text:
    A97A1567.
    ECKERD CORPORATION v. COWETA COUNTY BOARD OF TAX ASSESSORS.
    (491 SE2d 173)
   Eldridge, Judge.

Appellee Coweta County Board of Tax Assessors (“Tax Board”) audited appellant Eckerd Corporation’s (“Eckerd”) ad valorem personal property tax returns for a three-year period, 1992 through 1994. Pursuant to the audit, the Tax Board determined that Eckerd had undervalued its inventory, equipment, furniture, and fixtures in these returns and, subsequently, seeks taxes thereon. Eckerd filed a motion for summary judgment, claiming that it had paid its assessed taxes for the years in dispute and that the Tax Board was attempting to reassess and revalue property for which returns had been filed and the taxes had been paid, which practice is allegedly improper. The Superior Court of Coweta County denied appellant’s motion. We granted Eckerd’s petition for interlocutory review and now affirm the ruling of the trial court. In so doing, we make clear three specific points regarding our Ad Valorem Tax Code, OCGA § 48-5-1 et seq., in regard to taxation of tangible personalty.

1. If an audit uncovers a taxpayer’s undervaluing of returned personalty for ad valorem tax purposes, the subsequent tax bill covering the shortfall is not a reassessment or revaluation of the returned units of property, but a bill for the “default” as to that portion of the personalty not represented through the undervaluation. Garr v. E. W. Banks Co., 206 Ga. 831 (59 SE2d 400) (1950); see also Hardin v. Reynolds, 189 Ga. 534 (6 SE2d 328) (1939); Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., 186 Ga. App. 723, 725 (368 SE2d 326) (1988). For example, if 100 bottles of aspirin have a fair market value of $100, but the 100 bottles are returned with a value of $50, there is a default as to the 50 percent of the aspirin not represented in the returned value. A subsequent audit and tax bill covering the 50 percent undervaluation cannot be considered a “reassessment” or “revaluation,” since 50 percent of the value of the inventory was omitted from the return in the first place. See Garr v. E. W. Banks Co., supra at 831 (3); Hardin v. Reynolds, supra at 543. As was noted in Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., supra at 725, items of personalty, such as those represented in the contested returns of appellant, are separate from each other and have independent value; thus, the undervaluation of such personalty is an omission of those units not represented by the valuation in the return.

The case law upon which appellant relies relating to real property is completely inapplicable procedurally. In fact, the assessment and taxation of tangible personalty and real property are procedural opposites. The failure to recognize the difference in the procedural postures thereof has permitted confusion in this area, thereby generating assertions such as that of the appellant, who argues based upon realty cases that an audit by the Tax Board, the subsequent discovery of an undervaluation on the personal property returns of past years, and the resulting tax bill therefor is the equivalent of a forbidden “reassessment” and “revaluation” by the Tax Board as occurs with real property reassessments. Such is not the case.

Real estate taxation deals with land and the improvements thereon which are considered “one” and cannot be separated so as to have value apart from each other. Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., supra, Fulton County Bd. of Tax Assessors v. Dean, 219 Ga. App. 137 (464 SE2d 257) (1995). Realty and the improvements thereto are out in the open and may be compared with other properties, the value of which are matters of public record. The tax assessor may use independent information available to actually assess the realty. Due diligence in the inspection of realty reveals any improvements or changes in the fair market value in the real estate market. Accordingly, real property is capable of a fair market valuation by the tax assessor, separate and apart from any tax return. For this reason, realty is yearly appraised and valued first by the tax assessor, and a tax bill issues thereon from the tax collector to the taxpayer, who eagerly awaits his yearly assessment. Rules & Regulations of the State of Georgia, Chapter 560-11-3-. 17. No return by the taxpayer is necessary, and the payment of the subsequent tax bill is the payment of the tax assessor’s determination of the realty’s fair market value. See OCGA §§ 48-5-18; 48-5-20. Thereafter, any attempt to tax a previously unreturned or undiscovered improvement to the realty for years past would be a “revaluation” by the tax assessor of the same property after the taxes, as previously assessed and valued by the tax assessor, had been paid in full to the tax collector. Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., supra at 725. Clearly, the equities of this scenario demonstrate that issues of double taxation may arise, since the tax assessor had already passed upon the fair market, value of the land. Consequently, this Court has, where land is concerned, precluded a second reassessment when the tax collector’s tax bill has been paid in full.

By contrast, however, tangible personal property, such as in the case sub judice, must be valued first by the taxpayer in a return. Rules & Regulations of the State of Georgia, Chapter 560-11-3-.18. Obviously, a good faith tax return is required, because, absent an audit, a tax assessor cannot know the nature and extent of a taxpayer’s personalty. Such personalty may be moved, hidden, undervalued, or simply not reported. Clearly, an audit cannot be conducted as to every taxpayer, upon every year. Thus, the taxpayer must value his own personal property in his tax return. Thereafter, taxes are assessed by the tax assessor and a tax bill issued by the tax collector based upon the taxpayer’s good faith valuation in the return. The equities in this scenario are equally clear; if a subsequent audit by the Tax Board uncovers an undervaluation of the personalty contained in the return, in no manner can this audit and assessment be considered a second “revaluation” or “reassessment” as argued by appellant. The Tax Board had not previously passed upon the valuation as contained in the taxpayer’s return, as in the case of real property. The difference in the procedural posture in the taxation of personalty and real property must be delineated, and we decline appellant’s invitation to blur the distinction.

Appellant’s reliance upon Opinion U87-13 of the Attorney General of Georgia, published May 14, 1987, also compels consideration thereof.

In U87-13, an unofficial opinion, the Attorney General reviewed Georgia Ad Valorem Tax Code, OCGA § 48-5-1 et seq., along with case law, and determined that OCGA § 48-5-306 “may be used to revalue and assess any property for any tax year in which that property has not already been assessed in accordance with OCGA § 48-5-306. . . . Property that has been returned may only be revalued in accordance with OCGA § 48-5-306 if the Board has not previously rendered a final assessment of that property pursuant to the same Code section [OCGA § 48-5-306].” (Emphasis supplied.) To the extent that the Attorney General’s opinion may be read to preclude two audits pursuant to OCGA § 48-5-306 (a) and subsequent reassessments of a personal property tax return for any given year, such opinion is approved. See also Ga. L. 1943, pp. 244-245 (Ga. Code Ann. § 92-6703) (when Tax Board has already passed upon a previous assessment pursuant to audit powers, an additional reassessment is void). To the extent that the Attorney General’s opinion may be read to impede a Tax Board’s ability to audit, within the statute of limitation, a personal property tax return and to collect additional taxes for any undervaluation of previously returned personal property pursuant to OCGÁ §§ 48-5-299 (a) and 48-5-306 (a), such opinion is disapproved for the following reasons.

OCGA § 48-5-299 (a) empowers the Tax Board to determine the value of “any property upon which for any reason all taxes due the state or county have not been paid in full. . . [and to] assess against [the taxpayer] the full amount of taxes which has accrued and which may not have been paid at any time within the statute of limitations.” (Emphasis supplied.) Clearly, the use of the term “paid in full” means that some taxes have been paid, but not “in full.” Further, no restriction regarding “returned” or “unreturned” property is placed upon such empowerment under OCGA § 48-5-299 (a). In the construction of a statute the legislative intent must be determined from a consideration of it as a whole. The construction of language and words used in one part of the statute must be in the light of the legislative intent as found in the statute as a whole; a statute must be read without “reading out” any other part, unless there is a clear reason for doing so. See Gwinn v. State Ethics Comm,., 262 Ga. 855, 859-860 (426 SE2d 890) (1993); Bozeman v. Tifton Fed. Sav. &c. Assn., 164 Ga. App. 260, 262-263 (297 SE2d 49) (1982). To that end, OCGA § 48-5-299 (b) specifically refers to “unreturned” property and attaches a penalty for the failure to return property altogether; the specificity with which subsection (b) is directed at “unreturned” property reinforces the fact that subsection (a) is to draw no such distinction, and that the Tax Board’s power to ensure that all taxes are paid in full extends to property that has been returned but undervalued, as well as to property that has not been returned at all.

Moreover, under the statute, the Tax Board’s determination that taxes have not been “paid in full” may come at any time within the statute of limitation, which begins at the time of filing. Clearly then, this time frame must encompass those situations wherein the discovery of an undervaluation occurs pursuant to an audit conducted years after the personal property tax return has been filed and the taxes have been paid. See, e.g., Richards v. Zentner, 176 Ga. 222, 226 (1) (167 SE 516) (1933) (notice is applicable for the “raising of the valuation of property for the year in which the returns are made; and for stronger reasons it would seem to be applicable to the raising of returns of property made by a taxpayer for preceding years”).

Accordingly, by the plain meaning of its own terms, OCGA § 48-5-299 (a) empowers the Tax Board to audit, at any time within the statute of limitation, prior personalty tax returns and collect taxes over and above those that may have been assessed and paid, because the valuation of the personalty by the taxpayer was incorrect, and thus the taxes were not “paid in full.”

The mechanism providing the procedural details for such assessment and collection is OCGA § 48-5-306 (a), which Code section must, of course, be read in pari materia with OCGA § 48-5-299 (a). OCGA § 48-5-306 (a) is that portion of the Ad Valorem Tax Code that provides for an audit to be conducted upon personal property tax returns and notice to be given for any resultant changes in such returns if “any taxpayer has omitted from his returns any property that should be returned or has failed to return any of his property at its fair market value” (Emphasis supplied.) This audit may take place “at any time” within the statute of limitation. OCGA §§ 48-5-299 (a); 48-5-306 (a). Clearly, by its plain terms, OCGA § 48-5-306 (a) permits the Tax Board to audit and make changes to a taxpayer’s return with regard to personalty omitted and with regard to personalty that has been returned but undervalued.

A perhaps painful, but necessary historical analysis of our Ad Valorem Tax Code will underscore the point that OCGA §§ 48-5-299 (a) and 48-5-306 (a) were intended to encompass the collection of additional taxes on returns wherein taxes may have been paid in previous years, but the personal property was undervalued by the taxpayer in the return.

An Equalized System of Taxation was created by Ga. L. 1913, p. 123. Our current Code sections OCGA §§ 48-5-299 (a) and 48-5-306 (a) were, at that time, melded together in Section 6 of Ga. L. 1913, pp. 123, 127, which section specifically provided, inter alia, that “if [the] tax payer has omitted from his returns any property that should be returned or has failed to return any of his property at a just and fair valuation, the said board shall correct such returns.” Thus, OCGA §§ 48-5-299 and 48-5-306 began their codified life together, inseparable in intent and design.

In Ga. L. 1918, p. 232, the General Assembly added an Act to provide for the collection of taxes, which Act specifically provided for the collection of taxes “when the owner of property has omitted to return the same for taxation at the time or for the years the return should have been made, or having returned his property or part of the same, has grossly undervalued the property returned, or his property has been assessed for taxation at a figure grossly below its true value.” (Emphasis supplied.) Such taxes were considered “delinquent,” and the legislature contemplated that such collection would encompass additional taxes due from undervaluation in prior years.

In 1933, a new Tax Code was passed; it was amended in 1937. In the caption to the 1937 Act, the General Assembly specified that the Tax Code was to prescribe the examination of tax returns with respect to the assessment for taxation of “all property, including both property which has been returned and unreturned property.” Ga. L. 1937, p. 517. The 1933 Code and the 1937 amendment first split apart those principles contained in our current OCGA §§ 48-5-299 (a) and 48-5-306 (a), in an attempt to emphasize the duties and powers of the Tax Board (OCGA § 48-5-299 (a)) and the procedures, including notification, to be used when employing those duties and powers (OCGA § 48-5-306 (a)). See Ga. L. 1937, pp. 519, 520; Ga. Code Ann. §§ 92-6912; 92-6913. In the new Code, the Tax Board was specifically given the power and duty to collect taxes on personal property the “taxpayer has omitted from his returns ... or has failed to return [at] a just and fair valuation.” Ga. L. 1937, p. 519. By 1937, it is safe to assume that business and population increases in this State must have rendered nearly impossible a Board assessment of every personal property return within the same year in which it was filed. Thus, in this Code is introduced for the first time the provision that assessment of a tax return may come at “any time within the statute of limitations,” and additional taxes may be assessed “for any reason all taxes due to the State or to the county have not been paid in full” (Emphasis supplied.) Ga. L. 1937, p. 520. The duties of the Tax Board, presumably stretched to the limit by the time constraints of placing all tax returns upon the books within the statutory tax year, provided that actual assessments of individual personal property returns, as opposed to the acceptance of the taxpayer’s valuations therein, be allowed to occur outside the tax year. See Garr v. E. W. Banks Co., supra at 832 (time provisions of the Code do not deprive the Tax Board of the authority to perform their duties after the statutory time provision, but within the statute of limitation).

Thereafter, in Ga. L. 1943, pp. 243, 244 (Ga. Code Ann. § 92-6703), the legislature sought to limit the Tax Board’s audit powers by therein specifically providing “if the County Board of Tax Assessors has previously passed upon the assessment of this same property for the years involved, then a reassessment of this property heretofore or hereafter made by the Tax Receiver under this chapter, shall be void.” (Emphasis supplied.) Cf. Ga. L. 1918, pp. 232-234.

By 1978, our Tax Code was, again, amended “exhaustively and completely.” Ga. L. 1978, p. 309. Title 91A was created wherein the General Assembly clarified that its intent was not “to make any substantive change in the revenue laws of this State, except as expressly provided for in this Act.” (Emphasis supplied.) Id. at 310-311. Thus, Ga. L. 1978, pp. 309, 764-794, § 3 (1), repealed the provisions of Title 92 only to the extent that it was specified in the new Code. However, there was no specific repealer as to those portions of Title 92 which encompassed both Ga. L. 1918, pp. 232-234, regarding the taxing authority’s ability to assess and collect taxes upon returns in which property was omitted or undervalued, and the above Code section under Ga. L. 1943, pp. 243-244, limiting audit powers to one reassessment and revaluation for any given tax return. The 1978 Code mirrors our current legislation, with Ga. Code Ann. § 91A-1440 embodying the principles of OCGA § 48-5-299 (a) and also providing specific penalties for “unreturned” property, as does OCGA § 48-5-299 (b). Ga. L. 1978, p. 450. Section 91A-1448 encompasses OCGA § 48-5-306 (a) and, again, permits the collection of taxes “at any time” for those returns in which personal property has been omitted or in which a taxpayer has “failed to return any of his property at its fair market value.” Ga. L. 1978, p. 454.

Such is the state of the law under our current Tax Code, and this historical perspective demonstrates that the legislature has contemplated that returned but undervalued personal property should be taxable when uncovered by an audit, i.e., when a personalty return is ultimately “passed” upon by the Tax Board within the statute of limitation. Even if the taxes on such personalty had been paid in years past, the taxes were not “paid in full,” because of the undervaluation by the taxpayer. The Attorney General’s Opinion U87-13 is disapproved to the extent it may be read to conflict herein.

In sum, when, within the statute of limitation, an audit uncovers that a taxpayer has undervalued his personalty in a previous year’s personal property tax return, the undervalued personalty may be assessed and taxed by the Tax Board. The defaulting taxpayer is in no way permitted to benefit from the undervaluation on the basis urged by appellant before this Court, which argument is, in essence, that collection is prohibited because the undervaluation was not caught before the tax bill was paid. “That [taxes in the full amount] were due five, four, three, and two years ago, and have gone unpaid, is no relaxation of the obligation to pay them. Can it be contended that, because one in [1992 or 1993 undervalued] his taxable property, he is thereby released from his obligation to pay [full] tax thereon[?j . . . These taxes are just as much due now as they were in the year they were incurred.” Ga. R. &c. Co. v. Wright, 124 Ga. 596, 616 (53 SE 251) (1906).

2. “All property shall be returned by the taxpayers for taxation to the tax commissioner or tax receiver as provided by law.” OCGA § 48-5-10. Our Tax Code, under OCGA § 48-5-105.1 (b), provides that all returns of tangible personal property shall be made pursuant to the form or forms adopted by the state tax commissioner. In addition, “[e]ach corporation should carefully prepare its return so as to fully and clearly s,et forth the data called for therein.” Rules & Regulations of the State of Georgia, Chapter 560-7-8-.04, p. 263.

The forms for the three-year period at issue herein required that appellant provide a “description” and the “market value” of the personal property of the business and that “expensed as well as depreciable assets should be listed and valued.” Appellant did not include such listings and descriptions in its returns, but instead, stamped “See Attached” on the forms and submitted a one-page attachment entitled “Personal Property Tax Filings,” which contained the broad categories of: (1) “Inventory Value,” and (2) “Furniture & Fixtures, Machinery & Equipment.” A numeric value was assigned to each broad category, which number represented appellant’s estimate of the fair market value thereof. No tax assessor could determine the true fair market value of such personalty, because the personalty was not disclosed, and only an assigned value was returned.

Appellant’s procedure of valuing its property, without listing or describing such, circumvents a taxpayer’s burden to disclose ownership of property; however, such procedure provides a numeric basis upon which a Tax Board may calculate a taxpayer’s ad valorem tax based upon the taxpayer’s estimate or determination of value, thereby enabling a tax bill to generate and some taxes to be paid thereon in a timely fashion. See OCGA §§ 48-5-301; 48-5-302. Notwithstanding, by utilizing such valuation procedure, appellant has failed to make a “full return,” which includes the listing and describing of personal property as requested by the forms, including quantities of each category of personalty. “Imperfect or incorrect returns will not be accepted as meeting the requirements of the law.” Rules & Regulations of the State of Georgia, Chapter 560-7-8-.04, p. 263. Moreover, “Important Information” contained in appellant’s tax forms warned appellant that, “Failure to file a completed copy of this form may lead to an audit of your records and/or the placing of an assessment on your property from the best information obtainable in accordance with Georgia Code 48-5-299 (A) [sic].” Thereafter, when such audit, properly conducted within the statute of limitation, uncovered appellant’s undervaluation of its personal tangible property, appellant is estopped from claiming that a “reassessment” or “revaluation” of returned personal property had occurred. No specific items of property were returned so as to allow a re-assessment of the property; only the valuation was returned. As in the case sub judice, when a valuation is discovered as incorrect pursuant to an audit, such valuation, perforce, attaches to no specific personalty so as to provide a basis for a claim of a re-valuation or re-assessment thereof. Thus, appellant’s assertion that, “The new assessments issued by the Board do not enumerate any property excluded from the original returns” is so much make-weight, since no specific property was included in the original returns. (Emphasis supplied.) “The Georgia law affords to every citizen, individual or corporate, ample facilities for the preservation of his rights as against the tax-gatherer, always provided that he makes a return to the proper officer of the property that he owns. It presupposes that the taxpayer will disclose to the officer all of his taxable property. . . . The requirement of candor in disclosing the ownership of property is really at the foundation of our tax system. So long as the citizen complies with that requirement, he is afforded every opportunity to dispute with the State the question of the value of his property and the amount of tax to be levied thereon. ... In other words, ample ‘machinery’ is available to the citizen who makes full returns; deprivation of the right to be further heard is one of the penalties visited on the defaulter.” Ga. R. &c. Co. v. Wright, supra at 617 (11).

3. Finally, appellant misinterprets the concepts of “cost” and “fair market value,” in arguing that summary judgment should have been granted because the Tax Board improperly assessed appellant’s property at cost, as opposed to the statutorily prescribed standard of fair market value. Appellant contends that one is exclusive of the other: “[Tjhere is no statutory authority to assess inventory at its ‘cost.’ Rather, the inventory must be assessed at ‘fair market value.’ ” While we agree that property must be assessed at fair market value, OCGA § 48-5-6, “cost” is not a concept foreign to such valuation. What the taxpayer was willing to pay for the personalty, its cost to him, is one of the factors from which fair market value may be determined, if not the primary factor, because such figure is fixed, while other factors may deviate upward or downward from such figure based upon the fair market.

Mistaken also are appellant’s attempts to divide and isolate notions of “retail versus wholesale levels of trade” from cost and fair market value. All are integrally related and relevant to the extent that they aid in determining “the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm’s length, bona fide sale.” OCGA § 48-5-2 (3). Clearly, when the market permits appellant to place a higher retail price on a bottle of aspirin, the aspirin wholesaler will not allow appellant to enjoy such profit alone; appellant’s wholesale “cost” of aspirin is going to see a similar increase, which will cause an increase in the fair market value of the taxpayer’s inventory. The inverse is equally true, if lackluster market demand forces retail and, thus, wholesale aspirin prices down. For ad valorem tax purposes, fair market value is not the retail value to the taxpayer, but the current wholesale value adjusted for the fair market; thus, the taxpayer’s cost may be adjusted upward, downward, or remain the same to reflect the “wholesale market” as it determines the fair market value of the tangible personalty in the taxpayer’s possession at that economic moment in time.

Decided August 11, 1997

Alston & Bird, G. Conley Ingram, Timothy J. Peaden, for appellant.

Glover & Davis, Jerry A. Conner, Asa M. Powell, Jr., for appellee.

Contrary to appellant’s contentions, the fair market valuation of personal property for tax purposes does not occur in a vacuum but may be determined by utilizing several indices, including “cost” to appellant, as well as wholesale pricing in relation to retail levels of trade. See Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726, 727 (2) (279 SE2d 223) (1981). In a stagnant economy, “cost” may, in fact and law at any particular economic moment in time, constitute “fair market value.” Thus, appellant’s argument that “ ‘cost’ and ‘fair market value’ are not the same and that what the law requires for assessment is fair market value,” is simply inaccurate, and we conclude that, “cost” may be part and parcel of an assessment of the “fair market value” of personalty.

Judgment affirmed.

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

        Garr v. E. W. Banks Co., supra, applied such principles of “default” to goods and inventory undervalued in a tax return. Hardin v. Reynolds, supra, applied such principles of default to unreturned cash on deposit, notes, and accounts.

       Tangible personal property tax form PT-50 includes a request on the reverse side to include a “description” and the “market value” of personal property.

       See Williams v. State, 162 Ga. App. 415, 418 (1) (291 SE2d 732) (1982) (opinions of the Attorney General are not binding upon this Court, even where applicable to the issues before us).

       Even prior to Ga. L. 1978, pp. 309, 450, § 2 (Ga. Code Ann. § 91A-1440, now OCGA § 48-5-299), Ga. L. 1918, pp. 232, 233-234 (Ga. Code Ann. § 92-6701 et seq.) provided for the assessment of “unreturned” or “under-returned” personal property. See also Garr v. E. W. Banks Co., supra at 832; Hardin v. Reynolds, supra at 542-543; see also Ga. L. 1943, pp. 243, 244.

       In Hardin v. Reynolds, supra, the Supreme Court of Georgia specifically noted that while our tax code of 1918 did not repeal the Tax Equalization Act of 1913 (Ga. Code Ann. §§ 92-6901-92-6907), the Act of 1918 amended the 1913 Code to the extent of providing that assessments made are not final, but “shall be open for further consideration by the taxing authorities in case of omitted property or of a gross undervaluation or assessment.” (Emphasis supplied.) Id. at 543 (2).

       See, e.g., OCGA §§ 48-5-301; 48-5-302.

       There was a specific repealer as to 157 other statutes under the prior Code.

       Further review of Op. Atty. Gen. U87-13 shows that the Attorney General’s apparent goal was a conclusion consistent with a former Opinion of the Attorney General, U69-183, dealing with the reassessment of real estate. To this end, the plain language of OCGA §§ 48-5-299 (a) and 48-5-306 (a) was ignored, and case law which specifically supported the collection of taxes for previously undervalued personal property was “distinguished.” See Colvard v. Ridley, 218 Ga. 490 (128 SE2d 732) (1962); cf. Colvard v. Ridley, 219 Ga. 361 (133 SE2d 364) (1963); see also Garr v. E. W. Banks Co., supra; Richards v. Zentner, supra; Hardin v.

        Reynolds, supra. However, no such consistency in approach was necessary since, as has been discussed supra, the taxation of real property and tangible personal property are not treated the same procedurally.

       Appellant asserts that a representative of the Tax Board “admitted that the return only asks for a value and not a ‘listing’ and that no taxpayer in Coweta County had ever provided a specific ‘listing.’ ” Such assertion is inaccurate. The “admission” to which appellant refers was in response to a specific question regarding a single line on the Freeport Exemption form, which line asks for the “Total Value of Eligible Inventory.” Appellant’s argument disregards the various other forms which ask for such a listing.

       Appellant contends that there is “no dispute that Eckerd included all of its personal property on the returns.” On the contrary, such is the heart of the dispute and presents a genuine issue of material fact that will carry this case to trial, wherein the finder of fact will encounter no difficulty in ascertaining what personal property was listed in appellant’s returns, since no personal property was listed therein. Whether the numbers add up with regard to the valuations in appellant’s returns, the valuations as uncovered by the audit, and the fair market value of the property as determined by the trier of fact will ultimately determine whether all of appellant’s personal property was actually “included” in appellant’s returns or omitted therefrom.

       A review of the record shows that the Tax Board utilizes, not “cost” alone, but the “wholesale value [cost] of [personalty] as compared with retail value to the customer” in order to determine fair market value. The Tax Board was hampered in its determination of fair market value in the instant case by appellant’s initial refusal to supply supporting documentation of the appellant’s “deductions from [the] cost figures and an explanation for some of those deductions in a narrative form.”


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A1624.
    DUNBAR v. THE STATE.
    (491 SE2d 166)
   Eldridge, Judge.

The appellant, Christopher Dunbar, was convicted by a jury in Butts County Superior Court on November 21, 1996, on each of the four counts of Indictment No. 96-R-147: Count 1, theft by receiving (motor vehicle); Count 2, aggravated assault on a police officer; Count 3, fleeing and attempting to elude a police officer; and Count 4, reckless driving. He appeals his conviction, and we affirm.

The record demonstrates that the verdict arose from the following set of facts: On April 9, 1996, Deputy Mark Whitwell was on traffic enforcement duty in a marked police car on Interstate 75. At about 7:50 p.m., he observed the appellant’s car, which was a 1989 Oldsmobile Regency, traveling at an excessive rate of speed, “outdistancing all the other traffic on the road.” Although Deputy Whit-well did not actually clock appellant’s speed, he estimated appellant was driving at least 25-30 mph above the speed limit. Based on his observations, Deputy Whitwell decided to stop appellant’s car to at least give appellant a warning and to tell him to slow down.

Deputy Whitwell pulled appellant’s car over, exited his patrol car, walked up to the driver’s window, and asked appellant for his driver’s license and proof of insurance, which appellant did not have. Appellant’s car engine was still running during the deputy’s conversation with the appellant. Deputy Whitwell noticed that the door lock on appellant’s car was missing or “punched out” and that there was damage to the steering column. Based on the type of damage to the car, Deputy Whitwell suspected that the car was stolen, and he requested appellant to wait while he went back to his patrol car. Deputy Whitwell went to the rear of appellant’s car to recheck the tag number, which he noted was XRF 687. While the deputy was standing behind appellant’s car, the car was driven backward towards the deputy; the deputy jumped out of the car’s path, and the car drove forward and left. Deputy Whitwell would have been hit by the backward movement of the car if he had not moved out of the way.

Deputy Whitwell pursued appellant two and one-half to three miles on the interstate until appellant exited onto Highway 36. The pursuit continued down Highway 36 into the City of Jackson where appellant’s car finally overheated, and Deputy Whitwell was able to apprehend appellant. During Deputy Whitwell’s pursuit of appellant, appellant traveled at speeds of up to 110 mph, forced several cars traveling in the opposite direction off the road by driving his car into the opposite lane of traffic, ran through several stop signs, ran through a partial roadblock, struck another vehicle, ran through two other patrol cars, and attempted to sideswipe Deputy Whitwell’s patrol car when the deputy pulled up beside him.

Appellant testified at trial and denied that he was traveling at 25-30 mph over the speed limit. Appellant testified that he was traveling at the same speed that other vehicles around him were traveling, which was about 60 mph, and that he was traveling beside a tractor-trailer truck. Appellant testified that he saw the patrol car along the side of the road but kept driving beside the truck for about another mile or mile and a half before the patrol car pulled up behind him and pulled him over.

Appellant further testified that while stopped he had a brief conversation with Deputy Whitwell, during which Deputy Whitwell accused him of driving a stolen car. Appellant denied Deputy Whit-well’s statement that the deputy walked to the back of appellant’s car, and appellant denied trying to back his car into the deputy. Appellant further testified that Deputy Whitwell was standing next to the driver’s door and ordered him to turn off the engine; that when he failed to do so, Deputy Whitwell reached for his gun, and appellant then drove off at a high speed; and that the reason he drove off was that he had a parole violation in Savannah, Georgia, and knew he would be arrested. Appellant admitted that the car he was driving had a broken lock and steering column, that he did not have a key to the car, and that there was “a little gadget on the steering column that you had to pull to crank the car up,” but denied knowing that the car was stolen. Appellant denied driving at speeds over 100 mph, driving into the lane of traffic moving in the opposite direction, running stop signs, and trying to sideswipe the deputy’s patrol car during the chase.

At the time of appellant’s arrest, he gave a false name of Christopher Dunbar to the arresting officer. Appellant was indicted under the name of Christopher Dunbar-, and it was only after indictment that the State became aware that appellant’s true name was, in fact, George Gay.

1. Appellant, in his first two enumerations of error, contends that there was insufficient evidence to convict him under Count 1, theft by receiving stolen property. Appellant contends that the State failed to prove the essential element of ownership of the stolen vehicle and failed to identify the car found in appellant’s possession as the same car that was alleged in the indictment. Appellant further alleges that the State failed to meet its burden of proof regarding the essential element of knowledge that the vehicle was stolen.

(a) Appellant’s argument that there was no evidence to connect the vehicle stolen from Norma Smith and the vehicle being driven by appellant at the time of his arrest or to identify the vehicle found in appellant’s possession as being the same vehicle that the State alleged was stolen, i.e., Norma Smith’s car, is without merit. Ownership of the stolen vehicle and that the vehicle found in appellant’s possession was the same vehicle that was alleged in the indictment was proven by the testimony of the victim, Norma Smith, coupled with the testimony of Deputy Whitwell. See Rautenberg v. State, 178 Ga. App. 165, 168 (342 SE2d 355) (1986).

Norma Smith testified that she owned a 1989 Oldsmobile Regency automobile; that such vehicle was stolen while she was eating dinner at the Ramada Inn; that she notified the police immediately; that she had never given the appellant permission to use her car; and that during the month of April she had not given anyone permission to use her car.

Deputy Whitwell testified that he was patrolling Interstate 75 on April 9, 1996; that he stopped appellant for excessive speed; that appellant was driving a 1989 Oldsmobile Regency with a tag number of XRF 687; that he observed damage to the door of the vehicle and the steering column; that while he was waiting on a response on the vehicle identification, appellant fled the scene; that after a high speed chase he finally apprehended appellant; and that he received confirmation that the vehicle had been reported stolen.

“ ‘[WJhere there is some evidence descriptive of the stolen property which is substantially conformable to the description alleged in the indictment, and nowhere contradictory thereof, the identity of the stolen property is a matter addressed peculiarly and solely to the jury, and in such case there is no fatal variance between the allegata and the probata. [Cit.]’ [Cits.]” Burkett v. State, 133 Ga. App. 728, 731 (212 SE2d 870) (1975). The year, make, model, and tag number of the car driven by the appellant at the time of his arrest were identified by the witnesses at trial and matched the description of the vehicle set out in the indictment as the vehicle stolen from Norma Smith.

(b) Scienter is an essential element of the crime of theft by receiving stolen property. See OCGA § 16-8-7; Turntime v. State, 206 Ga. App. 226 (424 SE2d 877) (1992); Abner v. State, 196 Ga. App. 752 (397 SE2d 36) (1990). Scienter “may be proved by circumstantial evidence or inferred from circumstances which would excite the suspicions of an ordinarily prudent man. Even though knowledge is denied by the defendant, the jury would be authorized to return a verdict of guilty.” (Citations and punctuation omitted.) Gunn v. State, 163 Ga. App. 906, 907 (296 SE2d 221) (1982). In the case sub judice, the evidence adduced by the State set forth circumstances that “would excite suspicion in the mind of an ordinary prudent person.” Turntime, supra at 227. This evidence includes the fact that both the door lock and the steering column were damaged; that appellant did not have a key to the vehicle and had to start the car by “a little gadget on the steering column that you had to pull to crank the car up”; that appellant fled the scene; and that appellant gave a false name when he was arrested. Recent possession of stolen property, in conjunction with other evidence, allows the jury to infer knowledge of the theft of the property. Pate v. State, 158 Ga. App. 395 (1) (280 SE2d 414) (1981); Ridley v. State, 135 Ga. App. 333, 334 (217 SE2d 459) (1975) (Evans, J., concurring specially); Higginbotham v. State, 124 Ga. App. 489 (3) (184 SE2d 231) (1971). Thus, the jury was authorized to infer that appellant had the requisite knowledge that the car was stolen.

The evidence, viewed in a light most favorable to the verdict, was sufficient for a rational trier of fact to have found appellant guilty of the offense of theft by receiving stolen property. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant also contends that evidence of an alleged similar transaction should not have been admitted. We disagree and find that the State carried its burden of showing a sufficient degree of similarity for admission of this particular similar transaction evidence.

Before evidence of an independent offense or act may be admitted into evidence, the State must make three affirmative showings: First, the State must demonstrate that it seeks to introduce such evidence for an appropriate purpose, such as illustrating appellant’s identity, intent, course of conduct and bent of mind; second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; and third, the State must demonstrate a sufficient connection of similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). “Similarity is an important factor in determining the admissibility of the extrinsic crime; however, it is not the only factor, nor is it necessarily the controlling factor. The ultimate issue for admissibility is whether the evidence of other crimes has relevance to the issues in the trial of the case at bar. Depending on the purpose for which the extrinsic evidence is offered, the State may be required to prove a high degree of similarity between the relevant characteristics of the extrinsic crime and the crime charged, or it may have only the burden of showing a logical connection between the crimes which are essentially dissimilar. Ward v. State, 262 Ga. 293, 295 (2) (417 SE2d 130) [(1992)].” Harris v. State, 222 Ga. App. 52, 54 (473 SE2d 232) (1996).

The State served a timely notice on appellant of its intent to introduce evidence of alleged similar transactions for the purpose of showing “intent, motive, plan, scheme, bent of mind, and course of conduct.” Appellant filed an objection to the similar transaction evidence and motion in limine, and a hearing was held pursuant to Uniform Superior Court Rule 31.3 (B), prior to the evidence being submitted to the jury.

At the hearing, the State stated that it was seeking to introduce into evidence a 1992 conviction of George Gay which occurred in Ware County, Georgia, for the offenses of unlawfully taking a motor vehicle, fleeing and attempting to elude, and giving a false name, to wit, Chris Dunbar, to a law enforcement officer, for the purpose of showing appellant’s bent of mind and course of conduct. The trial court ruled in favor of the State, finding that the similar transaction was similar to the crime charged, and allowed such evidence for the purpose of showing appellant’s intent, bent of mind, scheme, common design, and identity.

At trial, the State introduced into evidence a certified copy of appellant’s conviction for the similar transaction and the testimony of the arresting officer. Police Officer Gary Smith testified that he had arrested appellant in 1992, in Waycross, Georgia; that he had been dispatched to a location regarding a report from an owner that the owner’s car was in the process of being stolen; that en route he observed the stolen vehicle pass him, going in the opposite direction; that he activated his overhead lights, and the vehicle accelerated at a high rate of speed; that appellant drove for only two to three blocks before the vehicle turned onto a dead end road; that when the vehicle reached the end of the road, it wrecked into a five-foot culvert ditch; that a black male jumped out of the vehicle and fled into the woods; that appellant was apprehended in the woods and placed under arrest; that at the time of appellant’s arrest, appellant gave officers the false name of Christopher Dunbar and signed his tickets with such name; and that he subsequently found out that appellant’s actual name was George Gay.

(a) Appellant argues that because identity was not an issue and he was not charged in the case sub judice with the offense of giving a false name, evidence of a separate prior offense of giving a false name would not be admissible as tending to establish any of the offenses with which appellant was charged in the instant case.

The issue of identity is implicit under the standards set forth by Williams, supra. Before the factfinder can consider evidence of similar offenses or transactions for any purpose, it must first be shown that the defendant on trial is the same person to whom the evidence of a similar offense or transaction pertains. The fact that appellant gave the false name of Christopher Dunbar when arrested for the prior offense and the same false name when arrested in the case sub judice is evidence that the defendant on trial is, in fact, the same person to whom the evidence on the similar offense pertains, and also goes to show a pattern of behavior or course of conduct, i.e., the use of a particular false name by the defendant.

(b) Appellant further alleges that the offenses of theft by taking and theft by receiving are two different crimes, with different elements, and are, in fact, mutually exclusive; therefore, proof of a theft by taking cannot be used to establish a theft by receiving. Appellant further alleges that the two offenses are too remote in time and place, the first offense occurring in 1992 and the later in 1996, to show continuous course of conduct, plan or scheme.

In determining the admissibility of similar transaction evidence, the court should focus on the similarities, not the differences, of the two occurrences. Farley v. State, 265 Ga. 622 (458 SE2d 643) (1995). Although the crimes here are not identical, there exists a high degree of similarity between the extrinsic crime and the crime charged. Both involve the arrest of appellant while driving a stolen vehicle; appellant fleeing and eluding the police; a police chase which culminated only when appellant was no longer able to drive the vehicle in which he was fleeing; and appellant’s use of the same false name upon arrest.

“[M]ere lapse of time between the commission of any prior similar crime and the commission of the offense currently at trial does not render the evidence automatically inadmissible; lapse of time is but one factor to be taken into consideration in determining admissibility. Oller v. State, 187 Ga. App. 818, 820 (2) (371 SE2d 455) [(1988)].” Harris, supra at 54. In the case sub judice, the four years between the current offense and the similar offense would not demand that the evidence is inadmissible. See Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985) (lapse of 11 years); Braddock v. State, 208 Ga. App. 843 (432 SE2d 264) (1993) (lapse of 15 years); Cooper v. State, 173 Ga. App. 254, 255 (325 SE2d 877) (1985) (lapse of 19 years). “ ‘[T]he lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility. [Cit.]” Braddock, supra at 844 (2).

3. Appellant further alleges that the jury charge on similar transaction evidence did not properly limit the purpose for which the evidence was to be considered.

Prior to the introduction into evidence of the similar transaction testimony, the trial court instructed the jury regarding their consideration of such evidence. The transcript shows that the court paraphrased the charge on similar transactions from the Suggested Pattern Jury Instructions, and that the court did not specifically limit the use of such evidence, but instead articulated all the various possible uses, i.e., “knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plans, scheme, course of conduct, and identity or other matters dependent upon a person’s state of mind at the time of the offense.” Further, the trial court did not limit such instructions to any specific count of the indictment. Appellant alleges both as error. Counsel for appellant did not object to the similar transaction charge when it was initially given.

Appellant made a written request that a charge on similar or connected offenses be given at the close of evidence. Appellant’s written request was an exact duplication of the pattern jury charge and did not contain language limiting the use of such evidence to any specific purpose or count of the indictment. During the jury charge given at the conclusion of the trial, the trial court asked the jury to remember what the court had charged earlier on similar offenses and gave no further charge on such matter. At the end of the charge counsel for appellant reserved objections to the trial court’s charge.

“We have previously held that when evidence is admitted for one purpose, it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a [proper written] request to so instruct the jury!’ (Citations and punctuation omitted; emphasis in original.) Miller v. State, 219 Ga. App. 284, 286 (3) (b) (464 SE2d 860) (1995); see Rice v. State, 217 Ga. App. 456 (458 SE2d 368) (1995). Since appellant failed to file a written request which properly limited the purpose for which the evidence was to be considered, we find no merit to this argument.

4. In appellant’s final enumeration, he alleges that the trial court erred in denying his motion to suppress. Appellant contends that Deputy Whitwell’s testimony that he stopped appellant for a valid purpose was not credible and that his highway stop of appellant was unreasonably pretextual and illegal.

At the motion to suppress hearing, Deputy Whitwell testified that he was on traffic enforcement duty on the evening in question and was stationed in his marked vehicle on the shoulder of Interstate 75 near Exit 67; that there was “quite a bit of traffic at the time”; that he noticed the vehicle which appellant was driving “out-distancing” the surrounding traffic; that based on his experience he estimated the vehicle’s speed at 25 to 30 mph faster than the surrounding traffic; and that he pulled out to clock appellant’s speed, but appellant had already started to pull ácross two lanes of traffic into the curb lane, and therefore, he was unable to do so. Even though appellant denied that he was speeding, it is the role of the factfinder, not the appellate courts, to judge the credibility of witnesses, or lack thereof, and to decide whether to accept such testimony or to disregard it entirely; the appellate court must view the evidence in a light most favorable to the jury’s verdict. OCGA § 24-9-80; see Malcolm v. State, 263 Ga. 369, 370 (434 SE2d 479) (1993); Ward v. State, 205 Ga. App. 504, 507 (423 SE2d 288) (1992).

Even though the deputy was unable to clock appellant’s speed, probable cause existed to arrest appellant for speeding based on the deputy’s testimony regarding his observations and his opinion as to speed. However, pretermitting the existence of probable cause to arrest, “[t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) [(1968),] recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. We have repeatedly held that an authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” (Citations and punctuation omitted.) Coley v. State, 177 Ga. App. 669, 670 (341 SE2d 9) (1986); see McConnell v. State, 188 Ga. App. 653 (374 SE2d 111) (1988).

Clearly, in the case sub judice, the deputy had reasonable grounds, based upon a founded and reasonably articulable suspicion, to make a Terry stop of the appellant’s vehicle and probable cause to make an arrest based on the events that occurred later in the Deputy’s presence, i.e., appellant’s failure to produce his driver’s license and insurance card; the vehicle’s punched out door lock and broken steering column; and appellant’s backing his car toward Deputy Whitwell, fleeing from the area of the stop, driving at speeds up to 110 mph, driving on the wrong side of the road, forcing other cars from the road, driving through several stop signs, running through a roadblock, striking another vehicle, and attempting to sideswipe Deputy Whitwell’s patrol car. Thus, appellant’s argument is clearly without merit.

Decided August 11, 1997.

Hemmann & Hemmann, Paul E. Hemmann, for appellant.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: McMURRAY, Presiding Judge.

text:
    A97A1644.
    SPEAR v. THE STATE.
    (491 SE2d 164)
   McMURRAY, Presiding Judge.

Defendant Spear appeals his convictions of possession of cocaine with intent to distribute, sale of cocaine, and possession of cocaine with intent to distribute within 1,000 feet of a park, OCGA § 16-13-32.5 (a). Held-.

1. Three of defendant’s four enumerations of error contest the sufficiency of the evidence to authorize his conviction. Defendant’s arguments in support of these enumerations of error are directed entirely to credibility issues within the exclusive province of the jury. Of particular note in this regard is the testimony of co-defendant Fuller, an admitted crack cocaine addict and drug dealer who had entered a guilty plea and testified as a prosecution witness.

The charge of possession of cocaine with intent to distribute was based on the discovery of crack cocaine during the search of a residence on April 3, 1996. After receiving information that drugs were being sold from a certain apartment, police went to that address and received a consent to a search of the premises from a female resident. During that search, crack cocaine was found in a number of locations, as well as approximately $2,000 in cash. While the female resident maintained that the cocaine was hers and that defendant had no knowledge of it, co-defendant Fuller testified as to a conversation with defendant shortly after the search during which defendant acknowledged that the cocaine was his and discussed precautions he planned to take to avoid a repetition of the incident. Fuller also testified that defendant lived in the apartment where the cocaine was found and that he was frequently employed by defendant to drive him to various locations to purchase cocaine. In contrast, the female resident of the apartment could not substantiate her claim of exclusive possession of the cocaine by explaining who she got the contraband from.

Decided August 11, 1997.

Renée E. Snead, for appellant.

The charges of selling cocaine and possession of cocaine with intent to distribute within 1,000 feet of a park arose from a drug purchase by an informant on May 9, 1996. The informant arranged a rendezvous for the purpose of making the drug purchase. An undercover officer accompanied the informant when she went to a public park and met two men from whom she purchased crack cocaine. The undercover officer identified defendant as one of the two men. Co-defendant Fuller testified that he was the other person, that defendant gave him the cocaine which he exchanged with the informant for $50, and that he gave the money to defendant. When Fuller and defendant were apprehended shortly after the sale, defendant was in possession of the marked currency which had been provided to the informant to make the drug purchase. Defendant denied having been present in the park when the sale of cocaine occurred.

This Court does not weigh the evidence or determine the credibility of witnesses. Cost v. State, 263 Ga. 720 (1) (438 SE2d 79); Moore v. State, 219 Ga. App. 818, 819 (467 SE2d 5). The evidence viewed in the light most favorable to the verdict authorized a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Jackson v. State, 226 Ga. App. 604, 606 (2) (487 SE2d 142).

2. Defendant’s remaining enumeration of error complains that evidence of his prior conviction for possession of cocaine with intent to distribute was erroneously admitted into evidence. During cross-examination, defendant was asked a number of questions concerning this prior conviction. However, since no objection was offered at trial to this procedure, nothing is preserved for appellate review. Hardwick v. State, 210 Ga. App. 468, 470 (6) (436 SE2d 676); Helton v. State, 166 Ga. App. 662, 666 (4) (305 SE2d 592).

Judgment affirmed.

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

Charles H. Weston, District Attorney, Kimberly S. Schwartz, Assistant District Attorney, for appellee.


text:
    A97A1871.
    GARRETT v. NATIONSBANK, N.A. (SOUTH).
    (491 SE2d 158)
   Eldridge, Judge.

On January 8, 1996, appellant Lisa Garrett drove through the drive-through teller booth of appellee NationsBank, N.A. (South) at the Southway Branch, Jonesboro, Clayton County, Georgia. The teller, Dana Elizabeth Blair, saw appellant and extended the deposit drawer for appellant to make her deposit. Appellant placed her deposit slip and currency into the drawer, but a gust of wind blew the deposit slip and currency out of the drawer, through the drive-through area, and into the parking lot. Blair saw the money blow out and instructed appellant that she was not to leave her car and that Blair would get the deposit slip and currency. Never acknowledging that she heard Blair, appellant jumped out of the car and ran after the blowing currency. Appellant did not remember what Blair said to her when the currency blew away. By the time Blair exited the door to the drive-through teller booth to collect the money for appellant, appellant had already exited her car and had started to run to catch the money. To Blair, appellant appeared to be in a panic from her conduct in running after the money blowing in the parking lot. Blair saw appellant fall while she was running.

The day was windy, and snow and ice had accumulated during the prior night. Appellant was aware of the weather and had seen a weather report on the news. After appellant’s fall, Blair saw white ice around the edges of the driveway; where the ice was melting “was more like black ice, but it was white. You could see it. It was visible.” Appellant appeared to step on the ice when she slipped and fell. Appellant stated that she did not see any ice on the driveway or bank parking area when she drove in, but that she was not looking at the ground either when she drove in or when she was running prior to her fall, because she was looking at the money. Appellant admitted seeing snow on the ground and it was melting, although the sun was out as she drove to the bank at noon and the snow was starting to melt. Appellant, even after her fall, could not see any ice, but she knew that it was there, because the ground was slippery, cold, and wet.

Appellee moved for summary judgment. After hearing oral argument, the trial court granted summary judgment. Herein, appellant sets forth five different enumerations of error that all contend the trial court erred in granting appellee’s summary judgment. We do not agree and affirm.

Appellee’s answer set out the affirmative defense of contributory negligence, and appellee’s motion for summary judgment was predicated upon such affirmative defense.

On a motion for summary judgment under OCGA § 9-11-56, the defendant, as the moving party, may prevail by “piercing the plaintiff’s pleadings,” i.e., demonstrating that plaintiff will be unable to prevail at trial, even when all doubts are resolved in favor of the plaintiff, because there is no issue of material fact as to at least one essential element of the plaintiff’s prima facie case. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Greenforest Baptist Church v. Shropshire, 221 Ga. App. 465 (471 SE2d 547) (1996); Crosson v. Lancaster, 207 Ga. App. 404 (427 SE2d 864) (1993). The defendant, who will not bear the burden of proof at trial, may accomplish this either (1) by presenting evidence which negates an essential element of plaintiff’s claim, i.e., affirmatively disproving the element with evidence which makes it impossible for the plaintiff to prove the element at trial, or (2) by showing “an absence of evidence to support the [plaintiff’s] case” as to an essential element. Lau’s Corp., supra at 491, 495; see, e.g., Caven v. Warehouse Home Furnishings Distrib., 209 Ga. App. 706, 707 (434 SE2d 532) (1993). However, a defendant may not prevail simply by presenting contradictory evidence, as such evidence serves only to create an issue for jury resolution. Davis v. Piedmont Hosp., 222 Ga. App. 97 (473 SE2d 531) (1996); Service Merchandise v. Jackson, 221 Ga. App. 897 (473 SE2d 209) (1996). Further, all reasonable inferences from the evidence presented must be given in favor of the plaintiff, as the non-moving party; a trial court is precluded from drawing negative inferences against the plaintiff from evidence presented by a defendant on motion for summary judgment. See Law’s Corp., supra; Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456 (475 SE2d 188) (1996); Service Merchandise, supra; Harvey v. McLaughlin, 198 Ga. App. 105 (400 SE2d 635) (1990); Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (126 SE2d 442) (1962). If the defendant is able to pierce the plaintiff’s pleadings by showing that no jury issue exists as to an essential element of the plaintiff’s claim, the burden of production of evidence shifts to the plaintiff, i.e., the plaintiff will survive summary judgment by presenting any evidence which establishes a jury issue regarding that element. See OCGA § 9-11-56 (e); Lau’s Corp., supra. Even slight evidence will be sufficient to satisfy the plaintiff’s burden of production of some evidence on a motion for summary judgment; such evidence may include favorable inferences drawn by the court from evidence presented. See Stuckey Diamonds v. Jones, 195 Ga. App. 351 (393 SE2d 706) (1990); Mealer v. Gen. Cinema Beverages &c., 190 Ga. App. 419 (379 SE2d 192) (1989). Further, the plaintiff is not required “to respond to issues which are not raised in the motion for summary judgment or to present [her] entire case on all allegations in the complaint.” (Citations omitted.) Hodge v. Sada Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995). Therefore, under Lau’s Corp., supra, the defendant is entitled to summary judgment if it is able to pierce the plaintiff’s pleadings as to any material element and the plaintiff is unable to respond with any evidence to create a jury issue as to that element.

However, even if the defendant is unable or does not attempt to pierce the plaintiff’s pleadings, it may still prevail at summary judgment by presenting evidence which establishes a prima facie affirmative defense. In so doing, the defendant, as the moving party seeking summary judgment, may not rely on inferences from the evidence presented, because: (1) the defendant would have such burden of proof at trial; and (2) the allocation of favorable inferences between the parties is a jury question. Once the defendant satisfies its burden of proof by presenting evidence to support each element of the affirmative defense, the same burden of proof it would have at trial, the burden of production of evidence shifts to the plaintiff, who will survive summary judgment in the same fashion that she would survive a motion for directed verdict at trial, i.e., by presenting any evidence which creates a jury issue on an element of the affirmative defense. See Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994); Lau’s Corp., supra; Hornbuckle Wholesale Florist &c. v. Castellaw, 223 Ga. App. 198, 200 (477 SE2d 348) (1996) (McMurray, P. J., dissenting); J. H. Harvey Co. v. Edwards, 219 Ga. App. 697, 698 (466 SE2d 246) (1995); Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291 (450 SE2d 319) (1994). However, if the plaintiff is unable to meet this burden of production, the defendant is entitled to summary judgment as a matter of law.

Contributory negligence is an affirmative defense, and the defendant has the burden of proof thereon, either at trial or summary judgment. Stewart v. Mynatt, 135 Ga. 637 (70 SE 325) (1911); City Council of Augusta v. Hudson, 88 Ga. 599 (15 SE 678) (1891); Nelson & Budd, Inc. v. Brunson, 173 Ga. App. 856, 857 (3) (328 SE2d 746) (1985); Blanton v. Doughty, 107 Ga. App. 91 (129 SE2d 376) (1962); Browning v. Kahle, 106 Ga. App. 353 (126 SE2d 892) (1962); Martin v. Henson, 95 Ga. App. 715 (99 SE2d 251) (1957); Western & Atlantic R. Co. v. Mathis, 63 Ga. App. 172 (10 SE2d 457) (1940); Pollard v. Cartwright, 60 Ga. App. 630 (4 SE2d 693) (1939); McFarland v. City of McCaysville, 39 Ga. App. 739 (148 SE 421) (1929).

Dicta in Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980), did not, either directly or sub silentio, overrule the principle that on an affirmative defense of contributory negligence the burden of proof is on the defendant, nor did it shift the burden of proof on contributory negligence from the defendant, as an affirmative defense set forth in the answer, to the plaintiff, as an element of his or her claim that ordinary care was exercised for the invitee’s own safety. Such dicta merely restated, in order for plaintiff to recover, the plaintiff would have to survive the affirmative defense asserted by the defendant, which affirmative defense is present in most slip and fall cases and other premises liability cases.

At common law, any negligence on the part of the plaintiff which concurred in proximately causing his or her injury, no matter the degree, acted as an absolute bar to plaintiff’s recovery. See Macon & Western R. Co. v. Johnson, 38 Ga. 409, 431-433 (1, 2) (1868); Central R. & Banking Co. v. Dixon, 42 Ga. 327, 330-331 (1871); see also Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 669-670 (88 SE2d 6) (1955); Blankenship v. Howard, 98 Ga. App. 844, 852 (2) (107 SE2d 324) (1959); Hines v. Evitt, 25 Ga. App. 606, 608 (4) (103 SE 865) (1920). However, such harsh common law rule was changed by statute, which created the doctrine of comparative negligence. OCGA §§ 46-8-291; 51-11-7; Southland Butane Gas Co. v. Blackwell, supra at 666-667. “Under these sections of the Code it is clear that there can be no recovery of damages where the injured party has failed to use ordinary care to prevent an injury to himself, unless the injury be wilfully and wantonly inflicted upon him. Thus, one is bound at all times to exercise ordinary care for his own safety, even before the negligence of another is or should be apparent, and this duty should not be confused with that other duty imposed by law upon all persons to avoid the negligence of another where the negligence of such other is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence.” Id. at 667; see also City of Winder v. Girone, 265 Ga. 723, 724 (2) (462 SE2d 704) (1995); Union Camp Corp. v. Helmy, 258 Ga. 263, 267 (367 SE2d 796) (1988). “The law of contributory negligence is applicable only where both parties are at fault, and when, also, the plaintiff could not by ordinary care have avoided the injury which defendant’s negligence produced.” Americus, Preston &c. R. Co. v. Luckie, 87 Ga. 6, 7 (13 SE 105) (1891) (which form of contributory negligence applies only where the comparative negligence doctrine is applicable); see also Southland Butane Gas Co. v. Blackwell, supra at 669-670; Smith v. Central R. & Banking Co., 82 Ga. 801, 804 (10 SE 111) (1889). Even if the defendant was negligent, either the plaintiffs assumption of the risk or the plaintiffs failure to exercise ordinary care for her own safety will bar the defendant’s liability, absent wilful or wanton misconduct. City of Winder v. Girone, supra at 724; Union Camp Corp. v. Helmy, supra at 267; Southland Butane Gas Co. v. Blackwell, supra at 669-670.

Contributory negligence is comprised of two separate and distinct defenses. See Savannah Elec. Co. v. Jackson, 132 Ga. 559, 562 (2) (64 SE 680) (1909); Savannah, Florida &c. R. v. Stewart, 71 Ga. 427, 438 (2) (1884); Whatley v. Henry, 65 Ga. App. 668, 673-674 (6) (16 SE2d 214) (1941). “[F]irst the plaintiff must at all times use ordinary care for [her] own safety; that is, [she] must not by [her] own negligence (or consent) proximately cause [her] own injuries; and second, the plaintiff must use ordinary care to avoid the consequences of the defendant’s negligence when it is apparent or when in the exercise of ordinary care it should become apparent. Either or both of these defenses go in bar of the right of recovery. Comparative negligence by the plaintiff is that negligence which joins with the negligence of the defendant in proximately causing the injuries of the plaintiff and goes in reduction of the amount of recovery in proportion that the negligence of the plaintiff compares with that of the defendant, resulting, by reduction, in a bar of recovery when the negligence of the plaintiff is equal to or greater than that of the defendant. Comparative negligence is applicable only when the jury has not found either the negligence of the plaintiff or that of the defendant to be the sole proximate cause. [Cits.]” (Emphasis in original.) Whatley v. Henry, supra at 674, cited favorably in Edwards v. Trammell, 187 Ga. App. 22, 24, n. 1 (369 SE2d 288) (1988); see also Leonardson v. Ga. Power Co., 210 Ga. App. 574, 576 (436 SE2d 690) (1993).

If the form of contributory negligence in the case sub judice is that in which both parties were negligent, then plaintiff had a duty to avoid the effect of appellee’s negligence after it became apparent to her or in the exercise of ordinary care she should have become aware of it. See Freeman v. Oak Grove Animal Clinic, P.C., 214 Ga. App. 362, 363 (448 SE2d 28) (1994); Bloch v. Herman’s Sporting Goods, 208 Ga. App. 280, 281 (430 SE2d 86) (1993). However, the plaintiff must, after discovery or a reasonable time within which discovery of the negligence should have been made, have an opportunity to avoid the negligence of the defendant; both discovery and avoidance are elements of this form of contributory negligence. Nelson & Budd, Inc. v. Brunson, supra at 857; Moore v. Price, 158 Ga. App. 566, 568-570 (2) (281 SE2d 269) (1981); Selman v. Central of Ga. R. Co., 108 Ga. App. 843, 845 (2) (134 SE2d 816) (1964); Cooper v. Ga. Power Co., 44 Ga. App. 581 (162 SE 302) (1932). Knowledge of the existence of a hazardous condition does not ordinarily equal actual knowledge of the danger inherent in such condition. However, when one is aware of ice, snow, and water from the melting of either, actual knowledge is not necessary or one is presumed to comprehend and understand the normal and probable danger at the level of an ordinarily intelligent, prudent person, i.e., such forms of water have the property of being slippery. Bloch v. Herman’s Sporting Goods, supra at 281; see also City of Rome v. Baker, 107 Ga. 347, 351 (33 SE 406) (1899); Smith v. Bel-Arbor, Inc., 121 Ga. App. 739 (175 SE2d 146) (1970).

In the case sub judice, assuming arguendo that the appellee was negligent in failing to inspect for and remove ice, snow, or water, in failing to warn, and in failing to have in the extended drawer a clip to hold money from blowing away, such negligence would have been nonfeasance or passive negligence; further, the absence of the clip was open and obvious, and the condition of the driveway was equally observable by both parties. Plaintiff’s act of jumping out of her car and chasing after the money without looking where she was running was active negligence, misfeasance.

The sole proximate cause of appellant’s fall was her running after her money while looking only at her money, when she was aware of the bad weather conditions with some snow, ice, and water on the ground; as a reasonably intelligent and prudent person, she should have known of the risk of the pavement being slick and dangerous to someone running. This is a clear and palpable case of contributory negligence. Where appellant’s failure to exercise reasonable care for her own safety is the direct and immediate cause of her fall, which danger could have been avoided by her exercise of due care, the sole proximate cause of her injury was her contributory negligence. City of Winder v. Girone, supra at 724; Driver v. Leicht, 215 Ga. App. 694, 695 (452 SE2d 165) (1994); Leonardson v. Ga. Power Co., supra at 576; Wright v. Concrete Co., 107 Ga. App. 190, 198 (5) (129 SE2d 351) (1962); Purcell v. Hill, 107 Ga. App. 85, 87-88 (1) (129 SE2d 341) (1962). Where appellee carried the burden of proof making out a prima facie affirmative defense of contributory negligence and presenting evidence as to each element of the defense, and where plaintiff failed to come forward with evidence to show the existence of a disputed issue of material fact as to any element of the defense for jury decision, the trial court did not err in granting summary judgment. See Lau’s Corp., supra at 491, 495; OCGA § 9-11-56 (e).

Judgment affirmed.

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

Decided August 11, 1997.

Carl H. Hodges, for appellant.

Sullivan, Hall, Booth & Smith, Robert L. Shannon, Jr., for appellee.

       Favorable inferences may be drawn by the court on behalf of the plaintiff, since the granting of a motion for summary judgment deprives the non-moving party of his constitutional right to trial by jury. Summary judgment “cannot deprive a party of the opportunity to have a trial of a genuine issue as to any material fact.” Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (126 SE2d 442) (1962); see also Ga. Const, of 1983, Art. I, Sec. I, Par. XI; U. S. Const., Amends. V, VII, and XIV.

       However, “ ‘[a]n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.’. . . [Cit.]” Edwards v. Campbell Taggart Baking Co., 219 Ga. App. 806, 807 (1) (466 SE2d 911) (1996).


author: ELDRIDGE, Judge.

text:
    A97A1897.
    BETTIS et al. v. STATE OF GEORGIA.
    (491 SE2d 155)
   ELDRIDGE, Judge.

Carlos Bettis and his sister, Naomi Bettis, appellants, challenge the forfeiture of a 1988 Mercedes Benz automobile to the State. We affirm the trial court’s judgment.

On April 11, 1996, Carlos Bettis was apprehended at an apartment in DeKalb County, following a controlled drug delivery to the apartment; Carlos Bettis did not reside at the apartment. Tbe delivery was videotaped by police officers, who had been previously notified of the pending delivery. The videotape showed someone other than the appellant emerging from the apartment and signing for the package. Carlos Bettis was shown standing in the doorway of the apartment at the time of the delivery; the videotape did not show Carlos Bettis signing for or otherwise handling the package. Carlos Bettis reentered the apartment after the delivery had been made. Police officers immediately executed a search warrant for the apartment, and Carlos Bettis was apprehended as he “took flight” to a back bedroom. Inside the apartment’s kitchen, officers found the opened package, which contained cocaine; some of the cocaine was being “cooked” in a pan; several plastic baggies were on the counter; and cocaine had been weighed and portioned into the baggies. Personal items belonging to Carlos Bettis, including clothing and paperwork, were also found. The Mercedes at issue in the case sub judice was parked in front of the apartment; the vehicle’s keys and its radio faceplate were found on the kitchen counter next to the opened package of cocaine. The Mercedes was seized by the State on April 14, 1996.

An in rem forfeiture hearing was held on March 12, 1997. Following testimony by a police officer and both appellants, as well as the viewing of the videotape, the trial court found that the Mercedes was “used and intended for use in violation of the Georgia Controlled Substances Act” and was also in close proximity to a controlled substance. Therefore, the vehicle was contraband and subject to forfeiture pursuant to OCGA § 16-13-49 (d) (2) and (6). Further, the trial court found that “Naomi Bettis failed to establish ownership of the vehicle sufficient to prevail on an innocent owner defense.” The trial court ordered that the Mercedes be forfeited to the State. This appeal followed. Held:

In a bench trial, the judge sits as the trier of fact who determines the credibility of the witnesses and who may accept or reject any part of a witness’ testimony, even in the absence of contradictory testimony. Anderson v. State, 267 Ga. 116, 118-119 (475 SE2d 629) (1996); Maynard v. State of Ga., 217 Ga. App. 344, 346 (457 SE2d 253) (1995); see also State v. Williams, 193 Ga. App. 462 (388 SE2d 55) (1989). “On appeal, we view the evidence in a light most favorable to the court’s judgment. See Gearin v. State of Ga., 218 Ga. App. 390 (1) (461 SE2d 562) (1995). Furthermore, because the court in this case sat as the factfinder, we will not set aside its factual findings unless they are clearly erroneous. State of Ga. v. Banks, 215 Ga. App. 828 (2) (452 SE2d 533) (1994). A trial court’s factual findings are not clearly erroneous if there is any evidence to support them. Shook v. State of Ga., 221 Ga. App. 151, 152 (470 SE2d 535) (1996).” Hinton v. State of Ga., 224 Ga. App. 49 (1) (479 SE2d 424) (1996); Maynard, supra at 346; Lanier v. State of Ga., 212 Ga. App. 51, 52 (441 SE2d 87) (1994); see also Michael v. State of Ga., 226 Ga. App. 288 (486 SE2d 406) (1997). “ ‘This is true even where, as in the case sub judice, such [findings are] based upon circumstantial evidence,’ ” and the reasonable inferences which flow therefrom. (Citation omitted.) Lanier, supra at 52.

“[A] forfeiture action is a civil proceeding. See Murphy v. State, 267 Ga. 120, 121 (475 SE2d 907) (1996). The State, as plaintiff, was required to prove its case by a preponderance of the evidence rather than by the higher burden of proof applicable to criminal cases. Griffin v. State of Ga., 211 Ga. App. 750 (2) (440 SE2d 483) (1994).” (Emphasis in original.) Hall v. State of Ga., 226 Ga. App. 486, 487 (486 SE2d 710) (1997); see also Michael, supra.

1. In the first enumeration of error, appellants assert that the evidence was insufficient to support the trial court’s determination that the Mercedes was subject to forfeiture under the provisions of OCGA § 16-13-49 (d).

The Georgia Controlled Substances Act, OCGA § 16-13-20 et seq., makes it unlawful for any person to “purchase, possess, . . . control[,] ... manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance,” including cocaine. OCGA §§ 16-13-26 (1) (D); 16-13-30 (a), (b). Under OCGA § 16-13-49 (d) (2), “[a]ll property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of [the Georgia Controlled Substances Act] or any proceeds derived or realized therefrom,” is declared to be contraband and, therefore, subject to forfeiture. “This Code section must be liberally construed to effectuate its remedial purposes,” i.e., balancing the prompt disposition of property subject to forfeiture with the protection of the property interests of innocent owners. OCGA § 16-13-49 (z); Howard v. State of Ga., 223 Ga. App. 323 (477 SE2d 605) (1996); Rabern v. State of Ga., 221 Ga. App. 874 (473 SE2d 547) (1996); State of Ga. v. White, 210 Ga. App. 876 (437 SE2d 826) (1993), rev’d on other grounds, 264 Ga. 547 (448 SE2d 354) (1994).

From the evidence in the record of the case sub judice, it is reasonable to infer that Carlos Bettis drove to the apartment in the Mercedes to participate in prohibited drug activity and that he intended to leave the apartment in the same manner. As such, this evidence supports the trial court’s determination that the Mercedes was used or was intended to be used, directly or indirectly, to facilitate a violation of the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq. Therefore, the trial court did not err in ordering the forfeiture of the Mercedes pursuant to OCGA § 16-13-49 (d) (2).

This Court’s decision in State of Ga. v. Hamm, 193 Ga. App. 184 (387 SE2d 344) (1989), does not demand a different result. In Hamm, supra, this Court considered a forfeiture case under former OCGA § 16-13-49. Prior to its 1991 amendment, the statute did not allow forfeiture of a vehicle unless the vehicle was used or intended to be used to “transport, hold, conceal, or in any manner to facilitate the transportation” of contraband. See Hamm, supra at 184. Since there was no evidence that drugs were ever held or transported in the vehicle, the Court held that the vehicle was not subject to forfeiture. Even so, the Court specifically noted that, because defendant’s vehicle transported the defendant to the site of illegal drug activity, “his vehicle was certainly used to facilitate the sale of the cocaine.” Id. This Court later noted in White, supra, that under the amended statute, “[t]he current burden is considerably less, with the State only having to show that use of the subject property facilitated, or was intended to facilitate, a violation of the Georgia Controlled Substances Act.” Id. at 877. Therefore, “had the current statute been in effect at the time Hamm was decided, forfeiture of the vehicle would have been in order.” Id.

2. Appellants also challenge the finding by the trial court that the Mercedes is subject to forfeiture under OCGA § 16-13-49 (d) (6). We find that it is unnecessary to address this enumeration, as the ruling in Division 1, supra, is dispositive.

3. Appellant Naomi Bettis also asserts that the trial court erred in finding that she failed to present sufficient evidence to prevail on an “innocent owner” defense under OCGA § 16-13-49 (e). See also OCGA § 16-13-49 (a) (7). We disagree.

Once the State has made out a prima facie case for civil forfeiture of contraband, “ ‘[t]he onus is then on the [defendant] to establish both his standing to contest the forfeiture and his entitlement to a statutory exception. (Cit.)’ Jackson v. State of Ga., 218 Ga. App. 437, 438 (461 SE2d 594) (1995).” Howard, supra at 323. Thus, in order to rebut the forfeiture as an innocent owner, Naomi Bettis had the burden of proof as an affirmative defense to establish that she has an ownership interest in the Mercedes. Id.; see also OCGA § 16-13-49 (a) (7), (e).

During the forfeiture hearing in this case, Naomi Bettis apparently testified about her asserted ownership interest in the Mercedes. However, no transcript of the testimony of either appellant appears in the record, and we are unable to review appellants’ assertions regarding the evidence presented.

The only evidence of record that supports Naomi Bettis’ assertion of ownership is contained in her deposition. During her deposition, Naomi Bettis claimed that the Mercedes was purchased for her by her brother, Carlos Bettis; that she later cashed some paychecks and paid him between $500 and $1,000 cash for the $20,000 automobile between February and April 1996, although she had no record of the payments; that the Mercedes was titled in the names of both appellants; and that she carried insurance on the Mercedes in her name only. However, the State elicited deposition testimony from Carlos Bettis that he drove the Mercedes at least once a week up until the day he was apprehended, and Naomi Bettis admitted that she rarely drove the Mercedes after acquiring another car in February 1996.

After considering this evidence, the trial court, as the trier of fact deciding the weight and credibility of the testimony, rejected Naomi Bettis’ assertion of ownership. The evidence available for review by this Court supports the trial court’s judgment. Therefore, such determination is not clearly erroneous and will not be disturbed on appeal.

Decided August 11, 1997.

Horatio O. Edmondson, for appellants.

J Tom Morgan, District Attorney, Carol M. Kayser, Stephen D. Sencer, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       We note that the appellant failed to transmit to this Court the videotape viewed by the trial court or a complete transcript of the testimony given at the forfeiture hearing. “[T]he burden is upon the party challenging the legality of a decision to prove error by the record. [Cit.] The presumption is in favor of the regularity and legality of all proceedings in the court below. [Cit.] In the absence of anything to the contrary appearing we presume that the trial judge had before him proof demonstrating [such finding].” Newton v. Newton, 222 Ga. 175, 176 (2) (149 SE2d 128) (1966); see also Jones v. State, 226 Ga. App. 608 (487 SE2d 89) (1997); Waddy v. Scottish Rite Children’s Med. Center, 221 Ga. App. 760, 762 (472 SE2d 702) (1996); Mike’s Garage Door Co. v. Dews, 220 Ga. App. 648, 649 (469 SE2d 855) (1996); Dept. of Human Resources v. Cowan, 220 Ga. App. 230 (469 SE2d 384) (1996).

       See also Lanier, supra at 52 (holding that it was reasonable to conclude that a defendant intended to use a truck to facilitate the transportation of drugs, when the defendant arrived at the site of drug activity in the truck and had no alternative means of leaving the site after obtaining the drugs).

       We note that Naomi Bettis may have been able to satisfy her burden of persuasion by submitting additional evidence of ownership to bolster her claim to the Mercedes, i.e., a certificate of title listing her as co-owner, a tag registration, a receipt for payments made to her brother, a bill of sale, or proof of insurance. See Banks, supra at 832 (the defendant’s testimony, supported by the certificate of title and other documentary evidence, proved that the sale of the property at issue was not a “sham”).