text:
    A01A2385.
    MAYHUE et al. v. MIDDLE GEORGIA COLISEUM AUTHORITY.
    (559 SE2d 488)
   Mikell, Judge.

Charles and Michelle Mayhue appeal from the grant of summary judgment to the Middle Georgia Coliseum Authority d/b/a Macon Centreplex (“Authority”) in this premises liability case. We affirm.

On appeal, we review the trial court’s grant of summary judgment de novo to determine if the evidence demonstrates any genuine issue of material fact. To prevail, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. “A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.”

Viewed most favorably to the plaintiffs, the evidence shows that Charles Mayhue slipped and fell on a full container of nacho cheese as he was leaving the Macon Coliseum after watching a circus performance with his wife and small daughter. Mayhue, who was carrying the child, deposed that he fell backward onto his left arm and broke his wrist. Mayhue estimated that he was ten to twenty feet away from the concession stand when he fell, and he testified that he was aware that nacho cheese was sold at the concession stand during the performance. He also testified that he had attended “quite a few” functions at the Coliseum and was aware that debris was left on the ground by patrons.

Lieutenant Charles Reynolds, a police officer who was in charge of security for the event, deposed that he was standing outside smoking a cigarette when Mayhue fell. Reynolds had propped some doors open and estimated that he was 60 to 70 feet away from Mayhue when the incident occurred. Reynolds deposed that he could not recall whether he witnessed Mayhue fall or saw him lying on the ground afterward, but the mishap attracted Reynolds’s attention.

Reynolds testified that there was a trash can in the area of the fall, that he had observed personnel cleaning the area that evening, and that the area was well lit. Reynolds further testified that the container of cheese was not on the floor when he went out to smoke a cigarette. However, he did not know how long he had been outside before Mayhue fell. Reynolds also deposed that the circus was “about to end” when the incident happened.

An owner or occupier of land is liable to invitees for injuries caused by his failure to exercise ordinary care in keeping his premises and approaches safe. This duty of ordinary care requires the owner to protect the invitee from unreasonable risks of harm of which the owner has superior knowledge and to inspect the premises to discover possible dangerous conditions of which the owner does not have actual knowledge. To recover for injuries sustained in a slip-and-fall action, therefore, the invitee must prove (1) that the owner had actual or constructive knowledge of the hazard, and (2) that the plaintiff lacked knowledge of the hazard, despite the exercise of ordinary care, due to actions or conditions within the control of the owner.

Mayhue does not contend that the Authority had actual knowledge of the substance that caused him to fall. Rather, he contends that questions of material fact as to the Authority’s constructive knowledge preclude summary judgment. To establish constructive knowledge, Mayhue must show that (1) an Authority employee was in the immediate area of the hazard and could have easily seen it, or (2) the substance remained on the floor long enough that the Authority should have discovered it in the exercise of ordinary diligence.

Mayhue argues that Reynolds, an Authority employee, was in the immediate area of the hazard and could have easily seen it. However, Mayhue never raised this argument in the trial court; therefore, it is waived. “It is well established that this court will not consider arguments neither raised nor ruled on in the trial court and that are asserted for the first time on appeal.”

Mayhue is thus relegated to the second method of proving constructive knowledge.

Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.

The general rule is that “a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident.” However, an exception to this rule was created in Daniels v. Atlanta Nat. League Baseball Club. The plaintiff in Daniels slipped and fell on liquid from a cup, or the cup itself, as she was walking down the stairs while exiting the stadium after an Atlanta Braves baseball game. In affirming the grant of summary judgment to the Braves, we held that “it would be unduly burdensome, if not impossible, for the Atlanta Braves to perform an inspection for trash on the stairs while tens of thousands of spectators are exiting the stadium.”

Decided January 25, 2002.

Buzzell, Graham & Welsh, Jeffrey N. Powers, for appellants.

Finley & Buckley, Jerald R. Hanks, for appellee.

Just as a fan expects and assumes the risk of wild pitches, foul balls, and unintentionally thrown bats, a fan should reasonably expect and assume that trash will be dropped on the premises by the thousands of other fans exiting the stadium at the end of a game. The risk of a cup sitting on the aisle steps is not an “unreasonable risk of harm” for one exiting a baseball stadium at the end of a game.

The same rationale applies in the instant case. It is reasonable for a patron of the Macon Coliseum to encounter food on the ground near the concession stand at the end of a circus performance. In fact, Mayhue deposed that it is not uncommon to see debris on the ground at the facility and that he had left trash on the ground himself. Accordingly, we agree with thé trial court that a container of nacho cheese on the floor of the Macon Coliseum does not pose an “unreasonable risk of harm” to a patron leaving the circus. Under the facts of this case, we hold that it would be unduly burdensome to require the Authority to prove that reasonable inspection procedures were in place and followed at the time of the incident.

The burden therefore shifted to Mayhue to show how long the substance had been on the floor before he fell. As Mayhue failed to meet this burden, summary judgment was appropriate.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

        Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 747 (527 SE2d 36) (1999).

       Id.

       (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Gunter a Patterson Bank, 247 Ga. App. 555, 557-558 (544 SE2d 735) (2001).

        Brown v. Piggly Wiggly Southern, 228 Ga. App. 629, 631 (3) (b) (493 SE2d 196) (1997).

       (Punctuation omitted.) Pfeiffer v. Dept. of Transp., 250 Ga. App. 643, 647 (3) (551 SE2d 58) (2001).

       (Footnote omitted.) Kauffman v. Eastern Food & Gas, 246 Ga. App. 103, 104-105 (2) (539 SE2d 599) (2000).

        Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998).

       240 Ga. App. 751 (524 SE2d 801) (1999).

       Id. at 753.

       Id.

       Id.

        Straughter, supra at 30.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A02A0187.
    TRUST ASSOCIATES v. SNEAD et al.
    (559 SE2d 502)
   Eldridge, Judge.

Trust Associates, Louis D. Brown, trustee, loaned over $75,000 to Medical Consultation Network Corporation, evidenced by three one-year promissory notes. Scott Snead and Fabio Mann personally guaranteed MCNC’s obligation. The notes provided for the payment of attorney fees in the amount of 15 percent if after default an attorney was retained to collect the sum owed. MCNC failed to make payments on the notes and was in default.

Trust Associates sued MCNC, Snead, and Mann; MCNC admitted entering into the notes and failing to make any payments. A default judgment was entered against MCNC for the entire amount, interest, attorney fees, and costs. At a jury trial against Snead and Mann, a verdict and judgment were entered against them for $75,000 and for attorney fees. Trust Associates moved for a new trial, because interest was not set out in the verdict against Snead and Mann. Snead and Mann moved for a judgment notwithstanding the verdict as to the award of attorney fees. The trial court granted the j.n.o.v. as to the award of attorney fees and denied the motion for new trial as to interest. We affirm, because the demand notice for attorney fees failed to comply with the statute, and plaintiff waived any defect in the form of the verdict by not timely objecting to the general verdict when returned by the jury the second time without specifying principal and interest separately.

1. Plaintiff contends that the trial court erred in granting the defendants’ motion for j.n.o.v. as to attorney fees by ruling that there was no evidence presented to support an award of attorney fees.

On July 17, 1998, Brown in his own name and with his own address sent the following demand letter to the defendants.

[I]f this debt is collected at law or by an attorney at law please be advised that all sums expended for collection and attorney fees of 15% will be added to the amount due as allowed for in the Notes. Other fees will be added to the amounts [sic] as allowed by State law. We will await 10 days for payment before proceeding.

However, Brown identified himself as the person to be paid and gave his own address of 4426-B Hugh Howell Highway, Suite 200, Tucker, Georgia 30084, for payment in the demand letters without indicating his capacity or his right to collect the debt. The demand letters failed to identify the notes to be paid. In contrast, the notes specified that “all principal and interest shall be payable to Trust Associates, 5616 Silver Ridge Dr., Stone Mt., GA 30087.”

The demand letter failed to satisfy the statutory requirements for the right to attorney fees, because it failed: (1) to identify the holder of the notes making demand, i.e., Trust Associates, its assigns, its attorney, or its trustee; (2) to identify the notes to which the demand was given for payment; and (3) to specify that ten days from the date of receipt of the notice would be given the debtor for payment prior to the imposition of the sanctions. OCGA § 13-1-11 (a) (3). To be a proper demand notice, it must as a matter of substance: (1) be in writing; (2) to the party sought to be held on the obligation; (3) after maturity; (4) to state that the provisions relative to payment of attorney fees in addition to principal and interest will be enforced; and (5) to state that the party has ten days from the receipt of such notice to pay the principal and interest without the attorney fees. Gen. Elec. Credit Corp. &c. v. Brooks, 242 Ga. 109, 119 (249 SE2d 596) (1978); Professional Cleaners v. Phenix Supply Co., 201 Ga. App. 634, 635 (411 SE2d 781) (1991).

(a) The demand notice failed to identify the holder.

The law requires that notice of intent to enforce an attorney fees provision be sent by the holder of the note. OCGA § 11-1-201 (20). . . defines “holder” as “a person who is in possession of a document of title or an instrument or an investment security drawn, issued, or endorsed to him or to his order or to borrower in blank.”

(Emphasis in original.) Krapf v. Wiles, 252 Ga. 452, 453 (314 SE2d 656) (1984). The reason for such identification of the holder is so that the debtor can know with certainty whom to pay during the ten-day period without delay in seeking to determine whom to pay. “In our view the statute’s requirement that notice be sent by the ‘holder’ is a matter of substance to which the doctrine of substantial compliance does not apply.” Id. at 453.

Statutory notice for the purpose of fixing liability for attorney’s fees should disclose who is the holder of the note, and who it is that intends to bring suit, and to whom the payment should be made; and if notice is so worded as to mislead or as to be likely to mislead the defendant in material respects as to these features, it is inadequate.

(Citations and punctuation omitted.) Id. at 453-454.

In this case, the demand letter failed to identify the holder, Trust Associates, its agent, its trustee as Brown, or its attorney, who had authority to accept payment to satisfy the debt if payment were timely tendered.

(b) The demand letter failed to identify the indebtedness due for payment.

The purpose of a demand notice is to identify the holder or his agent who may receive payment for the specific indebtedness past due, which must be paid during the ten-day period to avoid the imposition of liability for attorney fees. OCGA § 13-1-11 (a) (3); Goodrum v. Ensign Bank, 202 Ga. App. 53 (2) (413 SE2d 230) (1991). The demand notice, to serve its statutory purpose, must identify the note or notes involved as the underlying basis for the defendants’ indebtedness in the demand as past due so that this debt and no other may be paid within the ten days. Id. In this case, there was no specific identification of the notes past due, only an indirect allusion, which was insufficient to put the debtor on notice as to what debt was sought to be collected so there was not even substantial compliance with the statute.

(c) The statutory requirement of notice of a ten-day period from receipt for payment is mandated in a valid demand notice.

The debtors must be advised in the demand letter that they have ten days from the receipt of notice within which to satisfy the debt to avoid the imposition of attorney fees; substantial compliance with the statute does not include a failure to specify that the ten days run from the receipt of the demand notice. Gen. Elec. Credit Corp. v. Brooks, supra at 118; Professional Cleaners v. Phenix Supply Co., supra at 635 (ten days from date of the notice failed to comply). Unless the debtor is advised that the ten-day period rims from the time of receipt, the debtor has no way to know how long the period exists within which the debt can be satisfied without the imposition of the sanction of attorney fees. “So long as a debtor is informed that he has 10 days from receipt of notice within which to pay principal and interest without incurring any liability for attorney fees the legislative intent behind the enactment of [OCGA § 13-1-11 (a) (3)] has been fulfilled.” (Emphasis in original.) Gen. Elec. Credit Corp. v. Brooks, supra at 118. These demand notices failed to do this.

2. Plaintiff contends that the trial court erred in denying its motion for new trial to recover interest.

Initially the jury returned a verdict for $194,819.92, but minus the fair market value of the 200 shares of MCNC that plaintiff received. The trial court directed that the jury reconsider its verdict, because no value had been given to the MCNC shares that the plaintiff received, which was a set-off to the debt. After further deliberations, the jury returned a verdict for $75,000 plus costs and attorney fees. Plaintiff neither objected to the form of the verdict nor requested the trial court to determine from the jury in the box if interest had been awarded; plaintiff allowed the jury to be excused having returned a general verdict form.

(a) The verdict was within the range of the evidence.

The verdict fell within the range of the evidence considered by the jury. When a motion for new trial is made on general grounds, such motion is addressed to the sound discretion of the trial court. Kitchin v. Kitchin, 219 Ga. 417, 419 (1) (133 SE2d 880) (1963). When the ground for new trial is that the verdict was contrary to the evidence, this also is addressed to the discretion of the trial court whether to grant or deny such motion. Clark v. United Ins. Co. &c., 199 Ga. App. 1, 3 (1) (404 SE2d 149) (1991). Where there exists some evidence to support the verdict, then the verdict should not be disturbed. Crawford v. Presbyterian Home, 216 Ga. App. 54, 56 (5) (453 SE2d 480) (1994). “[A]ny evidence which supports the jury’s verdict is sufficient to sustain the trial court’s denial of a motion for new trial based on the sufficiency of the evidence.” Clark v. United Ins. Co., supra at 3. Thus, where a verdict falls within the range of the evidence, it should not be disturbed. Southern Crate &c. Co. v. McDowell, 163 Ga. App. 153, 155 (3) (293 SE2d 541) (1982).

(b) The parties either agreed to a general verdict or acquiesced to it, which waived any defect as to form.

As a general verdict, which did not require the jury to specify how much was the recovery of the balance due on the notes and how much was for interest, there is no way to determine that the jury did not return both principal and interest in the amount awarded; thus, this is not a proper basis for a new trial based upon mere speculation that no interest was awarded. Brock v. Douglas Kohoutek, L.P., 225 Ga. App. 104, 108-109 (3) (483 SE2d 342) (1997). Further, the plaintiff made no objection to the form of the verdict returned and did not request that the trial court inquire of the jury if it awarded interest included in the award. Southern Crate &c. Co. v. McDowell, supra at 155 (3). Therefore, the failure to have the trial court inquire of the jury while still in the box and to object to the form of the verdict, while the jury could still again reform the verdict, constituted a waiver of any defect. Brock v. Douglas Kohoutek, L.P., supra at 109; Ploof Truck Lines v. Bennett, 221 Ga. App. 789, 791-792 (3) (472 SE2d 552) (1996) (must object as to irregularity of form of verdict at time of rendition or otherwise waived).

(c) Plaintiff’s claim was for unliquidated damages.

When a question of fact exists as to the sum owed and the jury must determine such amount from the evidence before it, the damages are unliquidated; thus, an award of prejudgment interest would not be authorized. Spears v. Allied Engineering Assoc., 186 Ga. App. 878, 879 (2) (368 SE2d 818) (1988). The unliquidated nature of the damages in this case was demonstrated by the trial court’s need to have the jury recalculate the verdict after assigning a value to the MCNC stock received. Thus, the liability was neither certain and fixed nor changed with proof of the set-off for the stock received. Jennings Enterprises v. Carte, 224 Ga. App. 538, 541 (4) (481 SE2d 541) (1997); Marathon Oil Co. v. Hollis, 167 Ga. App. 48, 51-52 (3) (305 SE2d 864) (1983).

Decided January 25, 2002.

Stevens & McClung, Ronald S. Stevens, James B. McClung, John J. Maurer, for appellant.

Fellows, Johnson & La Briola, Henry D. Fellows, Jr., Steven M. Kushner, Rich & Smith, Randolph G. Rich, for appellees.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.


author: Phipps, Judge.

text:
    A02A0459.
    EDWARDS v. THE STATE.
    (559 SE2d 506)
   Phipps, Judge.

Ronald Lee Edwards appeals his conviction of one count of child molestation, alleging that the trial court erred by (1) allowing the jury to review a transcript of an interview with the victim without giving an adequate cautionary instruction; (2) improperly restricting cross-examination of a State’s witness; (3) allowing an anatomically correct drawing to go out with the jury; (4) giving an overly broad jury charge on child molestation; and (5) allowing a State’s witness to bolster the testimony of the child victim. Because each of these claims lacks merit, we affirm.

The evidence showed that during the fall of 1998, Edwards babysat seven-year-old B. T. when she got home from school. Sometime in 2000, B. T. saw a program at school about personal safety that included information about inappropriate touching. After the program, B. T. went to see school counselor Elizabeth Guthrie, who described her demeanor during their meeting as “extremely emotional.” B. T. told Guthrie that a man she had stayed with after school had touched her inside her clothing.

B. T. was later interviewed by Teresa Pilcher of the Bartow County Sheriff’s Department and Glenda Holt of the Department of Family & Children Services. The interview was recorded on videotape and audiotape, and the audiotape was played for the jury. In the interview, B. T. told Pilcher and Holt that Edwards had repeatedly placed his hand inside her pants on her vagina. Holt gave B. T. an anatomically correct drawing of a girl and asked her to circle the places where Edwards had touched her. B. T. circled the girl’s vaginal and buttocks areas.

1. The jury was given a transcript, apparently prepared by the State, of the audiotaped interview of B. T. Before the jury received the transcript, the trial court issued the following instruction:

Ladies and gentlemen of the jury, I anticipate that Ms. Fox [the prosecutor] and Ms. Holt will play a cassette tape in just a moment, and there is a transcript of that tape that Ms. Fox will distribute to you and you may use that to follow along with the tape, if you want to. Now, you don’t have to. And let me say this; you know, to some extent, this transcript represents somebody’s interpretation of what’s on the tape. If you find there’s any conflict, then you use your own judgement [sic] about what was said. In other words, if you find any conflicts between the transcript and the tape itself, you are not bound to accept what’s on this transcript. You use your discretion to determine what’s on the tape. And the tape itself should be considered the highest and best evidence. And even though you have this transcript, I urge you to listen carefully to the tape. And I would also urge you don’t read ahead, just, you know, read along with it if you utilize it.

Edwards contends that giving the transcript to the jury was error because the court’s instruction was inadequate to prevent the jury from giving it undue weight.

Our Supreme Court has held that it is not error to allow jurors to use a transcript as a tool to assist them in listening to an audiotape if (1) a proper foundation is laid for admission of the tape and (2) proper cautionary instructions are given. Edwards concedes that the first requirement was satisfied, but he claims the court’s cautionary instruction was flawed because it did not include the admonition that the transcript itself was not evidence. Although such language was included in the cautionary instructions approved by the Supreme Court, we do not agree that an instruction is automatically deficient without it. In Slakman v. State. the Supreme Court listed a number of important safeguards to be included in a cautionary instruction, only one of which was a statement that the transcript was not evidence.

The purpose of the cautionary instruction is to ensure that the jury recognizes that the audiotape itself is more important than the transcript. The instruction here accomplished that purpose. The court told the jury that use of the transcript was optional, that the transcript was one person’s interpretation of the tape, that the jury had to decide the contents of the tape, and that any conflicts between the tape and the transcript should be resolved in favor of the tape. We approved similar language in Nobles v. State, even though the instruction in that case, as here, did not include the explicit statement that the transcript was not evidence. Moreover, the transcripts were collected immediately after the tape was played, and they did not go out with the jury. Finally, as the State points out, Edwards does not point to any alleged discrepancies between the transcript and the audiotape, and all participants in the interview testified at trial and were available at trial for cross-examination as to what they had said. We find no error.

2. Edwards asserts that the trial court erred in curtailing his cross-examination of Holt concerning the videotape of her interview with B. T.

Holt testified on direct examination that the interview had been both video- and audiotaped. In a discussion at the bench, the prosecutor told the court that she would play the audiotape for the jury because the videotape contained an inadmissible reference by B. T. to Edwards’s incarceration on another matter and could be blocked out on the audiotape but not on the videotape. During cross-examination of Holt, Edwards’s attorney asked a number of questions about whether the interview had been videotaped and then asked whether there was “some problem with that videotape.” The court called counsel to the bench and told Edwards’s attorney that “you know what the problem with the videotape is. You keep on and I’m going to let them play it.” Edwards’s attorney later explained that he wanted the State to play the videotape (with the reference to Edwards’s incarceration deleted) instead of the audiotape because B. T. had said “uh-huh” several times on the audiotape in response to questions about what Edwards had done to her and the attorney thought the jury might incorrectly interpret those “uh-huhs” as affirmative responses.

“Control of the nature and scope of cross-examination of a witness is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.” We find no abuse of discretion in the court’s limitation of Edwards’s attempt to cast suspicion on the State’s refusal to play the videotape when that refusal was intended to protect Edwards from a prejudicial reference to his incarceration. As for Edwards’s concern that the audiotape and transcript were unclear, he could have clarified any confusion during cross-examination of the interview’s participants.

3. Edwards claims the trial court erred by allowing the anatomically correct drawings on which B. T. indicated where Edwards had touched her to go out with the jury. We have held that it is not error to allow such drawings to go out with the jury because they have no testimonial value in themselves but are merely tools to explain testimony given at trial. Edwards cites Bryant v. State, in which we applied this rule and noted that the drawings in question “were seen on the videotape of the victim’s interview.” Edwards claims that because the videotape of the interview was not played in this case, the anatomical drawing rule does not apply. But we find no basis for restricting the rule to cases in which a videotape was played. In this case, an audiotape of the interview was played, during which the drawings were mentioned. The drawings were simply used to illustrate B. T.’s audiotaped testimony.

4. Edwards complains that the trial court erroneously instructed the jury on the entire statutory definition of child molestation even though the indictment charged him with committing the crime in a specific manner — by placing his hand against B. T.’s vaginal area. Edwards claims the jury might have found him guilty of some form of child molestation not charged in the indictment. We disagree.

It is not error to charge an entire Code section even though part of the section may be inapplicable unless there is a reasonable probability that the jury would convict the defendant of committing the offense in a manner not charged in the indictment. We have held that the child molestation statute does not set forth alternative methods by which the crime may be committed, so no error arises from reading the entire definition. In any event, the court read the indictment to the jury and told the jury to return a guilty verdict as to the child molestation count “[i]f you find and believe beyond a reasonable doubt that he is guilty of that offense as alleged in the indictment.” (Emphasis supplied.) Thus, there was no error.

5. Finally, Edwards asserts that school counselor Guthrie improperly bolstered B. T.’s credibility.

On cross-examination, Edwards’s attorney asked Guthrie whether she had approached B. T. from an “objective perspective, . . . let’s ascertain whether [B. T.] is telling the truth or a lie” or from a “subjective approach” in which she tried to counsel B. T. but did not “browbeat her as to whether or not she’s telling the truth.” Guthrie responded that she took the latter approach with B. T., but that

every child is different. You know, there’s some kids that are professional manipulators and I think — you know, I think you have to deal with every child differently, but I think when you see a child in a situation where their emotion is that genuine and that significant and they don’t have anything in their history or whatever as a student that says I’m the type of student that seeks attention and I’ll do anything

At that point, Edwards’s attorney interrupted and complained that Guthrie was bolstering B. T.’s credibility. The court told the attorney to move on to his next question, which he did without further objection.

(a) Edwards argues that the court should have sua sponte declared a mistrial or instructed the jury to disregard Guthrie’s statement, even though his attorney made no such request. We disagree.

First, a defendant may not complain of error that he induced. Guthrie’s statement was responsive to a question Edwards’s attorney asked during cross-examination. Accordingly, Edwards cannot claim error.

Second, a defendant may not complain of a trial court’s failure to grant relief that was not requested. There is an exception to this rule in the case of plain error which is likely to result in a grave miscarriage of justice. This, however, is not a case of plain error. Guthrie never said that she believed B. T. or that B. T. was not likely to lie. Rather, she spoke in abstract terms about her general approach in interviewing children. Even if Guthrie’s comment can be construed as indirectly bolstering B. T.’s credibility, it was not so prejudicial that the trial court’s failure to order a mistrial or issue a curative instruction constituted plain error.

Decided January 25, 2002.

Joshua D. Earwood, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

(b) Alternatively, Edwards argues that his attorney was ineffective for failing to seek a mistrial or curative instruction after Guthrie’s statement. Claims of ineffective assistance of counsel must be raised at the earliest possible opportunity. Edwards has waived this claim because his trial attorney, who also represents him in this appeal, did not raise it below in a motion for new trial.

Even if we could consider this claim, it lacks merit. To prevail on a claim of ineffective assistance of counsel, a defendant must show a reasonable probability that, but for his attorney’s deficient performance, the outcome of the trial would have been different. As noted above, Guthrie’s statements were not so egregious that there is a reasonable probability that, had she not made them, Edwards would have been acquitted.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       Edwards also was charged with an unrelated count of aggravated child molestation in connection with a second victim, but he was acquitted of that charge.

        Washington v. State, 268 Ga. 598, 600 (3) (492 SE2d 197) (1997); Guess v. State, 264 Ga. 335, 336 (2) (443 SE2d 477) (1994).

       See Washington, supra; Guess, supra.

       272 Ga. 662 (533 SE2d 383) (2000).

       Id. at 666 (2).

       233 Ga. App. 63, 64-65 (4) (503 SE2d 321) (1998).

       See also Gaston v. State, 180 Ga. App. 470-471 (2) (349 SE2d 526) (1986) (no error where court told jury that transcript was to be used as listening aid, its admission into evidence implied nothing about its accuracy, and jury should determine and evaluate contents of tape).

       (Footnote omitted.) Latimore v. Dept. of Transp., 250 Ga. App. 360, 361 (1) (552 SE2d 439) (2001).

        Gabbard v. State, 233 Ga. App. 122, 124 (3) (503 SE2d 347) (1998).

       249 Ga. App. 383, 384-385 (3) (547 SE2d 721) (2001).

       Id. at 385. (3).

       The charge tracked the language of OCGA § 16-6-4 (a), which provides that “[a] person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”

        Buice v. State, 239 Ga. App. 52, 59 (5) (520 SE2d 258) (1999).

       Id.; Abreu v. State, 206 Ga. App. 361, 362 (1) (425 SE2d 331) (1992).

       See Fuller v. State, 211 Ga. App. 104, 105 (4) (438 SE2d 183) (1993) (not error to charge entire statutory definition of child molestation where court also told jury that defendant was on trial for particular offense charged in indictment).

        Bakery Svcs. v. Thornton Chevrolet, 224 Ga. App. 31, 32 (1) (479 SE2d 363) (1996).

       See Kapsch v. Stowers, 209 Ga. App. 767, 770 (4) (b) (434 SE2d 539) (1993); Jackson v. State, 154 Ga. App. 411, 412 (1) (268 SE2d 749) (1980).

        Milton v. State, 232 Ga. App. 672, 676 (3) (503 SE2d 566) (1998).

        Buice, supra at 56 (2).

       See Roberson v. State, 241 Ga. App. 226, 229 (1) (526 SE2d 428) (1999) (physical precedent only) (no harmful error where witness’s comments at most “only implied or suggested that the victim would be truthful with respect to her allegations” against defendant).

       Seese v. State, 235 Ga. App. 181, 183 (3) (509 SE2d 94) (1998).

       See Florence v. State, 246 Ga. App. 479, 481 (8) (539 SE2d 901) (2000). The record contains no motion for new trial or ruling thereon.

        Morrison v. State, 251 Ga. App. 161, 163 (2) (554 SE2d 190) (2001).


text:
    A02A0688. A02A0689.
    CLIMPSON v. THE STATE. DABNEY v. THE STATE.
    (559 SE2d 495)
   Eldridge, Judge.

A Clayton County jury found Joel Climpson and Gregory Dabney II guilty of attempted burglary, which charge arose when, at approximately 4:00 a.m. on September 16, 2000, they broke through the cinder block wall of a Kaufman Tire warehouse on Cordell Drive in College Park. They appeal, challenging the sufficiency of the evidence to support their convictions. In addition, Dabney claims that the arresting officer improperly commented during trial on Dabney’s right to remain silent in violation of state and federal constitutional provisions. Because the evidence is sufficient to support the convictions in this case and because the testimony about which Dabney complains was not a comment on the exercise of Dabney’s constitutional right to remain silent, we affirm.

1. Both appellants challenge the sufficiency of the evidence supporting the offense for which they were convicted. When assessing the sufficiency of evidence to support a criminal conviction, this Court does not weigh or evaluate the evidence for itself, nor do we resolve conflicts concerning the evidence. Rather, we examine the evidence in its entirety in a light most favorable to the verdict to determine whether any rational trier of fact could have found the accused guilty beyond a reasonable doubt.

In that regard and in a light most favorable to the verdict, the evidence shows that Clayton County police officers responded to a 911 call that was made by the Sonitrol alarm company when a monitoring system in the Kaufman Tire warehouse detected an irregular noise. Officers arrived on the scene without bar lights or sirens and with their vehicle headlights turned off As the officers investigated the building, a loud pounding was repeatedly heard. Upon approaching the rear of the building, appellant Dabney was found standing near a four-foot hole in the cinder block wall of the warehouse; he was covered in cinder block dust and wearing work gloves that were caked with cinder block dust. At the time of arrest, Dabney spontaneously stated to the arresting officer, ‘You ain’t got nothing on me. I was just back there using the bathroom.”

During this time, appellant Climpson was found lying in a fetal position on the front seat of a large U-Haul truck parked across the street from the warehouse; beside him on the floorboard were two claw hammers, a crowbar, a flashlight, and a work glove; all were covered with cinder block dust. Climpson was also in possession of Dabney’s wallet with identification inside. When the officers directed Climpson’s attention to Dabney, he initially told the officers that he did not know Dabney and that he was sleeping in the U-Haul at 4:00 a.m. because he had a fight with his girlfriend. The hood of the U-Haul was still warm, and the evidence was that Climpson did not look like he had been sleeping: “He was alert, his eyes weren’t red, he wasn’t sluggish.” Climpson had cinder block dust on his pants.

We find this evidence sufficient for a rational trier of fact to have found beyond a reasonable doubt that Climpson and Dabney, with the requisite intent to commit a burglary, took a substantial step toward completing that offense by breaking through the cinder block wall of the Kaufman Tire warehouse; consequently, the evidence supports their conviction for attempted burglary pursuant to OCGA §§ 16-4-1 and 16-4-3. It was not necessary that the offense of attempted burglary be charged in the indictment in order for appellants to be found guilty thereof. And we reject the contention that because nothing was taken, there was insufficient evidence of the intent to commit a theft.

The intention with which an act is done is peculiarly for the jury or finder of fact. It is often difficult to prove with direct evidence an individual’s intent as it existed at the time of the act for which they are being prosecuted. Therefore, it is often necessary to prove such intent through the use of circumstantial evidence. Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this.

In this case, the evidence clearly supports the conclusion that appellants would not have exerted the effort to breach the warehouse’s cinder block wall unless there was an intent to take something inside.

Further, while the evidence against Climpson is more circumstantial, his proximity to the scene; the cinder block dust on his pants; his possession of the type of tools appropriate for creating a hole in cinder block; the fact that the tools were covered in cinder block dust; his possession of Dabney’s wallet and ID; his denial that he knew Dabney; the fact that his “sleeping in the truck” explanation was not borne out by his appearance; and the fact that Dabney had no other visible means of transportation to or from the scene provide sufficient circumstantial evidence for a jury to conclude beyond a reasonable doubt that Climpson was a party to the crime of the attempted burglary of the warehouse. Whether the evidence excludes every other reasonable hypothesis except that of guilt is a jury question. “If a jury is authorized to find that the evidence, circumstantial though it may be, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict of the jury will not be disturbed by the appellate court unless the verdict is insupportable as a matter of law.” The verdict is supported by the evidence in this case.

Climpson and Dabney also claim that the trial court erred in denying their motions for directed verdict on the indicted offense of burglary because the State failed to prove that there was an entry into the warehouse so as to support such offense; thus, they contend the offense of burglary was improperly submitted to the jury.

We disagree that there was no evidence demonstrating entry into the warehouse building. The investigating officers were able to enter the building through the hole made by Climpson and Dabney; therein, they found that an emergency exit that could be opened only from the inside, and which was secured prior to setting the alarm at the close of business the previous day, was standing ajar with its safety bar on the floor. However, pretermitting these facts,

the lesser included charge . . . would have still reached the jury. [Appellants’] indictment for [burglary] put [them] on notice that [they] might be convicted of the lesser included offense as set forth in OCGA § 16-1-6. This statute provides: “An accused may be convicted of a crime included in a crime charged in the indictment or accusation.” Therefore, [appellants’] contention lacks merit, and the jury appropriately considered the charge of [attempted burglary] .

2. There was testimony at trial that, at the time of his arrest and prior to Miranda warnings, Dabney spontaneously told the arresting officer that he had been urinating around the back of the warehouse building. When the officer asked him where he had been urinating, Dabney did not respond. Dabney claims that the testimony referencing his failure to respond to the officer’s inquiry was an improper comment on his constitutional right to remain silent. We disagree.

At trial, Dabney’s defense was alibi in that he did not have time to create a four-foot hole in the warehouse’s cinder block wall because he had been eating at a Waffle House just prior to his arrest. In furtherance of this defense, Dabney, who did not testify, called to the stand a waitress from the Waffle House on Old National Highway who testified that at 3:50 a.m., just prior to the 4:05 alarm call, Dabney was eating in the restaurant. Thereafter, Dabney relied on his statement to the police that he had been on the Kaufman Tire property in order to urinate when he was subsequently stopped by the police; he claimed that such explanation for his presence on the scene was the most logical in light of his alibi witness’ testimony. Accordingly, we do not construe the complained-of testimony as an improper comment on Dabney’s right to remain silent. Dabney was not silent but gave the police an exculpatory explanation for his presencé. His failure to respond to the officer’s question as to where he urinated cannot be taken as an “admission” or a “negation” of the fact that he urinated, and Dabney continued to rely on such exculpatory explanation at trial.

Even assuming that the arresting officer’s statement was improper, it would be harmless.

Improper reference to a defendant’s silence does not automatically require reversal; the error may be found to be harmless beyond a reasonable doubt. The determination of harmless error must be made on a case by case basis, taking into consideration the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant’s guilt.

Here, Dabney was found covered with cinder block dust, wearing work gloves caked with cinder block dust, and standing near a hole in the . cinder block wall of the Kaufman Tire warehouse. All of these undisputed facts preclude his alibi that he was simply urinating behind the warehouse after eating at the Waffle House and, instead, directly establish that he put the hole in the cinder block wall. Moreover, Dabney’s alibi witness admitted during cross-examination that she told the State’s investigator she did not recall the exact date on which Dabney was eating at the Waffle House; she knew only that it was “sometime in September,” after she had been released from prison in late August. A certified copy of her conviction for forgery was put before the jury. “Finally, the record does not demonstrate, and [Dabney] does not assert, that the prosecutor attempted to take advantage of [his] pre-trial silence during closing arguments.”

Decided January 25, 2002

Yvonne Hawks, for appellant (case no. A02A0688).

Shandor S. Badaruddin, for appellant (case no. A02A0689).

Robert E. Keller, District Attorney, Adrian Britt, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J, and Ellington, J., concur.

       The appellants were indicted for burglary but were found guilty of the lesser included offense of attempted burglary.

        Horne v. State, 237 Ga. App. 844, 845 (1) (517 SE2d 74) (1999).

       OCGA § 16-4-3.

       (Citations and punctuation omitted.) In the Interest of G. J, 251 Ga. App. 299-300 (554 SE2d 269) (2001).

       (Citations and punctuation omitted.) White v. State, 263 Ga. 94, 97 (1) (428 SE2d 789) (1993); Evans v. State, 271 Ga. 614, 615 (1) (523 SE2d 850) (1999).

        Mills v. State, 244 Ga. App. 28, 30 (2) (535 SE2d 1) (2000); Parks v. State, 241 Ga. App. 381, 383 (2) (526 SE2d 893) (1999).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       See generally Mallory v. State, 261 Ga. 625, 629-630 (5) (409 SE2d 839) (1991). See also Gordon v. State, 273 Ga. 373, 378 (4) (d) (541 SE2d 376) (2001).

       (Citations and punctuation omitted.) Allen v. State, 272 Ga. 513, 515-516 (5) (530 SE2d 186) (2000).

        Williams v. State, 268 Ga. 452, 455 (3) (490 SE2d 381) (1997).


author: Smith, Presiding Judge.

text:
    A01A2014.
    SCOTT et al. v. LAROSA & LAROSA, INC.
    (559 SE2d 525)
   Smith, Presiding Judge.

This appeal arises out of the trial court’s order granting summary judgment to LaRosa & LaRosa, Inc. The court concluded that the narrative portion of a police report showed that two employees of LaRosa & LaRosa were not acting within the scope of their employment when the decedent in this case was killed in a collision involving a car loaned out by one of the employees. Because the narrative was not admissible as a business record under the recent decision of Brown v. State, 274 Ga. 31 (549 SE2d 107) (2001), and because issues of fact exist as to whether the individuals responsible for the car were employed by LaRosa & LaRosa, we reverse.

Ethel Scott, as administratrix of Zachery Scott’s estate, along with the guardians of Scott’s surviving minor children, filed this action against Naim Roberts, John Foster, Joseph LaRosa, and LaRosa & LaRosa, Inc., among others, after Zachery Scott was killed in a collision involving a car driven by Roberts and a motorcycle driven by Scott. The plaintiffs sought to impose liability on LaRosa & LaRosa under the theory of respondeat superior by alleging that while acting within the scope of their employment with LaRosa & LaRosa, Inc., Foster and Joseph LaRosa negligently allowed Roberts to drive the rental vehicle for which they were authorized drivers.

LaRosa & LaRosa moved for summary judgment. The corporation first contended that neither Foster nor LaRosa was employed by LaRosa & LaRosa at the time of the accident, relying on the affidavit of Douglas LaRosa, its president. Second, LaRosa & LaRosa argued that even if Foster and Joseph LaRosa were employees of the corporation, neither was acting within the scope of his employment at the time Roberts was allowed to drive the rental car. The corporation based this argument on the narrative portion of the police report concerning the accident. According to the narrative, Foster told the investigating officer that he had lent the car to an individual named Terry Brown in exchange for crack cocaine. The narrative similarly recounted the investigating officer’s interview with Roberts, who allegedly told the officer that he gave Foster crack cocaine in exchange for use of the car. The officer who prepared the report did not testify on deposition. Instead, the supervisor of the records section of the police department identified the report during his deposition. LaRosa & LaRosa argued that this evidence, admissible as a business record under OCGA § 24-3-14, showed that Foster and Joseph LaRosa were not acting within the scope of their employment when Roberts was allowed to use the car. The trial court agreed and granted summary judgment to the corporation, stating that “the actions of John Foster in trading the vehicle for crack cocaine were not within the scope of his employment with LaRosa and LaRosa, Inc.” From this ruling, Ethel Scott and the other plaintiffs appeal.

We first address the trial court’s conclusion, based on the police report narrative, that Foster and Joseph LaRosa were not acting within the scope of their employment when Roberts was allowed to drive the car. But in Brown, supra, the Supreme Court of Georgia considered the admissibility of narrative portions of police reports as business records. Id. at 32 (1). The Court found that “police work is often heavily influenced by the beliefs, impressions, and, at times, hunches of the investigating officer. It is because of these difficulties that police report narratives do not fit easily within the business records exception to the hearsay rule.” Id. at 33 (1). Because these narratives do “not have the reliability inherent in other documents that courts have traditionally considered to be business records,” id., the Supreme Court held that they “are not the appropriate subject of an exception to the hearsay rule.” (Footnote omitted.) Id. Clearly, under Brown, the trial court erred in relying on the narrative in this case. Consequently, its ruling was based on mere hearsay, which has no probative value, whether objected to or not. See, e.g., White Missionary Baptist Church v. Trustees of First Baptist Church &c., 268 Ga. 668, 669 (492 SE2d 661) (1997). Without the information contained in the narrative, the evidence submitted by LaRosa & LaRosa on the issue of whether Foster and Joseph LaRosa were acting within the scope of their employment was not sufficient to pierce the pleadings of the plaintiffs, and summary judgment on this ground was not warranted.

Furthermore, the evidence was in conflict as to whether Foster and Joseph LaRosa were employed by LaRosa & LaRosa at the time of the collision, which occurred in Savannah. On one hand, Douglas LaRosa stated in his affidavit that neither Foster nor Joseph LaRosa worked for the corporation at the time of the incident, that LaRosa & LaRosa did not have a contract to perform construction work in Savannah, and that LaRosa & LaRosa did not rent or pay for the rental of the vehicle involved in the accident. Joseph LaRosa’s deposition also appears in the record. He testified that he once worked for LaRosa & LaRosa, a family business and general contractor, and began doing brick and concrete work on certain churches, which required travel. He stated that he later began performing church jobs “on my own” and that he received all of the profit from those jobs.

On the other hand, Joseph LaRosa’s deposition also shows that with regard to the church jobs, the checks issued by the project manager were payable to LaRosa & LaRosa. In addition, LaRosa & LaRosa purchased insurance for the jobs, and the corporation’s name appeared on the certificates of insurance. Furthermore, Joseph LaRosa’s application for a rental car indicates that his employer was “LaRosa & LaRosa,” and his application for apartment rental in Savannah lists “Self LaRosa & LaRosa” as his employer.

It is axiomatic that cases requiring factual determination are not susceptible to disposition by summary judgment. “It is only where the facts conclusively show by plain, palpable and undisputed evidence that one or the other party is entitled to judgment that the case properly may be resolved as a matter of law through the vehicle of summary judgment.” (Citations and punctuation omitted.) Godwin v. Johnson, 197 Ga. App. 829, 831 (1) (399 SE2d 581) (1990). Joseph LaRosa testified that the checks issued by the project manager for which he performed the church jobs were deposited into his own separate account, that he paid all expenses and received all profits from the church jobs, that the jobs were “all mine,” that LaRosa & LaRosa had no financial interest in those jobs, and that he did not rent the car “under LaRosa & LaRosa.” But his deposition also shows that LaRosa & LaRosa may have been involved, at the very least administratively, with LaRosa’s projects. The corporation received and deposited his checks and paid for his insurance. In addition, he indicated on two different rental applications that he was employed by LaRosa & LaRosa. He also testified that the corporation was simply a “conduit” or name to obtain contracts and insurance, apparently attempting to imply that his business was separate from that of LaRosa & LaRosa. But given the facts of record, we simply cannot conclude that the evidence is “plain, palpable, and undisputed” that LaRosa & LaRosa was a separate entity and that Joseph LaRosa, for whom Foster worked, was not employed by that corporation. The record consequently does not support an award of summary judgment to LaRosa & LaRosa. We therefore reverse the judgment of the trial court.

Decided January 28, 2002.

Lester B. Johnson III, for appellants.

Carter & Ansley, Ben Kingree III, for appellee.

Judgment reversed.

Barnes and Phipps, JJ, concur.

       Douglas LaRosa is the son of Joseph LaRosa.

       The narrative indicated that interviews of the witnesses had been taped, but the tape does not appear to have been introduced as evidence in the trial court.

       Although Brown was decided after the trial court granted the motion for summary judgment filed by LaRosa & LaRosa, the decision addressed a rule of evidence, which is procedural. Consequently, we may apply the rule stated in Brown to the facts of this case, as its application will not affect a vested right of LaRosa & LaRosa. See Drake v. LaRue Constr. Co., 215 Ga. App. 453, 455-456 (2) (451 SE2d 792) (1994).


text:
    A01A0756.
    KENT v. A. O. WHITE, JR., CONSULTING ENGINEER, P.C.
    (559 SE2d 731)
   Eldridge, Judge.

The Supreme Court of Georgia vacated and remanded this case to this Court for further consideration in light of Time Warner Entertainment Co. v. Six Flags Over Ga.,_U. S._(122 SC 24, 151 LE2d 1) (2001), and Cooper Indus. v. Leatherman Tool Group, 532 U. S. 424 (121 SC 1678, 149 LE2d 674) (2001) (“Cooper”).

In Kent v. A. O. White, Jr., Consulting Engineer, PC., 238 Ga. App. 792, 796 (7) (520 SE2d 481) (1999) ("Kent I") (see this case for facts), this Court held:

The judgment is affirmed in part as to the breach of contract and interest awards. It is also affirmed as to the findings of liability for fraud, punitive damages, and attorney fees. The judgment is reversed in part and the case remanded as to amount of the damages for fraud, attorney fees, and punitive damages.

Kent now seeks on this appeal to reverse the retrial of the damages on three grounds: (1) that the trial court erred in reading to the jury a portion of the opinion in explaining and limiting the issues that they were to decide on the retrial; (2) that the trial court erred in entering judgment on the punitive damages award; and (3) that the trial court erred by entering judgment on the attorney fees award. The instruction to the jury limiting the issues for jury determination as described by this Court in its opinion was not error. This Court previously held that Kent was liable in some amount of punitive damages, which is conclusive of the issue of liability for punitive damages in some amount and cannot be relitigated. We returned the case for jury determination of the amount of punitive damages to be awarded in the enlightened conscience of fair and impartial jurors. Also, this Court held that Kent was liable for attorney fees; the evidence supported the amount of attorney fees awarded on retrial of this issue, as was found in the first trial. We affirmed the judgment of the trial court.

1. In this case, this Court on remand restricted the issues for jury determination to damages on retrial, because the affirmance of the judgment finding liability drastically restricted the issues for jury determination on subsequent retrial to damages only. Kent I, supra at 796.

Under the law of the case, neither Kent nor the jury could revisit the issues of liability for damages for fraud, punitive damages, or attorney fees; this is what the trial court properly instructed the jury using our opinion from the first appearance of this case before us. Crowell v. City of Eastman, 187 Ga. App. 891, 892 (1) (371 SE2d 667) (1988); see also Intl. Indem. Co. v. Robinson, 231 Ga. App. 236, 237 (2) (498 SE2d 795) (1998); Lowman v. Advanced Drainage Systems, 228 Ga. App. 182, 183-184 (491 SE2d 427) (1997); Palm Restaurant of Ga. v. Prakas, 192 Ga. App. 74, 76 (383 SE2d 584) (1989); Stafford Enterprises v. American Cyanamid Co., 164 Ga. App. 646, 650 (299 SE2d 390) (1982). To charge the jury on the law, and even the facts, as affirmed on appeal is not reversible error where such facts have been precluded from relitigation under the law of the case.

Hudson v. Hudson, 90 Ga. 581, 586-587 (3) (16 SE 349) (1892), is distinguishable on the law and facts from this case; therefore, the case does not control. “Whenever it is necessary for this court to allude to or comment upon the facts of a case, we do so as they appear in the record then before us, but in another investigation the evidence may be, and often is, entirely different, and the case may present quite another complexion.” Id. at 587 (3). The law of the case froze the facts as to liability as tried in the first trial, and for this reason the trial court so charged the new jury as to these fixed, previously determined facts so that they would not be retried by this jury. In Hudson, the issue of law disapproved by the Supreme Court was that the trial lawyer read the law and facts from an opinion to the jury, because the jury was to receive the law exclusively from the trial court. In this case, the trial court read the law and facts to the jury from this Court’s prior opinion as determined applicable for this case and, thus, limited and defined this jury’s special duties and responsibility on retrial of damage issues only. The reading from this Court’s opinion defined for the jury what their limited role would be and did not involve facts that they were to decide in this new trial, which was unlike the situation in Hudson.

Similarly, Allen v. Hiwassee Land Co., 172 Ga. App. 814 (1) (324 SE2d 742) (1984), has no application to the facts of this case pertaining to liability, because unlike that case, which was tried de novo, in this case the charge went only to issues of fact and law that could not be tried again by this jury, i.e., matters that were the law of the case, because the findings of liability by the prior jury had been affirmed on appeal and had become the law of the case. Thus, the verdict of the prior jury resulting in a judgment of liability was affirmed by this Court as a matter of law.

2. Kent contends that the judgment for punitive damages was error for several reasons: it was excessive; it was a double recovery of damages in both tort and contract; and plaintiff made an election between contract damages and tort damages.

(a) OCGA § 51-12-5.1 made the standard of proof in cases for punitive damages clear and convincing evidence for determination of whether or not punitive damages in a case are appropriate prior to the determination of the amount of such damages in a bifurcated proceeding with the jury; the right to a bifurcated hearing separately on the appropriateness of punitive damages from aggravating circumstances and on the amount of damages is waived if the case goes to verdict without such procedure being followed, because such bifurcation is for the protection of the defendant. See OCGA § 51-12-5.1 (b), (d); Ga. L. 1987, p. 915, § 5; Martin v. Williams, 215 Ga. App. 649, 651 (2) (451 SE2d 822) (1994); MultiMedia WMAZ v. Kubach, 212 Ga. App. 707, 711 (3) (443 SE2d 491) (1994). Thus, the law of the case governs the issue of sufficiency of the evidence for the award of punitive damages, and this Court held that in this case the award of punitive damages was appropriate in an amount to be determined by a jury.

In such cases the award is not measured as compensation, but is fixed in an amount necessary to deter future acts. The rule which requires the amount of punitive damages to evidence a reasonable proportion to the extent of the injury applies to exemplary damages for wounded feelings. The amount, as measured by the enlightened conscience of an impartial jury, which would be required to deter future acts necessarily depends upon the facts of the particular case.

(Citations, punctuation and emphasis omitted.) Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 341 (7) (319 SE2d 470) (1984).

In this case, the evidence showed that Kent had repeated the identical tortious conduct in the same case subsequently with another expert witness, Brown. The evidence was sufficient to support punitive damages in such amount. Ford Motor Co. v. Stubblefield, supra.

It is . . . true in considering excessiveness that an appellate court does not have the broad discretionary powers invested in trial courts to set aside verdicts, and where the trial court before whom the witnesses appeared had the opportunity of personally observing the witnesses has approved the verdict, this court is without power to interfere unless it is clear from the record that the verdict of the jury was prejudiced or biased or was procured by corrupt means. The excessiveness of the verdict was raised below on motion for new trial and overruled by the judge who had presided over the trial. . . . And the Court trying the case[ ] must receive more light on the question of excessive damages [ ] than it can impart to any other Court. Considering all of the circumstances in this case, we do not find the trial court erred in declining to find the verdict excessive.

(Citations and punctuation omitted.) Id. at 341-342 (7).

(b) Kent complains that the amount of the punitive damages bears no proportionality to the fraud damages; however, the jury returned fraud damages in the amount of $18,407.75, which the trial court wrote off, and punitive damages of $750,000, which the trial court reduced to the statutory maximum of $250,000.

Kent relies upon Colonial Pipeline Co. v. Brown, 258 Ga. 115 (365 SE2d 827) (1988). First, such case arose in 1982 and was decided prior to the 1987 amendment so that the law is not the same as applied here. Ga. L. 1987, p. 915, § 5. Secondly, the opinion was rendered by a divided majority of four, who concurred in the judgment only, because a three-judge opinion was joined by a special concurrence in the judgment only to create the majority, while three judges dissented; therefore, the opinion has physical precedence only. See Art. VI, Sec. VI, Par. VI of the Ga. Const. of 1983; Grantham Transfer Co. v. Hawes, 225 Ga. 436, 439 (2) (169 SE2d 290) (1969); McCurry v. McCurry, 223 Ga. 334 (155 SE2d 378) (1967); Southern R. Co. v. Parker, 194 Ga. 94, 102 (2) (21 SE2d 94) (1942); Supreme Court Rule 58.

Although it is true that the punitive damage award here is approximately 45.5 times higher than the actual damage award, punitive damages may be given even where recoverable, actual damages are small, and the amount of the punitive damage award is exclusively a question for the jury to determine.

(Citation and punctuation omitted.) McClure v. Gower, 259 Ga. 678, 684 (4) (385 SE2d 271) (1989); see also Tyler v. Lincoln, 272 Ga. 118, 121 (1) (527 SE2d 180) (2000).

This Court, after noting that the law of punitive damages had changed by statute from the purpose to compensate to deterrence and that it did not matter if punitive damages are disproportionate to the property damage, held:

Compelling punitive damage awards to be mathematically proportionate, except when given to compensate for wounded feelings, would create a judicial barrier to the achievement of these clear and legitimate legislative purposes. The concept of proportionality as a legal limitation on the amount of punitive damages applies, in Georgia, only when such damages are given to compensate for wounded feelings. A deterrence award is based on factors, for the most part, unrelated to the injury to any particular victim, and is limited only by the collective conscience of the jury.

(Citation, punctuation and emphasis omitted.) Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 301 (4) (b) (436 SE2d 14) (1993); see also Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613, 614 (1) (409 SE2d 501) (1991); Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759, 762 (2) (386 SE2d 120) (1989); Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 885 (8) (447 SE2d 302) (1994); Clarke v. Cotton, 207 Ga. App. 883-884 (1) (429 SE2d 291) (1993).

(c) The trial court eliminated the possibility of a double recovery for the same damages both in contract and fraud by setting off the contract damages against the fraud damages. Generally, “the election of remedies should occur before judgment is rendered^] there is no reversible error in failing to require the plaintiff to do so where there is no risk of double recovery.” Efstathiou v. Reiss, 227 Ga. App. 735, 739 (10) (490 SE2d 426) (1997); see also All Risk Ins. Agency v. Belk, 191 Ga. App. 576-577 (1) (382 SE2d 361) (1989). This is not a case in which the plaintiff failed to prove damages for fraud; in fact, plaintiff proved damages resulting from the fraud, which were special damages identical to the special damages for breach of contract, which the trial court wrote off to prevent a double recovery. The jury returned a verdict for special damages arising from the fraud which were identical to the damages already recovered for breach of contract. See Hines v. Good Housekeeping Shop, 161 Ga. App. 318, 322 (8) (291 SE2d 238) (1982).

However, Kent failed to preserve the issue of election of remedies prior to judgment between contract and tort damages and cannot do so for the first time on appeal now and has not pointed to that portion of the record demonstrating where such objection was made and ruled upon by the trial court. See Nairon v. Land, 242 Ga. App. 259, 261 (3) (529 SE2d 390) (2000); Mazdak Auto Towing &c. v. Mid-Continental Group, 231 Ga. App. 859, 860 (1) (501 SE2d 44) (1998); Long v. Marion, 182 Ga. App. 361, 362-363 (1) (355 SE2d 711) (1987).

3. Kent seeks to attack the award of attorney fees on the same basis that he attacks punitive damages, i.e., the fact that the trial court, on retrial, set off the fraud damages against the earlier award of contract damages so that there were tort damages awarded to support expenses of litigation. Under OCGA § 13-6-11, the same bad faith to establish fraud also establishes bad faith in a breach of contract action. See Ryland Group v. Daley, 245 Ga. App. 496, 499-500 (3) (537 SE2d 732) (2000). However, this Court sent back for reconsideration the award of attorney fees, because “the attorney fees award may have also been related to the fraud award,” which would require the retrial of such damages as well and not whether or not Kent was liable for such damages. Kent I, supra at 794 (1) (c). As a matter of law and fact, this Court determined that under either contract or tort theories, Kent was liable for attorney fees in some amount. Under the law of the case, it did not matter whether the attorney fees were recovered under a tort theory or a contract theory, because this Court had held such damages were recoverable and left open only the determination of how much. Id. Even under this state of the law and facts, the jury returned a verdict for fraud damages, which was sufficient to support the award of attorney fees. See Woodhull Corp. v. Saibaba Corp., 234 Ga. App. 707, 712 (2) (507 SE2d 493) (1998); Hines v. Good Housekeeping Shop, supra at 321-322. Here, plaintiff received a verdict for special damages for fraud, but the trial. court set such damages off against the earlier award of contract damages for the same special damages.

This issue is controlled by Divisions 1 and 2, because Kent did . not preserve the issue of election of remedies prior to entry of judgment, and we are governed by the law of the case as determined in Kent I, supra at 794.

4. The standard of review on appeal of an excessive punitive damages award is now de novo. Kent v. A. O. White, Jr., Consulting Engineer, P.C., Case No. S01C1449, 2001 Ga. LEXIS 929 (2001). The Supreme Court of Georgia vacated and remanded this case with these Delphic instructions:

[u]pon consideration of the motion for reconsideration, the same is hereby granted. The judgment of the Court of Appeals is vacated, and the case is remanded to that court for further consideration in light of Time Warner Entertainment Co. v. Six Flags Over Ga., [supra,] and Cooper Industries v. Leatherman Tool Group, [supra].

While the motion for new trial raised the issue of the excessiveness of the punitive damages as a violation of due process under the federal and Georgia constitutions and was denied by the trial court, such issue was not raised in this Court in the enumeration of errors or in the motion for reconsideration. Therefore, such constitutional issue was abandoned. Cooper held that “[w]e now conclude that the constitutional issue merits de novo review. Because the Court of Appeals applied an ‘abuse of discretion’ standard, we remand the case for determination . . . under the proper standard.” Id. at 431 (I). It left abuse of discretion to be the standard for review of all nonconstitutional issues. Id.

Kent stated before this Court in the standard for review that the standard for this case was abuse of discretion. However, notwithstanding the abandonment of such constitutional issue on appeal in this case, in granting certiorari, vacating, and remanding this case for consideration of the recent United States Supreme Court cases of Time Warner Entertainment Co. v. Six Flags Over Ga., supra, and Cooper, supra, which both dealt only with the standard of appellate review of the constitutional due process issue of excess punitive damages, apparently sub silentio the Supreme Court of Georgia has adopted the standard of de novo review in all excess punitive damages cases. Therefore, in compliance with the express mandate of the Supreme Court of Georgia, we make a de novo review applying the due process constitutional criteria as set forth in BMW of North America v. Gore, 517 U. S. 559 (116 SC 1589, 134 LE2d 809) (1996) (“Gore”), as required by Cooper, supra.

In Gore, we instructed courts evaluating a punitive damages award’s consistency with due process to consider three criteria: (1) the degree or reprehensibility of the defendant’s misconduct, (2) the disparity between the harm (or potential harm) suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

Cooper, supra at 440 (III).

(a) “[T]he degree of the defendant’s reprehensibility or culpability” is the first criterion that we must examine. Cooper, supra at 435 (II). The General Assembly by OCGA § 51-12-5.1 (b) has set forth certain tortious aggravating, nonexhaustive, circumstances which will authorize punitive damages to penalize, punish, or deter a defendant for conduct that was or demonstrates: (1) wilful misconduct; (2) malice; (3) fraud; (4) wantonness; (5) oppression; or (6) that entire want of care which would raise the presumption of conscious indifference to the consequences. All but the last involve intentional tortious misconduct. The nature of fraud is such that it includes within its elements the intent to commit harm to the victim. OCGA § 51-12-5.1 (f); McDaniel v. Elliott, 269 Ga. 262, 264 (1) (497 SE2d 786) (1998); Speir v. Krieger, 235 Ga. App. 392, 402 (5) (509 SE2d 684) (1998). However, the jury’s verdict did not find in either Kent I or Kent II that Kent had the intent to cause harm; therefore, the maximum punitive damages recoverable by statute is $250,000. OCGA § 51-12-5.1 (f); McDaniel v. Elliott, supra at 265 (3).

In this case, two juries heard that Kent hired White and let him work for two and one-half years, ignoring the monthly billing and refusing to pay for the services rendered. Kent to this day denies such tortious conduct and contends that he and White had an understanding that amounted to a contingent contract that White would be paid only if Kent won the case in which White testified. Thus, the jury found that such misconduct was deceit in concealing from White that he would not be paid and allowing him to continue to render services and that White had been terminated following the first trial. OCGA §§ 23-2-23; 51-6-2; American Petroleum Products v. Mom & Pop Stores, 231 Ga. App. 1, 5 (1) (497 SE2d 616) (1998). Further, Kent acted in similar fashion subsequently with another expert witness, arising from the same case. See Kent v. Brown, 238 Ga. App. 607 (518 SE2d 737) (1999); however, such expert did not seek punitive damages, because he sued in contract only. Id.

In determining degrees of culpability, fraudulent misrepresentation to cause harm demonstrates a higher degree of culpability than fraud by deceit, because the former involves active conduct to mislead through a false statement while the latter involves concealment of material facts to mislead passively. Further, fraud or deceit to damage through obtaining money or property, i.e., out-of-pocket damages, constitutes a greater degree of culpability than loss of services, because the business of rendering of services always carries the risk of nonpayment. However, nonpayment of services means that the plaintiff was not only deprived of the pay and expenses but also the opportunity to work for another, which are represented by one damage for the services rendered, i.e., $18,407.75.

Kent’s reprehensibility of conduct for deceit was less than fraud by misrepresentation but was ethically as great, because he was an attorney at law acting under the Code of Professional Conduct. His conduct in degree and in reprehensibility was less than the conduct in either Gore or Cooper, which were intentional acts of passing off merchandise by use of the competitor’s product in advertising or sale of damaged goods as new to increase profits, and also, was less than the conduct in McDaniel v. Elliott, which was fraud for economic gain. Id. at 263. By Kent’s own testimony, he intended to pay White had he won the case but instead lost; therefore, he did not pay. Kent’s conduct was within OCGA § 51-12-5.1 (b) but just barely. The jury found Kent’s conduct to constitute deceit, but if Kent’s testimony was true, then he had a contingent fee contract with an expert witness to testify, which is unethical but not deceit. In Kent I, the jury thought that the conduct required some punishment in proportion less than the other damages as a deterrent by awarding punitive damages of only $10,000, which was 0.54 to 1, and the other expert did not even pursue a fraud claim or punitive damages against Kent. This indicates the perception that others had of the lack of seriousness of Kent’s misconduct.

(b) The second criterion that we must weigh is “the relationship between the penalty and the harm to the victim caused by the defendant’s actions.” Cooper, supra at 435 (II). Disparity between actual damages for the services not paid of $18,407.75 and punitive damages of $750,000 reduced to $250,000 were 13.58 to 1. In the first trial, punitive damages were only $10,000, a ratio of 0.54 to 1, which now must seem a Pyrrhic victory in having to retry the amount of punitive damages, fraud damages, and expenses of litigation only, which tended to focus the jury more on punitive damages. Punitive damages are intended by the General Assembly to penalize, punish, and deter future conduct, that is “to deter the repetition of reprehensible conduct by the defendant. . . . OCGA § 51-12-5.1 (a).” Hosp. Auth. of Gwinnett County v. Jones, supra, 261 Ga. at 614 (1). Punitive damages cannot be awarded as a matter of public policy against a governmental entity, because it “‘punishes’ only the taxpayers.” MARTA v. Boswell, 261 Ga. 427, 428 (405 SE2d 869) (1991). But the General Assembly did not intend that the effect of the Act was to pauperize, bankrupt, or destroy the individual tortfeasor; to this end, the General Assembly has placed various limitations on awards of punitive damages and the recipient in recognition of the many degrees of culpability. OCGA § 51-12-5.1 (a), (d) (1); Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226, 230 (4) (476 SE2d 565) (1996); State of Ga. v. Moseley, 263 Ga. 680, 681 (2) (436 SE2d 632) (1993); Mack Trucks v. Conkle, 263 Ga. 539, 541-542 (2) (436 SE2d 635) (1993); Bagley v. Shortt, 261 Ga. 762, 763 (4) (410 SE2d 738) (1991). We must consider “regarding what amount of damages will be sufficient to deter, penalize, or punish the defendant in light of the circumstances of the case”: that Kent is in the final years of his long law practice, since 1958, so that there are limited years over which deterrence would apply; that such conduct would not come within any applicable errors or omissions policy because it was intentional misconduct; and that the total other damages of $18,407.75, $26,968.99 attorney fees for the first trial and $27,396.81 for the second trial must be satisfied from his personal assets along with the punitive damages. OCGA § 51-12-5.1 (d) (1). Thus, for compensatory damages of $18,407.75 for nonpayment of a commercial account, Kent must also pay $54,365.80 for White’s expenses of litigation, and $250,000 punitive damages. Such is a heavy penalty for an individual under these facts and circumstances.

(c) The third criterion that we must consider is “the sanctions imposed in other cases for comparable misconduct.” Cooper, supra at 435 (II). Thus, we are called upon to make some survey of the comparable civil penalties that have been assessed in similar cases. Theft of services or theft by deception of $18,407.75 would constitute felonies under OCGA §§ 16-8-3, 16-8-5, and 16-8-12; the maximum amount of the fine for such felony would be $100,000. OCGA § 17-10-8. However, there is no civil penalty imposed for such conduct other than a civil action seeking punitive damages. Under a civil Georgia Racketeer Influenced & Corrupt Organizations Act action for fraud, the special damages and punitive damages as a penalty would be tripled. OCGA § 16-14-6 (c); Dee v. Sweet, 268 Ga. 346, 348-349 (1) (489 SE2d 823) (1997); Speir v. Krieger, supra at 402 (5).

In Gore, the actual damages were $4,000 and the punitive damages were $4,000,000, reduced to $2,000,000, a ratio of 500 to 1, which was found to be a violation of due process. Id. at 564-567. In Cooper, the actual damages were $50,000 and punitive damages were $4,500,000, a ratio of 90 to 1, which required a de novo appellate determination if it violated due process. Id. at 424. In Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1 (111 SC 1032, 113 LE2d 1) (1991), the compensatory damages were $200,000 and punitive damages were $840,000, a ratio of 4.2 to 1, which did not violate due process. In Browning-Ferris Indus. &c. v. Kelco Disposal, 492 U. S. 257 (109 SC 2909, 106 LE2d 219) (1989), the compensatory damages were $51,146 and the punitive damages were $6,000,000, a ratio of 117 to 1, which did not violate due process.

In examining punitive damages as a sanction for comparable civil fraud and deceit cases since the passage of OCGA § 51-12-5.1, which is required in this third step analysis, it becomes apparent that corporate entities receive greater sanctions than individual defendants receive. When it is considered that the purpose of punitive damages is to penalize, punish, and deter future similar conduct, the difference is readily understood, because corporations cannot feel guilty or experience public shame and humiliation, although good will can be harmed, and act through employees; however, such loss of good will is not the same as individual humiliation as a deterrent. A jury may believe that an individual may be deterred and punished by less drastic sanctions. Since corporations are legal entities that generally can be punished or deterred only financially, then in fraud cases juries tend to return higher punitive damages than against an individual, because corporate entities have indefinite existence in the future.

When the ratio of 13.58 to 1 of Kent’s actual damages to punitive damages is compared to the punitive damages average ratios for other individuals, such ratio is much lower at 4.67 to 1. But when Kent’s ratio is compared to the corporate average of 12.6, Kent’s ratio even exceeds the corporate average. Thus, the punitive damages returned against Kent under a Gore analysis are grossly excessive punishment on an individual tortfeasor for attempting passively to obtain services without paying for them. It is also grossly disproportionate to the first award of punitive damages returned against him. While reprehensible and culpable, Kent’s conduct under the Gore analysis fails to justify the imposition of sanctions greater than the norm to penalize, punish, and deter this individual. There exist no aggravating circumstances that require that he should be treated more harshly than other individuals similarly situated.

Therefore, as a matter of judicial economy, it is incumbent on this Court to determine under Gore and Cooper what is fair and just under the particular facts and circumstances of this case when considered against the conduct in similar cases. This approach would be inappropriate where the facts and circumstances were of such aggravated nature that a departure from the norm was not only justified but demanded to adequately penalize, punish, and deter future conduct. Hosp. Auth. of Gwinnett County v. Jones, supra, 259 Ga. at 762 (2); McClure v. Gower, supra; Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 164-165 (1) (473 SE2d 256) (1996); Oglethorpe Power Corp. v. Sheriff, supra.

Appellate review makes certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition. Unlike the measure of actual damages suffered, which presents a question of historical or predictive fact, the level of punitive damages is not really a “fact” “tried” by the jury. Because the jury’s award of punitive damages does not constitute a finding of “fact,” appellate review of the [trial court’s] determination that an award is consistent with due process does not implicate the Seventh Amendment concerns.

(Citations and punctuation omitted.) Cooper, supra at 436 (II), n. 9, 437 (III). See also Lisle v. Willis, 265 Ga. 861, 863 (2) (463 SE2d 108) (1995).

Thus, as a de novo appellate review of these nonfacts, we find that if the average individual ratio in comparable fraud cases is not excessive and satisfies substantive due process as set forth in Gore and Cooper, then 4.67 (the average ratio for comparable cases) x $18,407.75 (compensatory damages found) = $85,964.19 (constitutional punitive damages) would be a constitutional punitive damages award under the peculiar facts and circumstances of this case where the conduct was not highly reprehensible so that unique punishment and deterrence were not demanded. Therefore, we vacate and remand the judgment to the trial court for entry of judgment not inconsistent with this opinion for punitive damages of $85,964.19.

Judgment vacated and remanded.

Andrews, P. J., and Miller, J., concur.

Decided January 29, 2002.

Christopher J McFadden, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, Gregory S. Ellington, for appellee.

       See also Kent v. A. O. White, Jr., Consulting Engineer, P.C., 249 Ga. App. 893 (553 SE2d 1) (2001) ("Kent II").

        McDaniel v. Elliott, supra (individual - compensatory damages returned but not stated, punitive damages $650,000); Conner v. Conner, 269 Ga. 112 (499 SE2d 54) (1998) (individual - compensatory damages $131,200, punitive damages $50,000, 0.38 to 1); In the Matter of Krell, 267 Ga. 142 (475 SE2d 617) (1996) (attorney who defrauded client - compensatory damages $196,571.59, punitive damages $100,000, 0.51 to 1); Lisle v. Willis, 265 Ga. 861 (463 SE2d 108) (1995) (individual - compensatory damages awarded but not stated, punitive damages $175,000 reduced to $90,000); Speir v. Krieger, supra (individual - compensatory damages $7,248, punitive damages $250,000, 34.5 to 1); Efstathiou v. Reiss, supra (individual - compensatory damages $71,000, punitive damages $95,000,1.34 to 1); Howard v. Hammond, 216 Ga. App. 703 (455 SE2d 390) (1995) (individual - compensatory damages $45,000, punitive damages $5,000, 0.11 to 1); Shaw v. Ruiz, 207 Ga. App. 299 (428 SE2d 98) (1993) (individual - compensatory damages $70,911.65, punitive damages $12,500, 0.18 to 1); Smith v. Manns, 200 Ga. App. 701 (409 SE2d 270) (1991) (individual - compensatory damages $29,132, punitive damages $20,000, 0.69 to 1); Maddox v. Brown, 200 Ga. App. 492 (408 SE2d 719) (1991) (individual - compensatory damages $21,843.69, punitive damages $30,000, 1.03 to 1); Long v. Marion, 182 Ga. App. 361 (355 SE2d 711) (1987) (individual - compensatory damages $6,000, punitive damages $20,000, 3.3 to 1).

        Rockdale Body Shop v. Thompson, 222 Ga. App. 821 (476 SE2d 22) (1996) (corporation - compensatory damages $6,500, punitive damages $2,500, 0.38 to 1); Ga. Farm &c. Ins. Co. v. Miller, 222 Ga. App. 95 (473 SE2d 189) (1996) (corporation - compensatory damages $8,000, punitive damages $9,000, 1.13 to 1); Southern Cellular Telecom v. Banks, 208 Ga. App. 286 (431 SE2d 115) (1993) (corporation - compensatory damages $100,000, punitive damages $150,000, 1.5 to 1); Miles Rich Chrysler-Plymouth v. Mass, 201 Ga. App. 693 (411 SE2d 901) (1991) (corporation - compensatory damages $1,000, punitive damages $50,000, 50 to 1); BWP, Inc. v. Woodson, 196 Ga. App. 768 (397 SE2d 43) (1990) (corporation - compensatory damages $1,000, punitive damages $10,000, 10 to 1).


author: Barnes, Judge.

text:
    A01A1645.
    SMITH v. THE STATE.
    (559 SE2d 537)
   Barnes, Judge.

Harold U. Smith challenges the sufficiency of the evidence to sustain his conviction of theft by taking under OCGA § 16-8-2. He urges that rather than theft, he took part in what he characterizes as an “interdepartmental exchange of property.” We find the evidence sufficient to establish the theft by taking conviction and affirm.

On appeal from a criminal conviction, the appellant no longer enjoys the presumption of innocence, and we view the evidence in a light most favorable to the verdict. Toney v. State, 225 Ga. App. 228, 229 (483 SE2d 627) (1997). To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in that light, the evidence shows that a few days before their scheduled auction, confiscated vehicles belonging to Decatur County were moved to an auction site. The auction site was located next to the road department and the Decatur County Correctional Institute (“DCCI”). Several inmates from DCCI, including Smith, worked at the road department. The day after the automobiles were moved, an investigator for the county sheriff’s office went to the auction site to make sure that the stereo equipment in the cars was intact because stereo equipment had previously been stolen from cars left there. Upon arrival he discovered that stereo equipment was missing from two of the automobiles. During the ensuing investigation, he received information that a road department employee, Barney McClane, had the stereo equipment. McClane initially denied having the equipment, but later confessed to having it. A CD player, amplifier, crossover, and a number of CDs were recovered from his home.

McClane testified that Smith asked him to keep the stereo equipment and he agreed. He said that Smith placed the stereo equipment in his truck under a sweatshirt. When questioned, Smith said that another DCCI inmate told him that they could take anything they wanted out of the vehicles.

At trial, Smith alleged that it was common to shift radios and CD players from one truck to another when they became available and that when McClane asked him to get stereo equipment, he assumed it was for McClane’s truck. He argued that because McClane was his supervisor, Smith had to do what McClane said. While Smith does not deny putting the stereo equipment in McClane’s truck, he argues that he neither withheld nor deprived Decatur County of property, a necessary element of OCGA § 16-8-2. He maintains that he simply transferred county property from one county-owned vehicle, the car, to another county-owned vehicle, the dump truck. This was “frugal, responsible government,” he argues, not theft.

Under OCGA § 16-8-2: “A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” Further, “deprive” is defined as permanently or temporarily withholding the property of another without justification. OCGA § 16-8-1 (1) (A). Intent to use the property of another without the owner’s authorization evinces an intent to commit a theft. Sorrells v. State, 267 Ga. 236, 238 (1) (b) (476 SE2d 571) (1996).

Although Smith suggests that he was authorized to take the stereo equipment, a county mechanic testified that inmates were expressly told to leave the radios alone and that nothing was to be removed from the vehicles except hand tools. Further, at trial, the inmate who purportedly told Smith that he could take anything out of the vehicles denied doing so, and the DCCI deputy warden testified that to his knowledge, the inmates did not have permission to remove any items from the vehicles.

Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. Hopkins v. State, 250 Ga. App. 786, 788 (553 SE2d 173) (2001). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130) (1995).

Under these standards, the evidence that Smith willingly removed the stereo equipment from vehicles belonging to Decatur County without authorization and with the intent to deprive Decatur County, either temporarily or permanently, of the property was sufficient to satisfy the standard established in Jackson v. Virginia, supra.

Decided January 29, 2002.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Joseph E. Griffin, Ronald R. Parker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       McClane pled guilty to misdemeanor theft by receiving, OCGA § 16-8-7.

       The testimony of a single witness is generally sufficient to establish a fact. OCGA § 24-4-8; Grisson v. State, 225 Ga. App. 816, 818 (484 SE2d 802) (1997).