text:
    A98A2182.
    COBB v. THE STATE.
    (511 SE2d 522)
   Pope, Presiding Judge.

Portier Cobb appeals from the trial court’s order denying his motion for new trial. Cobb contends his convictions for two counts of trafficking in cocaine (OCGA § 16-13-31) and possession of a firearm during the commission of a felony (OCGA § 16-11-106) are not supported by the evidence. He also asserts the court erred by joining offenses for trial, permitting certain rebuttal testimony, admonishing his defense counsel in the jury’s presence, and in denying his motion for a mistrial. We disagree and affirm.

1. Cobb challenges the sufficiency of the evidence. “ ‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, (are) a matter of credibility for the jury to resolve. 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.’ [Cit.]” Shabazz v. State, 229 Ga. App. 465-466 (1) (494 SE2d 257) (1997).

The evidence adduced at trial reveals the following: On November 3, 1993, the Covington-Newton County SWAT Team assisted the East Metro Drug Enforcement Team in executing a search warrant at a home at 147 Cobb Road in Newton County. Upon entering the home, the SWAT team leader found Cobb and three other men sitting in the living room. Cobb was seated in a chair. At the foot of the chair was a white plastic bag containing 25 smaller bags of both crack and powder cocaine. The cocaine, which weighed 177 grams and was 82 percent pure, had an estimated street value of $12,000 to $16,000. Cobb was seated closest to the cocaine. The amount of cocaine found was consistent with “upper or mid-level” drug dealing as opposed to street dealing or personal use.

Also within Cobb’s reach was a loaded Intertec .9 millimeter semi-automatic pistol and a loaded 12-gauge shotgun. After police found a recent bill of sale for the Intertec with Cobb’s name on it, Cobb admitted the weapon was his. Officers recovered two pagers from the arm of the chair in which Cobb had been sitting. They also found a large amount of ammunition in the living room and a .25 caliber pistol in the kitchen stove. As the SWAT team secured the room, they heard a police scanner. Cobb and his associates were monitoring the Newton County Sheriff’s Office radio traffic. A list of the Sheriff’s “10” codes was next to the scanner. In the back yard, police found a black Tupperware box containing a set of digital scales and several plastic bags used for packaging cocaine. Police found a cell phone and $81 in cash in the automobile Cobb was driving at the time of his arrest.

Although Cobb denied living at 147 Cobb Road, the State presented evidence to the contrary. Dexter Nolley testified that Cobb shared the house with Kenny Smith, Cobb’s cousin, and that Cobb stayed in the left rear bedroom. Smith, who leased the house from Carrie Freeman, confirmed this. Although Freeman did not know Cobb, she knew that Smith was living with a cousin. Cobb kept furniture in the house. Police found an Intertec box in the left rear bedroom of the house along with several M-70 fireworks. Fireworks of this type were also found in a later search of another of Cobb’s residences. Police also found spent .9 millimeter shell casings in the front yard of the house. Cobb admitted he fired his Intertec weapon at the house.

On March 9, 1995, Cobb was again found in the company of several of his associates (one of whom was previously arrested with him) and a large amount of cocaine when police executed a search warrant at 605 Dixie Road, Newton County — Cobb’s parent’s residence. 605 Dixie Road is about 1,600 feet from 147 Cobb Road, if traveling through the woods; it is about three-tenths of a mile over surface roads. During the search, police found crack and powder cocaine and a set of electronic scales in a bag hidden in the branches of a cedar tree. The tree was located about 20 yards behind a garage in which Cobb had made a “crash pad.” Although he had a room inside his parent’s home, Cobb explained that he built the apartment so that he could stay there whenever he had a woman spend the night. The cocaine, which weighed 167.1 grams and which was 86 percent pure, had a street value of about $12,000 to $14,000.

The police also found a loaded shotgun just outside the garage apartment door. Police found on Cobb’s person a pager and $2,223 in cash. Included in that cash were marked bills that had been used by a confidential informant to buy a quantity of cocaine from 605 Dixie Road just hours before the warrant was executed. None of Cobb’s associates had large amounts of cash on them. Inside the main, house, a police drug dog alerted on a heap of clothing in Cobb’s bedroom closet. Beneath the clothing, officers found a bag containing $14,224 in cash. The officers also found a bag of M-70 fireworks inside that bedroom. The drug dog also alerted several times inside Cobb’s garage apartment, though no cocaine was found there.

At the time of this search, Cobb was driving a blue Mazda truck that had his name stitched into the upholstery. He also owned a 1994 Ford Explorer that had been enhanced with a $9,282.24 “gold kit.” Cobb paid cash for the kit. He also made a $5,000 cash down payment for the car and regularly made the payments on it.

Police videotaped both searches, and the jury was allowed to view those tapes.

During the search at 605 Dixie Road, police recovered several receipts for items that Cobb had purchased over the last few years. A financial investigator reviewed these receipts and Cobb’s bank records. The investigator found that Cobb, who had been unemployed since 1993, had, over a four-year period, spent $46,569.97 more than he had earned.

Given this evidence, the jury was authorized to conclude that Cobb was in knowing, constructive possession of over 28 grams of cocaine in violation of OCGA § 16-13-31 on both November 3, 1993, and March 5, 1995. See, e.g., Hite v. State, 206 Ga. App. 245, 246-247 (2) (424 SE2d 885) (1992).

2. The trial court did not abuse its discretion in joining the November 3,1993 and March 5,1995 offenses for trial. “[W]here multiple offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant has an absolute right to a severance of offenses. Where, however, joinder is based on the same conduct or on a series of acts connected together and evince ongoing criminality, severance lies within the sound discretion of the trial court. Offenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind.” (Citations, punctuation and emphasis omitted.) Whitfield v. State, 217 Ga. App. 402, 403 (1) (457 SE2d 682) (1995).

We do not agree with Cobb that the offenses were joined solely because they were alike in character. Although the offenses were separated in time by 17 months, the facts of each offense reveal that Cobb was engaged in a continuing and profitable criminal enterprise as a mid-level cocaine distributor. In each case, Cobb was found in possession of a large amount of relatively pure cocaine and the implements of the drug trade (scales, plastic bags, cell phones and pagers, and heavy-duty arms). Further, both offenses occurred in close proximity to each other in Cobb’s personal residences and in the presence of his business associates. Given this evidence, the trial court did not abuse its discretion in joining the offenses. Villarreal v. State, 198 Ga. App. 501 (402 SE2d 104) (1991).

3. In his third enumeration of error, Cobb contends the trial court erred by admitting testimony during the State’s rebuttal that (a) Cobb was the focus of an investigation, (b) Cobb’s Ford Explorer had been seized in a drug condemnation, and (c) a confidential informant purchased cocaine from Cobb shortly before the March 5, 1995 search.

(a) Cobb argues that “[t]he trial court committed reversible error in permitting testimony that appellant was the ‘subject of the investigation.’ ” The statement to which Cobb refers in his brief is a statement made by the district attorney outside the presence of the jury. Cobb does not cite to any rebuttal witness testimony he believes should have been excluded, nor does he summarize it or reprint it in his brief for our review. Because Cobb has failed to support this enumeration with appropriate argument and citation to the record, it is deemed abandoned. See Hunter v. State, 201 Ga. App. 9-10 (2) (410 SE2d 204) (1991); see also Herndon v. State, 229 Ga. App. 457 (2) (494 SE2d 262) (1997) (“court will not cull the record on behalf of a party in search of error”).

(b) Cobb has not cited to any rebuttal testimony regarding a civil forfeiture proceeding. Rather, he cites to a portion of the transcript where the trial court told the jury that Cobb’s Ford Explorer had been “taken by a civil action filed by the D. A.’s office, and it was legally taken.” Not only did Cobb fail to object to the testimony which prompted this instruction (testimony, incidently, which he elicited from his own witness), he agreed several times that the court should give the curative instruction of which he now complains. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.” (Citation and punctuation omitted.) Boatright v. State, 192 Ga. App. 112, 116 (5) (385 SE2d 298) (1989).

(c) Finally, Cobb contends the court erred in admitting rebuttal testimony establishing that $150 of the $2,223 in cash found on Cobb came from marked bills given to a confidential informant who bought cocaine from 605 Dixie Road a few hours before the search warrant was executed.

The trial court initially suppressed any evidence concerning the Cl’s drug buy, and the State did not present any evidence about the transaction during the case in chief. Cobb then testified that $1,200 of the money found on his person was given to him in payment for car repairs performed for Emory Jackson, who was present when the March 5, 1995 search was executed. Cobb testified that just before the police arrived, he told Jackson: “Emory, if you did something you need to leave here, man, I said because you’re going to get me and my mom in trouble.” The trial court permitted the rebuttal testimony because Cobb had “opened the door” to it by offering Jackson as the source of the money found on him.

Pretermitting whether the testimony would have been admissible in the case in chief, it was admissible for the limited purpose of rebutting Cobb’s explanation for the cash found on his person. “Where the rebuttal testimony is relevant it is immaterial to its admissibility that it may incidentally tend to place the defendant’s character in issue, for in the inclusion in his statement of the facts to be rebutted he has opened the door for its rebuttal.” McGregor v. State, 119 Ga. App. 40, 41 (165 SE2d 915) (1969). See also Mulkey v. State, 250 Ga. 444, 446 (3) (298 SE2d 487) (1983).

4. In his fourth enumeration of error, Cobb asserts the trial court should have granted him a mistrial for two reasons. First, he contends a mistrial was required when an officer testified that Emory Jackson had “disappeared” after he gave a statement to police. However, Cobb did not make a contemporaneous objection to that statement. And, when he did finally object, he agreed to the court’s curative instruction. Second, Cobb complains that the court should have declared a mistrial when the district attorney responded to Cobb’s objections regarding Emory Jackson’s disappearance by saying: “This is what [defense counsel] does, this is what defense lawyers do all the time.” However, after the district attorney and defense counsel apologized to the court for their outbursts, the court stated, outside the presence of the jury: “Okay. Now, I’m also going to mention that I apologize on both your behalfs for losing your cools.” Cobb abandoned his objection and acquiesced in the court’s ruling. As we have repeatedly held, acquiescence in a court’s ruling deprives the defendant of a right to complain about it later. See, e.g., Morris v. State, 226 Ga. App. 535, 539-540 (3) (488 SE2d 685) (1997).

Decided February 5, 1999.

James E. Millsaps, for appellant.

Alan A. Cook, District Attorney, William K. Wynne, Jr., Assistant District Attorney, for appellee.

5. Finally, Cobb argues that the court committed reversible error by “admonishing” defense counsel in front of the jury. Our review of the transcript reveals only that the district attorney objected to a portion of Cobb’s closing argument and that the court sustained the objection, ruling that Cobb’s attorney was “wrong.” Cobb made no objection to this ruling, and thus it is not preserved for our review. Morris, 226 Ga. App. at 539-540.

Judgment affirmed.

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


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A98A2206, A98A2207.
    ADKINSON v. THE STATE (two cases).
    (511 SE2d 527)
   Blackburn, Judge.

In Case No. A98A2206, Robert Adkinson appeals his conviction of simple battery, possession of devices to commit crime, and five counts of violations of the Georgia Controlled Substances Act, contending that there was insufficient evidence presented to support his convictions and that he received ineffective assistance of counsel. In Case No. A98A2207, Kimberly Adkinson appeals her convictions of aggravated assault, aggravated battery, possession of a firearm during the commission of a crime, possession of devices to commit crime, and five counts of violations of the Georgia Controlled Substances Act, contending that there was insufficient evidence to support her convictions and that she received ineffective assistance of counsel. Because the defendants’ convictions arose out of the same trial, we have consolidated their appeals for the purposes of this opinion.

Viewing the evidence in the light most favorable to the verdict, it reveals that during an argument, Robert Adkinson pushed his wife, Kimberly Adkinson, while she held their child in her arms. Thereafter, Kimberly Adkinson shot Robert Adkinson in the back with a .38 caliber pistol. The police officers at the scene of the shooting found Vitablend (a cutting agent), digital scales, $3,000, marijuana, amphetamines, syringes, a spoon, and notes detailing the locations of drug transactions in Kimberly Adkinson’s car, a Thunderbird. The evidence further revealed that Robert Adkinson drove the Thunderbird to the location of the incident. Kimberly Adkinson drove another car to the location of the shooting. Both the Adkinsons were convicted of possession of the items found in the Thunderbird.

Case No. A98A2206

1. Robert Adkinson contends that the evidence was insufficient to support his conviction of possession with intent to distribute marijuana and amphetamines.

“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.” Riggins v. State, 230 Ga. App. 757, 758 (1) (498 SE2d 117) (1998).

(a) Initially, Robert Adkinson argues that the evidence was insufficient to support his conviction of possession of marijuana with intent to distribute because there was no chemical analysis or conclusive testimony that the material found in the car was marijuana.

A GBI chemist testified that, although he thought the green leafy material was marijuana, he did not test it, so he could not testify beyond a reasonable doubt that it was marijuana. Additional opinion testimony was properly allowed regarding the detectives’ beliefs that the substance was marijuana; however, no scientifically conclusive evidence was presented. In fact, one narcotics investigator testified thát there are a lot of leafy substances that look like marijuana but are not marijuana.

Based on the evidence presented, Robert Adkinson’s conviction of possession of marijuana with intent to distribute cannot stand. See Phillips v. State, 133 Ga. App. 392, 393 (210 SE2d 858) (1974) (sheriff’s testimony that he thought plants were marijuana was insufficient to support possession of marijuana conviction especially in light of expert’s testimony that marijuana plant is similar in appearance to other hemp plants).

(b) Robert Adkinson contends that his conviction of possession of amphetamines with intent to distribute was based on insufficient circumstantial evidence. Adkinson argues that there was no evidence connecting him with the drugs found in the Thunderbird. We cannot agree.

During Robert Adkinson’s testimony at trial, he admitted that he drove the Thunderbird on the day of the shooting. In fact, he admitted that he drove it to the location of the shooting where the drugs and drug paraphernalia were eventually found. Furthermore, Adkinson admitted that he was a methamphetamine user and that some of the drug paraphernalia was his. In addition, Kimberly Adkinson indicated that Robert Adkinson dealt drugs.

Kimberly’s statement along with the corrobative evidence discussed above was sufficient to enable a rational trier of fact to find Robert Adkinson guilty of possession of amphetamines with the intent to distribute.

2. On appeal, Robert Adkinson contends for the first time that he was denied effective assistance of counsel. “If an appellant raises on appeal the issue of ineffectiveness of his original trial counsel, and appellant did not have the opportunity to raise such issue in the trial court, we will ordinarily remand the case to the lower court for resolution of such issue, with the right in the appellant to appeal the ruling.” Howard v. State, 233 Ga. App. 724, 729 (7) (505 SE2d 768) (1998). Therefore, we remand Case No. A98A2206 to the trial court for consideration of Adkinson’s ineffective assistance of counsel claim.

Case No. A98A2207

3. In Kimberly Adkinson’s first enumeration of error, she contends that her trial counsel was ineffective.

“In order to prevail on a claim of ineffective assistance of counsel, appellant must show both that counsel’s performance was deficient and, but for the deficiency, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). Furthermore, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. Moreover, a trial court’s finding that a defendant has been provided effective assistance of counsel will not be reversed unless it is clearly erroneous.” (Citations and punctuation omitted.) Clay v. State, 232 Ga. App. 656, 657 (1) (503 SE2d 560) (1998).

(a) Adkinson contends that her trial counsel was ineffective because he did not present a battered woman defense on her behalf. However, trial counsel testified at the motion for new trial hearing that he made a tactical decision to present a lack of intent defense which was consistent with her statement to the police that she thought there was no bullet in the chamber of the gun when she pulled the trigger. Because trial counsel’s decision might be considered sound trial strategy, Adkinson’s claim is without merit.

Decided February 5, 1999.

Ann C. Stahl, for appellant (case no. A98A2206).

Henderson & Associates, Daniel L. Henderson, for appellant (case no. A98A2207).

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Lance T. McCoy, Assistant District Attorneys, for appellee.

(b) Adkinson asserts that her trial counsel was ineffective in that he failed to move to sever her trial from her husband’s trial. Trial counsel was unable to impeach Robert Adkinson with his previous convictions when he took the stand as a State’s witness because the issues for trial were not severed. However, because Kimberly Adkinson admitted to the shooting and her involvement with the drugs, she has failed to demonstrate that there is a reasonable probability that the outcome of the trial would have been different but for the performance of her counsel. See Clay, supra.

4. Adkinson contends that her conviction of drug possession with the intent to distribute was based on insufficient evidence because it was based solely on the uncorroborated testimony of her co-defendant, Robert Adkinson. However, in her statement, Kimberly Adkinson admitted her knowledge of the drugs and admitted putting some of them in the vehicle where they were found. Such slight evidence is sufficient to corroborate her co-defendant’s testimony regarding her participation in the criminal act. See Givens v. State, 227 Ga. App. 861 (490 SE2d 530) (1997).

5. Additionally, Adkinson contends that the trial court erred in denying her motion for an appeal bond. However, OCGA § 17-6-1 (g) provides that the granting of an appeal bond is within the sound discretion of the trial court, and we find no abuse of same.

Judgment affirmed in Case No. A98A2207. Judgment affirmed in part, reversed in part and remanded in Case No. A98A2206.

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


author: Pope, Presiding Judge.

text:
    A98A2221.
    DEPARTMENT OF HUMAN RESOURCES v. HOLLAND.
    (511 SE2d 628)
   Pope, Presiding Judge.

The Department of Human Resources (“DHR”) petitioned the superior court to adopt DHR’s recommended increase in the amount of child support being paid by Michael Holland to his former wife Linda Holland. The court denied the petition on December 1, 1997. DHR then filed a motion for new trial on December 22. On December 31, before the superior court ruled on the motion, DHR applied for discretionary review of the trial court’s order denying the petition. We granted the application on January 16, 1998, and DHR filed its notice of appeal on January 22. In spite of the appeal, a hearing on the motion for new trial was held on April 14, 1998. The court entered its order denying the motion on April 20. On May 15, DHR filed a second application in this Court, seeking discretionary review of the trial court’s denial of the motion for new trial. Later, on May 18, DHR voluntarily dismissed its original appeal, which had not yet been docketed in this Court. On June 9, we granted the second DHR application for discretionary review, and DHR filed its notice of appeal on June 18. That appeal, from the trial court’s denial of the motion for new trial, was docketed in this Court on July 9, 1998, and is now before us.

Decided February 5, 1999.

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

Upon further review, we find that we improvidently granted DHR’s second application for discretionary review and are without jurisdiction to consider the merits of the case. The filing of an application for discretionary review acts as a supersedeas and has the effect of depriving the trial court of jurisdiction to modify or alter its judgment. Nest Investments v. Tzavaras, 221 Ga. App. 282 (471 SE2d 223) (1996); OCGA § 5-6-35 (h). In the instant case, when DHR filed its initial application for discretionary review on December 31, 1997, the trial court was divested of jurisdiction to rule on DHR’s motion for new trial. See Bryson v. State, 228 Ga. App. 84, 85 (1) (491 SE2d 184) (1997). Consequently, the court’s order of April 20, 1998, denying that motion is void and a nullity. See id.; In the Interest of A. R. B., 209 Ga. App. 324, 325 (1) (433 SE2d 411) (1993) (physical precedent only). Because that order is a nullity, it provides no jurisdictional basis for the appeal before us. Accordingly, the improvidently granted discretionary appeal must be dismissed.

Appeal dismissed.

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

McFarland & Associates, Robert P. McFarland, Bert E. Barker, for appellee.

       For purposes of this appeal, we assume without deciding that DHR’s motion for new trial was, in substance, an appropriate method of asking the court to set aside its ruling. See OCGA § 9-11-60; Dept. of Human Resources v. Browning, 210 Ga. App. 546, 547 (1) (a) (436 SE2d 742) (1993).


text:
    A98A2306.
    TANNER’S ROME, INC. v. INGRAM.
    (511 SE2d 617)
   Blackburn, Judge.

Tanner’s Rome, Inc. appeals the denial of its motion for summary judgment, contending that the claim asserted by Mae Nell Ingram is barred by the applicable statute of limitation. Specifically, Tanner’s Rome contends that Ingram failed to meet the notice requirements necessary to substitute a party defendant pursuant to OCGA § 9-11-15 (c). We affirm that Ingram met the requirements of OCGA § 9-11-15 (c), such that the amendment to the complaint which changed the party defendant related back to the date of the original pleadings.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).” (Punctuation omitted.) Urban v. Lemley, 232 Ga. App. 259 (501 SE2d 529) (1998).

Viewed in this light, the record shows that, on May 5, 1995, Ingram slipped and fell in a restaurant owned and operated by Tanner’s Rome. On May 5,1997, the last day before her claim would have been barred by the two-year statute of limitation, Ingram filed suit against Tanner’s Management, Inc., a separate sister corporation of Tanner’s Rome with the same registered agent. See OCGA § 9-3-33. Service was perfected on Tanner’s Management on June 5, 1997. Service of the complaint was the first notice that either Tanner’s Management or Tanner’s Rome had of the action.

Tanner’s Management filed its answer on July 3, 1997, in which it denied ownership of the restaurant. Thereupon, Ingram sought to have Tanner’s Management dropped as a defendant and Tanner’s Rome substituted in its stead in accordance with OCGA § 9-11-15 (c), which provides: “Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” Under the statute, the substituted defendant must have had notice of the action itself, not notice of the incident.

Ingram’s motion to amend the complaint was granted by consent order. Subsequently, Tanner’s Rome filed its motion for summary judgment on the ground that the amended complaint was barred by the two-year statute of limitation because service of the complaint on Tanner’s Management after the expiration of the statute of limitation was not notice “within the period provided by law for commencing the action against [Tanner’s Rome].” OCGA § 9-11-15 (c). Tanner’s Rome concedes that, with the exception of notice of the action, the requirements of OCGA § 9-11-15 (c) are met.

This case is controlled by Rich’s, Inc. v. Snyder, 134 Ga. App. 889, 891 (1) (216 SE2d 648) (1975), which considered and rejected an identical argument. In Rich’s, the plaintiff was allowed to substitute Rich’s, Inc. for Richway, Inc. even though service was perfected on Richway after the expiration of the statute of limitation. “Since the action was commenced within the two-year period of the limitation statute the fact that service was made . . . after the expiration of this statute does not bar the action.” Id. at 892 (1). In the present case, Tanner’s Rome admits it is a sister corporation to Tanner’s Management, the original defendant, and that it knew or should have known the action would have been brought against it. Consequently, the valid service on Tanner’s Management, the sister corporation, after the expiration of the statute of limitation was timely notice of the action, and the requirements of OCGA § 9-11-15 (c) were met. Rich’s, Inc., supra.

Tanner’s Rome erroneously relies on Harrison v. Golden, 219 Ga. App. 772 (466 SE2d 890) (1996) to support its contention. Harrison is distinguishable because in that case the substituted defendant and the existing defendant were unrelated. Here, Tanner’s Rome has admitted the relationship of the parties. The trial court properly denied Tanner’s Rome’s motion for summary judgment.

We note that this issue revolves specifically around notice requirements and, as such, is distinguishable from whether a plaintiff who served a defendant after the statute of limitation has expired was diligent such that the late service relates back to the date of filing. See Allen v. Kahn, 231 Ga. App. 438 (499 SE2d 164) (1998).

Judgment affirmed.

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

Decided February 5, 1999

Cobb, Grabbe, Spillers & Irwin, R. Chris Irwin, for appellant.

Hollingsworth & Associates, Charles T Crouse, for appellee.


text:
    A98A2394.
    BROWN v. AMF BOWLING CENTERS, INC.
    (511 SE2d 619)
   Pope, Presiding Judge.

Jennifer Brown appeals the trial court’s order granting summary judgment to defendant AMF Bowling Centers, Inc. (“AMF”). Because material issues of fact remain for jury resolution, we reverse.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). Viewed in this light, the record reveals the following:

On January 1, 1996, Brown was injured when she attempted to stop a bar fight involving her husband and another patron of the defendant, AMF. There is no evidence that Brown instigated the fight; rather, it appears she momentarily joined the affray in an attempt to break it up. AMF’s bartender, Jim Horn, also attempted to break up the fight and in doing so injured Brown. According to Brown, Horn came up behind her while she was tugging at her husband’s shirt, trying to get him to stop fighting. Horn grabbed Brown by the neck, choking her. In an attempt to break free, Brown bit Horn on the chest. Horn retaliated by throwing Brown to the floor. AMF’s manager gave an affidavit stating that Horn had no authority to physically intervene in bar fights.

1. “Except in plain and palpable cases, the question of whether a servant is acting within the scope of his employment is a jury question.” Atlantic Coast Line R. Co. v. Heyward, 82 Ga. App. 337, 341 (1) (60 SE2d 641) (1950). See New Madison South, L.P. v. Gardner, 231 Ga. App. 730, 732-733 (1) (499 SE2d 133) (1998). The test of a master’s liability for his servant’s tort is whether the act “was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment. If a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from a doing of the act, the servant may be liable, but the master is not liable. Where the tort of the employee is wholly personal to himself, it is not within the scope of his employment, and the master is not liable.” (Citations, punctuation and emphasis omitted.) Rogers v. Fred R. Hiller Co. of Ga., 214 Ga. App. 448 (1) (448 SE2d 46) (1994); Rucker v. Troll Book Fairs, 232 Ga. App. 189, 190 (1) (501 SE2d 301) (1998).

AMF argues that because Horn was not authorized to intervene in physical altercations with AMF’s patrons, his actions fell outside the scope of his employment. We do not agree. Whether a specific act was authorized has never been the test of liability. In fact, “it makes no difference that the master did not authorize [a particular act], or even know of the servant’s act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant’s employment.” (Citation and punctuation omitted.) Crawford v. Johnson, 227 Ga. App. 548, 553 (2) (c) (489 SE2d 552) (1997). Here, a jury could infer that Horn’s act of keeping the peace in a bar falls within the class of activities an employer expects a bartender to perform. See, e.g., New Madison South, L.P. v. Gardner, 231 Ga. App. 732 (1); Bacon v. News-Press & Gazette Co., 188 Ga. App. 703, 704 (373 SE2d 797) (1988); Evans v. Caldwell, 52 Ga. App. 475, 478 (2) (184 SE 440) (1936). And, since AMF has not produced any evidence which establishes, as a matter of law, that Horn’s actions fell outside the class of activities its bartenders perform generally, a jury issue remains. See, e.g., id.

Further, there is no evidence that Horn joined the fight out of personal animosity toward Brown. Although Horn did retaliate forcefully against Brown when she bit him, we cannot say his act, as a matter of law, was a wholly personal one. “The fact that [Horn’s] actions may have been mingled with personal motives or purposes does not automatically entitle [AMF] to summary judgment, since the presence of a personal motive or purpose in the servant’s mind does not affect the master’s liability, when the servant’s actions are done in the line of his duty and in the prosecution of his master’s work ” Reynolds v.L & L Mgmt., 228 Ga. App. 611, 613 (1) (492 SE2d 347) (1997).

2. AMF, citing Sailors v. Esmail Intl., 217 Ga. App. 811, 812-813 (1) (459 SE2d 465) (1995), also argues that it is entitled to summary judgment because Brown’s voluntary intervention in the fight “precluded a finding of superior knowledge on the part of [plaintiff] of the danger she encountered and constituted assumption of the risk as a matter of law.” However, Sailors and the other cases cited by AMF in support of its argument are inapplicable because they are third-party criminal act premises liability cases in which the landlord was relieved of liability because the plaintiff was engaged in mutual combat with a third person whose criminal act caused his or her injury. Liability in this case is predicated on a theory of respondeat superior, not superior knowledge. Moreover, the evidence does not establish, as a matter of law, that Brown was injured as the result of mutual combat with a third person.

Decided February 5, 1999.

Charles W. Wrinkle, for appellant.

Long, Weinberg, Ansley & Wheeler, John C. Bonnie, for appellee.

Because material issues of fact remain for jury resolution, the trial court erred in granting summary judgment.

Judgment reversed.

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


author: Beasley, Presiding Judge.

text:
    A98A2398.
    EAVES v. STATE OF GEORGIA.
    (511 SE2d 621)
   Beasley, Presiding Judge.

When David Eaves drove his friend to a rural trailer to determine if his friend’s sisters lived there, he had no idea it would cost him the truck he was driving as well as the two firearms he kept in the truck. Police, pursuant to warrant, were searching the trailer for drugs at the time Eaves arrived. They seized the truck and firearms from Eaves when, after obtaining Eaves’ consent to a search, they found drugs in his truck. The State filed an in rem claim to have the truck and firearms forfeited under OCGA § 16-13-49 (o). Eaves unsuccessfully moved to dismiss the complaint for failure to state a claim. The court after a bench trial granted the forfeiture.

1. Eaves contends the complaint did not comply with statutory pleading requirements. OCGA § 16-13-49 (o) provides that an in rem complaint must be verified and “shall describe the property with reasonable particularity; state that it is located within the county or will be located within the county during the pendency of the action; state its present custodian; state the name of the owner or interest holder, if known; allege the essential elements of the violation which is claimed to exist; state the place of seizure, if the property was seized; and conclude with a prayer of due process to enforce the forfeiture.” “This Code section must be liberally construed to effectuate its remedial purposes.” Substantial compliance is sufficient.

Eaves claims that the complaint was deficient in four respects: (i) it was unverified; (ii) it failed to state the property was or would be located in Haralson County; (iii) it failed to identify the property’s owner; and (iv) it failed to state the place of seizure.

The State by amendment included a verification which cured that deficiency. The complaint states that the State seized the property during the execution of a search warrant on a residence in Bremen, Georgia, which satisfies the need to state the place of seizure. It identifies the Tallapoosa Judicial Circuit Drug Task Force of Buchanan, Georgia, as the custodian of the items and states the property is in the jurisdiction of the Haralson County court, which shows the property was located within the county. It states that Eaves drove the truck to the place of seizure and that he had filed a claim to the property, which inferentially identifies Eaves as the owner of the property.

All the bases were covered, so the court did not err in denying the motion to dismiss.

2. Eaves argues the police lacked an articulable suspicion to detain him after his arrival at the trailer and therefore the obtaining of his consent to search his truck was tainted and ineffectual.

Eaves and his friend, a felon convicted of narcotics offenses with a history of violence directed at law enforcement officers, drove to the premises where police were executing a search warrant for drugs. With no encouragement from police, he voluntarily stopped his car and, with his hands in his pockets, approached an officer, leaving his passenger in the truck within arm’s length of a loaded .357 Magnum revolver and a Derringer pistol. He inquired about two women residing at the premises, where drugs had just been found and twelve arrests made.

The officer patted Eaves down for weapons to protect himself. Eaves then announced he had the loaded .357 Magnum in the truck. The officer removed the passenger and the gun from the truck, and other officers still in the trailer were called to assist. A second officer, who knew the passenger for his violent and criminal history, asked Eaves for consent to search the truck, which Eaves gave. Illegal drugs and the Derringer pistol were found beneath the seat. The police arrested Eaves and found drugs on his person. The truck and firearms were seized.

“A valid consent eliminates the need for either probable cause or a search warrant. [Cit.]” Evidence supported the court’s finding that Eaves freely and voluntarily consented to the search of his truck.

But consent that is the product of an illegal detention is ineffectual. Police may briefly detain someone for investigatory purposes if they have an articulable suspicion of criminal conduct. As in Setser v. State, “[although [Eaves’] arrival at a location where a search for drugs was in progress may not have been sufficient to establish probable cause to believe that he was actually engaged in the suspected drug activity, it was certainly sufficient to establish an articulable suspicion so as to authorize a brief investigatory stop.” The consent to search resulting from Eaves’ detention was valid.

Eaves contends the first officer had no right to frisk him for weapons during the detention, because he did not threaten the officer or otherwise indicate he had weapons. This sidesteps whether the consent to search the truck was the result of an illegal detention. Moreover, police may reasonably anticipate that those suspected of involvement in the drug trade might be armed, and Eaves arrived in a truck. “[investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” He also approached with his hands in his pockets. The circumstances created an objectively reasonable apprehension which authorized the officer to frisk Eaves for weapons.

Eaves’ cited cases differ because in them the court determined either that no consent was given or the detention was illegal. It is consistent with them to hold, as we do, that the court did not err in concluding that the truck search was proper.

Judgment affirmed.

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

Decided February 5, 1999.

Thomas M. Rego, for appellant.

James R. Osborne, District Attorney, Thomas J. Melanson, Assistant District Attorney, for appellee.

       OCGA § 16-13-49 (z).

        McMichen v. State of Ga., 209 Ga. App. 169, 170 (1) (433 SE2d 92) (1993).

       Id.; cf. Rojas v. State of Ga., 269 Ga. 121, 122 (2) (498 SE2d 735) (1998) (answer maybe amended to cure deficiencies).

        Dean v. State, 250 Ga. 77, 80 (2) (a) (295 SE2d 306) (1982).

        Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514) (1988).

       Id. at 186; see Terry v. Ohio, 392 U. S. 1, 30 (V) (88 SC 1868, 20 LE2d 889) (1968).

       209 Ga. App. 57 (432 SE2d 652) (1993).

       (Citations and punctuation omitted.) Id. at 58 (1); see Bales v. State, 216 Ga. App. 856, 857 (456 SE2d 112) (1995) (while police were executing search warrant and finding drugs, defendant arrived in vehicle; “[d]efendant’s arrival was sufficient to establish an articulable suspicion so as to authorize a brief investigatory stop”) (citations and punctuation omitted); Claffey v. State, 209 Ga. App. 455, 456 (1) (433 SE2d 441) (1993) (“[s]ince the lessee of the premises on which the search warrant was being executed could lawfully be detained to aid the execution of the warrant, the officers could validly approach and briefly detain the occupants of a car that had just come to a stop at the residence to determine whether any of them lived there”) (citations omitted); Condon v. State, 203 Ga. App. 163 (416 SE2d 802) (1992) (arrival of truck at drug search in progress gave police articulable suspicion to conduct investigatory stop); cf. Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981) (police may detain persons on premises while executing a search warrant).

        Condon, supra, 203 Ga. App. at 163.

        Michigan v. Long, 463 U. S. 1032, 1047 (III) (103 SC 3469, 77 LE2d 1201) (1983).

        Condon, supra, 203 Ga. App. at 163-164; see McGugan v. State, 215 Ga. App. 535, 536 (451 SE2d 460) (1994) (officer could frisk individual arriving in vehicle at scene of drug search warrant); Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (1991) (individual arriving in car at scene of drug surveillance could be stopped and frisked).

       See, e.g., Bowers v. State, 221 Ga. App. 886 (473 SE2d 201) (1996) (physical precedent only) (detention was illegal); Collins v. State, 187 Ga. App. 430 (370 SE2d 648) (1988) (no consent given).


author: Johnson, Chief Judge.

text:
    A98A2475.
    IZER v. THE STATE.
    (511 SE2d 625)
   Johnson, Chief Judge.

After a bench trial, David Izer was found guilty of speeding. He appeals from the conviction, claiming that evidence obtained from a laser speed detection device should not have been admitted because the state failed to introduce any evidence establishing the reliability of laser-based speed measuring techniques. We agree.

“In Harper v. State, 249 Ga. 519, 525 (292 SE2d 389) (1982), the Supreme Court held that the test for admissibility of novel scientific evidence is whether the procedure or technique has reached a scientific stage of verifiable certainty, or . . . whether the procedure rests on the laws of nature. The court went on to say that once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.” (Citations and punctuation omitted.) Hubbard v. State, 207 Ga. App. 703, 704 (429 SE2d 123) (1993). “The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions.” (Citations and punctuation omitted.) Smith v. State, 250 Ga. 438, 440 (4) (298 SE2d 482) (1983); Manley v. State, 206 Ga. App. 281 (424 SE2d 818) (1992).

At trial, the arresting officer testified that he was certified to operate the device, that the particular unit was approved by the Department of Public Safety, and that the device had been tested and was working properly on the date in question. However, the state did not introduce any expert testimony to establish that the technique of using laser-based devices to measure vehicle speed has reached a scientific stage of verifiable certainty. See generally Caldwell v. State, 260 Ga. 278, 286 (1) (b) (393 SE2d 436) (1990). Nor did the state bring to the trial court’s attention any exhibits, treatises or cases from other jurisdictions establishing the reliability of the technique.

Of course, as noted above, once a procedure or technology has been recognized in a substantial number of courts, or has been utilized for a significant period of time and expert testimony has been received thereon in case after case, a trial court may take judicial notice of the device’s reliability and acceptance. See Hawkins v. State, 223 Ga. App. 34, 36 (1) (476 SE2d 803) (1996). The trial court does not have to keep reinventing the wheel; a once novel technology can and does become commonplace. Id.

Surprisingly, we have not yet reached that stage regarding laser technology. While the use of radar as a technique for measuring speed and its admissibility as scientific evidence is widely accepted in Georgia and other states, see discussion in Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516) (1991), the use and admissibility of laser evidence has apparently not been explored by the appellate courts of this state. The state lias not shown the two techniques to be the same.

Only a few courts in other jurisdictions have published opinions discussing the issue of the scientific acceptability or reliability of laser-based speed detection devices. See In the Matter of the Admissibility of Motor Vehicle Speed Readings Produced by the LTI Marksman 20-20 Laser Speed Detection System, 714 A2d 381 (1998) (use of lasers to calculate vehicle speed is generally accepted in the scientific community, is valid and reasonably reliable, and should be received as evidence of speed; no expert testimony is required); People v. Clemens, 642 NYS2d 760 (1995) (scientific expert proved the reliability and acceptance within scientific community of laser gun as accurate means of measuring speed); People v. Depass, 629 NYS2d 367 (1995) (use of laser device was based upon well-accepted scientific principles and could be accepted in court as accurate method of measuring vehicle speed; expert testimony was also presented); Goldstein v. State, 664 A2d 375 (Md. 1995) (laser evidence admissible where statute so provides or state proves technique is generally accepted in scientific community; parties stipulated that the use of lasers to measure speed was generally accepted in scientific community and trial court made extensive investigation into the reliability of laser speed measurements). Although these courts have accepted laser evidence, in some cases only with expert testimony, it cannot be said that a substantial number of courts have recognized the technique. See generally Hawkins, supra. Considering the dearth of authority showing the scientific certainty of the technique, as well as the absence of expert testimony on the subject, the trial court erred in admitting the evidence. See generally Gentry v. State, 213 Ga. App. 24, 25 (2) (443 SE2d 667) (1994); compare Allison v. State, 179 Ga. App. 303, 306-308 (1) (346 SE2d 380) (1986), rev’d on other grounds, 256 Ga. 851 (353 SE2d 805) (1987).

The state argues that laser evidence must be admitted because the legislature has included in its definition of acceptable methods for detecting speed any speed-measuring device based upon “the speed timing principle of laser.” See OCGA § 40-14-1 (4). That the legislature included laser-based devices in the definition of “[s]peed detection device [s]” does not mean that evidence obtained from laser-based devices is not, at the same time, “novel scientific evidence.” Novel scientific evidence is not admissible in court until it has reached a scientific stage of verifiable certainty. See Gentry, supra. Indeed, the admissibility provisions of the statute at issue concern whether a particular device is in good working order, which officers may use the device, and under what circumstances it may be used. The statute does not concern the threshold issue of whether the novel scientific principles upon which the device is based are verifiably certain or rest upon the laws of nature. See OCGA §§ 40-14-1 (4); 40-14-4; 40-14-5; 40-14-6.

Decided February 5, 1999.

Clark & Towne, David E. Clark, Jessica R. Towne, for appellant.

Gerald N. Blaney, Jr., Solicitor, Michael K. Biglow, Jeffrey R Kwiatkowski, Assistant Solicitors, for appellee.

In Georgia, statutes are to be construed in harmony with existing law; their meaning and effect will be determined in connection with, among other things, the common law and the decisions of the courts. Hillman v. State, 232 Ga. App. 741, 743 (1) (b) (503 SE2d 610) (1998). We will not presume that the legislature intended to effect a greater change in existing law than is clearly apparent. Id. We hold that the inclusion of laser-based devices in the definition of “[s]peed detection device [s],” without more, does not vitiate the state’s burden of satisfying the requirements applicable to “novel scientific evidence.”

The state’s reliance on Wiggins v. State, 249 Ga. 302 (290 SE2d 427) (1982), is misplaced. The challenge there was to the admission of radar evidence on the grounds of hearsay and lack of authentication of documents. Id. at 304-305 (2) (a), (b). This case involves a laser device, not radar; radar has long been accepted as reliable. See Lattarulo, supra. Moreover, this case does not concern hearsay or authenticity issues but, as noted above, the reliability and acceptance of the scientific principles involved. The trial court erred in admitting the readings obtained from the laser-based speed detection device. See Hubbard, supra. That being the only evidence supporting Izer’s conviction, the judgment of conviction must be reversed.

Judgment reversed.

Smith and Barnes, JJ, concur.


text:
    A99A0234.
    PALMORE v. THE STATE.
    (511 SE2d 624)
    Decided February 5, 1999.

      Douglas C. Rogers, for appellant.
   Johnson, Chief Judge.

Anthony Palmore pled guilty to possession of cocaine and was sentenced to serve five years in prison. He appeals from the sentence, claiming the sentence is too harsh, is not justified by the circumstances, and was imposed by the court “in a mechanical fashion without consideration of the facts and circumstances surrounding the case.” We affirm.

“The Eighth Amendment protects against cruel and unusual punishment, a concept which prohibits, among other things, arbitrary and disproportionate sentences. Unless a sentence is so overly severe or excessive in proportion to the offense as to shock the conscience, a legislatively authorized punishment does not ordinarily exceed the constitutional bound. It could, if the court abused its discretion in imposing a sentence which is excessive and disproportionate in a specific case.” (Citations and punctuation omitted.) Burgos v. State, 233 Ga. App. 897, 901-902 (3) (505 SE2d 543) (1998).

Our legislature has provided that a first conviction of possession of cocaine carries with it a sentence of two to fifteen years imprisonment. OCGA § 16-13-30 (c). Thus, the five-year sentence imposed by the trial court falls within the statutory limit. Palmore’s sentence was not so overly severe or excessive as to shock the conscience. See Burgos, supra at 902.

Although Palmore asserts that the trial court did not fulfill its duty of “tailoring the sentence to fit the offender,” he does not explain how the sentence is ill-fitting, nor does he demonstrate how his assertion is supported by the record. During a pre-sentence hearing, the trial court afforded Palmore the opportunity to offer evidence in mitigation of punishment. In so doing, Palmore apologized for committing the charged offense and admitted that he had other felony convictions, but made no argument supporting a lesser sentence.

There is a presumption that a sentence was correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party asserting its impropriety. State v. Freeman, 198 Ga. App. 553, 557 (3) (402 SE2d 529) (1991). Because there is no presumption of impropriety and Palmore has shown nothing that would call the sentence into question, this enumeration is without merit. See Thomas v. State, 218 Ga. App. 455, 456 (2) (462 SE2d 166) (1995).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

J. Brown Moseley, District Attorney, Charles M. Stines, Anthony S. Gunn, Assistant District Attorneys, for appellee.


text:
    A98A2006.
    BLOSFELD v. HALL.
    (511 SE2d 196)
   Johnson, Chief Judge.

Connie Blosfeld sued Bradley Hall for injuries allegedly sustained in a vehicle collision. The parties stipulated to Hall’s negligence in causing the accident, and the trial court so instructed the jury. However, the parties did not stipulate to proximate cause and damages, and the jury was instructed that it was to determine whether Hall’s negligence was the proximate cause of Blosfeld’s injuries. The jury returned a verdict in favor of Hall. Blosfeld filed a motion for new trial on the grounds that the verdict was contrary to the evidence, against the weight of the evidence, and inconsistent with the preponderance of the evidence. The trial court denied Blosfeld’s motion, and she appeals.

“Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of [Blosfeld’s] motion for . . . new trial . . . will not be disturbed.” (Citations and punctuation omitted.) Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 162 (1) (473 SE2d 256) (1996).

We find there is sufficient evidence to support the verdict. Blosfeld claimed the following injuries: migraine headaches, leg and hip injuries necessitating surgery, sacroileitis and low back injuries necessitating surgery, neck and shoulder injuries, leg pain, and emotional problems. Much of the evidence as to the cause of her injuries was in conflict. For example, Blosfeld testified that when the collision occurred, she hit her head on the dashboard and her legs must have hit something. On cross-examination, she admitted having testified in her deposition that she told emergency room physicians she hit her knees, not her head, on the dashboard. She also acknowledged on cross-examination that there is no mention in the emergency room records about her knees or any other part of her lower body hitting any part of the interior of the car.

Similarly, Blosfeld testified on direct examination that when she went to see her regular treating physician the day after the accident, her primary complaints were her head and lower back. She conceded, however, that the doctor’s records indicated she complained of shoulder and neck pain. Likewise, while Blosfeld testified that she began experiencing problems with her sacroiliac and low back after the accident, she admitted on cross-examination that she had been diagnosed with sacroileitis, a joint disorder in the lower back, as early as two and one-half months before the accident.

There was also evidence supporting alternate causes of Blosfeld’s injuries. Blosfeld admitted on cross-examination that she had seen her primary treating physician at least 90 times in the three and one-half year period preceding the accident. While Blosfeld complained that the head injury brought pain similar to a migraine headache, she admitted on cross-examination that she had previously received treatment for migraine headaches.

Blosfeld testified about leg and hip injuries that necessitated surgery on both hips. However, she also testified that she fell in the bathtub approximately one and one-half years before her automobile accident, landing on her buttocks. This fall caused pain in her back and legs and was serious enough that she asked to be hospitalized. The pain from this fall persisted throughout the year and was sometimes so severe that Blosfeld could not walk. According to Dr. Allan Lippitt, who operated on Blosfeld’s sacroiliac joint following the automobile accident, it is unusual for a rear end collision to cause hip fractures such as those that necessitated Blosfeld’s surgery. Thus, the jury could properly have concluded that these injuries were caused by a fall in the bathtub.

As for Blosfeld’s complaints of sacroileitis and low back pain that required surgery, Blosfeld admitted that she had been diagnosed with sacroileitis prior to the accident and admitted that she had several times complained of the same exact pain in her lower back prior to the date of the car accident. Sacroileitis was the same diagnosis that Dr. Lippitt made that necessitated Blosfeld’s surgery. Dr. Lippitt testified that he could not state with a reasonable degree of medical certainty that the car accident caused Blosfeld’s sacroiliac condition. According to Dr. Lippitt, even though he has seen this type of injury in accidents like Blosfeld’s, it would be more common to have this type of injury as a result of falling on one’s buttocks. In addition, Blosfeld’s primary treating physician testified he could not state with a reasonable degree of medical certainty what symptoms were related to the automobile accident and what symptoms were not.

As for Blosfeld’s neck and shoulder injuries, there was sufficient evidence from which the jury could have found that these injuries were proximately caused by an earlier car accident in which Blosfeld was involved. Blosfeld testified that as a result of her prior car accident, she was still having trouble with her neck and left shoulder. These were the same two symptoms of which she complained the day after the accident.

Decided January 26, 1999

Reconsideration denied February 8,1999.

Thornton, Leff & Eisner, Robert A. Eisner, for appellant.

Blosfeld’s complaint that the accident at issue caused pain in her legs and feet was also contradicted by the evidence. Blosfeld testified that in 1992 she was exposed to toxic chemicals and that this exposure caused fibromyalgia to develop. Fibromyalgia caused pain in several parts of Blosfeld’s body, including her legs. While Blosfeld attempted to differentiate the pain, testifying that the pain caused by the accident was a sharp pain rather than a muscle ache, she later described the pain she was still experiencing from the accident as “like a dull headache.”

As for any emotional problems which Blosfeld experienced causing her a diminished enjoyment of life, Blosfeld testified that before the accident, she saw a psychologist related to her exposure to toxic chemicals. She further admitted that she was diagnosed with post-traumatic stress disorder as far back as March 1993 and again in October 1994, one month before the accident.

In Georgia, a plaintiff cannot recover for injuries sustained as a result of a defendant’s negligence unless the plaintiff shows that the defendant’s negligence was the proximate cause of the injury. See Pointer v. Cooley, 191 Ga. App. 548 (1) (382 SE2d 359) (1989); McBryde v. Roberts, 160 Ga. App. 416, 419 (1) (287 SE2d 349) (1981); Hughes v. Newell, 152 Ga. App. 618, 620 (2) (263 SE2d 505) (1979). “[E]ven if plaintiff has established that she has suffered certain substantial physical injuries and even if the nature of these injuries is consistent with her assertion they were the result of a motor vehicle collision, the evidence does not require a conclusion that plaintiff’s injuries were proximately caused by defendant’s negligence.” McBryde, supra at 416-417.

“The subject of any injury [Blosfeld] sustained in this present case was fully explored by both sides. On appeal, we do not weigh evidence, for the jury has already done that; and once the jury has done so, every inference and construction in the evidence is indulged in favor of the verdict so as to uphold it. [Cits.]” Pointer, supra. Based on the evidence, the jury was authorized to conclude that Blosfeld’s injuries were not proximately caused by Hall’s negligence. The trial court did not err in denying Blosfeld’s motion for new trial.

Judgment affirmed.

Smith and Barnes, JJ, concur.

Smith, Welch & Brittain, E. Gilmore Maxwell, for appellee.


author: Judge Harold R. Banke.

text:
    A98A2174.
    BAILEY v. TUCKER EQUIPMENT SALES, INC.
    (510 SE2d 904)
   Judge Harold R. Banke.

Tucker Equipment Sales, Inc. (“Tucker”) sued Thomas W. Bailey d/b/a Bailey Construction Company (“Bailey”) for breaching the terms of a lease/purchase agreement. After a bench trial, the trial court entered judgment for Tucker. Bailey appeals.

Bailey executed with Tucker a 30-day lease containing a 90-day rental option and a purchase option for a front-end loader. Although Bailey paid in advance for one months’ rental, Bailey did not return the loader or pay the second months’ rent before Tucker repossessed it. After Tucker sued, Bailey counterclaimed asserting that Tucker breached the leasing agreement by failing to provide equipment in proper working condition or to timely make repairs. It is undisputed that during the rental period the machine chronically overheated, blew a head gasket, and had an electrical problem. Bailey’s Bell-South Mobility phone records reflect placement of more than 20 calls to Tucker’s business number between March 25 and April 19.

Prior to trial, Bailey sought judicial interpretation under OCGA § 11-1-201 (10) of certain terms in the lease. Bailey asked the court to find that the express terms in paragraph 5 were not effective to disclaim the implied warranties of merchantability and fitness under OCGA §§ 11-2A-212; 11-2A-213 because the language was not conspicuous. That paragraph provides in pertinent part, “Messee acknowledges that he has examined the Equipment and that it is in good condition and repair. Lessee accepts the Equipment as is and agrees to use reasonable care in the operation of the Equipment. Upon termination of the rental, Lessee shall return the Equipment to the place of business of the Lessor in as good condition as when received by the Lessee, ordinary wear and tear excepted.” Bailey contended that because the language was not highlighted, bolded, in larger print, or otherwise set off, it was not sufficiently “conspicuous,” to effectively disclaim certain implied warranties as permitted by OCGA § 11-2A-214 (3) (a).

The trial court denied the motion on the basis that the language was “in the same size print, and the paragraph [was] set apart from the other paragraphs by virtue of its being numbered.” Bailey appeals that ruling. Held,-.

In the sole enumeration of error, Bailey asserts that the trial court erred in finding the “as is” language was “conspicuous” so as to negate any implied warranties. We agree.

Under the Georgia Commercial Code, parties may agree in writing to exclude certain implied warranties. “Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is,’ or ‘with all faults,’ or by other language that in common understanding calls the lessee’s attention to the exclusion of warranties and makes plain that there is no implied warranty, if in writing and conspicuous.” OCGA § 11-2A-214 (3) (a). “A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. . . . Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color.” OCGA § 11-1-201 (10). Whether a clause is “conspicuous” is a question of law for the trial court to determine. OCGA § 11-1-201 (10).

A lessor may exculpate his liability with a disclaimer clause provided such limitations are expressed in clear and unambiguous language. Petroziello v. U. S. Leasing Corp., 176 Ga. App. 858, 860 (338 SE2d 63) (1985). However, in order for exclusions of the implied warranties of fitness and merchantability to be effective, such exclusions must be written and conspicuous. White v. First Fed. Savings &c., 158 Ga. App. 373 (1) (280 SE2d 398) (1981). White, supra, specifically held that to be effective “as is” language must be conspicuous, reasoning that “[t]o hold that the ‘as is’ language need not be conspicuous would allow the implied warranties of fitness and merchantability to be annulled by implication by language less conspicuous than if they were directly eliminated. . . . [Cit.]” Id. at 373-374. Although White involved the interpretation of a sales contract, we see no reason for a different result in interpreting the lease at issue here.

Without question, paragraph 5 appears in the same size font as the rest of the printed terms in paragraphs 1-16, and although separately numbered is not otherwise set apart from the other 15 paragraphs. The “as is” phrasing within that paragraph is not in larger or contrasting type or color. See Leland Indus. v. Suntek Indus., 184 Ga. App. 635, 637 (1) (362 SE2d 441) (1987) (where “warranty” appears in all capital letters but disclaimer in lower case letters, disclaimer not effective). Moreover, the paragraph makes no mention of any exclusion, disclaimer, or limitation on remedies or warranties. Compare Harris v. Sulcus Computer Corp., 175 Ga. App. 140, 141 (3) (332 SE2d 660) (1985) (exclusion or modification of implied warranty of merchantability in sales agreement pursuant to OCGA § 11-2-316 (2) must mention merchantability and must be conspicuous).

Decided January 19, 1999

Reconsideration denied February 8,1999.

Thomas P. Stamps, for appellant.

William J. Porter, Jr., for appellee.

Having reviewed the contract, we cannot agree that the language was “conspicuous” within the meaning of OCGA § 11-1-201 (10). Leland Indus., 184 Ga. App. at 637 (1). Nor do we find that a reasonable person ought to have noticed and understood that by the mere mention of “as is” in the context it appeared, without any mention of any warranties or any disclaimers of warranties, that he was agreeing to forego any rights to lease a piece of equipment in fit and suitable working condition. See White, 158 Ga. App. at 373-374 (1); Chrysler Corp. v. Wilson Plumbing Co., 132 Ga. App. 435, 437 (1) (208 SE2d 321) (1974). The trial court erred in finding that the phrase precluded recovery for any implied warranties. Compare Webster v. Sensormatic Electronic Corp., 193 Ga. App. 654, 655 (389 SE2d 15) (1989); Rigdon v. Walker Sales &c., 161 Ga. App. 459, 461 (1) (d) (288 SE2d 711) (1982). The judgment, therefore, will be affirmed to the extent that it awards Tucker damages on Bailey’s admitted breach, but the judgment must be reversed as it does not account for the damages, if any, to which Bailey is entitled on its counterclaim. We remand for a determination of Bailey’s damages, if any, as a result of Tucker’s alleged breach. David J. Joseph Co. v. S & M Scrap Metal Co., 163 Ga. App. 685, 687-688 (2) (295 SE2d 860) (1982).

Judgment affirmed in part, reversed in part, and case remanded with direction.

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

       Bailey’s evidence showed that the machine broke down on a job site, repeatedly overheated then would only run at an extremely slow rate, making it difficult to use for extended periods. Although the lease indicated that normal use during a month was 160 hours, Thomas Bailey documented that he was able only to obtain 94 hours of use over a two-month period.

       Tucker’s owner testified that company policy as well as industry practice directed that in the event that a defective machine was leased, the lessor would fix it, give the lessee a new one or a refund.

       Even assuming that Bailey conducted a visual examination of the machine before accepting it, we question how Bailey could have detected latent mechanical or electrical problems before operating the machine on a job site.


author: Smith, Judge.

text:
    A98A1683.
    WYATT v. HERTZ CLAIM MANAGEMENT CORPORATION.
    (511 SE2d 630)
   Smith, Judge.

Chelsa Wyatt appeals from summary judgment granted against her in favor of plaintiff Hertz Claim Management Corporation on its claim for money paid by mistake. We find no error in the grant of summary judgment. But because the trial court failed to make the required findings of fact in connection with its award of attorney fees under OCGA § 9-15-14, we vacate that portion of the judgment and remand for further proceedings.

The material facts of the litigation between Wyatt and Hertz are not in dispute. Wyatt was involved in an automobile collision with another driver, Jeffrey Swallows, and her claim was negotiated by Hertz on behalf of Swallows and his insurer, Reliance National. After negotiations with a Hertz adjuster, Wyatt settled her claim with Hertz. She executed a release for the amount of $1,500, but Hertz mistakenly issued a draft for $15,000, which Wyatt cashed. Within a few weeks, Hertz contacted Wyatt by telephone and sent her three letters concerning the mistake, but she refused to return the difference between the amount stated in the release and settlement agreement and the draft. According to the adjuster, Wyatt initially acknowledged that the check was in error but refused to return it. The adjuster also testified that her authority to settle the claim never exceeded $5,000. At her deposition, Wyatt contended that Hertz agreed to a settlement of $15,000, although she acknowledged that the release appeared to bear her signature and conceded that she did not contend the signature was forged. She testified that she must have signed the release at work in a hurry after she “probably looked over it.” Later in the deposition, Wyatt stated that she did not recall whether she read it. She denied having received any of the letters, and she contended that when the adjuster called her the adjuster was “screaming and hollering” but never mentioned that the amount of the draft was incorrect.

1. “An action for money had and received [,] although legal in form, is founded on the equitable principle that no one ought to unjustly enrich himself at the expense of another, and is a substitute for a suit in equity. Thus, recovery is authorized against one who holds the money of another which he ought in equity and good conscience to refund.” (Citations, punctuation and footnote omitted.) Time Ins. Co. v. Fulton-DeKalb Hosp. Auth., 211 Ga. App. 34, 35 (1) (438 SE2d 149) (1993). “In an action for money had and received, the plaintiff generally can recover a payment mistakenly made when that mistake was caused by his lack of diligence or his negligence in ascertaining the true facts and the other party would not be prejudiced by refunding the payment — subject to a weighing of the equities between the parties by the trier of fact.” Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 406 (349 SE2d 368) (1986).

Relying on the decision in Folsom, supra, Wyatt contends that summary judgment in Hertz’s favor was improper because the trier of fact must always weigh the equities. In effect, Wyatt argues that summary judgment is never appropriate in an action for money had and received. But the Supreme Court of Georgia also made clear in Folsom that summary judgment may be granted when there is an admission of liability or indisputable facts clearly establish liability. Id. at 404. This is such a case, because the written release executed by Wyatt conclusively establishes the correct settlement amount agreed upon by both parties.

The laws of contract governing the effect of a release are well established. “In Georgia, a release is subject to the same rules as govern ordinary contracts in writing, and parol evidence is not admissible to contradict or vary the terms or stipulations.” (Citations and punctuation omitted.) Thomaston v. Fort Wayne Pools, 181 Ga. App. 541 (1) (352 SE2d 794) (1987). “Parties to a contract are presumed to have read their provisions and to have understood the contents. One who can read, must read, for he is bound by his contracts.” (Punctuation omitted.) O’Brien Family Trust v. Glen Falls Ins. Co., 218 Ga. App. 379, 382 (3) (461 SE2d 311) (1995). While a legal excuse, such as fraud, may be shown for failing to read, the fraud must prevent the party from reading the contract. Beckwith v. Peterson, 227 Ga. 403, 404 (1) (181 SE2d 51) (1971).

In this case, it is undisputed that Wyatt executed a release agreeing to forgo her claims against Hertz’s insured for the sum of $1,500. She is a college graduate with some postgraduate education, and she is employed as a fraud analyst for a local bank. Although Wyatt claims that she does not recall reading the release or that she only “scanned” it, she has demonstrated no legal excuse for failing to read it, and she is bound by its provisions. Nor has she demonstrated harm to herself beyond spending the money mistakenly paid, which generally does not constitute “prejudice” in an action for money had and received. Folsom, supra at 406. The trial court properly granted summary judgment in favor of Hertz.

2. The trial court’s order also directed that Wyatt pay reasonable attorney fees and costs pursuant to OCGA § 9-15-14, but contained no findings of fact. When a judgment awards legal fees or expenses of litigation under OCGA § 9-15-14, but contains no findings by the trial court of conduct that would authorize the award, that portion of the judgment must be vacated. Shimshi v. A. G. Spanos Dev., 228 Ga. App. 669-670 (492 SE2d 531) (1997). Accordingly we vacate that portion of the trial court’s order awarding attorney fees. Upon remand, the trial court is directed to reconsider the award under OCGA § 9-15-14, enter appropriate findings of fact, and enter a new judgment from which the losing party is authorized to appeal. Id.

Decided February 8, 1999.

Blackmon & Dudley, Nathaniel H. Blackmon III, for appellant.

Fain, Major, Wiley & Brennan, Charles A. Wiley, Jr., David S. Fried, Brian M. Leepson, for appellee.

Judgment affirmed in part, vacated in part and remanded with direction.

Johnson, C. J., and Barnes, J., concur.


author: Ruffin, Judge.

text:
    A98A1754.
    BARBER v. THE STATE.
    (512 SE2d 48)
   Ruffin, Judge.

Terry Barber was convicted of armed robbery, aggravated assault, and criminal attempt to commit robbery. He appeals, asserting numerous errors. Because none of these assertions has merit, we affirm.

On December 10, 1996, Janet McGlothlin and Colleen Myrhol went shopping at Glynn Place Mall. They parked under a street light in the mall parking lot at about 6:30 p.m. After they exited their car, a man wearing a dark flannel shirt and a dark knit cap walked up to Myrhol, pointed a gun at her, and demanded that she give him her purse; Myrhol refused, began to scream, and ran toward the store to seek help. The gunman then pointed his gun at McGlothlin and demanded her purse. McGlothlin gave the man her purse, and he then ran toward the store. McGlothlin yelled and ran" after him.

Joseph Hartley, chief of police for the City of Odum Police Department, testified that he and his wife were shopping at Glynn Place Mall on the day of the robbery. As Hartley was walking in the parking lot, he heard screams and saw a man running in his direction. When the man was about three or four feet from Hartley, he stopped, pulled out a gun, and pointed it at Hartley. McGlothlin and Myrhol both saw the gunman run toward Hartley, and McGlothlin saw him point what she assumed was his gun at Hartley. Hartley backed off with his hands up, and the man ran away. Hartley saw the man get into the passenger side of a dark colored Cadillac driven by a light-skinned individual with long sideburns. Hartley testified that when the man was approaching him, the man threw something toward the building. Hartley went to retrieve the item and saw that it was a woman’s pocketbook.

Officer Ladell Jackson of the Glynn County Police Department arrived at the scene at about 6:44 p.m. McGlothlin and Hartley gave Jackson descriptions of the gunman, the driver, and the car, and Jackson broadcast this information over his police radio. A few minutes later, Lieutenant Scott Trautz was en route to the mall on U. S. 17 when a car matching the description crossed the yellow centerline and almost collided with him. Trautz stopped the car, which was driven by a male named Paul Tillman. Barber was in the passenger seat. Tillman gave Trautz permission to search the car, and Trautz located a black knit cap and flannel shirt under the front seat.

The police drove Barber and Tillman back to the mall, and Chief Hartley identified Barber as the individual who pointed a gun at him. Hartley was then taken to the scene of the traffic stop, where he identified Tillman’s automobile as the one in which Barber rode away. Hartley also identified the cap and flannel shirt found in Tillman’s car as those worn by the gunman.

McGlothlin testified that she was unable to positively identify Barber at the mall, while he was sitting in the back of the police vehicle, because he turned his head away. Myrhol stated that she waited until she got to the police station to make an identification because she had just experienced an asthma attack and taken medication. Myrhol and McGlothlin were then taken to the police station, where they positively identified Barber as the gunman. Myrhol, McGlothlin, and Hartley all identified Barber at trial as the gunman.

Tillman, who was also indicted for the robbery, testified at trial for the prosecution pursuant to a grant of limited immunity. He testified that, on the date of the robbery, he dropped Barber off at the mall while he pulled into a parking space and remained in his automobile. About 15 minutes later, Barber came running back to the car, jumped in, and said, “Go, go, go.” Tillman testified that he saw Chief Hartley pointing a gun at the car as he drove away. Hartley denied drawing his weapon during the encounter.

Barber was charged with armed robbery, relating to his taking of McGlothlin’s purse; criminal attempt to commit robbery, relating to his demand for Myrhol’s purse; and aggravated assault, relating to his pointing a gun at Hartley. The jury found him guilty on all three counts.

1. In his first enumeration, Barber contends the trial court erred in denying his motion to suppress evidence of McGlothlin’s and Myrhol’s pre-trial identifications of Barber at the police station, arguing that the identification procedures were unduly suggestive.

“A two-part test is used to determine whether identification evidence should be excluded. The threshold inquiry is whether the identification procedure was impermissibly suggestive. Only if it was need the court consider the second question: whether there was a very substantial likelihood of irreparable misidentification.” (Punctuation omitted.) Odim v. State, 228 Ga. App. 158, 159 (2) (491 SE2d 218) (1997).

Barber argues that the identification procedures were impermissibly suggestive because he was shown to the witnesses in a one-on-one setting, handcuffed, and in the presence of police officers. See Banks v. State, 203 Ga. App. 355 (416 SE2d 866) (1992). However, even if a showup is suggestive, evidence regarding a pre-trial identification is not inadmissible unless, under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification. Id. “The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” (Punctuation omitted.) Killens v. State, 184 Ga. App. 717, 720 (3) (362 SE2d 425) (1987).

Applying these factors, we find that the trial court did not err in concluding that there was no substantial likelihood of irreparable misidentification. Although the robbery was short in duration, both Myrhol and McGlothlin had a clear opportunity to observe the attacker. The robbery occurred in a well-lit area beneath a street light. The gunman came very close to each of the witnesses — about two feet from McGlothlin and four or five feet from Myrhol. McGlothlin testified that she looked directly at the gunman’s face during the incident. Myrhol testified that she intentionally made eye contact with the gunman and paid close attention to his face during the robbery. Both witnesses testified that they had no doubt about their identification of Barber. Myrhol also testified that, when she heard Barber’s voice at the police station, she recognized it as the gunman’s voice. McGlothlin gave a detailed, accurate description of the attacker to Officer Jackson when he arrived on the scene. Finally, only about an hour or an hour and a half elapsed between the time of the robbery and the identification at the police station.

Moreover, the identification of Barber as the gunman was not solely dependent on Myrhol’s and McGlothlin’s testimony. Chief Hartley positively identified Barber as the individual who threw away McGlothlin’s purse, pointed a gun at him, and then got into a car and rode away. The driver of the car, Tillman, testified that Barber came running to the car and told him to drive away, while Hartley was pointing what appeared to be a gun at the car. After Tillman and Barber were stopped by Lieutenant Trautz, Hartley positively identified Barber, the clothes he was wearing at the time of the incident, and the automobile. Thus, quite apart from Myrhol’s and McGlothlin’s testimony, there was significant evidence establishing that Barber was the gunman.

Under all of these circumstances, the trial court did not err in refusing to exclude evidence of Myrhol’s and McGlothlin’s pre-trial identification of Barber. See Johnson v. State, 209 Ga. App. 632, 633-634 (2) (434 SE2d 169) (1993).

2. Barber also contends that the trial court erred in allowing Myrhol and McGlothlin to make an in-court identification of him as the attacker. However, Barber’s motion to suppress was limited to evidence of the pre-trial identification at the police station, and Barber did not object when these witnesses identified him in court as the attacker. Thus, he has waived the right to object to the in-court identifications. See Smith v. State, 195 Ga. App. 669 (1) (394 SE2d 558) (1990). Moreover, this enumeration is based solely on Barber’s contention that the pre-trial identification was impermissibly tainted, which contention was rejected in Division 1. Finally, there was an independent basis for both Myrhol’s and McGlothlin’s in-court identifications of Barber, and both witnesses testified that they were certain Barber was the individual who attacked them. See Arnold v. State, 198 Ga. App. 449, 450 (1) (402 SE2d 69) (1991). Accordingly, this enumeration is without merit.

3. Barber contends that the evidence was insufficient to support each of his convictions. With respect to the armed robbery and attempted robbery convictions, Barber’s contention is based solely upon his claim that Myrhol’s and McGlothlin’s pre-trial and in-court identifications were inadmissible and lacking in credibility. We have held above that the identification testimony was admissible, and questions of credibility are for the jury, not this Court. We determine only whether, viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to conclude that the defendant was guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U S. 307 (99 SC 2781, 61 LE2d 560) (1979); Bierria v. State, 232 Ga. App. 622, 624 (1) (502 SE2d 542) (1998). So viewed, the evidence of Barber’s guilt was overwhelming and clearly authorized the jury to find him guilty of armed robbery and attempted robbery.

With respect to the charge of aggravated assault, Barber argues that Hartley’s testimony was the only evidence that he in fact pointed a gun at Hartley. However, “[t]he testimony of a single witness is generally sufficient to establish a fact. OCGA § 24-4-8.” (Punctuation omitted.) Hawkins v. State, 230 Ga. App. 627, 630 (3) (497 SE2d 386) (1998). Moreover, Hartley’s testimony was supported by McGlothlin, who testified that she saw Barber point what she believed was his gun at Hartley. Although the gun was never recovered by the police, and Barber’s co-indictee, Tillman, claimed that Barber did not have a gun, it was the jury’s function to weigh the credibility of the witnesses’ testimony, and the jury resolved these issues adversely to Barber. The evidence was clearly sufficient to support his conviction of aggravated assault.

4. Barber contends that trial counsel was ineffective because he failed to inquire into Barber’s mental state and request a psychiatric evaluation. “To prove a claim of ineffective assistance of trial counsel, a criminal defendant must show both deficient performance by counsel and a likelihood that counsel’s deficient performance prejudiced the defense, depriving the defendant of a fair trial. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, [2064,] 80 LE2d 674) (1984).” Zant v. Moon, 264 Ga. 93, 97 (2) (440 SE2d 657) (1994).

Trial counsel testified at the motion for new trial hearing that he spoke with Barber frequently and saw no indication that there was any need for a psychiatric evaluation. Although Barber contends that counsel should have undertaken a more thorough inquiry into his mental state, Barber failed to present any evidence at the hearing indicating that such an evaluation was appropriate or would have benefited him at trial. The only relevant facts testified to by Barber at the hearing were that (1) he was knocked unconscious in a car accident in 1995, (2) he has had “seizures” since he was 12 years old, twice causing him to “black out” while driving, and (3) when he was incarcerated previously, he was sent to Augusta Hospital “to get my head examined because they wanted to know what was wrong.” Barber did not testify that he had ever been hospitalized for any type of mental disorder, nor did he introduce any hospital records relating to his alleged admission to Augusta Hospital.

If a defendant wishes to claim ineffectiveness based on trial counsel’s failure to request a psychiatric evaluation, it is not enough to show merely that counsel unreasonably failed to inquire into his mental state — he must show a likelihood that such an evaluation would have affected the outcome at trial. See Morris v. State, 226 Ga. App. 535, 538-539 (2) (b) (488 SE2d 685) (1997). Although Barber’s testimony shows that he may have occasionally had seizures of some sort, been injured in a car accident a year or two before the robbery, and been sent to a hospital at some point for an unexplained reason, there is nothing to suggest that he has any history of mental disorders that would have been relevant to the trial of this case. Accordingly, Barber has not shown a substantial likelihood that a psychiatric evaluation would have had any effect on the outcome of the trial, and the trial court thus did not err in denying the claim of ineffective assistance on this ground.

Decided February 8, 1999.

Timothy L. Barton, Patrick C. Kaufman, for appellant.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

5. Barber also claims that trial counsel was ineffective in failing to offer any evidence in mitigation during the sentencing phase. However, Barber makes no attempt in his brief to show what types of mitigating evidence should have been introduced or how such evidence would have affected the sentence, other than to state that “mitigation would likely have had a positive influence.” Thus, he has failed to carry his burden of showing that he was prejudiced by counsel’s performance. Moreover, trial counsel testified that he had several discussions with Barber about trial strategy, including which witnesses to call in the sentencing phase, and that Barber had no one who would come forward on his behalf. The attorney also spoke with Barber’s mother, but determined that she suffered from a nervous condition that would prevent her from testifying. Under these circumstances, the trial court did not err in denying Barber’s claim of ineffective assistance on this ground. See DeYoung v. State, 268 Ga. 780, 784-786 (5) (493 SE2d 157) (1997).

Judgment affirmed.

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

       Although Barber’s written motion to suppress could be read to encompass both the pre-trial and in-court identifications, Barber’s attorney during the hearing on the motion clearly limited the relief sought, asking only for suppression of the “identification at the police station.” See Roberson v. State, 228 Ga. App. 416, 420 (3) (491 SE2d 864) (1997) (defendant waived issue raised in written motion in limine by not addressing it at hearing); Nelson v. State, 224 Ga. App. 623-624 (1) (481 SE2d 605) (1997) (state waived issue raised in written motion to suppress by failing to raise it at hearing).


text:
    A98A1970.
    CORBETT v. CORBETT.
    (511 SE2d 633)
   Ruffin, Judge.

Betty Corbett and Gary Corbett were divorced in May 1996, pursuant to a divorce decree entered by the Superior Court of Macon County. The decree awarded custody of the parties’ minor children to Betty Corbett and provided Gary Corbett with specified visitation rights. On July 17, 1997, Gary Corbett filed a petition for change of custody in Terrell County, where Betty Corbett resides. The petition also sought to hold Betty Corbett in contempt for violating the visitation provisions of the divorce decree and sought to modify other portions of the divorce decree. On March 27, 1998, the Terrell County Superior Court entered an order refusing to change custody, but finding Betty Corbett in contempt for violating the terms of the divorce decree. Betty Corbett appeals, contending that the Terrell County court had no authority to hold her in contempt for violating a decree issued by the Macon County Superior Court. We disagree and affirm.

The right of a court to punish for contempt is based on the theory that every court has power to compel obedience to its judgments, orders and processes. Therefore, as a general rule, “[o]nly the court offended has power to punish for the contempt, or to entertain proceedings to that end.” (Punctuation omitted.) Gignilliat v. Gentry, 217 Ga. App. 518, 519-520 (1) (457 SE2d 833) (1995). In Buckholts v. Buckholts, 251 Ga. 58 (302 SE2d 676) (1983), however, the Supreme Court recognized that “[r]ulings made in divorce cases stand upon a different footing from other rulings. The status of the marriage relation has been dealt with somewhat in the nature of a proceeding in rem. Because of this unique nature of divorce cases, we have shown some flexibility in the application of our jurisdictional and venue rules to them.” (Citation and punctuation omitted.) Id. at 60 (1).

In Buckholts, the parties were divorced in Clayton County, and the husband subsequently filed a petition for modification of child support in Clinch County, where the wife resided. The wife counterclaimed for contempt, claiming that the husband had failed to comply with his existing child support obligations. Id. at 58-59. The Supreme Court rejected the husband’s contention that any contempt action had to be brought in Clayton County, where the original divorce decree was issued. The Court noted that an action to modify a divorce decree must be brought in the county where the defendant resides, and not in the county where the original judgment was issued. Adopting the husband’s position would thus lead to “the anomalous result that actions to modify alimony and divorce decrees must proceed in the county where the defendant currently resides, but a counterclaim in that same proceeding to enforce the original judgment by contempt will not lie unless that is also the county where the original judgment was issued.” Id. at 60 (1).

The Court stated that “we find it necessary in the context of divorce and alimony cases to depart from the general rule that a contempt action must be brought in the offended court. We now hold that where a superior court other than the superior court rendering the original divorce decree acquires jurisdiction and venue to modify that decree, it likewise possesses the jurisdiction and venue to entertain a counterclaim alleging the plaintiff is in contempt of the original decree. Such a change is necessary to ensure that in the bitter battles which too often follow divorce, neither spouse is legally left at the mercy of the other.” (Footnote omitted.) Buckholts, supra at 61.

In this case, unlike Buckholts, the contempt action was not brought as a counterclaim to a modification action, but was asserted by the petitioner as an additional count in the modification petition. However, we do not believe that this difference requires a different result. The analysis in Buckholts was predicated not simply upon the fact that the nonresident petitioner voluntarily submitted to the jurisdiction of another county by filing a modification action, but upon the fact that divorce cases are different from other cases, requiring “some flexibility in the application of our jurisdictional and venue rules.” Id. at 59-60 (1). Moreover, Buckholts broadly states that “we find it necessary in the context of divorce and alimony cases to depart from the general rule that a contempt action must be brought in the offended court.” Id. at 61.

The question in this case is not, strictly speaking, whether the Terrell County court has jurisdiction over the mother, who is in fact a resident of the county. Rather, the question is whether the court has the power to compel obedience to an order issued by another court. In this regard, it makes little sense to say that the Terrell County court would have the power to hold the nonresident petitioner in contempt for violation of such an order, but does not have the power to hold the resident defendant in contempt for violation of the same order. Such a proposition makes even less sense when it is considered that the Terrell County court, and not the court of issue, has the power to modify the order in question. See Buckholts, supra at 60.

In addition to the fact that this is a divorce case, the Buckholts decision suggests another basis upon which the Terrell County court could exercise contempt power in this case. The Supreme Court in Buckholts stated that “[t]here are other recognized exceptions to the general rule that no court other than the one contemned has jurisdiction over the contempt proceeding. One such exception, similar to the case presented here, is that where the proceedings are transferred from the court rendering the judgment to another court, the latter court thereby acquires jurisdiction to hold a party in contempt of the judgment.” (Citation omitted.) Id. at 61, n. 2. In a sense, the proceedings in this case were effectively transferred to Terrell County because “actions to modify alimony and divorce decrees must proceed in the county where the defendant currently resides.” Id. at 60. Thus, the Terrell County court had jurisdiction to modify the original judgment, even though the judgment was entered by another court. Because the Terrell County court in essence acquired jurisdiction over the order in question, “ ‘(i)n a practical sense, both the [Terrell County] and the [Macon County] courts are offended by the [noncompliance] in the present case.’ ” Id. at 61, quoting Hathcock v. Hathcock, 249 Ga. 74, 77 (287 SE2d 19) (1982). When this consideration is combined with the Supreme Court’s recognition that “it [is] necessary in the context of divorce and alimony cases to depart from the general rule that a contempt action must be brought in the offended court,” Buckholts, supra at 61, it is clear that the Terrell County Superior Court had the power to punish defendant for contempt in this case.

Decided February 8, 1999.

Collier & Gamble, Wilbur T. Gamble III, for appellant.

Charles R. Hunt, for appellee.

Judgment affirmed.

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