ruling on the admissibility of a photograph only upon a showing of abuse of discretion. Kroger Co. v. Green, 190 Ga. App. 318, 319 (2) (378 SE2d 905) (1989). We find no abuse of discretion. See Shilliday v. Dunaway, 220 Ga. App. 406, 409 (3) (469 SE2d 485) (1996).

6. Cleveland argues the trial court erred in charging the jury about stop signs when there was no stop sign at the point she left the median and entered the northbound lane. The court charged the jury that “[a]fter stopping, the driver shall yield right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways.” It is undisputed that Cleveland approached and stopped at a stop sign before she entered the intersection and proceeded halfway across the highway. There was no error in giving the charge. See Hensel v. Davis, 170 Ga. App. 153, 155-156 (2) (316 SE2d 479) (1984); Flournoy, supra at 859-860 (1).

Decided February 15, 1999

L. B. Kent, for appellant.

Self, Mullins, Robinson, Marchetti & Kamenski, Richard A. Marchetti, for appellees.

7. Cleveland asserts the trial court erred in charging the jury on the duty to yield right-of-way because there was no evidence supporting such a charge. The trial court charged the jury that “when two vehicles approach or enter an intersection from different highways at approximately the same moment or time, the driver of the vehicle on the left shall yield right-of-way to the vehicle on the right.” See generally OCGA § 40-6-70. Contrary to Cleveland’s contention, as discussed above, there was evidence indicating that both vehicles approached the intersection at approximately the same time. The trial court did not err in giving such a charge. See generally Sconyers v. Williams, 198 Ga. App. 673, 674 (1) (402 SE2d 775) (1991).

Judgment affirmed.

Smith and Barnes, JJ., concur.


text:
    A98A2350, A98A2351.
    MUNOZ v. AMERICAN LAWYER MEDIA, L.P. (two cases).
    (512 SE2d 347)
   Johnson, Chief Judge.

In Case No. A98A2350, Danielle Munoz appeals from the order granting summary judgment to American Lawyer Media, L.P., d/b/a Fulton County Daily Report (“the Daily Report”), from the order striking certain evidentiary affidavits regarding the issue of attorney fees, and from the order awarding $10,304.38 in attorney fees to the Daily Report. In Case No. A98A2351, Munoz appeals from the same order granting the Daily Report’s motion for attorney fees and costs.

The issues involved in these two cases could have been raised in a single appeal. See generally OCGA § 5-6-34 (d). For reasons of judicial economy, we will address both appeals in a single opinion.

Munoz had body-piercing performed at a business called Piercing Experience. She gave Piercing Experience permission to photograph her, and to show this photograph depicting the results of the piercing procedure to prospective customers. The agreement prohibited Piercing Experience from disclosing Munoz’s identity.

Piercing Experience subsequently sent a proposed advertisement to the University Reporter newspaper. The advertisement included a copy of the Munoz photograph. The photograph showed her bare left breast, the piercing procedure, and her left arm; it did not show her face. Piercing Experience asked whether University Reporter would print the advertisement if Munoz’s permission to use the photograph could be obtained. The University Reporter subsequently published the advertisement without obtaining permission from either Piercing Experience or Munoz.

Munoz sued Piercing Experience and University Reporter. Piercing Experience filed a cross-claim against University Reporter for publishing the advertisement without its permission. The jury rendered a verdict in favor of Munoz against University Reporter and in favor of Piercing Experience on its cross-claim against University Reporter.

The Daily Report subsequently published an article about the trial. The article contained a copy of the Munoz photograph and identified her by name. The Daily Report obtained the facts and photograph used in the article from the Munoz trial record. After the Daily Report published the photograph, Munoz sought to have the court record sealed. The trial court refused to seal the record, but did require court approval before the public could thereafter inspect the trial exhibits.

Munoz brought an action against the Daily Report for invasion of privacy and intentional infliction of emotional distress. The trial court granted the Daily Report’s motion for summary judgment as well as its motion for attorney fees and costs. It also ordered that the affidavits of several members of the Georgia Bar, who had rendered opinions as to the novelty and reasonableness of the issues raised in Munoz’s tort action before it was filed, be struck from the record. Munoz appeals. We affirm the grant of summary judgment to the Daily Report, but vacate the award of attorney fees and remand these cases as to that issue for an evidentiary hearing.

1. Munoz contends the trial court erred in granting the Daily Report’s motion for summary judgment as to her claims for invasion of privacy and intentional infliction of emotional distress. We disagree.

(a) Invasion of privacy. It is uncontroverted that the Daily Report accurately and fairly reported the facts and published a photograph which it had lawfully obtained from an unsealed court record open to the public. That being the situation, this case is controlled by the holding of the United States Supreme Court in Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (95 SC 1029, 43 LE2d 328) (1975).

With respect to judicial proceedings, in Cox the Supreme Court expressly recognized that the function of the news media serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. Id. at 492. After holding that privacy interests fade when the information involved already appears on the public record, the Supreme Court concluded: “At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records. . . . Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it.” Id. at 496.

Munoz argues that Cox is factually distinguishable because the reported case at issue in this suit involved a civil action and because a photograph of Munoz’s bare breast was published. This argument raises distinctions without any difference. The function of a free press is just as important in civil cases as in criminal cases. Photographic or other exhibits, and a trial record’s printed text, are equally open to public inspection. After balancing the individual’s right of privacy against freedom of the press, the United States Supreme Court has determined that the press may not be held liable for accurately reporting the contents of a trial record which had not been ordered sealed. See id. at 496. The Supreme Court’s reasoning in Cox is not only sound, it is based upon long settled First Amendment jurisprudence, which this Court is neither inclined nor authorized to ignore.

Citing Lawton v. Ga. Television Co., 216 Ga. App. 768, 773 (2) (456 SE2d 274) (1995), the trial court also found that the Daily Report was separately entitled to summary judgment under OCGA § 51-5-7 (6). That Code section provides a conditional privilege to those communications which, as in this case, are fair and honest reports of court proceedings. The existence of a conditional privilege under OCGA § 51-5-7 is a defense which precludes a claim for invasion of privacy. See Lawton v. Ga. Television Co., supra at 773 (2).

Though a showing of actual malice will defeat a claim of conditional privilege, the Daily Report presented uncontroverted evidence that its editor and publisher believed the article to be newsworthy and of interest to the public, and that neither he nor the staff reporter harbored hatred or ill will toward Munoz. See OCGA § 51-5-9; see also Savannah News-Press v. Hartridge, 110 Ga. App. 203, 209 (2) (138 SE2d 173) (1964). By presenting this evidence, the Daily Report established the lack of any malice on its part, and the burden shifted to Munoz to point to specific evidence of actual malice in the record. She failed to do this. Thus, the trial court did not err by granting summary judgment to the Daily Report as to Munoz’s invasion of privacy claim based on the additional defense of conditional privilege. See Purvis v. Ballantine, 226 Ga. App. 246, 250-251 (3) (487 SE2d 14) (1997); Kenney v. Gilmore, 195 Ga. App. 407, 409 (2) (393 SE2d 472) (1990); Heard v. Neighbor Newspapers, 190 Ga. App. 756, 758 (2) (380 SE2d 279), rev’d on other grounds, 259 Ga. 458 (383 SE2d 553) (1989); Meyer v. Ledford, 170 Ga. App. 245, 247 (1) (316 SE2d 804) (1984).

(b) Intentional infliction of emotional distress: As a matter of law, the tort of intentional infliction of emotional distress will not provide a remedy to a plaintiff when the news media truthfully reports an actual newsworthy event, even if the event was so insulting as naturally to humiliate, embarrass or frighten the plaintiff. See Tucker v. News Publishing Co., 197 Ga. App. 85, 87 (2) (397 SE2d 499) (1990). Rather, a defamation action is the legal remedy where one-is allegedly injured by words published to a third person. Id.

While the Daily Report article was about the case involving Munoz, it was directed to the newspaper’s public readership. See id. It is firmly established that even malicious, wilful or wanton conduct will not support a claim of intentional infliction of emotional distress if the conduct was not directed toward the plaintiff. Ryckeley v. Callaway, 261 Ga. 828, 829 (412 SE2d 826) (1992). If Munoz was allowed to prevail on this claim, it would be indirectly imposing liability upon the Daily Report for its accurate and fair publication of information and exhibits which it obtained from an open court record. One cannot do indirectly what the law does not allow to be done directly. See Kingsmill &c. Assn. v. Homebanc &c. Bank, 204 Ga. App. 900, 902 (2) (a) (420 SE2d 771) (1992). The trial court did not err in granting summary judgment as to the claim of intentional infliction of emotional distress.

2. Munoz contends that the trial court erred by striking certain affidavits of attorneys addressing questions raised in the Daily Report’s motion for attorney fees. The standard of review on this issue is abuse of discretion, and we find that Munoz has failed to show that the trial court abused its discretion in striking these affidavits.

After the Daily Report filed a motion for attorney fees under OCGA § 9-15-14 (a) and (b), Munoz submitted five affidavits of attorneys on the issue of her good faith and to establish that she had engaged in legal research and considered the novelty of the case before filing suit. The trial court held that the affidavits, which did not contain any citation to legal authority, merely expressed the opinions and legal conclusions of the attorneys that Munoz’s complaint was not frivolous and that an award of attorney fees and costs was unwarranted. The trial court held that the affidavits were immaterial.

OCGA § 9-15-14 (a) provides that attorney fees and expenses of litigation shall be awarded when a claim is brought with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim. OCGA § 9-15-14 (b) provides that a trial court may assess attorney fees and expenses of litigation if it finds an action was brought that, either in whole or part, lacked substantial justification. The phrase, “lacked substantial justification” means substantially frivolous, substantially groundless or substantially vexatious.

As a general rule, the admission of evidence is a matter which rests largely within the sound discretion of the trial court, and an appellate court will not interfere with the trial court’s rulings absent an abuse of discretion. See generally West v. Nodvin, 196 Ga. App. 825, 827 (2) (b) (397 SE2d 567) (1990). Whether the affidavits contained mere legal opinions and conclusions of the attorneys regarding these statutory elements, and whether they contained evidence that was material and relevant to the motion for attorney fees, were matters within the sound discretion of the trial court. Having reviewed the affidavits, which are part of the record, we believe the trial court correctly concluded them to be inadmissible for the reasons stated.

The trial court is presumed to know the law. Rowe v. Rowe, 195 Ga. App. 493, 494 (2) (393 SE2d 750) (1990). It did not need opinion testimony to assist it in resolving the legal issues raised by the Daily Report’s motion for attorney fees, and it did not otherwise abuse its discretion in excluding the affidavits of the attorneys. See also Hunnicutt v. Ga. Power Co., 168 Ga. App. 525, 527 (2) (309 SE2d 862) (1983); Hinson v. Dept. of Transp., 135 Ga. App. 258, 260 (2) (217 SE2d 606) (1975); OCGA § 9-11-12 (f).

3. In both Case Nos. A98A2350 and A98A2351, Munoz contends the trial court erred in granting the Daily Report’s motion for attorney fees under OCGA § 9-15-14 (a) and (b), because no hearing was held on the issue and there was insufficient evidence to support the award.

(a) Right to a hearing on an award of attorney fees: In Cohen v. Feldman, 219 Ga. App. 90, 92 (2) (464 SE2d 237) (1995), this Court concluded that a party opposing a claim for attorney fees under OCGA § 9-15-14 (b) has a basic right to confront and challenge testimony as to the value and need for legal services. The record in Cohen failed to show that Cohen had been afforded such an opportunity, so the judgment for attorney fees was reversed and the case was remanded for an evidentiary hearing. Id.; see Mitcham v. Blalock, 214 Ga. App. 29, 33 (2) (447 SE2d 83) (1994). See also Hallman v. Emory Univ., 225 Ga. App. 247, 252 (4) (483 SE2d 362) (1997) (physical precedent only).

Decided February 15, 1999

S. Robert Hahn, Jr., George L. Kimel, for appellant.

Long, Aldridge & Norman, Bruce P. Brown, Steven P. Smith, for appellee.

While we can envision situations in which a party may waive the right to an evidentiary hearing on a motion for attorney fees, either expressly or by conduct, there is nothing in the record before us in this case to suggest that Munoz did so. In her response to the Daily Report’s motion for attorney fees, Munoz specifically objected to the assertions of the Daily Report’s lead counsel that he should be paid for 42.8 hours of work and that the time spent and hourly rates were both reasonable and necessary. This timely objection was sufficient to preclude a waiver by conduct of Munoz’s right to an evidentiary hearing. See Riddle v. State, 208 Ga. App. 8, 11 (1) (b) (430 SE2d 153) (1993); cf. Foster v. State, 226 Ga. App. 334, 335 (2) (486 SE2d 635) (1997). Therefore it was error for the trial court to enter judgment for the Daily Report as to its attorney fees without providing Munoz an opportunity to confront and challenge the Daily Report’s evidence. See Cohen, supra; see also Hallman, supra. We take this opportunity to encourage any party who hereafter desires an evidentiary hearing to make a timely request, as generally, the filing of a request for hearing will preclude waiver by conduct.

(b) In view of our holding in Division 3 (a), the claim of insufficiency of evidence to support the award of attorney fees is not ripe for adjudication.

The order of the trial court granting summary judgment to the Daily Report, as to Munoz’s claim of invasion of privacy and intentional infliction of emotional distress is affirmed. The order of the trial court granting attorney fees to the Daily Report is vacated and the cases remanded for an evidentiary hearing on the Daily Report’s motion for attorney fees.

Judgment affirmed in part and vacated in part in Case No. A98A2350. Judgment vacated in Case No. A98A2351. Both cases are remanded with direction.

Smith and Barnes, JJ., concur.

       On appeal, Munoz appears to assert that she also filed a libel claim. The assertions in the complaint do not support her contention. Moreover, Munoz concedes in her appellate brief that her complaint was “based on theories of invasion of privacy and intentional infliction of emotional distress.”


author: Andrews, Judge.

text:
    A98A2371.
    FRANKLIN v. CONSOLIDATED GOVERNMENT OF COLUMBUS, GEORGIA et al.
    (512 SE2d 352)
   Andrews, Judge.

Donald Franklin sued the Consolidated Government of Columbus and Andrew Tyner, a Columbus police officer, for false arrest, false imprisonment, malicious prosecution, deprivation of his state constitutional rights and violations of 42 USC § 1983. These claims arise out of Franklin’s assertion that he was wrongfully arrested for armed robbery and aggravated assault. The trial court granted summary judgment to defendants and Franklin appeals. Because we conclude there was probable cause for the arrest, we affirm.

The standards applicable to motions for summary judgment generally are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). Further, when reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Boulware v. Quiktrip Corp., 226 Ga. App. 399 (486 SE2d 662) (1997); Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996).

The record shows that on December 13, 1994, around 7:00 p.m., Elizabeth Walker was hit on the back of the head and robbed while she was walking into a bank to make a night deposit for her employer. Detective Cotner of the Columbus Police Department investigated the robbery and prepared a report on the same date. This report described the robber as a white male, 5’6”-5’7” tall, 150 pounds, 25-30 years of age, gray jacket, faded blue jeans, blond hair, red baseball cap, carrying a 9mm or 45 caliber pistol and wearing a black ski mask. The victim told Cotner that she doubted she would be able to identify the robber if she saw him again. The four eyewitnesses also said they would not be able to identify the robber.

Officer Myers interviewed Peggy Muchauk who was working in a convenience store located less than 100 yards from where the robbery occurred. Muchauk explained that a white male wearing a gray sweatshirt and carrying what appeared to be a large handgun underneath his sweatshirt, entered the store in a hurry sometime after 6:00 p.m. on December 13, 1994. She said the man acted nervous and appeared to be trying to avoid the store’s video camera.

Two days later, Officer Myers responded to a report of a man acting “very strange” and “talking crazy” in a health club. By the time Myers arrived, the man, who had identified himself as Don Franklin to a health club employee, had left the club. The employee described Franklin as 5’9” or 5’10” tall, 35-40 year old, white male weighing approximately 200 pounds, blue eyes, uncombed, blond, kinky hair, wearing blue jeans, white tennis shoes, and a large gray sweatshirt.

After recognizing that this description matched Muchauk’s description of the man who entered the convenience store on the day of the robbery, Myers passed this information on to Detective Tyner. Tyner found a photograph of Franklin in the police records and placed it in a photographic line-up with four other men. All of the men in the line-up, including Franklin, had a mustache and beard and appeared to be approximately the same age; however, Franklin was the only one in the line-up with light hair.

Officer Tyner showed the photographic line-up to the victim and the witnesses. Three of the witnesses stated they could not identify the robber because he was wearing a mask over his face at the time of the robbery. According to Tyner’s report, one of the witnesses said the robber came so close to her that he brushed her arm as he ran past her. This witness identified Franklin and stated that she was certain he was the same person who robbed Walker based on the shape of his face and his profile. The victim also identified Franklin as the man who robbed her based upon the profile and shape of his face. Finally, Muchauk identified Franklin as the man who entered the convenience store on the day of the robbery with a handgun hidden under his shirt.

After these identifications were made, Officer Tyner obtained an arrest warrant and arrested Franklin on December 16, 1994, for aggravated assault and armed robbery. After an evidentiary hearing on December 17, 1994, a Recorder’s Court judge found there was “reason to suspect” Franklin committed the armed robbery and aggravated assault. On May 2,1995, a grand jury returned a true bill charging Franklin with armed robbery and aggravated assault.

During the summer of 1995, Franklin’s attorney notified the assistant district attorney in charge of the case about additional records from Western Union which might affect the case. On October 23, 1995, Western Union was ordered to produce certain documents relating to Franklin’s alibi. The assistant district attorney received this information from Western Union, but it did not establish an alibi for Franklin.

On January 5, 1996, Franklin’s attorney gave the assistant district attorney information which was the first substantial evidence supporting Franklin’s alibi. On January 9, 1996, the State entered a nolle prosequi based upon this information.

Franklin then brought this Complaint, claiming there was no probable cause to arrest him. The trial court granted summary judgment to defendants and this appeal followed.

1. Franklin contends the trial court erred in granting summary judgment to defendants on his state law claims. We note initially that Franklin has no claim for false imprisonment. This is true because “[w]hen the detention is predicated upon procedurally valid process, false imprisonment is not an available remedy, regardless of the motives upon which the process was secured, because detention effectuated pursuant to procedurally valid process, such as an arrest warrant, is not ‘unlawful.’ Where the arrest is by valid process regularly sued out, action for malicious prosecution is the only remedy.” Williams v. Smith, 179 Ga. App. 712, 714 (348 SE2d 50) (1986). See also OCGA § 51-7-20. Here, there is no evidence of invalid process.

Likewise, Franklin’s remaining state law claims fail because there is no evidence tending to show lack of probable cause or malice in connection with the arrest and imprisonment. OCGA §§ 51-7-1; 51-7-40. The Code defines lack of probable cause as follows: “Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. Lack of probable cause shall be a question for the jury, under the direction of the court.” OCGA § 51-7-3. But, what facts and circumstances amount to probable cause is a pure question of law. South Ga. Grocery Co. v. Banks, 52 Ga. App. 1 (182 SE 61) (1935). The burden of proof to show lack of probable cause is on the plaintiff and there is nothing to send to the jury if the plaintiff does not raise some evidence creating an issue of fact as to each element of the tort. Pinkston v. City of Albany, 196 Ga. App. 43, 46 (395 SE2d 587) (1990).

Here, Detective Tyner had two descriptions that matched the health club employee’s description of Franklin. Three people identified Franklin from the photo line-up as the man they saw the night of the robbery. The convenience store clerk identified Franklin as the man who came in her store around the same time as the robbery, acting strangely and with the butt of a gun sticking out from his gray sweatshirt. The victim and one of the witnesses identified Franklin as the robber based upon his profile and the shape of his face. The witness explained that, even though the robber had a light gray stocking over his head, she could still see his face and his profile. None of the witnesses at the photo line-up had indicated they identified Franklin because of his blond hair. Therefore, there was sufficient information to provide probable cause to arrest Franklin.

Moreover, even if we were to assume Tyner did not have probable cause, there is no evidence tending to show malice, which also must be proved in an action for false arrest and malicious prosecution. OCGA §§ 51-7-1; 51-7-40. The Code defines malice as consisting “in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.” OCGA § 51-7-2.

“[T]he law does not presume malice or animus against an officer merely because [,] in the discharge of his legal functions, he does an illegal act.” Pinkston, supra at 46. “[W]here there is no evidence of malice other than such inference as may be drawn from proof of the want of probable cause, and that proof shows some circumstances pointing to the guilt of the accused, although insufficient to exclude every other reasonable hypothesis, the essential ingredient of malice is not so established as to entitle the plaintiff in an action for false arrest to recover.” (Citations omitted.) Northern Telecom v. Wilkerson, 219 Ga. App. 710, 712 (466 SE2d 221) (1995).

Here, there is no evidence in the record tending to show Detective Tyner acted with malice in applying for an arrest warrant for Franklin. Therefore, for the reasons discussed above, the trial court correctly granted summary judgment on Franklin’s state court claims.

2. Franklin also claims the trial court erred in granting summary judgment on his claims under 42 USC § 1983. Under 42 USC § 1983: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .” Id. “The statute creates no substantive rights; rather it provides a remedy for federal rights found elsewhere, and supports a cause of action which may be brought in state as well as federal court.” Bell v. City of Albany, 210 Ga. App. 371, 372 (436 SE2d 87) (1993).

Under this statute, “Government officials performing discretionary functions are granted a qualified immunity shielding them from imposition of personal liability pursuant to 42 USC § 1983 insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Thus, the test is applied by considering the objective reasonableness of the official’s actions (irrespective of his subjective beliefs) in light of legal rules which were clearly established at the time the action was taken.” (Citations and punctuation omitted.) Bell, supra at 374.

Franklin’s Section 1983 claim against Tyner is based upon his contention that Tyner caused him to be arrested without probable cause in violation of his Fourth and Fourteenth Amendment rights under the Constitution of the United States. The Supreme Court has held that a police officer will be liable under Section 1983 if he applies for a warrant and “a reasonably well-trained officer . . . would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.” Malley v. Briggs, 475 U. S. 335, 345 (106 SC 1092, 89 LE2d 271) (1986). “[P]robable cause exists if facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an individual has committed a crime.” McQurter v. City of Atlanta, 572 FSupp. 1401, 1413 (N.D. Ga. 1983) (citing Draper v. United States, 358 U. S. 307, 313 (79 SC 329, 3 LE2d 327) (1959).

The evidence discussed above shows that the facts known to Tyner at the time of Franklin’s arrest were sufficient to warrant the belief that Franklin had committed the robbery. Therefore, we conclude that Franklin has not introduced sufficient evidence tending to show a constitutional violation under Section 1983 in connection with his arrest.

We also find Franklin’s continued imprisonment did not rise to the level of a constitutional violation. Franklin argues on appeal that he told officers he was returning from Florida on the night of the robbery. Also, Franklin’s father stated in his affidavit that he told police the same thing and gave them Western Union receipts. Franklin does not point out these Western Union receipts in the record nor does he argue how these records would have proved he was not in Columbus at the time of the robbery. Moreover, Franklin admits in his affidavit that his attorney did not talk to the assistant district attorney about the phone calls and Western Union receipts until the fall of 1995. In addition, the assistant district attorney in charge of the case stated in her affidavit that the decisions made after Franklin was bound over and held without bail were made by her in the exercise of her independent professional judgment and without any suggestion from Tyner or any other person. The assistant district attorney assigned to this case is not a party to the suit and no claims were brought against her.

Finally, the Supreme Court has held, “we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence.” Baker v. McCollan, 443 U. S. 137, 145-146 (99 SC 2689, 61 LE2d 433) (1979). See also Pickens, supra at 1208 (officers executing an arrest warrant for bad check charges were not required to investigate claims that the checks were stolen from the subject’s car and forged). Therefore, for the reasons discussed above, the trial court did not err in granting summary judgment to defendants on Franklin’s Section 1983 claims.

Decided February 15, 1999

David J. Grindle, for appellant.

Clifton C. Fay, for appellees.

Judgment affirmed.

Beasley, P. J., and Ruffin, J., concur.

       Although we conclude the officer had actual probable cause to arrest, we note that the appropriate standard when determining if the officer is entitled to qualified immunity under 42 USC § 1983, is not whether there was actual probable cause, but whether there was “arguable” probable cause. See, e.g., Pickens v. Hollowell, 59 F3d 1203,1206 (11th Cir. 1995).


text:
    A98A2411.
    HENNINGS v. THE STATE.
    (512 SE2d 357)
   Andrews, Judge.

Kathleen A. Hennings appeals from denial of her motion for new trial after conviction of driving under the influence of alcohol to the extent that it was less safe to drive. She contends the trial court improperly denied her motion to suppress evidence of the initial traffic stop and her statements resulting from it as well as evidence of her failure to take a breath test.

Viewed with all inferences in favor of the jury’s verdict, the evidence was that Houston County Deputy Dodson was patrolling on Houston Lake Road around 10:30 p.m. on October 31, 1996, when he received a radio call from Deputy Graham that a compact blue car which Graham had observed speeding was heading toward him. Such a car then passed him and he turned around and stopped her based on the radio transmission. As he was asking for and obtaining Hennings’ license and insurance card, Dodson smelled the odor of alcohol. When Dodson initially pulled her over, he intended to wait and allow Graham to charge her when he arrived on the scene but, upon smelling the alcohol, he proceeded to investigate. Dodson also noticed that Hennings had glassy eyes and slurred speech and, when she got out of her car, she stumbled into the roadway and had to lean on the car. At that point, Hennings advised that “she had [had] a few mixed drinks.”

Hennings was read her implied consent rights at the scene, but was not read her Miranda rights. She refused to do field tests or a breath test. She was then taken to the station where her implied consent rights were again read by Deputy Tinney, the Intoximeter 5000 operator. While Tinney was discussing the Intoximeter test with her, Hennings appeared to be under the influence because she kept repeating the questions asked and could not remember how to do the test. Initially, she agreed to do the test and started blowing into the machine, but then stopped, leaving the machine with an insufficient sample for testing. Hennings then refused to give a second sample and stated she wanted an attorney.

Because Deputy Graham had died before the trial, no evidence was introduced concerning the speeding he observed and the method by which he checked it. A directed verdict was entered on the speeding charge and the jury was instructed that it could not consider evidence of speeding on the DUI charge.

1. Hennings’ first enumeration is that the court erred in denying her motions in limine and to suppress seeking to exclude Dodson’s observations of her and her statements to him because the stop was unlawful, based on failure to show compliance with OCGA § 40-14-5 et seq., the provisions governing radar use.

The two cases relied upon by Hennings, however, do not support the premise that failure to properly prove the foundation for admission of radar evidence should result in a motion to suppress, even assuming that radar was used by Deputy Graham, which is not shown by the record before us. State v. Vickery, 184 Ga. App. 468 (361 SE2d 678) (1987) dealt with interpretation of “used” in OCGA § 40-14-6 and is not in issue here. Additionally, this Court stated there that we were unwilling to say that failure to properly erect radar warning signs required exclusion of evidence gathered by use of radar in their absence. State v. Cobb, 208 Ga. App. 752 (432 SE2d 112) (1993) merely found that the record before this Court was insufficient for our determination of whether the trial court erred in granting a motion to suppress.

Here, as in Coop v. State, 186 Ga. App. 578, 579 (1) (c) (367 SE2d 836) (1988), the only issue was the legitimacy of the initial stop, not whether the radar evidence was admissible without adequate foundation on the substantive charge of speeding.

Also, an officer may make an investigative stop based upon radio information received from another officer who has observed either facts raising a reasonable suspicion of criminal activity or a traffic violation. Burgeson v. State, 267 Ga. 102, 105 (3) (475 SE2d 580) (1996) ; McDaniel v. State, 227 Ga. App. 364, 366 (2) (489 SE2d 112) (1997) ; Mallarino v. State, 190 Ga. App. 398, 401 (2) (379 SE2d 210) (1989).

There was no error.

2. The second and third enumerations both deal with the issue of whether Hennings was “in custody” for purposes of Miranda after her license and insurance card were taken by the officer and are considered together.

In reviewing a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. The trial court’s findings will not be disturbed if there is any evidence to support them. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

Decided February 15, 1999.

Williams, Sammons & Sammons, George L. Williams, Jr., for appellant.

Cynthia T. Adams, Solicitor, for appellee.

“ ‘In determining whether a suspect was in custody for Miranda purposes, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Stansbury v. California, 511 U. S. 318 (II) (114 SC 1526, 128 LE2d 293) (1994).’ (Citation and punctuation omitted.) [State v.] Wintker, [223 Ga. App. 65, 66 (476 SE2d 835) (1996)].

“ ‘A reasonable person test. . . applies to determine whether an individual not formally arrested is nevertheless in custody for Miranda purposes. This occurs if, but only if, a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest. A reasonable person has been defined as one neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.’ (Punctuation and footnote omitted.) Id. at 67.” Turner v. State, 233 Ga. App. 413, 415 (1) (504 SE2d 229) (1998).

As acknowledged by Hennings, there is no authority for the proposition that merely taking a driver’s license and proof of insurance would, alone, cause a reasonable person to believe that he was not free to leave. In fact, the authority is to the contrary. E.g., State v. Kirbabas, 232 Ga. App. 474, 475 (502 SE2d 314) (1998); Morrissette v. State, 229 Ga. App. 420, 421 (1) (a) (494 SE2d 8) (1997); State v. Pastorini, 222 Ga. App. 316 (474 SE2d 122) (1996).

State v. O’Donnell, 225 Ga. App. 502 (484 SE2d 313) (1997), relied upon by Hennings, is distinguishable because there it was undisputed that defendant was under arrest when questioned. See also Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998).

There was no error in the trial court’s conclusion that, at the time she acknowledged having had several drinks and initially refused a breath test, Hennings was not under arrest for Miranda purposes.

Judgment affirmed.

Pope, P. J, and Ruffin, J., concur.


author: Beasley, Judge.

text:
    A98A1878.
    DESTAG OF NORTH AMERICA, INC. v. LAN INTERNATIONAL, INC.
    (512 SE2d 365)
   Beasley, Judge.

Destag of North America, Inc., the sole majority shareholder of Rowan Granite Quarry, Inc., brought this action in equity against Rowan’s sole minority shareholder, LAN International, Inc., seeking specific performance of stock purchase rights under a shareholders’ agreement.

Subparagraph 2 (a) of the agreement requires any shareholder desiring to sell any of his shares to first obtain “a bona fide written offer” to purchase all of the shares for a fixed cash price and, within seven days after receipt of the offer, to transmit to the company and other shareholders copies of the offer setting forth the date of the offer, the proposed price per share, and other terms and conditions upon which the purchase is proposed to be made, including the name and address of the prospective purchaser. Under subparagraphs 2 (b) and (c), transmittal of the offer constitutes an offer by the selling shareholder to sell his shares “at the price and upon the terms set forth in subparagraph 5 (a)” to either the company or the remaining shareholders if the company declines to exercise its right of first refusal. The company, and thereafter the remaining shareholders, are each given 30-day periods to purchase the selling shareholder’s shares. Subparagraph 5 (a) provides that, at the option of the company or the purchasing shareholders, the purchase price per share and terms of payment for the selling shareholder’s stock shall be either (i) the purchase price per share contained in the transmitted offer; or (ii) the “agreed value” per share, as defined in the shareholders’ agreement; or (iii) the book value per share, as also defined in the agreement.

LAN sent Rowan and Destag a letter dated March 31, 1995, informing them that it had received a “tentative” $962,500 offer for its shares, representing ownership of 19.5 percent of the stock in the company. In the letter, LAN requested Rowan and Destag to inform it whether either of them would be exercising their respective rights of first refusal. LAN, being without a copy of the shareholders’ agreement, also requested information concerning other limitations or restrictions upon its transfer of shares.

Rowan responded with a letter dated April 6 stating that it was considering whether or not to exercise its right of first refusal, but was concerned that the offer was only tentative and could not respond further until LAN confirmed that this was in fact a bona fide offer.

By letter dated April 7, LAN sought to explain that the offer was bona fide but had been described as tentative as a result of restrictions in the shareholders’ agreement and because the offer was subject to a satisfactory inspection by the offeror of Rowan’s quarries.

Destag then sent LAN a letter dated April 12 acknowledging that LAN had received a bona fide third-party offer, stating that it desired to exercise its right of first refusal, with the purchase price to be the per share book value of the company as computed by Rowan’s independent public accountant, and attempting to waive strict compliance with the terms of the shareholders’ agreement to the extent that LAN’s prior letters failed to comply. LAN responded by letter of April 14 rejecting this proposal, in that first, LAN had not been informed it could be required to sell its shares at a price less than the received offer, and second, the April 6 letter suggested there were no such limitations.

Destag’s letter of the same date informed LAN that the closing for the sale of its shares to Destag had been scheduled for May 25. On May 11, Destag sent LAN another letter informing it that Rowan’s accountant had determined that the shares of Rowan had a negative book value. The accountant made this determination based on unaudited financial information provided by Rowan’s management. Because LAN refused to appear at the closing and transfer its shares to Destag without compensation, Destag initiated this suit.

In denying Destag’s motion for summary judgment, the court ruled that the disparity between the prices offered by Destag and the third party is great enough to create a material issue of fact as to whether the shareholders’ agreement is being applied in an "unconscionable manner. If so, the court ruled, equity will not decree specific performance of it. The court allowed Destag 30 days to respond to LAN’s claim that it was entitled to summary judgment and later denied such to LAN but extended discovery for an additional 90 days.

Destag renewed its motion for summary judgment based on evidence showing that the third-party offer was so riddled with conditions that it was not truly an offer. Specifically, it was contingent on whether the offeror, in its sole discretion, accepted a review of Rowan’s financial statements, a geological examination of its quarries, and a report by the offeror’s own accountants into the legal feasibility of the purchase.

Based on this evidence, the court denied Destag’s renewed motion for summary judgment and granted summary judgment to LAN, ruling that under the shareholders’ agreement the right of first refusal is conditioned upon the selling shareholder’s obtaining a “bona fide written offer,” and the third-party offer received by LAN does not qualify as such because the discretionary contingencies render it unenforceable.

Destag argues that this case is resolved by application of elemental principles of contract formation. True. As stated in OCGA § 13-3-2, “[t]he consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.”

Decided February 16, 1999.

Hotz & Associates, Walter H. Hotz, for appellant.

Phelps, Campbell & Webb, R. Chris Phelps, Hodges & Leverett, Robert F. Leverett, for appellee.

LAN’s letter of March 31 showed in clear and unmistakable terms that it was proposing to sell its shares to Destag or Rowan at the price offered to it by the third party, i.e., $962,500. Neither that letter nor the one of April 7 triggered subparagraphs 2 (b) and 5 (a) of the shareholders’ agreement, because these provisions of the agreement come into play only through the selling shareholder’s transmittal of copies of a written offer containing the information required by subparagraph 2 (a), and LAN never did that. Therefore, Destag could not force LAN to part with its shares at a different price from that set forth in its offer without LAN’s consent. Through Destag’s letter of April 12, it presented to LAN a counteroffer to LAN’s offer rather than an acceptance of it. By its April 14 letter to Destag, LAN promptly and flatly rejected the counteroffer. For these reasons, summary judgment for LAN was proper.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

        Amwest Surety Ins. Co. v. RA-LIN & Assoc., 216 Ga. App. 526, 529 (1) (455 SE2d 106) (1995).


author: Ruffin, Judge.

text:
    A98A2152.
    BROWN v. THE STATE.
    (512 SE2d 369)
   Ruffin, Judge.

A jury found Ricky Lee Brown guilty of theft by shoplifting and giving a false name to a law enforcement officer. On appeal from the trial court’s denial of his motion for a new trial, Brown challenges the sufficiency of the evidence supporting his convictions and asserts that the trial court erred in admitting certain photographs that the State did not produce pursuant to a discovery request. For reasons discussed below, we affirm Brown’s convictions.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that on June 2, 1996, at the Parisian department store at Gwinnett Place Mall, a sales associate alerted Chip Hall, the store’s loss prevention manager, of a man heading toward the men’s shoe department. Through an overhead camera, Hall and another store security employee, Richard Vincent, observed Brown replace his own sandals with a new pair of Parisian sandals and attempt to exit the store. After passing at least four registers, Brown walked out of the first set of exit doors, but was prevented from leaving the store when Parisian’s control room activated an electronic block that locked the outside doors.

Hall and Vincent confronted Brown at the exit doors and led him to the loss prevention office where they confirmed that the sandals he was wearing were Parisian property. Hall noticed that Brown was fidgety and kept pulling his untucked shirt over a large bulge in his pants. Based upon another alert by a sales associate, Hall asked Brown to give him merchandise he had taken from a Nautica fitting room. At first Brown refused to turn over the merchandise, but then allowed Hall to unbutton the front of his pants and pull out from underneath his spandex shorts a Nautica shirt and a pair of shorts with Parisian tags still on them. Brown did not produce any receipts for these items, the retail value of which totaled over $100.

Hall testified that Brown identified himself as “Larry Smith” and that Brown told Officer Randy Huckabee of the Gwinnett County Police Department that his name was “Larry Smith.” Officer Huckabee discovered that “Larry Smith” was a false name after he took Brown to jail and found a piece of paper on Brown’s person that said “R. Brown” and that contained his mother’s name and phone number. Huckabee called this phone number and confirmed Brown’s true identity.

1. Brown contends that the evidence was only sufficient to support a conviction for misdemeanor, rather than felony, theft by shoplifting because the sandals, which were valued at less than $100, were the only item the State proved he stole. OCGA § 16-8-14 (a) (1) provides that “[a] person commits the offense of theft by shoplifting when he . . ., with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof,. . . [c] onceáis or takes possession of the goods or merchandise of any store or retail establishment.” If the stolen property exceeds $100 in value, then “[a] person convicted of the offense of theft by shoplifting . . . commits a felony.” OCGA § 16-8-14 (b) (2).

Brown argues that no one saw him steal the shirt and shorts, the combined value of which exceeded $100 and which were found with their tags, shoved in the shorts he was wearing under his pants, and that no one asked him whether he had a receipt for these items. Without pointing to any evidence, Brown maintains that he may very well have paid for these items and may have merely been carrying them “in an unusual manner.” However, “[w]hether the requisite intent is manifested by the circumstances is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous.” (Punctuation omitted.) Racquemore v. State, 204 Ga. App. 88 (1) (418 SE2d 448) (1992). “[U]nexplained recent possession of stolen goods supports an inference that the accused committed the theft.” Agony v. State, 226 Ga. App. 330, 332 (2) (486 SE2d 625) (1997). Moreover, “although the evidence implicating [Brown] is circumstantial, it is competent evidence having probative value.” (Emphasis in original.) Id. at 331 (2).

Given the evidence that Brown was seen stealing the sandals, that he acted “fidgety,” that he tried to conceal in his pants both a shirt and a pair of shorts for which he had no receipt, and that he attempted to leave the store without paying for any of these items, the jury was authorized to conclude that he stole items valued over $100 and that he was guilty beyond a reasonable doubt of the offense of theft by shoplifting. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Agony, supra at 331-332 (2); Parham v. State, 218 Ga. App. 42, 43 (1) (460 SE2d 78) (1995).

2. Brown also contends that the State failed to prove that he committed the offense of giving a false name to a law enforcement officer. “A person who gives a false name ... to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity ... is guilty of a misdemeanor.” OCGA § 16-10-25. Brown denies that he gave Officer Huckabee a false name and also insists that the State failed to prove that his real name was Ricky Lee Brown.

While under arrest, Brown gave Officer Huckabee the name “Larry Smith.”. The State sought to prove that “Larry Smith” was a false name by showing (1) that Officer Huckabee found the name “R. Brown” on a piece of paper in Brown’s possession and (2) that Huckabee verified Brown’s true name by calling Brown’s mother. Regardless of whether these items were sufficient to prove that Brown gave Huckabee a false name, there was other evidence to support the charge.

Brown was referred to “by the trial judge to the jury as [Ricky Lee Brown], the defendant, and [Brown] did not repudiate [this statement] of fact. Also there was concordance between [Brown’s] name and that of the person charged in the indictment [upon which Brown pled guilty and signed his name as ‘Ricky Brown’]. Concordance of name alone is some evidence of identity. Identity of name presumptively imports identity of person, in the absence of any evidence to the contrary.” (Citations and punctuation omitted.) Robinson v. State, 231 Ga. App. 368-369 (1) (498 SE2d 579) (1998). Therefore, we find the evidence sufficient to support Brown’s conviction for giving a false name to a law enforcement officer.

3. Finally, Brown argues that the trial court erred in admitting photographs of the stolen merchandise because the State failed to produce the photographs ten days before trial as required by OCGA § 17-16-4 (a) (3). Pursuant to OCGA § 17-16-6, if the State fails to comply with a defendant’s discovery request, then “the court may order the state to permit the discovery or inspection,. . . grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed.” “In reviewing a trial court’s decision as to whether to impose sanctions or take other corrective action as a result of the State’s failure to comply with its discovery obligations, the appropriate standard of review is whether the trial court abused its discretion.” Williams v. State, 226 Ga. App. 313, 314 (1) (485 SE2d 837) (1997).

Before jury selection, the State advised the court that one of its witnesses had brought photographs of the merchandise Brown allegedly stole and that it had immediately shown them to Brown’s attorney. Brown objected to the admissibility of these photographs on the ground that the State had ample opportunity to produce these pictures prior to trial and that he would be prejudiced by their admission because they would give added weight to any witness’ testimony. Brown rejected the trial court’s offer to grant him a continuance to give the State an opportunity to comply with his discovery request. When the photographs were admitted at trial, Brown renewed his pre-trial objection.

Considering that Brown refused the court’s offer of a continuance, we find that the trial court did not abuse its discretion in admitting the photographs. See Williams, supra. Moreover, Brown presented no evidence of bad faith on the State’s part. In addition, the trial court acted within its discretion in finding that Brown was not prejudiced by the admission of the photographs because they were merely cumulative of the Parisian store employees’ testimony regarding their contents. See Blankenship v. State, 229 Ga. App. 793, 794 (494 SE2d 758) (1997). “[I]n order to trigger the harsh sanction under OCGA § 17-16-6, of excluding evidence improperly withheld from the defense, there must be a showing of prejudice to the defense and bad faith by the State. Here, [Brown] failed to satisfy either requirement.” (Citation omitted.) Id.

Decided February 16, 1999.

Carla E. Brown, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       The prosecutor asked Officer Huckabee, “Did the results of that conversation eliminate the defendant’s real identity as being Ricky Brown?,” and Huckabee responded, “Yes, it did.” The prosecutor’s reference to “Ricky Brown” instead of “Larry Smith” as the false name was apparently a slip of the tongue, because Huckabee immediately thereafter testified that Brown’s proffer of the name “Larry Smith” misled Huckabee as to his true identity.

       Effective July 1, 1998, a person commits a felony theft by shoplifting when the property which is the subject of the theft exceeds $300. Ga. L. 1998, p. 578. However, offenses committed prior to July 1,1998, which is the case here, remain governed by and punishable as provided in the law as it existed before. Id.