text:
    A98A0512.
    CLAY v. THE STATE.
    (502 SE2d 267)
   Beasley, Judge.

Clay and Burks were jointly charged. Burks pled guilty to possession of cocaine with intent to distribute and testified as a State’s witness at Clay’s trial. Clay was convicted of a cocaine sale, and because of a prior offense was sentenced to life in prison. OCGA § 16-13-30 (b) and (d). This is an authorized out-of-time appeal.

The State’s evidence showed that Jerry and Diane Bostick were buying drugs in their capacity as undercover agents. When Clay approached the truck they were driving, Diane Bostick asked if he had a “dime bag of crack,” a term explained by the Bosticks as meaning $10 worth of crack cocaine. Clay told her to wait a minute, walked over to a group of men, and spoke to Burks. Burks turned toward the undercover agents, said “he only had $20,” and went to the truck and sold the cocaine to Bostick.

1. Without success, the first challenge is to the sufficiency of the evidence to support the verdict.

“[Clay] asserts that the evidence produced at trial did not show that he personally conducted the sale of cocaine and his mere presence at the scene is insufficient to support a conviction. However, ‘(t)he jury was instructed regarding parties to a crime, OCGA § 16-2-20, and we find the evidence presented at trial more than sufficient to have authorized the jury to find [Clay] guilty of being a party to the sale of cocaine.’ [Cits.]” “Even if [Clay], under the circumstances, is not treated as the actual seller but merely the conduit or intermediary by which the sale took place, [he] is guilty of selling cocaine, because [he] aided and abetted the sale as a party to the crime. [Cits.]”

2. Clay moves to remand this case to the trial court so he can assert and be heard on a claim of ineffective assistance of trial counsel.

Clay was convicted in 1991. In 1997, he filed a pro se motion for an out-of-time appeal in which he asserted that his failure to file a timely appeal was due to ineffective assistance of trial counsel. The motion was granted, but newly appointed appellate counsel filed an untimely notice of appeal and the appeal was dismissed. A subsequent motion for out-of-time appeal was also granted so as to allow this appeal. In the motion to remand, counsel states that after the filing of the latest notice of appeal, he received correspondence from prisoner Clay requesting that he raise an ineffectiveness claim.

The motion to remand is denied. “Our law requires that a claim for ineffective assistance of counsel must be raised at the earliest practicable moment. Glover v. State, 266 Ga. 183 (2) (465 SE2d 659) (1996). This rule requires that a ‘claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising the issue at a later time.’ Id. at 184.”

Clay asserted one particularized claim of ineffective assistance of counsel in his initial motion for out-of-time appeal. He had an opportunity to assert other claims of ineffective assistance by motion for new trial after his appeal motions were granted, which post-conviction motion would have extended the time for filing the notice of appeal. “[T]he scope of the permission given when an out-of-time appeal is granted [constitutes] permission to pursue the post-conviction remedies which would be available at the same time as a direct appeal.” Ample opportunity to raise this issue by motion for new trial and failure to do so forecloses the issue now.

Kennedy v. State relied on by Clay, does hold that where the issue of ineffectiveness of counsel is raised for the first time on appeal, the case must be remanded to the trial court for an evidentiary hearing on the claim. Kennedy is expressly overruled on this issue because it was in the line of cases overruled in Glover.

Decided April 16, 1998

Reconsideration denied May 13, 1998.

Kirbo, McCalley & Forehand, Jon V. Forehand, for appellant.

Rufus Clay, pro se.

J David Miller, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Wrease v. State, 214 Ga. App. 727, 728 (1) (448 SE2d 911) (1994).

        Lawrence v. State, 227 Ga. App. 70, 72 (3) (487 SE2d 608) (1997).

       (Emphasis in original.) Sartin v. State, 223 Ga. App. 759, 762 (5) (479 SE2d 354) (1996) .

       See OCGA § 5-6-38 (a).

        Ponder v. State, 260 Ga. 840, 841 (1) (400 SE2d 922) (1991).

       See Glover, supra; compare Russell v. State, 267 Ga. 865, 868 (4) (485 SE2d 717) (1997) (where appellate counsel was not appointed until after the filing of the notice of appeal).

       217 Ga. App. 18, 19 (2) (456 SE2d 288) (1995).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A0968.
    ANDERSON et al. v. MULLINAX et al.
    (502 SE2d 482)
    Decided May 14, 1998.

      Jewett & Clark, C. Lawrence Jewett, Jr., Robin F. Clark, for appellants.

      Gary M. Cooper, for appellees.
   Eldridge, Judge.

In Anderson v. Mullinax, 269 Ga. 369 (497 SE2d 796) (1998), the Supreme Court reversed the judgment of this Court’s opinion in Anderson v. Mullinax, 226 Ga. App. 672 (487 SE2d 607) (1997). Therefore, we vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and remand this case to the trial court for proceedings not inconsistent with the opinion of the Supreme Court.

Judgment reversed and case remanded.

Birdsong, P. J., and Ruffin, J., concur.


author: Andrews, Chief Judge.

text:
    A98A0103.
    WILLIS v. LOVE et al.
    (502 SE2d 487)
   Andrews, Chief Judge.

Willie Willis sued Love and her employer, Federal Express, contending that injuries suffered when the car in which she was riding was struck in the rear by a Federal Express van driven by Love were the result of Love’s negligence. The jury found for the defendants and Willis appeals, claiming a verdict should have been directed on her motion for directed verdict on liability and that there were numerous errors in the jury charge. We affirm.

1. The standard for review of denial of a motion for directed verdict, Willis’ eighth enumeration, requires her to show that there was no conflict in the evidence as to any material issue and “the evidence introduced, with all reasonable deductions therefrom,” demanded the verdict sought. OCGA § 9-11-50; Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983). Construing the evidence in favor of Love and Federal Express, the parties opposing the motion for directed verdict, Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d 267) (1991), it was that around noon on April 11, 1995, Willis was riding with Lucas, an aquaintance, on two-lane Highway 85 East, heading for Manchester. Love was making deliveries in her van and had been behind Lucas’ car for several miles. Because it was drizzling and the road was wet, both Lucas and Love were going below the speed limit of 55 mph and Love stayed at least two to two and a-half car lengths behind Lucas.

As Lucas topped a hill and passed the first of two traffic signs, he saw a wreck being worked and cleared by Trooper Corbitt at an upcoming intersection. There was an ambulance with its emergency lights activated turning around in a private driveway on the left of the roadway about 80 yards below the hill’s crest as Lucas and Love approached. Lucas mashed his brakes to slow down, intending to go on by the accident. As he got to the second traffic sign, which was approximately 250 feet below the first sign and indicated the upcoming intersection, Love came over the hill and saw the ambulance turning around and Lucas hitting his brakes. Love, who had no warning of the upcoming wreck before she topped the hill, applied her brakes when she saw the ambulance. The brakes locked and caused her van to hydroplane, with the left front of the van striking the right rear of Lucas’ 1988 Marquis.

Under these circumstances, denial of Willis’ motion for directed verdict as to liability was not error because, as discussed infra, there were issues best determined by the jury as to whether Love had been I negligent at all or whether she confronted a “sudden emergency.” Johnson v. Ray, 206 Ga. App. 262, 263 (1) (424 SE2d 892) (1992); see Luke v. Spicer, 194 Ga. App. 183 (1) (390 SE2d 267) (1990).

Both Trooper Corbin and Love testified that, as one topped the hill, there was a blind spot which obstructed one’s view of activity at the bottom of the hill.

2. Willis’ first two enumerations deal with portions of the charge given to the jury and will be considered together.

(a) Willis objected to the court’s charge that “the law of this state does not impose upon the driver of a motor vehicle the absolute duty to have his vehicle under such control that it can be brought to a stop in order to avoid [injury] to any person or property which may be in the path of such a motor vehicle.”

Willis contends there was such a duty based on OCGA § 40-6-74 which requires a driver to pull over and yield to an approaching emergency vehicle “making use of an audible signal and visual signals.” The court correctly decided that, since the ambulance was not using its siren and was turning around, not approaching the oncoming traffic, this section was not applicable.

Additionally, the charge given was an accurate statement of abstract principles of law and provides no basis for reversal. Meeks v. Cason, 208 Ga. App. 658, 661 (1) (431 SE2d 407) (1993),

(b) Willis also objected to the court’s charge on sudden emergency, contending there was no evidence to support it. •

“ ‘ “The doctrine of sudden emergency refers only to those acts which occur immediately following the apprehension of the danger or crisis and before there is time for careful reflection. (Cit.) The rule of sudden emergency is that one who in a sudden emergency acts according to his best judgment or, because of want of time in which to form a judgment, acts in the most judicious manner, is not chargeable with negligence. (Cits.)” (Cit.) “An emergency is a ‘sudden peril caused by circumstances in which the defendant did not participate and which offered [her] a choice of conduct without time for thought so that negligence in [her] choice might be attributable not to lack of care but to lack of time to assess the situation.’ (Cit.)” . . . (Cit.)’ Luke v. Spicer, [supra].Holt v. Scott, 226 Ga. App. 812, 815 (2) (487 SE2d 657) (1997).

Holt, supra, presented a very similar factual situation where Holt stopped in traffic to make a left turn and was struck in the rear by Scott, who had been driving within the speed limit at an appropriate distance behind Holt, when he. saw her brake lights and attempted, but was unable, to stop in time. Here, as there, the charge was appropriate. Love, who was six months pregnant, when faced with the situation, chose to attempt to brake and stop rather than attempting to pass Lucas off the road to the right. Compare Buford v. Benton, 232 Ga. App. 102 (501 SE2d 272) (1998) and Thomas v. Stairs, 215 Ga. App. 288 (1) (450 SE2d 326) (1994) with Haynes v. McCambry, 203 Ga. App. 464, 468 (4) (416 SE2d 893) (1992).

3. The remaining five enumerations deal with charges requested by Willis which were not given at all or specifically as requested and are considered together.

(a) Counsel for Willis acknowledged below that there was no evidence of any negligence on Lucas’ part and, therefore, there was no factual basis for Willis’ requested charge on imputed negligence. Stinson v. Allstate Ins. Co., 212 Ga. App. 179, 182 (2) (a) (441 SE2d 453) (1994).

Decided May 14, 1998.

L. B. Kent, for appellant.

Bovis, Kyle & Burch, John H. Peavy, Jr., for appellees.

(b) The principle requested by Willis’ Request to Charge No. 4, dealing with following too closely, was covered by the court elsewhere in the charge, specifically as requested by Willis’ Request No. 8.

(c) Request No. 5 was not supported by the evidence nor was the legal principle cited, OCGA § 40-6-49 (d), applicable.

(d) The remaining enumerations of error all deal with elements of claimed damages and it was not harmful error to refuse to give the requested charges in light of the verdict returned in defendants’ favor. Henry v. Watkins, 219 Ga. App. 80, 81 (2) (464 SE2d 215) (1995); Haynes, supra at 469 (5).

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A98A0424.
    McGRIFF v. THE STATE.
    (502 SE2d 482)
   Judge Harold R. Banke.

Willie McGriff was convicted of three counts of sexual battery on his three young nieces. He enumerates two errors on appeal.

The eldest victim, aged 11, testified that when her mother was gone McGriff would “play a biting game” with her and her sisters, in which he would nip at their necks, shoulders, inner thighs and buttocks. She also testified that one night she dreamed her uncle was on top of her and the bed was going up and down and the next day she awoke with her nightclothes in disarray and soreness in her vagina. After learning of this, the victim’s mother took her to the hospital. The Department of Family & Children Services was contacted and after its investigation, McGriff moved out of the house he shared with his sister and these charges were brought. Held:

1. McGriff argues that the trial court abused its discretion in refusing to disqualify two jurors for cause. Raulerson v. State, 268 Ga. 623, 629 (4) (491 SE2d 791) (1997). Neither of these jurors served on the jury.

Pretermitting whether the jurors’ alleged partiality demanded their disqualification, the record shows that McGriff failed to exhaust his peremptory challenges. See OCGA § 15-12-165. In these circumstances, we must presume that he was not prejudiced by the trial court’s decision. Finney v. State, 242 Ga. 582, 587 (7) (250 SE2d 388) (1978); see Bradham v. State, 243 Ga. 638, 639 (3) (256 SE2d 331) (1979).

2. McGriff maintains an acknowledged expert in child sexual abuse placed his character in issue by testifying about the methods sexual offenders commonly employ. The testimony at issue involved the witness’s observation that most child abuse begins with less offensive touching, such as tickling, stroking, or biting, and moves on over time to more intrusive contact. The witness, a licensed clinical community psychologist who had tested and treated sexually abused children for over ten years, testified that she obtained this information from children she treated and from surveys of incarcerated sex offenders.

Experts are individuals whose habits and professions endow them with peculiar skills in forming opinions on the subject matter in question. Sales v. State, 199 Ga. App. 791 (1) (406 SE2d 131) (1991). They may derive their knowledge from experience as well as formal education. Id. Here, the subject at issue was sufficiently connected to the expert’s established area of expertise to preclude us from finding that the trial court abused its discretion in admitting the testimony. Compare Prickett v. State, 220 Ga. App. 244, 246-247 (3) (469 SE2d 371) (1996).

Further, notwithstanding McGriff’s argument to the contrary, the testimony at issue did not constitute a “profile,” which is disapproved when the accused has not placed his character in issue. See Penson v. State, 222 Ga. App. 253, 255 (1) (474 SE2d 104) (1996). Rather than detailing the personal characteristics required in a profile, such as age, education, sexual preference, and criminal record, the psychologist simply testified about abusers’ most common techniques. Compare id. at 254-255. Moreover, inasmuch as McGriff was convicted of sexual battery, which only required proof of unconsented to intentional physical contact with the victims’ intimate parts, and there was abundant evidence establishing those facts, the testimony at issue was cumulative. OCGA § 16-6-22.1 (b); see Sanders v. State, 226 Ga. App. 650, 651-652 (2) (487 SE2d 442) (1997). In any event, the evidence of sexual battery was sufficient to render harmless any error in the admission of this testimony. Sanders v. State, 251 Ga. 70, 76 (3) (303 SE2d 13) (1983).

Judgment affirmed.

Johnson and Smith, JJ, concur.

Decided May 14, 1998.

Sarina J. Woods, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

       The State’s failure to fully comply with Court of Appeals Rule 27 (c) (3) (i) is not helpful. In argument, when quoting or referring to the record, our rules require specific page cites.


author: Johnson, Judge.

text:
    A98A0475.
    MEJA v. THE STATE.
    (502 SE2d 484)
   Johnson, Judge.

A jury found Josiah Meja a/k/a Josiah Mega guilty of four counts of simple battery, two counts of battery, and one count of family violence battery against Bernadine Ikwuakam. We affirm.

Ikwuakam, her three children, and her mother lived with Meja. Meja was the father of one of the children, and held himself out as and acted as the father of Ikwuakam’s two children from a previous marriage.

On December 14, 1996, Meja became angry with Ikwuakam and told her she needed to take her older children and go find their father. Out of concern for her safety, Ikwuakam went to her sister’s home. However, she returned the next day to be with her children. When she returned, Meja refused to allow her to enter the home. Her children opened a door in the kitchen area when they heard Ikwuakam calling for help. Meja slapped the two children who helped their mother, then turned to Ikwuakam. He grabbed Ikwuakam and tried to take her house key. During the struggle for the key, Meja scratched Ikwuakam’s arm, causing it to bleed. Meja knocked Ikwuakam to the ground and then started hitting her. When Ikwuakam’s mother attempted to help, Meja struck her. One of the children called the police.

The police officer separated everyone and conducted his investigation. The officer observed redness on both cheeks of Ikwuakam which resembled handprints and bleeding scratch wounds to her arm. Meja was arrested.

On January 2, 1997, Meja came to a business operated by Ikwuakam, intimidated her and pushed her. Another physical altercation occurred on January 11, 1997 when Meja refused to give Ikwuakam a key to a post office box. Meja told Ikwuakam she should leave with her children and then pushed her on the bed. She got up from the bed, and Meja punched her in the chest and shoulder area. The injury to Ikwuakam resulted in swelling and a bruise. A police officer arrived, saw a bruise on the shoulder area of Ikwuakam and arrested Meja.

For the December 15, 1996 incident, Meja was found guilty of two counts of simple battery and one count of battery against Ikwuakam and was acquitted of simple battery counts against the two girls and Ikwuakam’s mother. He was acquitted of simple battery for the January 2,1997 incident. He was found guilty of two counts of simple battery, one count of battery and one count of family violence against Ikwuakam related to the January 11, 1997 incident.

1. In his first enumeration of error, Meja contends the evidence was insufficient to support the convictions entered on the jury’s verdict. We disagree.

Simple battery is defined as the intentional physical contact of an insulting or provoking nature with the person of another or, alternatively, intentionally causing physical harm to another. OCGA § 16-5-23. For simple battery, mere pain is sufficient to show physical harm. Lyman v. State, 188 Ga. App. 790, 791 (1) (374 SE2d 563) (1988). Battery requires that the physical harm inflicted be substantial or the bodily harm be visible to another. OCGA § 16-5-23.1 (a). The battery statute defines “visible bodily harm” as “bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, . . . substantial bruises to body parts.” OCGA § 16-5-23.1 (b). Family violence battery adds an element to battery in that the state must prove that the victim is a past or present spouse or has had a child with the defendant, is of certain enumerated relationships with the defendant, or has lived in the same household with the defendant. OCGA § 16-5-23.1 (f).

The facts in the record are sufficient to enable a rational trier of fact to find Meja guilty beyond a reasonable doubt of the offenses of which he was convicted under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Basu v. State, 228 Ga. App. 591, 592 (1) (492 SE2d 329) (1997); Hussey v. State, 206 Ga. App. 122, 123 (2) (424 SE2d 374) (1992); Lyman, supra.

2. In his second enumeration of error, Meja asserts the trial court erred in determining that Ikwuakam’s mother, a native of Nigeria, was competent to testify without an interpreter. “The use of an interpreter . . . must necessarily lie within the sound discretion of the trial judge.” (Citations and punctuation omitted.) Gonzales v. State, 182 Ga. App. 594 (356 SE2d 545) (1987); see also OCGA § 24-9-7. A review of the mother’s testimony and the trial court’s inquiry in determining whether Ikwuakam’s mother was competent to testify without an interpreter reveals that her command of the English language, while not perfect, was such that the absence of an interpreter did not prejudice Meja’s defense. The trial court did not abuse its discretion in failing to appoint an interpreter. See Gonzales, supra.

Meja waived any argument that the trial court erred in repeating some of Ikwuakam’s mother’s testimony for the jury. During its ruling on the mother’s competency, the trial court offered to repeat portions of the testimony for the record if required. Meja did not respond or object to this offer. During direct examination, Meja complained he could not understand Ikwuakam’s mother’s response, so the trial court repeated her response. Meja did not object. After Meja again complained during cross-examination about not understanding the witness, the trial court questioned Ikwuakam’s mother to clarity certain testimony and repeated some answers. Again, Meja did not object to the trial court’s actions. “Counsel may not idly sit by and watch when possible objectionable evidence is presented and on appeal claim error. It is necessary, in order to make the same a basis for appellate review that opposing counsel make proper objection or invoke some ruling of the court. A party cannot ignore what he thinks to be error, take his chance on a favorable verdict, and complain on appeal.” (Citations and punctuation omitted.) West v. State, 224 Ga. App. 190, 191 (2) (480 SE2d 238) (1997).

3. In his final enumeration of error, Meja contends the trial court erred by failing to merge certain counts. Regarding the December 15, 1996 incident, the trial court merged the two counts of simple battery. However, Meja claims the simple battery counts should have been merged into the battery count. While Meja correctly asserts that all three counts involved Ikwuakam, he incorrectly asserts that all three counts involved the same facts. According to the record, Meja grabbed Ikwuakam in order to wrestle the keys from her and physically forced her to the ground. These two physical contacts were insulting and provoking and were not used to establish the visible bodily harm in the bloody scratches on her arm and slap marks on her face.

Regarding the January 11, 1997 incident, the trial court merged the two counts of simple battery and merged the count of family violence battery into the battery count. However, Meja claims the simple battery counts should have also been merged with the battery count. We again disagree. According to the record, Meja pushed Ikwuakam to the bed before inflicting a bruise on her shoulder area. This action independently establishes physical contact of an insulting and provoking nature separate from the infliction of visible bodily harm.

While simple battery could be a lesser included offense of battery where the defendant is charged with intentionally causing visible bodily harm and the state fails to prove that the harm was visible (see Ross v. State, 214 Ga. App. 385 (448 SE2d 52) (1994)), this case does not present such an instance. In the present case, the state presented evidence that Meja intentionally caused visible bodily harm by scratching, slapping and punching Ikwuakam. The state also proved that Meja intentionally made physical contact of an insulting or provoking nature with Ikwuakam when he wrestled with her, pushed her to the ground, and pushed her onto the bed. The trial court did not err in refusing to merge the simple battery counts with the battery counts in both indictments.

Decided May 14, 1998.

Marateck & Lassiter, Arthur H. Marateck, for appellant.

Barry E. Morgan, Solicitor, Forrest K. Shealy, Assistant Solicitor, for appellee.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A98A0548.
    DOUGLAS v. KNOX et al.
    (502 SE2d 490)
   Johnson, Judge.

In this appeal we decide whether the trial court erred in denying a petition to remove an obstruction from a private way when use of the private way was initially permissive, and the petitioner has not shown the existence of an adverse claim for seven or more years. We find no error.

In 1983, Sam Douglas bought real property located next to a private hunting club. A narrow horse trail ran across hunt club property and ended at Douglas’ property. Hunt club members used the trail twice a week when hunting.

The hunt club owners allowed adjoining property owners, including Douglas and his predecessor-in-title, Jack Rickies, to use the trail. Rickies’ family used the trail as a shortcut to a store and a school bus stop in the early 1960s. Rickies’ wife was employed by the hunt club and used the trail for about five years in the 1970s to get to and from work. Douglas used the trail between 1983 and 1994 as a “good secondary way” to leave his property. It is undisputed that there were other means of ingress and egress to Douglas’ property.

In 1991, the hunt club sold the property to the Knox family, who began using the property as a recreation area and camp for children. In 1994, the Knoxes placed a chain across the trail near Douglas’ property, blocking his access to the trail. When Douglas confronted the Knoxes, he was told he would no longer be allowed to enter the property without permission. Thereafter, Douglas used the trail only two more times, once with the Knoxes’ permission and once without.

In 1995, Douglas filed a petition in probate court to remove the obstruction, claiming he had acquired a prescriptive right to use the E trail. See OCGA §§ 44-9-1; 44-9-54; 44-9-59 (a). After a trial, the probate court ordered the Knoxes to remove the obstruction. The Knoxes appealed the judgment to superior court where, after a de novo hearing, the court denied Douglas’ petition. The trial court found that Douglas failed to show, among other things, that he and his predecessor made adverse use of the trail prior to 1994. Douglas appeals.

1. We note at the outset that subject-matter jurisdiction of this case lies in this Court. See Stutts v. Moore, 218 Ga. App. 624, 625 (1) (463 SE2d 30) (1995).

2. In nine enumerations of error, Douglas contends the superior court erred in finding that he failed to satisfy the elements necessary to sustain his petition to remove an obstruction from a private way. We disagree.

The right of private way over another’s improved land may arise from prescription by seven years’ uninterrupted use. OCGA § 44-9-1. Where an owner of land over which a private way passes obstructs the private way, the injured party may petition the probate court to remove the obstruction. OCGA § 44-9-59 (a). Successive users may tack prescriptive title. OCGA § 44-5-172.

“[A] private way may not be acquired by prescription where use of the private way is with the owner’s permission until an adverse claim is made and actual notice is given to the owner or party in possession.” (Citations and punctuation omitted.) Trednick v. Kramer, 190 Ga. App. 684, 685 (379 SE2d 633) (1989). Prescriptive rights are to be strictly construed. Id.

We agree with the trial court that the use of the trail was permissive rather than adverse until 1994. Several hunt club members and employees testified that they allowed the adjoining landowners to use the trail and never told anyone they could not do so. One club member testified that it was important for the hunt club to maintain a good relationship with the neighbors because club members often rode their horses upon neighboring property while hunting. Douglas admitted that he and Rickies used the trail with permission until 1994, one year before he filed the petition. Because the evidence showed that continued use of the trail was by permission and did not show any adverse use by Douglas or Rickies prior to 1994, a private way by prescription was not established. See Nelson v. Girard, 215 Ga. 518, 520 (2) (111 SE2d 60) (1959); Jackson v. Stone, 210 Ga. App. 465, 468 (2) (436 SE2d 673) (1993).

We disagree with Douglas’ contention that the owners were put on notice of an adverse claim in 1968 when Rickies complained to hunt club owners about their placement of a gate which blocked his access to the trail; the gate was purportedly erected to keep hunt club horses on club property. If Rickies’ complaint amounted to notice of an adverse claim, the adversity was very short-lived. As soon as Rickies complained, hunt club owners cut an opening in the gate so he and the other neighbors could walk through without having to open the gate. The fact that the hunt club owners modified and eventually removed the gate so that Rickies could easily use the trail is evidence that the owners permitted rather than forbade continued use of the trail. In fact, Douglas admitted at trial that he and Rickies used the trail with permission until 1994.

Decided May 14, 1998

Banks, Stubbs & Neville, Robert S. Stubbs III, for appellant.

Slutzky, Wolfe & Bailey, Ray S. Smith III, for appellees.

That a property owner knows of and acquiesces in the use of his private way is insufficient to establish prescription. See Weaver v. Henry, 222 Ga. App. 103, 105 (2) (473 SE2d 495) (1996) (physical precedent only). “An owner’s acquiescence in the mere use of his road establishes, at most, a revocable license. To establish a prescriptive easement over the private property of another pursuant to OCGA § 44-9-1, it is necessary to show that the owner was given notice that the user intended to appropriate it as his own.” (Citations and punctuation omitted.) Eileen B. White & Assoc. v. Gunnells, 263 Ga. 360, 362 (434 SE2d 477) (1993). Under OCGA § 44-9-1, the notice required is notice of the assertion of an adverse use, under claim of right, as distinguished from a mere permissive use. Id. In this case, the prescriptive period began running in 1994 when Douglas was told he could no longer use the trail without the owners’ permission, protested and, despite the prohibition, used the trail anyway. See generally Keng v. Franklin, 267 Ga. 472, 473 (480 SE2d 25) (1997).

If there is any evidence to support the trial court’s verdict, it will not be disturbed by this Court on appeal. See Nebb v. Butler, 257 Ga. 145 (357 SE2d 257) (1987). There being evidence to support the trial court’s finding that Douglas failed to prove that he and his predecessors made adverse use of the trail for seven or more years, the judgment is affirmed. See Ponder v. Williams, 80 Ga. App. 145, 151 (2) (55 SE2d 668) (1949).

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A98A0603.
    In the Interest of R. M. M., a child.
    (502 SE2d 480)
   Judge Harold R. Banke.

The natural father of three-year-old R. M. M. appeals from a juvenile court order terminating his parental rights. The mother does not contest the termination of her parental rights.

Law enforcement first contacted the Department of Family & Children Services (“DFCS”) about this case after investigating a 911 call from R. M. M.’s mother. She had been drinking for several days when she picked up two men she “used to be homeless with” and brought them to the home she shared with the then seven-month-old R. M. M. She called the police when the men would not leave. At the time, appellant was jailed on a parole violation, after pleading guilty to molesting his young stepdaughter. One condition of his parole was to refrain from unsupervised contact with children. Held:

1. As a preliminary matter, we observe that the father’s enumerations of error failed to comply with OCGA § 5-6-40 which requires appellants to “set out separately each error relied upon.” In his enumerations of error, appellant simply related several statements which apparently indicate some inconsistencies in the testimony of Dr. William Moon, a psychologist. The record, however, shows that appellant failed to object to this testimony, which waived the alleged errors. See McClain v. State, 226 Ga. App. 714, 718 (3) (487 SE2d 471) (1997). Nor are the enumerations framed to state issues for us to review. Although appellant’s brief includes a number of additional statements unrelated to Dr. Moon, we decline to treat these statements as issues because the brief contains no appreciable argument or any legal analysis. Court of Appeals Rule 27 (c) (2); MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1) (275 SE2d 142) (1980); see Mobley v. Sewell, 226 Ga. App. 866, 869 (487 SE2d 398) (1997) (statements in briefs cannot be used to enlarge or alter the scope of review of issues not reasonably included in the enumerations).

2. Had these matters been preserved, any error was harmless because the record provides clear and convincing evidence supporting the trial court’s findings. In the Interest of H. M. T., 203 Ga. App. 247, 249 (416 SE2d 567) (1992) (standard of review). The record is replete with proof of parental misconduct and inability. OCGA § 15-11-81 (a). Specifically, it shows that appellant engaged in egregious conduct toward a child of a sexually abusive nature and suffers from a medically verifiable deficiency of emotional health of such duration and nature as to render him unable to provide adequately for R. M. M. OCGA § 15-11-81 (b) (4) (B) (i) and (iv).

Appellant pleaded guilty to two counts of aggravated child molestation and one count of child molestation in 1988 and received a fifteen-year sentence, with ten years to serve. OCGA § 15-11-81 (b) (4) (B) (iii); see In the Interest of S. H., 204 Ga. App. 135, 139 (2) (418 SE2d 454) (1992). Appellant has a history of abnormal sexual behavior. Psychological testing revealed that he had high sexual arousal patterns with three, twelve, and twenty-four-year-old females and some arousal with adult males and required extensive, long-term, specific sexual offender treatment to reduce the risk that he indulge in future illegal conduct. Dr. Moon, the psychologist, testified that appellant is a pedophile and has a mood disorder as well as schizoid and anti-social personality disorders. Dr. Moon also testified without objection that appellant posed a danger to the child. The record shows that appellant has not undergone counseling adequate to address his disorders despite the directive to do so in the case plan and earning an average of $500 per week. OCGA § 15-11-81 (b) (4) (C) (iii). The record also shows that appellant has not seen R. M. M. since January 1997 and cancelled a visit the day before the final hearing because he did not want to miss work. OCGA § 15-11-81 (b) (4) (C) (i). This evidence is sufficient to show that R. M. M. is without proper parental care or control necessary for her physical, mental or emotional health or morals. OCGA § 15-11-2 (8) (A).

Decided May 14, 1998.

Gregory S. Dickson, for appellant.

Thurbert E. Baker, Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Velma C. Tilley, for appellee.

The above-mentioned evidence is likewise sufficient to establish that the lack of proper parental care or control caused the child’s deprived status, the deprivation is likely to continue, and the continued deprivation is likely to cause serious physical, mental, emotional and moral harm to the child. OCGA § 15-11-81 (b) (4) (A) (iv); In the Interest of A. M. V., 222 Ga. App. 528, 531 (474 SE2d 723) (1996) (evidence of past conduct may be considered in determining whether deprivation will continue). The record further supports the trial court’s conclusion that because the child needed greater stability and security, termination of the father’s parental rights was in the child’s best interest. In the Interest of J. E. E., 228 Ga. App. 831, 834 (2) (493 SE2d 34) (1997).

The trial court’s refusal to place R. M. M. with paternal relations was also appropriate. These relations, whom the child has never met, live in Alabama. Alabama authorities who evaluated their home at DFCS’s request disapproved of the placement. In addition, the record shows that as a child, the father engaged in inappropriate behavior in this environment. Because the record provides clear and convincing evidence supporting the trial court’s disposition of this case, appellant cannot establish harm from any purported error. In the Interest of J. E. E., 228 Ga. App. at 833 (1) (appellants bear the burden of showing harm and error affirmatively by the record).

Judgment affirmed.

Johnson and Smith, JJ, concur.


text:
    A98A0680.
    BAISE v. THE STATE.
    (502 SE2d 492)
   Andrews, Chief Judge.

Irving Baise appeals from the judgment entered on a jury verdict finding him guilty of forcible rape. Baise admitted he had sexual intercourse with the victim but claimed it was with her consent. He enumerates as error that: (1) the evidence was insufficient to support the verdict for various reasons including that the State failed to prove criminal intent by refuting his mistake of fact defense as to the victim’s consent; (2) the trial court erroneously allowed a psychologist to give her expert opinion that the victim was not mentally capable of consenting to sexual intercourse; and (3) the trial court erroneously admitted similar transaction evidence. We find no basis for reversal and affirm the conviction.

The State produced evidence that the victim was mentally retarded and not capable of giving consent to sexual intercourse. A psychologist with special training and experience in the area of mental retardation testified that she evaluated the 17-year-old victim after the alleged rape to assess her mental capability as it related to her ability to give consent to sexual intercourse. She testified that the evaluation showed the victim was moderately to severely mentally retarded; that she was functioning adaptively in a range from about a nine-year-old level to a level below the age of four years with average adaptive skills at the five-year-old level. For example, the psychologist testified that the victim “required her mother’s assistance as far as any kind of judgment in homemaking [tasks]. Anything she had been taught [by] rote [to do] she could do, but anything that required any kind of judgment as far as whether something was clean or done enough, she missed those kinds of judgments.” She said that the victim demonstrated no basis for making ordinary judgments about her personal safety or health and was unable to verbalize the differences between a man and a woman. Based on the evaluation, the psychologist gave her opinion that the victim did not have the capacity to consent to sexual intercourse. Another psychologist from the special education department of the school system attended by the victim testified that she tested the victim about two years prior to the alleged rape for the purpose of evaluating her for school placement. She testified that the victim had an overall I.Q. score of 41 and adaptive behavior skills in the six-year-old range.

On the day of the alleged rape, the victim and her mother went to visit Baise at the motel where he was living at the time. Baise, who had been the mother’s boyfriend, had known both mother and daughter for over three years. Prior to the victim’s testimony about her visit to the motel, the trial court determined upon examination of the victim that, despite her mental condition, she was competent to testify. OCGA § 24-9-7. The victim testified that while her mother was in the bathroom of the motel room, Baise put the part of his body that was between his legs inside of her body and that she did not want him to do that and told him to stop. On cross-examination she testified that when she and her mother arrived at the motel, she told her mother, but not Baise, that she wanted to have sex with Baise. She also testified that she later told a police officer and a Department of Family & Children Services caseworker that she did not have sex with Baise.

The victim’s mother testified that after she and her daughter arrived at the motel, Baise told her to go into the bathroom and she did so because she was afraid of him. She testified that she came out of the bathroom when she heard “a commotion” in the room. She said that Baise was raising his voice at her daughter and saying that her daughter “didn’t love him anymore.” She testified that her daughter “was all curled up on the bed because she was scared.” After that, she testified that she and her daughter spent the night with Baise. On cross-examination, the victim’s mother testified that about 30 minutes before she and her daughter went to Baise’s motel room, her daughter told her that she was going to “do it” with Baise, which she interpreted as her daughter’s way of saying that she was going to have sex with Baise. The victim’s sister also testified that the victim told her that Baise “did not rape her, he did not talk her into it or nothing like that.”

As a similar transaction, the State introduced evidence that Baise also had sexual intercourse with the victim’s sister when she was 13 years old, for which he was convicted of child molestation.

Baise testified and admitted that he had sexual intercourse with the victim in the motel room, but he claimed that it was with her consent. He testified that the victim told him she wanted to have sex with him. He said that the victim’s mother also approved of and encouraged the idea and that she went into the bathroom because she did not want to watch. He testified that he and the victim had consensual sex and that he stopped having sex with her when she said she was getting too hot. Baise testified that he had known the victim, her mother, and her sister for over three years, and although he knew the victim was in “Special Ed or something like that,” he had no knowledge of her low I.Q. or of any mental impairment she had. He said that during the time he had known the victim, he carried on conversations with her and saw her perform normal activities like playing softball, cleaning house and cooking food. He testified that “[s]he acted like a normal person to me.”

1. The evidence was sufficient to support the jury’s verdict that Baise was guilty beyond a reasonable doubt of forcible rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Under the evidence presented, the jury could have concluded that the victim had the mental capacity to consent to or refuse sexual intercourse, she did not consent to sexual intercourse with Baise, and Baise had sexual intercourse with her forcibly and against her will. OCGA § 16-6-1. The evidence was also sufficient for the jury to conclude that because of the victim’s mental condition, she was not capable of giving Baise consent to sexual intercourse. Under this view of the evidence, the rule is that carnal knowledge of a female who because of mental retardation is incapable of giving an intelligent assent or dissent or of exercising judgment in the matter constitutes rape. Gore v. State, 119 Ga. 418, 420-422 (46 SE 671) (1904); Whitaker v. State, 199 Ga. 344, 349-350 (34 SE2d 499) (1945); Ely v. State, 192 Ga. App. 203, 206 (384 SE2d 268) (1989).

Baise also contends the State failed to carry its burden of proof with respect to criminal intent because the evidence failed to overcome his mistake of fact defense. “Under OCGA § 16-3-5, a person shall be found not guilty of a crime if the act was induced by a misapprehension of fact which, if true would have justified the act or omission. . . . Mistake of fact is a defense to a crime to the extent that the ignorance of some fact negates the existence of the mental state required to establish a material element of the crime. [Cit.]” Jones v. State, 263 Ga. 835, 838-839 (439 SE2d 645) (1994). The trial court charged the jury with respect to the defense of mistake of fact. Baise contends that the evidence established that he mistakenly believed the victim was capable of consenting to sexual intercourse, that she told him she consented and, therefore, he lacked the criminal intent necessary for conviction of forcible rape.

First, this argument fails because, based on the victim’s testimony and the jury’s first-hand observation of her mental condition, there was evidence sufficient for the jury to conclude that the victim had the capacity to consent or not consent to sexual intercourse, she did not consent, and Baise had sexual intercourse with her forcibly and against her will.

Second, this argument has no merit even if the jury convicted Baise on the basis that although the victim indicated consent, she was not capable of intelligently consenting to the sexual intercourse. Normally, where the jury finds a defendant guilty of forcible rape, “[t]he element of force negates any possible mistake as to consent.” Lamar v. State, 243 Ga. 401, 403 (254 SE2d 353) (1979). However, in a forcible rape case where the victim indicates consent and does not resist, but by reason of mental retardation she is incapable of intelligently consenting, the lack of actual force necessary to overcome a resistant victim in other casés is supplied constructively by the rule that no more force need be used than that necessary to effect the penetration made by the defendant. Cooper v. State, 180 Ga. App. 37, 38 (348 SE2d 486) (1986); Drake v. State, 239 Ga. 232, 233-235 (236 SE2d 748) (1977); Durr v. State, 229 Ga. App. 103, 104 (493 SE2d 210) (1997). Since force in a case of this nature is not actual but constructive, it does not negate a defense of mistake of fact as to consent.

Nevertheless, the facts of this case did not demand a finding by the jury that Baise was unaware of the victim’s lack of capacity to consent, and that therefore his action was induced by a mistake of fact. Gore, 119 Ga. at 422 (“Sexual intercourse with [a mentally retarded] woman whose mind, to the knowledge of the man, is totally incapable of consenting to the act is rape, though she submits to the act without resistance. . . .”) (Emphasis supplied.). There was ample evidence to support a determination by the jury that Baise either subjectively knew the victim was mentally incapable of consenting to sexual intercourse or that he acted with criminal negligence in assuming she was capable of consenting. “A ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” OCGA § 16-2-1; see Daniels v. State, 264 Ga. 460, 464 (448 SE2d 185) (1994). Moreover, mistake of fact does not constitute a defense to a criminal charge if it is superinduced by the fault or negligence of the party doing the wrongful act. Crawford v. State, 267 Ga. 543, 544 (480 SE2d 573) (1997). Based on Baise’s words, conduct, demeanor, motive, and all other circumstances connected with the act for which he was prosecuted, there was sufficient evidence for the jury to find that he acted with the requisite criminal intent or criminal negligence. Dworkin v. State, 210 Ga. App. 461, 462-463 (436 SE2d 665) (1993).

2. Baise contends that the trial court erred by allowing the State’s psychologist to give her expert opinion that the victim was not capable of consenting to sexual intercourse. The trial court overruled Baise’s objection that allowing the expert opinion would invade the factfinding province of the jury on the ultimate issue of consent.

It is true that the jurors are the ultimate factfinders and that “where it is possible for them to take the same elements and constituent factors which guide the expert to his conclusions and from them alone make an equally intelligent judgment of their own, independently of the opinion of others, then undoubtedly this should be done.” Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1, 9 (5 SE2d 214) (1939). However, “[e]xpert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981). In other words, “if the nature of the question is such that the factors leading to a conclusion are not known to the common or average man, but are among those things shrouded in the mystery of professional skill or knowledge, then the light of that knowledge should not be withheld from the jury. . . .” Saul, 189 Ga. at 9. Expert opinions are not properly admitted, however, where the conclusion reached by the expert would be a mixed question of law and fact and would embrace a legal conclusion about which the expert knows no more than the jury. Id. For example, although it may be permissible to ask a physician who has done an internal pelvic examination of an alleged rape victim to state his expert opinion as to whether the examination revealed that force was used in the sexual act, it is not proper to ask the physician whether in his opinion the victim had been raped — an opinion which would call for the expert to reach a legal conclusion reserved for the jury involving all the elements of the alleged crime. Nichols v. State, 177 Ga. App. 689, 690, 692-693 (340 SE2d 654) (1986).

Applying these principles, the trial court properly allowed the psychologist produced by the State to give her opinion that the victim was not capable of giving consent to sexual intercourse. Although the victim’s consent or lack thereof is not generally a matter beyond the ken of the average juror, it may become an issue on which expert opinion testimony is proper depending on the circumstances of the case. Id. at 693; Ely, 192 Ga. App. at 205; Russell v. State, 181 Ga. App. 624, 626 (353 SE2d 820) (1987). Under the circumstances of this case, the expert opinion testimony of the psychologist dealing with the victim’s level of mental retardation and its effect on her capacity to consent involved no improper legal conclusion and was properly admitted to assist the jury in reaching its verdict.

There is no merit to the argument that the expert opinion should have been excluded because it was unfair to allow the jury to find that Baise, as a layperson, knew or was criminally negligent in not knowing that the victim was incapable of giving an intelligent consent, while at the same time allowing admission of expert opinion testimony as to the victim’s lack of ability to consent on the basis that it was a matter beyond the ken of the average layperson. The psychologist gave her expert opinion that the victim was, in fact, mentally incapable of consenting to sexual intercourse — an opinion the jury was entitled to accept or reject. Assuming the victim did not have the capacity to consent, whether Baise knew or was criminally negligent in not knowing this fact was a separate issue. Even if the jury accepted the expert opinion, it did not interfere with the jury’s duty to decide whether or not Baise acted with criminal intent or criminal negligence.

3. Baise claims the trial court erred by admitting similar transaction evidence that he had sexual intercourse with the victim’s sister when she was 13 years old, for which he was convicted of child molestation. Baise argues that the prior offense was not sufficiently similar to the present offense.

Decided May 14, 1998.

Corwin, Tilley & Deems, Jack T. Brumlow, Rodney L. Mathis, for appellant.

T. Joseph Campbell, District Attorney, Rebecca B. Paris, Assistant District Attorney, for appellee.

Although the record shows that an objection as to lack of sufficient similarity was made at a hearing before the trial court to determine its subsequent admissibility before the jury, no further objection was made when the similar transaction evidence was admitted before the jury. Defense counsel’s statement at the hearing that “we reserve our objection,” without any response from the trial court which could be interpreted as the grant of a continuing objection, was not sufficient to preserve the objection when the evidence was later admitted before the jury. Accordingly, the failure to make the objection at the time the evidence was offered waives this claim. Hunter v. State, 202 Ga. App. 195, 196-198 (413 SE2d 526) (1991).

In any event, Baise’s prior act of sexual intercourse with the victim’s 13-year-old sister who, because of her age, could not legally consent to the sexual act was sufficiently similar to the present offense where the State produced evidence that the adult victim, because of her child-like mentality, lacked the capacity to consent to sexual intercourse with Baise. Similarity was also demonstrated by the fact that, in both instances, Baise had access to the victims through his relationship with their mother. Stephens v. State, 261 Ga. 467, 469 (405 SE2d 483) (1991); see Payne v. State, 207 Ga. App. 312, 314-315 (428 SE2d 103) (1993), overruled on other grounds by Sims v. State, 266 Ga. 417, 418 (467 SE2d 574) (1996).

Judgment affirmed.

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


author: Andrews, Chief Judge. Blackburn, Judge,

text:
    A98A0046.
    HILL v. THE STATE.
    (502 SE2d 505)
   Andrews, Chief Judge.

A jury found Malika Hill guilty of mutiny based on evidence presented by the State that while he was in the lawful custody of the Ware County Jail, Hill assailed a detention officer with the intent to cause serious bodily injury. OCGA § 16-10-54. On appeal, Hill claims the trial court violated the provisions of OCGA § 17-16-6 and his rights under the Sixth and Fourteenth Amendments to the United States Constitution by excluding the testimony of two witnesses he intended to call in his defense.

At the commencement of the trial, Hill’s defense counsel announced that in addition to the defendant, the defense intended to call two witnesses, Faye Robinson and Ivory Sallet. The State moved to exclude the testimony of the two witnesses on the basis that Hill, who elected to apply the discovery provisions of OCGA § 17-16-1 et seq. to the case, failed to disclose the witnesses to the State as required by OCGA § 17-16-8 (a). Defense counsel responded that she had become aware of the necessity of the testimony of the witnesses too late to comply with the disclosure requirements of the discovery statute. The trial court granted the motion and excluded the testimony of both defense witnesses on the basis of the discovery statute.

Just prior to the defense’s presentation of testimony from Hill, the trial court asked defense counsel to explain who the two excluded witnesses were. Defense counsel stated that Sallet was another inmate incarcerated with Hill at the time of the incident and that Robinson was Hill’s mental health counselor. After defense counsel reviewed a statement given by Robinson summarizing what that witness would have testified to, defense counsel told the trial court that, “I don’t believe [Robinson’s testimony] would have added or taken away anything.” As to Sallet, there was no evidence regarding the witness’ expected testimony. Defense counsel admitted to the trial court that she had known about Sallet’s existence for “some while” and conceded that the lack of notice “was our failure,” but she reiterated that the failure to give the required notice was because “we found [the witness] late.” After this inquiry, the trial court let stand its order excluding the testimony of both witnesses.

Defense counsel was required to disclose defense witnesses to the prosecuting attorney under the provisions of OCGA § 17-16-8 (a). The consequence of defense counsel’s failure to comply with this discovery requirement is set forth in OCGA § 17-16-6 which provides that, “[i]f at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of this article, the court may order the defendant to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.” Accordingly, the trial court had discretion under OCGA § 17-16-6 to exclude the testimony of a nondisclosed defense witness only upon a showing of prejudice to the State and bad faith by the defense. See Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696) (1996); Williams v. State, 226 Ga. App. 313, 314 (1) (485 SE2d 837) (1997).

We need not engage in any inquiry as to the exclusion of Robinson’s testimony because the record shows that after defense counsel reviewed this witness’ expected testimony, she waived any claim as to Robinson by conceding to the trial court that the testimony was not relevant. As to the exclusion of Sallet’s testimony, however, even if there was a basis for the trial court to conclude that the defense acted in bad faith in failing to disclose the witness, there was no evidence of the expected testimony or other evidence upon which the trial court could conclude that the State would have been prejudiced by its admission without prior disclosure in compliance with the statute. Without a basis to conclude that the State would be prejudiced unless the witness’ testimony was excluded, the trial court abused its discretion by excluding Sallet as a defense witness.

Nevertheless, on appeal the burden was on Hill to show not only that the trial court erred but that he was harmed by the error. Hall v. State, 202 Ga. 619, 620-622 (44 SE2d 234) (1947). Hill cannot rely on the trial court’s erroneous exclusion of the witness as a basis for reversal of his conviction on appeal without an offer of proof in the trial record concerning the testimony he expected the witness to give. Cruz-Padillo v. State, 262 Ga. 629, 631 (422 SE2d 849) (1992). Without any record of what Sallet was expected to say in defense of Hill, this Court cannot determine if the error in excluding the witness under OCGA § 17-16-6 was harmful. Hall, supra. Accordingly, Hill failed to carry his burden of demonstrating that there was harm requiring reversal of his conviction. Since Hill’s claims of error based on the compulsory process clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment are also subject to harmless error analysis, it follows that Hill has failed to carry his burden on these constitutional claims of demonstrating that the exclusion of Sallet’s testimony was harmful error requiring reversal. Crane v. Kentucky, 476 U. S. 683, 690-691 (106 SC 2142, 90 LE2d 636) (1986).

Judgment affirmed.

Blackburn and Eldridge, JJ., concur and concur specially.

Blackburn, Judge,

concurring specially.

I concur in the judgment of the majority. I write separately to stress the necessity that sanctions and remedies under OCGA § 17-16-6 be applied equally to the defendant and the State.

OCGA § 17-16-6 provides that, if the State fails to comply with discovery requirements, “the court may order the [Sjtate to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the [Sjtate from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.” The statute goes on to apply the same standard to a defendant who fails to follow applicable discovery procedures.

“This statute clearly reflects two principal goals. First, and most important, any remedy fashioned by the trial court must be designed to restore to [the State or to a] defendant all those rights which the legislature intended for [the State or] the defendant to have had [the opposing party] met [his or] its burden under the statute, and to correct the prejudice [to the State or] to the defendant caused by the [opposing party’s] failure to perform . . . mandatory discovery obligations, regardless of whether the [party failing to do so] acted in bad faith. Second, the statute clearly contemplates the imposition of punitive sanctions, including the exclusion of evidence, to deter [a party] from violating its discovery obligations. This deterrent goal is important because, if the most serious consequence of a failure to perform is the mere grant of a continuance, the [parties] would have little incentive to ensure that [they] fully [comply] with . . . discovery obligations.” Hammitt v. State, 225 Ga. App. 21, 23 (482 SE2d 437) (1997) (Blackburn, J., concurring specially).

On its face, OCGA § 17-16-6 assumes, as it must, that the State and a criminal defendant begin on a level playing field at the outset of trial. Each party has similar remedies against the other should there be a deviation from the standard discovery procedure set forth under the Georgia Code. If OCGA § 17-16-6 is neutrally applied in practice to both the State and criminal defendants, then the goals of the statute are satisfied.

On the other hand, if the courts do not apply sanctions or remedies equally to the defendant or the State for comparable breaches of duty, the goals of the statute will be fatally undermined. This Court has consistently required defendants to seek continuances when confronted with the State’s failure to meet its duty under OCGA § 17-16-6. See, e.g., Williams v. State, 226 Ga. App. 313, 314 (1) (485 SE2d 837) (1997); Franklin v. State, 224 Ga. App. 578 (2) (481 SE2d 852) (1997); Bell v. State, 224 Ga. App. 191, 192 (480 SE2d 241) (1997).

On the other hand, this Court routinely affirms the trial court’s exclusion of evidence where it is the defendant who has failed to meet its burden under OCGA § 17-16-6, without requiring the State to first seek a continuance of the case. While the statute is neutral as to the parties, the practice is to apply the statute to the benefit of the State. What is good for the goose may indeed be good for the gander, but only if they start from a position of equality on a level playing field.

I am authorized to state that Judge Eldridge joins in this special concurrence.

Decided May 18, 1998.

John D. Staggs, for appellant.

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.


author: Ruffin, Judge.

text:
    A98A0390.
    STEWART v. THE STATE.
    (502 SE2d 502)
   Ruffin, Judge.

A jury found George Stewart guilty of violating the Georgia Controlled Substances Act by possessing cocaine with intent to distribute (OCGA § 16-13-30 (b)) and speeding (OCGA § 40-6-181). Stewart appeals, contending that there was insufficient evidence to support his conviction for possession of cocaine with intent to distribute, and consequently, the trial court improperly denied his “Motion for Judgment or Acquittal Notwithstanding the Verdict, or in the alternative a New Trial.” Stewart further contends that the trial court erred by dismissing his motion to suppress. For reasons which follow, we affirm.

We note initially that Stewart filed a “Motion for Judgment or Acquittal Notwithstanding the Verdict or in the alternative a New Trial.” “No statutory provision for judgment n.o.v. exists in the statutory criminal law of Georgia and the Supreme Court, in Wilson v. State, 215 Ga. 775 (1) (113 SE2d 607) (1960), declined to create such a remedy judicially.” Rhyne v. State, 209 Ga. App. 548, 550 (1) (434 SE2d 76) (1993). Accordingly, Stewart’s post-conviction motion for j.n.o.v. was not appropriate. However, because Stewart also requested a new trial and properly raised the sufficiency of the evidence on appeal, we now consider this issue.

1. Stewart contends that the trial court erred in denying his motion for new trial because the evidence was insufficient and the verdict was against the weight of the evidence. We disagree.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.] The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) is the proper test for an appellate court to use in resolving questions of insufficiency of the evidence during the direct appeal of a judgment of conviction. Moreover, the reasonable doubt test established in Jackson v. Virginia, supra, ‘is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.’ [Cit.]” Jowers v. State, 225 Ga. App. 809, 810 (484 SE2d 803) (1997).

Construed in a light most favorable to the verdict, the record shows that on November 22, 1996, at approximately 10:46 a.m., Officers Mark C. Whitwell and Scott Whitwell observed a vehicle traveling 62 mph in a 45 mph zone. The officers stopped the vehicle. Stewart, the driver and sole occupant of the vehicle, was very nervous when approached by the officers. Stewart’s hand was shaking excessively and his voice was “cracked.” One of the officers observed Stewart pull his hand from his pocket and place an object between the seat and the console. The officers detected an odor of marijuana coming from the vehicle and noticed ashes on Stewart’s clothing. Stewart was advised that an odor of marijuana had been detected, and he consented to a search of his car. Upon searching the car, the officers located a black zippered bag between the console and the driver’s seat. The bag contained 51 pieces of crack cocaine and weighed approximately 4.9 grams.

At trial, one of the officers testified that based on his experience, the value of the cocaine rocks was probably $20 per piece. The officer also testified that from his experience as a law enforcement officer, “normally a user will have maybe one or two pieces of crack cocaine or have a smoking apparatus — what they call a crack pipe. Normally with an amount like that, in my experience I’ve seen it basically for sale and not for personal use.”

Stewart testified that after he was stopped one of the officers told him that an odor of marijuana had been detected in his car. According to Stewart, he denied smoking marijuana and the officers began searching his car without consent. Specifically, Stewart testified that while one of the officers issued a warning for speeding, the other officer proceeded to the right side of the car, opened the car door and began to search the car without Stewart’s permission. Stewart denied ownership of the bag found in his car. Stewart further testified that the car had been recently driven by other people who he knew used illegal drugs.

Although Stewart denied ownership of the contraband, there is sufficient evidence from which any rational trier of fact could find beyond a reasonable doubt that he was guilty of the offenses for which he was convicted. Jackson v. Virginia, supra. Therefore, the trial court did not err by denying Stewart’s motion for new trial. Id.

2. Stewart asserts that the trial court improperly dismissed his motion to suppress illegally seized evidence without a hearing. The record reveals that Stewart was arraigned on the aforementioned charges and pled not guilty in the presence of his attorney, but failed to make a request for an extension of time to file motions pursuant to Uniform Superior Court Rule 31.1. Stewart filed the motion to suppress five weeks after arraignment. Stewart’s counsel explained that the delay in filing was due to “exploring some other possibilities, perhaps even plea bargaining.” Notwithstanding counsel’s explanation, the trial court dismissed the motion as untimely.

Decided May 18, 1998.

Ninfo & Associates, Mario S. Ninfo, for appellant.

Tommy K. Floyd, District Attorney, Gail M. Travillian, Assistant District Attorney, for appellee.

“A defendant aggrieved by an unlawful search and seizure pursuant to a warrant may make a motion to suppress the evidence, which must be in writing and state facts showing the unlawfulness of the search and seizure. OCGA § 17-5-30. The motion must be made at or before the defendant’s arraignment and if not made at the proper time is waived unless the time for filing is extended by the judge in writing. Uniform Superior Court Rule 31.1. This rule has evolved over time. The purpose of the time requirement in USCR 31.1 is fundamental fairness to all parties and those who must attend trial. Failing to file a timely motion to suppress amounts to a waiver of even constitutional challenges.” (Citations omitted.) Hatcher v. State, 224 Ga. App. 747, 748-749 (1) (482 SE2d 443) (1997).

Relying on Hawes v. State, 240 Ga. 327 (240 SE2d 833) (1977), Stewart argues that Georgia law does not provide for a specific time to file a motion to suppress, only that it must be made at trial. Hawes does not support this contention because it was decided before the advent of the Uniform Superior Court Rules, which became effective July 1, 1985. Uniform Superior Court Rules (1993 version). Other cases cited by Stewart, Stansifer v. State, 166 Ga. App. 785 (305 SE2d 481) (1983) and Collier v. State, 171 Ga. App. 214 (319 SE2d 51) (1984) were also decided prior to the adoption of the uniform rules.

As the trial court indicated, Stewart had the opportunity to move for an extension of time to file the motion, but failed to do so. Accordingly, the trial court did not abuse its discretion by dismissing Stewart’s motion to suppress. Hatcher, supra.

Judgment affirmed.

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


text:
    A98A0608.
    MINOR v. THE STATE.
    (502 SE2d 272)
   Judge Harold R. Banke.

Curtis Minor was convicted of burglary, rape, aggravated assault, and false imprisonment. In his sole enumeration, Minor argues that the trial court erred in denying his motion for continuance.

The victim woke around 1:00 a.m. with Minor, a co-worker, standing beside her bed. He beat her, threatened her with a knife and gun, and raped her. Then he wiped her off, told her not to move for ten minutes, and left.

Just prior to trial, Minor’s family retained private counsel for him and Minor attempted to discharge his court-appointed counsel. After private counsel unsuccessfully moved for a continuance to prepare a defense, Minor agreed “under protest” to representation by his appointed counsel at trial. Held:

The trial court did not abuse its discretion in denying Minor’s motion for a continuance. Aleman v. State, 227 Ga. App. 607, 610 (2) (a) (489 SE2d 867) (1997). The denial of such motions is appropriate to prevent the defendant from using the discharge and employment of counsel as a dilatory tactic. Id. To determine whether such a tactic is being attempted, consideration of the defendant’s conduct is relevant and proper. Id.

The record shows that a week after Minor’s arrest on June 7, 1995, he was provided with appointed counsel. In November 1995, Minor, unhappy with the progress of his case and facing a sentence of life without parole due to his prior convictions, requested a new attorney. The court granted that request in March 1996, on conflict of interest grounds. Shortly thereafter, the court also granted a continuance until the next term of court to allow the newly appointed counsel to prepare for trial, which was specially set for December 2, 1996.

Notwithstanding Minor’s complaints about the quality of representation he received, it is undisputed that his second appointed counsel, who testified that Minor refused to cooperate or communicate with him, expended over 60 hours preparing the case. It is also undisputed that as his trial date approached, Minor attempted to discharge his second appointed counsel, a tactic previously successful in delaying his trial for months. The record shows that Minor’s family retained private counsel at his request, just prior to the trial date.

In denying the motion for continuance, the trial court concluded that the change in counsel was a dilatory tactic meant to delay the proceedings. After determining to hold the trial that day, it gave Minor the choice of either lawyer and also offered private counsel the option of assisting in the trial if he desired.

Based on these facts, the trial court was authorized to conclude that Minor was attempting to use the discharge and employment of his lawyers as dilatory tactics. See Loggins v. State, 225 Ga. App. 713, 714 (1) (484 SE2d 758) (1997). Further, inasmuch as Minor’s second appointed counsel was prepared for trial, the evidence was overwhelming, no proffer of the testimony of the witnesses counsel purportedly failed to contact was given, and no other errors are enumerated, we believe Minor failed to show how additional time would have helped him or how he was harmed by the denial of the continuance. Brown v. State, 214 Ga. App. 733, 735 (2) (449 SE2d 136) (1994).

Decided April 22, 1998

Reconsideration dismissed May 19, 1998.

Chevene B. King, Jr., for appellant.

J. David Miller, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


text:
    A98A0146.
    A98A0147.
    NORTHSIDE WOOD FLOORING, INC. v. BORST et al. CALHOUN/JOHNSON COMPANY v. SYLTE et al.
    (502 SE2d 508)
   Johnson, Judge.

These cases involving materialmen’s liens have been consolidated on appeal because they involve nearly identical factual and legal issues.

The pertinent facts of Case No. A98A0146 are as follows: North-side Wood Flooring, Inc. supplied materials to Mike Rice d/b/a Mike Rice Construction for use in his construction of a home for William and Dorothy Borst. On March 17, 1995, when Rice failed to pay Northside, Northside filed a claim of lien against the Borsts’ property. The claim of lien alleged the debt came due on March 1, 1995. On March 31, 1995, Northside sued Rice in Barrow County. North-side filed a notice of the suit on April 7, 1995, in Greene County, where the improved property is located. In May 1995, Rice filed a Chapter 7 bankruptcy petition. In September 1995, Northside filed a proof of claim against Rice in bankruptcy court.

On March 8, 1996, Northside sued the Borsts in Greene County alleging that: the Borsts owned the improved property; they contracted with Rice who subcontracted with Northside to furnish the materials; Northside furnished the materials; the Borsts failed to pay Northside; Northside recorded a lien against the property; and Northside sued the contractor but did not obtain a judgment because the contractor filed bankruptcy. Northside prayed for a special lien on the property. The Borsts answered and moved for summary judgment, alleging the lien was unenforceable because Northside failed to sue them within 12 months after the claim came due and failed to file notice of the suit against them, when both procedures were required by OCGA § 44-14-361.1 (a) (4).

The following facts are relevant to Case No. A98A0147: Calhoun/ Johnson Company d/b/a Williams Brothers Lumber Company (‘Williams Bros.”) also furnished materials to Rice. These materials were used in the construction of a home for Richard and Janie Sylte. On March 13,1995, after Rice failed to pay Williams Bros, for the materials, Williams Bros, filed a claim of lien against the Sylte property, alleging the claim came due on February 10, 1995. Williams Bros, sued Rice in Barrow County for money damages on March 20, 1995, and filed a notice of the suit against Rice on March 23, 1995. It is not clear from the record whether Williams Bros, filed a proof of claim in Rice’s bankruptcy case.

Williams Bros, filed suit in Greene County against the Syltes on February 27, 1996, alleging that it contracted with Rice to provide materials for use in building the Syltes’ home. The complaint alleged further that the Syltes breached the contract by failing to pay Williams Bros, and that Williams Bros, sued Rice to recover the debt, but no judgment against Rice was obtained due to his bankruptcy. Williams Bros, prayed for a special lien upon the property. The Syltes moved for summary judgment on the same bases as the Borsts, namely: Williams Bros, failed to file suit against them within 12 months after the claim came due and failed to file notice of this suit.

Without specifying its reasons therefor, the trial court entered summary judgment in favor of the Syltes and the Borsts (collectively “the property owners”). In Case No. A98A0146, Northside appeals from the grant of summary judgment to the Borsts. In Case No. A98A0147, Williams Bros, appeals from the grant of summary judgment to the Syltes. For the reasons which follow, we affirm the grant of summary judgment in both cases.

1. Materialmen may obtain special liens on property for which they furnish materials if the liens are created and declared in accordance with OCGA § 44-14-361.1. OCGA §§ 44-14-361.1 (a); 44-14-361. OCGA § 44-14-361.1 (a) provides that a lien claimant’s failure to comply with any of the provisions of the statute renders the lien unenforceable.

OCGA § 44-14-361.1 (a) (3) provides, in relevant part, that a materialman must commence an action to recover the amount of the claim within 12 months of the time the claim becomes due and he must, within 14 days of filing the action, file a notice of the suit.

OCGA § 44-14-361.1 (a) (4) provides, in part, that where a contractor is adjudicated bankrupt or, if after an action is filed, no final judgment can be obtained against the contractor because of his adjudication in bankruptcy, the materialman need not file an action or obtain judgment against the contractor before enforcing a lien against the improved property. This subsection further provides that the materialman may enforce the lien directly against the property by filing an action against the owner within 12 months from the time the lien becomes due. It also states that the lien claimant, within 14 days after filing the action, must file a notice of the action which includes, among other things, the court in which the action was filed, the date the action was filed, the style, case number and parties’ names.

2. Northside and Williams Bros, (collectively “the materialmen”) concede that they never filed notices of the suits they commenced against the property owners. They contend, however, that the notice requirement of OCGA § 44-14-361.1 (a) (4) does not apply because they previously filed notices of the suits against Rice when they commenced their actions against him. Their compliance with the notice requirement of OCGA § 44-14-361.1 (a) (3), they maintain, was sufficient to satisfy the statute. We disagree.

First, while the actions against Rice were based on subsection (a) (3), the actions filed against the property owners were clearly based on subsection (a) (4). The complaints alleged that the contractor was bankrupt, that no judgment was obtained against him, and that the action was against the owner of the property. These allegations relate to actions brought pursuant to subsection (a) (4) rather than (a) (3). Because the materialmen were relying on subsection (a) (4), they were required to comply with that subsection, though they failed to do so.

Second, compliance with one section of the lien statute does not eliminate the need to comply with another section. As we stated previously, the statute specifically provides that failure to comply with any of its provisions renders the lien unenforceable. OCGA § 44-14-86!. 1 (a). We find no support for the proposition that filing a notice of suit in connection with an action brought against a contractor satisfies the requirement that notice be filed in connection with a suit subsequently filed against a property owner. Indeed, statutory language indicates the contrary.

Third, the history of the materialmen’s lien statute evidences a legislative intent to require filing notice in every action brought pursuant to OCGA § 44-14-361.1 (a). See in this regard Judge Pope’s special concurrence in Eurostyle v. Jones, 197 Ga. App. 188 (397 SE2d 620) (1990). Although presently both of the subsections at issue expressly require the filing of a notice of “such action,” this has not always been the case. Prior to 1989, OCGA § 44-14-361.1 (a) (4) did not require the filing of a notice; only subsection (a) (3) did. See Noland Co. v. Ford Motor Co., 258 Ga. 469, 470 (2), (3) (369 SE2d 910) (1988). In 1989, however, the legislature amended OCGA § 44-14-361.1 (a) (4) to require that a lien claimant seeking to enforce a lien directly against the property owner must file a notice of the action. Had the legislature intended to exempt a materialman who had previously filed a notice of an action against a contractor from having to file a notice of a subsequent action against a property owner, it could have so provided. It did not.

Finally, as a practical matter, the notices filed in connection with the actions against Rice did not constitute notice of the later suits brought against the property owners. Both subsections (a) (3) and (a) (4) require that the notice identify the court in which the action is brought, the style and number of the action, including party names, and the date the action was filed. The cases against the property owners involved different parties, had different names, action numbers, and filing dates, and were brought in different counties from those actions brought against Rice. Thus, notice of the suits against the contractor did not notify persons of the suits against the property owners.

The materialmen argue on appeal that Rice has not yet been adjudicated a bankrupt, but has only filed a bankruptcy petition, and therefore does not come within the purview of subsection (a) (4). This argument is without merit. See Reid v. Harbin Lumber Co. &c., 172 Ga. App. 615, 616-617 (1) (323 SE2d 845) (1984) (contractor comes within meaning of “adjudicated a bankrupt” language of OCGA § 44-14-361.1 (a) (4) by filing voluntary petition in bankruptcy).

Because the lien statute is in derogation of the common law, it must be strictly construed in favor of the property owners and against the materialmen. Palmer v. Duncan Wholesale, 262 Ga. 28, 30 (1) (413 SE2d 437) (1992). “[0]ne who claims a lien must bring himself clearly within the law.” (Citation and punctuation omitted.) Law Office &c. v. Baker, 185 Ga. App. 809, 810 (366 SE2d 167) (1988). The materialmen have failed to do so in these cases. There being no genuine issues of material fact remaining as to whether the materialmen can enforce their claims of lien, the trial court did not err in granting summary judgment to the property owners. See Metromont Materials Corp. v. Cargill, 221 Ga. App. 853, 855 (473 SE2d 498) (1996).

3. In light of the foregoing, we need not reach the issue of whether the materialmen commenced their actions against the property owners within the statutory time limits.

Judgments affirmed.

Birdsong, P. J., and Smith, J., concur.

Decided May 19, 1998

Jacket, Rainey, Marsh & Busch, James C. Busch, Chad K. Reed, for appellants.

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


text:
    A98A0464.
    DUPREE v. THE STATE.
    (502 SE2d 511)
   Judge Harold R. Banke.

In a bench trial, Ricky Dupree was convicted of cocaine trafficking. On appeal, Dupree contests the denial of his motion to suppress and challenges the sufficiency of the evidence leading to his arrest.

The underlying case arose from a drug investigation targeting Jerry Allen. A confidential informant, whose services had been employed successfully on prior occasions, specifically detailed how Allen would order, obtain, and distribute cocaine. According to the informant, Allen would place phone calls from inside the Nowhere Bar, then order quantities of cocaine from a source, and then exit the bar to meet nearby with his source. A second confidential informant supplied virtually identical information to another drug agent. While conducting undercover surveillance of Allen near this bar for a few months, law enforcement officers observed several meetings between Allen and Dupree during which they appeared to conduct drug transactions. Less than a week before the arrest here, a surveillance officer observed a suspicious rendezvous between Allen and Dupree, but while attempting to follow Dupree, lost his vehicle in traffic. On the day of Dupree’s arrest, the confidential informant beeped Officer Charles Porterfield, who alerted his supervisor, Sergeant T. O. Cochran, about an impending drug deal. Nearly immediately, Cochran and another officer, believing a drug deal was in progress, intercepted Allen and Dupree in Dupree’s vehicle and arrested them. Inside Dupree’s vehicle, investigators discovered a plastic bag containing powder cocaine and crack cocaine. Held:

1. Dupree contends that the trial court erred in denying his motion to suppress because the police lacked probable cause for a warrantless stop and search of his vehicle. We disagree.

The State’s evidence showed that a confidential informant with established reliability provided detailed information which had been independently confirmed as investigators shared information obtained during their surveillance of Allen. See Goodman v. State, 255 Ga. 226, 229 (13) (336 SE2d 757) (1985) (probable cause may rest upon the collective knowledge of the police when there has been communication among them, rather than solely on the information possessed by the arresting officer).

Decided May 19, 1998.

James W. Smith, for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

Where the details of a tip are corroborated by the personal observation of the investigating officers, a reliable informant’s tip is sufficient to establish probable cause for a warrantless search. Wells v. State, 212 Ga. App. 60, 63 (2) (441 SE2d 460) (1994). In this case, the arresting officer had received information conveyed by a reliable informant that a drug deal was underway, and based on his own personal knowledge, the officer recognized Dupree as well as his vehicle. Under the totality of the circumstances surrounding the arrest, we cannot say that the trial court clearly erred in finding that probable cause existed for officers to execute a warrantless stop and search of Dupree and his vehicle. Williams v. State, 208 Ga. App. 737, 738-739 (431 SE2d 731) (1993); Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). Since Dupree failed to show that the trial court’s factual or credibility findings were clearly erroneous, those findings must be accepted. Martinez-Rodriguez v. State, 195 Ga. App. 491, 493 (4) (393 SE2d 748) (1990); Durden v. State, 187 Ga. App. 433, 434 (2) (370 SE2d 528) (1988).

2. Dupree contends that investigators lacked probable cause to arrest him, even assuming arguendo that they had probable cause to arrest Allen. We disagree. Given the exigent circumstances justifying the warrantless search and seizure here, and considering the totality of the circumstances, the trial court did not err in determining that police had probable cause for the arrest. Archer v. State, 217 Ga. App. 395, 396-397 (457 SE2d 679) (1995).

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A98A0516.
    THOMAS v. INTERNATIONAL INDEMNITY COMPANY.
    (502 SE2d 512)
   Judge Harold R. Banke.

Elizabeth Lewis Thomas appeals the trial court’s order granting International Indemnity Company (“IIC”) a declaratory judgment and its denial of her motion for new trial.

This case arose from an automobile collision involving Thomas and a car driven by Charles Finney and owned by James Russell Lipford d/b/a P & L Motors (“P & L Motors”), IIC’s insured. At the time, Lipford’s car was being repaired by Charles Burlie d/b/a Charles’ Auto Repair. At the time of the collision, 9:00 a.m., Finney, an intermittent employee of Charles’ Auto Repair, was intoxicated and did not possess a valid license.

Thomas sued Burlie d/b/a Charles’ Auto Repair (“Burlie”) and Finney, alleging that Finney was Burlie’s employee and was driving with permission within the scope of his employment. The complaint alleged negligence and negligent entrustment. Thomas sought $3,653.45 in medical specials, the total value of her 1981 Oldsmobile, future medical expenses, compensation for pain and suffering and punitive damages. When neither Burlie nor Finney answered Thomas’ complaint, Thomas obtained default judgments against them.

IIC brought the underlying declaratory judgment action after Thomas claimed that Lipford’s policy covered the collision. IIC denied coverage. Thomas argued that the default collaterally estopped IIC from denying that Finney acted without permission. The trial court held that IIC was not obligated to provide liability coverage or a defense for the damages Finney caused. Held:

1. Thomas claims the trial court improperly denied her motion for directed verdict, arguing that the default judgment against Burlie established that Finney was driving with permission. We disagree.

The policy at issue required the insured’s permission. There is no evidence that Lipford or anyone from P & L Motors gave Finney permission to drive. Thus, the issue of coverage was never adjudicated. Compare American States Ins. Co. v. Walker, 223 Ga. App. 194, 195 (1) (477 SE2d 360) (1996). The fact that Burlie was collaterally estopped from denying that he gave Finney permission to drive failed to establish coverage.

2. The trial court properly denied Thomas’ motion for new trial. Assuming solely for the sake of argument that Finney had proper permission to drive the car, the policy nevertheless provided no coverage. The policy covered permissive users except for “[sjomeone using a covered ‘auto’ while he or she is working in a business of selling, servicing, repairing, parking or storing ‘autos’ unless that business is your ‘garage operations.’ ” This language specifically excludes situations where a covered automobile is being repaired by another entity on its premises.

The vehicle at issue was indisputably in Burlie’s possession for repairs. Nothing in the record supports Thomas’ contention that Charles’ Auto Repair was P & L Motors’ “garage operation.” On the contrary, the policy limited coverage to garage operations located at P & L Motors’ address. Further, the record shows that P & L Motors and Charles’ Auto Repair were totally separate entities. Charles’ Auto Repair was not even P & L Motors’ exclusive provider of repair services. In fact, the record shows that P & L Motors made certain repairs at a garage on its own facility. In these circumstances, where the policy clearly did not provide coverage, a new trial is inappropriate. Beasley v. Paul, 223 Ga. App. 706, 707 (1) (478 SE2d 899) (1996).

Decided May 19, 1998.

Adams & Jordan, Virgil L. Adams, for appellant.

Miller & Towson, Peter R. Cates, Joel A. Howe, for appellee.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       Nor did the default judgment involve the same parties or their privies. Id.


text:
    A98A0889, A98A0962.
    GOLDEN PLAZA, LTD. v. RICHMOND COUNTY et al. (two cases).
    (502 SE2d 321)
   Johnson, Judge.

This is the third appearance of these parties over issues relating to condemned property. In January 1997, this Court dismissed two appeals filed by Golden Plaza, Ltd. (Case Nos. A97A1030 and A97A1031) because Golden Plaza failed to obtain a certificate of immediate review from the trial court within the requisite time period as required by OCGA § 5-6-34 (b). In June 1997, this Court again dismissed an appeal filed by Golden Plaza, holding, in part, that Golden Plaza’s claims were based on its status as a landowner and that Golden Plaza had conveyed its interest in the property and no longer owned the property. Golden Plaza v. Augusta-Richmond County, 228 Ga. App. 35, 36 (491 SE2d 69) (1997) (physical precedent only). In the present cases, Golden Plaza appeals state court judgments dismissing it from condemnation proceedings because it lacked standing as a condemnee.

Case No. A98A0889

On December 27, 1984, Golden Plaza acquired 18.64 acres of property in Richmond County (the “property”). Golden Plaza provided Merchants Bank with a security interest in the property pursuant to a first deed to secure debt and security. Boatmen’s First National Bank of Kansas City (“Boatmen’s”) obtained a transfer and assignment of the security deed from Merchants Bank. Golden Plaza and Boatmen’s executed an amended and restated basic restructuring agreement (the “restructuring agreement”) in February 1996. In accordance with the restructuring agreement, Golden Plaza provided Boatmen’s with a special warranty deed that granted title to the property to Boatmen’s or its designee in the event that Golden Plaza defaulted on the loan payments.

On June 26, 1996, Richmond County filed a Petition of Condemnation and Declaration of Taking against the property and acquired title to 1.5 acres of the property Golden Plaza owned in fee simple, 0.2 acres of a permanent drainage easement and 1.3 acres of a temporary construction easement. On July 2, 1996, six days after Richmond County acquired the property, Boatmen’s designee, M & M Realty, Inc., recorded the special warranty deed that Golden Plaza had signed in February 1996 pursuant to the restructuring agreement. The special warranty deed stated that Golden Plaza transferred, conveyed and assigned its ownership interest in the property and did not reserve any interest in the property.

M & M Realty executed a limited warranty deed for the property to Timberlake/Abernathy on May 14, 1997. M & M Realty also granted AE II, L.L.C. (“AE”) an interest in the indebtedness secured by the property, and AE was substituted for Boatmen’s as the secured lender for the property. On May 29, 1997, M & M Realty and Boatmen’s granted and assigned all of M & M Realty’s and Boatmen’s rights and interest in the condemnation action to Timberlake/Abernathy and AE.

On July 14, 1997, the trial court granted Timberlake/Abernathy’s motion to intervene as a condemnee and substituted AE as a party in interest for Boatmen’s. One day later, Timberlake/Abernathy and AE filed a motion to dismiss Golden Plaza from the condemnation proceeding, which the trial court granted. Golden Plaza appeals.

Case No. A98A0962

When Richmond County’s engineering plans called for a slight realignment of the road project, the county brought a second condemnation case against the record owners as of February 20, 1997. On that date, the record owners were M & M Realty, as successor in title to Golden Plaza under the special warranty deed recorded July 2, 1996, and Boatmen’s, as the lender of record. After this case was filed, M & M Realty conveyed its interest to Timberlake/Abernathy, and Boatmen’s conveyed its interest to AE. After the parties were substituted as condemnees, a settlement was reached with Richmond County. Thereafter, Golden Plaza was permitted to intervene. Golden Plaza then filed a motion for new trial, which was denied by the trial court because Golden Plaza had no interest in the property condemned on the date of taking. Golden Plaza appeals, alleging it was a condemnee on February 20, 1997.

The enumerations of error alleged by Golden Plaza in both cases all stem from one contention: Golden Plaza was a landowner of the property at the time the declarations of taking were filed. According to Golden Plaza, title passed with the June 26, 1996 declaration of taking, rendering the July 2, 1996 filing of the special warranty deed from Golden Plaza to M & M Realty a nullity. This issue was previously decided adversely to Golden Plaza in Golden Plaza, supra, where we held that Golden Plaza’s inverse condemnation claim was moot because it could not be considered a landowner following the conveyance of its interest on July 2, 1996.

The special warranty deed conveying the subject property from Golden Plaza to M & M Realty on July 2,1996, contains the following language: “Grantor [Golden Plaza] does by these presents GRANT, BARGAIN, CONVEY AND CONVEY (sic) unto Grantee [M & M Realty] and Grantee’s successors and assigns, the property described in Exhibit A attached hereto and incorporated herein by this reference, together with all improvements thereon (collectively, the “Property”), SUBJECT ONLY TO the matters set forth in Exhibit B attached hereto and incorporated herein by this reference.” There is no special carve-out of the condemned property in Exhibit A or B. According to the special warranty deed, M & M Realty is “TO HAVE AND TO HOLD the Property with all and singular the tenements, hereditaments, rights and appurtenances thereto belonging or in any wise appertaining, unto Grantee and Grantee’s successors and assigns, forever. . . .”

When Golden Plaza conveyed the subject property to M & M Realty without any reservation or condition, all rights arising out of such ownership were necessarily conveyed and thus lost. Any interest it may have had as a condemnee was conveyed to M & M Realty. The condemnation rights were rights appertaining to the property described in the legal description. While Golden Plaza argues that there is no evidence in the record that M & M Realty properly filed the special warranty deed, Golden Plaza has failed to offer any evidence which would demonstrate that there was anything invalid about the execution, delivery and recording of the special 'warranty deed.

We affirm the trial court’s order dismissing Golden Plaza’s appeal in Case No. A98A0889 and affirm the trial court’s order denying Golden Plaza’s motion for a new trial in Case No. A98A0962. Golden Plaza lacks standing to pursue any issues related to the condemnation proceedings because it conveyed all its right, title and interest in and to the subject property to M & M Realty by special warranty deed filed July 2, 1996.

Decided May 6, 1998

Reconsideration denied May 20, 1998

Chamberlain, Hrdlicka, White & Williams, Richard N. Hubert, for appellant.

Burnside, Wall, Daniel, Ellison & Revell, Harry D. Revell, for appellees.

Judgments affirmed.

Birdsong, P. J., and Smith, J., concur.