text:
    A96A2048.
    CARLTON v. THE STATE.
    (480 SE2d 336)
   Blackburn, Judge.

Zinj Y. Carlton was convicted of voluntary manslaughter and possession of a firearm during the commission of a felony in connection with the shooting death of Freddie Blash. On appeal, Carlton contests the sufficiency of the evidence supporting the voluntary manslaughter conviction and challenges two evidentiary rulings made by the court. He also claims his conviction should be reversed because he received ineffective assistance of counsel.

1. “On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citations and punctuation omitted.) Hight v. State, 221 Ga. App. 574 (1) (472 SE2d 113) (1996).

Viewing the evidence in the light most favorable to the verdict, Lenitha Thomas and Joseph Boddie were sitting in Thomas’ mother’s apartment on January 1, 1993, when Carlton burst through the door and ran inside. Thomas did not know Carlton well and had not invited him in, and when she asked what he was doing there, Carlton replied that he was fleeing from an individual who was threatening to kill him. Thomas told Carlton to leave, but he refused. Thomas’ companion Boddie grabbed Carlton in a “bear hug” in an attempt to get Carlton to leave, but was unsuccessful. With Boddie hanging on to the front of him, Carlton climbed the stairs to the second level of the apartment.

Alarmed that Carlton would not leave, Thomas fled the apartment about this time to get help. She encountered a friend, Freddie Blash, on the sidewalk outside and told him about Carlton’s actions. Blash entered the apartment and found Carlton nearly at the top of the stairs and Boddie on the landing above Carlton. According to Boddie, Blash climbed several stairs, reached up, and grabbed Carlton’s shoulder. Carlton was standing with his back to Blash, and as Blash told Carlton to leave, Carlton turned around and shot Blash in the chest. Blash died as a result of this wound.

Carlton contends that this evidence is insufficient to sustain his conviction for voluntary manslaughter because the State failed to prove he intended to kill Blash, which is an essential element of voluntary manslaughter. See McGill v. State, 263 Ga. 81, 83 (3) (428 SE2d 341) (1993). He argues that the evidence of his intent to kill was entirely circumstantial and that it did not exclude every reasonable hypothesis except guilt. Specifically, he argues that the evidence supports a finding that the shooting was accidental. However, as discussed in Division 3, Carlton did not pursue an accident defense at trial but attempted to show that Boddie killed Blash. “This issue is raised for the first time on appeal and may not be considered.” McCluskey v. State, 211 Ga. App. 205, 208 (3) (438 SE2d 679) (1993).

With respect to Carlton’s intent to kill, criminal intention is a jury question, and a jury’s finding on that issue will not be disturbed on appeal unless contrary to the evidence and clearly erroneous. See Peterson v. State, 204 Ga. App. 532, 533 (1) (419 SE2d 757) (1992). “Criminal intent rarely can be proved by direct evidence, but its existence may be inferred by the trier of fact upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” (Citations and punctuation omitted.) Id. Additionally, a presumption exists that persons of sound mind and discretion intend the natural and probable consequences of their acts. See Stubbs v. State, 220 Ga. App. 106, 108 (469 SE2d 229) (1996); see also OCGA § 16-2-5. The evidence was sufficient to authorize the jury’s finding, beyond a reasonable doubt, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), that Carlton intended to kill Blash, and that he committed the offense of voluntary manslaughter.

2. Carlton contends the trial court committed harmful error by allowing a State’s witness, Carlton’s former girl friend, to place his character into evidence. Over Carlton’s objection, Judith Timberlake testified that Carlton had threatened to kill her and that he had been high on drugs for three days prior to shooting Blash.

The record shows that during direct examination of Timberlake, in response to what he perceived as her lack of cooperation, the prosecutor abruptly abandoned his line of questioning and asked Timber-lake if she wanted to be in court, and whether Carlton had threatened her. Before Carlton’s counsel could object, Timberlake answered that she did not want to be in court and that Carlton had not threatened her. Carlton’s objection and motion for mistrial were denied, and the question regarding past threats was permitted to show the bias of the witness and her ability to testify. Timberlake was asked twice more if Carlton had threatened to kill her, and Carlton’s objections were overruled each time. The last time the prosecutor posed the question, Timberlake admitted that Carlton had previously threatened to kill her but not since he had been in jail.

The introduction of this evidence was clearly error and should not have been permitted. Because of the overwhelming evidence of Carlton’s guilt however, it is highly probable that this error did not contribute to the jury’s verdict. See Pardo v. State, 215 Ga. App. 317, 318 (2) (450 SE2d 440) (1994). Because Carlton presented no evidence, all of the State’s evidence is uncontroverted. Carlton had a gun in his pocket, and he shot Blash with that gun. Neither Blash nor his companion, Boddie, was armed. No evidence was presented that the shooting was accidental, see Division 3, and there was no evidence that either Boddie or Blash acted in a way to make Carlton reasonably believe that shooting Blash was necessary in order to defend himself against any imminent threat of harm. See Jolley v. State, 254 Ga. 624, 627 (3) (331 SE2d 516) (1985).

Carlton erroneously contends that his character was impermissibly placed into evidence when Timberlake was permitted to testify that Carlton was high on drugs for three days prior to shooting Blash. See Hestley v. State, 216 Ga. App. 573, 576 (2) (455 SE2d 333) (1995).

In Pless v. State, 260 Ga. 96 (390 SE2d 40) (1990), a witness testified that the defendant had used drugs and alcohol on the day of the incident in question. In response to the defendant’s argument that this testimony impermissibly placed his character into evidence, the Supreme Court held that this “was t relevant evidence of the defendant’s state of mind and admissible as part of the res gestae,” notwithstanding that it incidentally placed the defendant’s character in issue. Id. at 98 (2). In this case, the trial court correctly permitted introduction of Carlton’s continuous drug use for the three days prior to his shooting of Blash to show “his state of mind at the time of the killing.” See also Wells v. State, 261 Ga. 282, 283 (3) (404 SE2d 106) (1991) (evidence of defendant’s alcohol use and intoxication on afternoon of shooting not inadmissible despite adverse reflection on defendant’s character). This enumeration is therefore without merit.

3. Carlton argues that his conviction must be reversed because he received ineffective assistance of counsel and bases this claim on his trial counsel’s failure to request jury charges on felony involuntary manslaughter and accident.

Felony grade involuntary manslaughter occurs when a person “causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.” OCGA § 16-5-3 (a). The evidence shows that Carlton was carrying a gun in his pocket at the time of the shooting, and he argues that the carrying of a concealed weapon was the “unlawful act other than a felony” which justified a charge on felony involuntary manslaughter. See OCGA § 16-11-126.

This argument does not require us to reach the issue of ineffective assistance of counsel, because the evidence did not authorize a charge on felony involuntary manslaughter. “The fact that the weapon which fired and killed the victim was being carried concealed by the appellant in violation of [OCGA § 16-11-126] did not authorize a charge on involuntary manslaughter. It is well established that the essential elements of the crime of involuntary manslaughter in the commission of an unlawful act are, first, intent to commit the unlawful act; and secondly, the killing of a human being without having so intended but as the proximate result of such intended unlawful act. . . . The concealment, while unlawful, did not cause the death here. The firing of the gun did so.” (Citation and punctuation omitted; emphasis in original.) Paulhill v. State, 229 Ga. 415, 417-418 (191 SE2d 842) (1972). Carlton’s argument that felony involuntary manslaughter should have been charged based upon his carrying a concealed weapon is therefore without merit, and his ineffective assistance of counsel claim in this regard presents nothing further for our review.

Carlton also contends his counsel was ineffective for failing to request a charge on accident. However, no evidence was adduced at trial regarding accident. The uncontroverted evidence was that Carlton, with his hands in his jacket pockets, turned in a stairwell to face Blash and shot him in the chest. None of the other individuals present had a gun, and nowhere in the record is there any indication that the gun fired accidentally. A charge on accident was not justified by the evidence, because “the gun was held solely by [Carlton] at that time, and . . . there was no evidence of any other circumstances that might have caused the gun to fire other than by [Carlton] pulling the trigger.” Scott v. State, 261 Ga. 611, 612 (1) (409 SE2d 511) (1991).

Although it is error for a court to refuse to charge on an accused’s sole defense, even without request, in this case, accident was not Carlton’s sole defense. See Campbell v. State, 207 Ga. App. 902, 904 (3) (429 SE2d 538) (1993). In fact, Carlton did not pursue an accident defense at trial, suggesting instead that Boddie shot Blash. The court charged the jury on two other defenses, justification and self-defense, and based on the totality of the evidence presented by the State, no issue of accident was raised by the evidence. See Bearden v. State, 163 Ga. App. 434, 435 (4) (294 SE2d 667) (1982). Because “[t]he court is not obligated to give a charge not adjusted to the facts,” the court did not err in failing to charge on accident, and Carlton’s claim for ineffective assistance of counsel on that basis is without merit. Asberry v. State, 193 Ga. App. 711, 712 (1) (389 SE2d 18) (1989).

Decided January 22, 1997

Jonathan D. Gaul, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       In connection with this statement, the trial court gave a curative instruction regarding Carlton’s imprisonment. He does not enumerate this portion of the proceedings as error.

       Although Carlton was convicted of voluntary manslaughter, he was charged with murder. Carlton’s counsel did request, and the trial court gave, a charge on the law of voluntary manslaughter.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A96A2225.
    THOMAS v. THE STATE. WILSON v. THE STATE.
    A96A2226.
    (480 SE2d 332)
   Blackburn, Judge.

Kenya Tremaine Thomas and Jimmy Lee Wilson, Jr. appeal their convictions for armed robbery, burglary, and false imprisonment. Each asserts the evidence was insufficient to support his conviction.

Early in the morning hours of October 21, 1994, two intruders forced their way into the home of a woman after she answered a knock at her back door. Both had guns and demanded money. Although partially disguised, the victim was able to identify the intruders as Kenya Thomas and Tony Williams. Thomas searched the house for money, and the victim later found $650 missing from a drawer in her bedroom. While Thomas searched, Williams held the victim at gunpoint and forced her to the floor. The victim testified that during the incident a third individual remained on the back porch. While he never entered the residence, he told Thomas and Williams to “hurry up” and to “leave that girl alone.” The victim never saw the third individual but recognized his voice as that of Wilson. The victim had known Wilson for at least two to three years and had previously dated him.

At about this same time, a passerby heard unusual noises coming from the victim’s residence, so he went to the victim’s front door to investigate. Through a window he saw the victim being held at gunpoint by Thomas and Williams. When the passerby tried to enter the residence, Williams and Thomas fled out the back door. The passerby saw three men run from the back of the house. The victim then saw three men enter a waiting car which was described as burgundy in color, with tinted windows. Subsequent investigation revealed that Phyllis McDowell was the owner of a red 1980 Ford LTD. McDowell testified that, in the early morning hours of the night in question, she dropped Williams, Thomas, and Wilson off in the vicinity of the crime. She returned a short time later and picked them up. At the time she picked them up, she described the three men as acting “kind of hyper” and “excited.” She testified that Tony Williams had something in his hand and quoted him as saying to the others “that was an easy one.”

Case No. A96A2225

Thomas’ appeal asserts that the numerous inconsistencies between the testimony of the victim and the passerby render their testimony incapable of belief. In support of this argument, Thomas points to conflicts regarding what the passerby was able to see inside the victim’s house from his vantage point on her front porch, as well as inconsistencies concerning what the victim and the passerby observed as the assailants fled.

Neither of these conflicts relates to Thomas’ identification, as both the victim and the passerby positively identified Thomas as one of the assailants inside the victim’s house. Additionally, “[c]onflicts in the testimony of the witnesses, including the state’s witnesses, is a matter of credibility for the jury to resolve. As long as there is some evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.” (Citations omitted.) Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311) (1976). The jury resolved any inconsistencies in the evidence against Thomas. As there is competent evidence to demonstrate that the charged offenses occurred and that Thomas assisted in perpetrating each of them, the jury’s verdict is affirmed.

Case No. A96A2226

Wilson contests the sufficiency of the evidence supporting his conviction, alleging no evidence was offered demonstrating that he entered the victim’s residence, robbed her, detained her, or intentionally assisted Thomas or Williams in any of these acts. However, pursuant to OCGA § 16-2-20, a person may be convicted of a crime if he intentionally aids or abets in the commission of the crime or intentionally advises, encourages, hires, counsels, or procures another to commit the crime. Viewing the evidence in the light most favorable to the verdict, it sufficiently supports Wilson’s conviction.

Decided January 22, 1997.

Billy M. Grantham, for appellant (case no. A96A2225).

Ernie M. Sheffield, for appellant (case no. A96A2226).

J. Brown Moseley, District Attorney, Victoria Spear-Darrisaw, John A. Warr, Assistant District Attorneys, for appellee.

Although the victim did not see Wilson, her voice identification was sufficient proof that Wilson was the party on her back porch urging Thomas and Williams to quickly finish their search for money. “The personal identity of the accused may be established by the testimony of a witness that he was familiar with the accused’s voice and recognized it.” (Citations and punctuation omitted.) Head v. State, 202 Ga. App. 209, 210 (1) (413 SE2d 533) (1991) (victim who never saw assailant was able to identify him by his voice).

In addition to the victim’s voice identification of Wilson, various eyewitnesses testified that Wilson was present with Thomas and Williams near the scene of the crimes before they occurred, that Wilson fled the scene in the company of Thomas and Williams immediately after the crimes were completed, and that Wilson was acting in a suspicious manner shortly after the crimes were committed. “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citations and punctuation omitted.) Looney v. State, 221 Ga. App. 224, 225 (471 SE2d 243) (1996). Accordingly, the evidence was sufficient to authorize a rational trier of fact to find proof of Wilson’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

Birdsong, P. J., and Beasley, J., concur.


text:
    A96A2348.
    MASSALENE v. THE STATE.
    (480 SE2d 616)
   Blackburn, Judge.

Emory Massalene was convicted of theft by taking in connection with his failure to return a rental car. On appeal, Massalene argues that the trial court erred in failing to grant his motion for a continuance of the trial and in failing to recharge the jury on reasonable doubt in response to a jury question. Massalene also argues that there was insufficient evidence upon which to base the verdict.

1. On the morning the case was called for trial, Massalene informed the trial court that he wished to discharge his court-appointed attorney and act as his own counsel. Massalene also asked for a continuance of the trial to prepare his case. The court denied Massalene’s motion for a continuance, noting that the case had been on the calendar for some time and finding that Massalene’s appointed attorney had provided effective assistance. Massalene elected to represent himself at trial, although the court required the appointed attorney to remain in the courtroom to provide assistance if necessary. Massalene now enumerates the denial of his motion for continuance as error.

“A motion for continuance predicated upon a claim of insufficient time to prepare for trial is addressed to the sound discretion of the trial court, and will not be interfered with unless it is clearly shown that the court abused its discretion.” (Punctuation omitted.) Marcello v. State, 220 Ga. App. 284 (469 SE2d 252) (1996). “[T]he conduct of the party is a relevant and proper consideration of the judge in the exercise of its discretion in order to prevent a party using the discharge and employment of counsel as a dilatory tactic.” Brannon v. State, 220 Ga. App. 572, 574 (2) (469 SE2d 716) (1996).

The trial court did not abuse its discretion in denying the motion for continuance. As Massalene’s appointed attorney provided effective representation, was prepared for trial at the time of his discharge, and was present throughout the trial to provide advice, Massalene “has failed to establish any specific need for a continuance.” Simmons v. State, 160 Ga. App. 391, 392 (2) (287 SE2d 338) (1981). Furthermore, the timing of Massalene’s decision to discharge his attorney the morning of trial, when the case had been on the calendar for some time, indicates that he was attempting to use the discharge as a dilatory tactic. See Hobson v. State, 266 Ga. 638 (2) (469 SE2d 188) (1996).

2. Massalene also argues that the trial court erred in failing to charge the jury on reasonable doubt when it issued a recharge in response to a jury question. However, when the court asked the parties if they had any objections to its recharge, Massalene did not object to the failure to include a reasonable doubt charge, and did not reserve his right to make further objections. Accordingly, his objection is waived. Russell v. State, 264 Ga. 121, 122 (3) (441 SE2d 750) (1994).

Furthermore, the failure to recharge the jury on reasonable doubt was not a substantial error which was harmful as a matter of law, so as to justify reversal even in the absence of objection. See OCGA § 5-5-24 (c). The court properly and fully instructed the jury on reasonable doubt during its initial charge. See Miller v. State, 221 Ga. App. 718, 719 (1) (472 SE2d 697) (1996) (in determining whether recharge contains error, must consider original charge as well as recharge). In addition, although the court did not fully restate such instruction during the recharge, it did reiterate that the State must prove intent beyond a reasonable doubt. The court was not obligated to discuss every issue in the recharge, and nothing in the record indicates that the jury required further clarification on the issue of reasonable doubt. Andrews v. Lovell, 145 Ga. App. 246 (1) (243 SE2d 666) (1978). Accordingly, this enumeration is without merit.

3. Massalene also challenges the sufficiency of the evidence supporting his conviction. On appeal the evidence must be viewed in a light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines sufficiency of the evidence, and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

Viewed in the light most favorable to the verdict, the evidence showed that, on July 14,1995, Massalene brought a 1984 Volvo automobile in for service to a dealership, Southlake Buick Volvo Subaru (“Southlake Volvo”). Massalene told Southlake Volvo that the car was his, although he did not in fact own the car. Massalene gave a false spelling of his last name, as well as a non-existent home address and a disconnected telephone number.

Because it could not repair the Volvo the same day, the dealership referred Massalene to a rental car company, Express Rent-A-Car. Massalene gave Express a false home address and telephone number, different from the information he had provided to Southlake Volvo. Massalene also gave Express false employment information and a false business telephone number. In addition, Massalene provided Express with two local contact telephone numbers. When Express later called one of these numbers, they were told that no one there knew Massalene. Express was unable to reach anyone at the other number, which Massalene said belonged to his sister. Testimony at trial also showed that the Florida driver’s license shown to Express had been suspended in 1986.

Massalene rented a 1995 Mercury Tracer automobile from Express. Massalene signed a rental agreement providing that the automobile must be returned the next day, July 15, although the return date was subsequently extended to July 19. Express advised Massalene that, if law enforcement personnel stop renters in a vehicle after the expiration date of the contract, they will presume the vehicle is stolen.

Decided January 22, 1997.

William H. Turner, Jr., for appellant.

Robert E. Keller, District Attorney, Marion T. Woodward, Assistant District Attorney, for appellee.

Massalene did not return the automobile on July 19, and did not contact Express. Express was unable to contact Massalene at any of the telephone numbers provided to Express or Southlake Volvo. On July 20, Express reported the automobile stolen. Massalene was arrested on July 26 while driving the automobile just outside of Thomasville, Georgia, more than 200 miles from the location where he had rented the car.

The jury was authorized from the evidence to find that Massalene unlawfully appropriated the automobile with the intention of depriving Express of such property. See OCGA § 16-8-2; see also OCGA § 16-2-6 (jury may find criminal intent “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted”); Matthews v. State, 214 Ga. App. 104 (446 SE2d 790) (1994) (affirming conviction of theft by taking for failure to return rented van). The evidence was sufficient to enable the jury to find Massalene guilty of theft by taking beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


author: Judge Harold R. Banke.

text:
    A96A2357.
    ALLEN v. THE STATE.
    (480 SE2d 328)
   Judge Harold R. Banke.

Clarence Allen, a former deputy sheriff, was convicted of burglary. The burglary was committed by three men who then torched the victims’ home, which burned to the ground. Allen was indicted and convicted only as a party to the burglary. On appeal, he enumerates five errors.

The evidence, viewed in the light most favorable to the verdict, reveals the following. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). After the fire, investigators found no evidence that the victims’ televisions, video cassette recorders (“VCRs”), or firearms had been incinerated. The victims had stored the firearms, which included a matched pair of .22 caliber Colt derringers in a box, in a steel wall safe in a bedroom. Over a year after the fire, the sheriff’s department obtained a VCR, a German Luger, a Bill Blass watch case, and a spotting scope which the victims identified as theirs.

Allen had learned about the isolated house, its contents, its owners, and the location of the victims’ safes while conducting a burglary investigation several years before the fire. In preparation for the offense at issue, he targeted the house for two of his co-defendants, drove them there, and informed them of the victims’ wealth and frequent absences. Allen also gave them a sheriff department’s check sheet showing the businesses deputies were required to check on their rounds. The check sheet contained a code which enabled those using a scanner to monitor police communications to determine the location of each patrol car on duty.

After the crime, Allen received a matched pair of derringers in a wooden case obtained in the burglary. One of Allen’s co-workers testified that he lent Allen some money and Allen used a matched pair of .22 caliber Colt derringers in a case as collateral. An auxiliary deputy corroborated this transaction. Held:

1. The trial court did not abuse its discretion in denying Allen’s motion in limine to exclude evidence of the arson. Howard v. State, 206 Ga. App. 610 (1) (426 SE2d 181) (1992). The evidence was admissible as part of the res gestae. See Molisani v. State, 142 Ga. App. 234, 235 (1) (235 SE2d 658) (1977); see also Andrews v. State, 249 Ga. 223, 225-226 (290 SE2d 71) (1982) (defining res gestae).

2. Allen correctly asserts that the State improperly mentioned in opening argument Allen’s son’s burglary conviction arising from the same transaction. Dorminy v. State, 178 Ga. App. 653, 654-655 (344 SE2d 475) (1986). The record shows, however, that Allen waived this argument by failing to renew the objection following the denial of his motion for mistrial and the administration of curative instructions. Tidwell v. State, 219 Ga. App. 233, 237 (4) (464 SE2d 834) (1995).

Allen also waived his claim that the State improperly argued that Allen was a party to the crime. The record shows Allen objected to this argument and the court sua sponte instructed the jury that neither opening statement nor the indictment was evidence, but did not rule on the objection. The failure to obtain a ruling ,on the objection resulted in its waiver as did Allen’s failure to renew his objection following the instruction. Ewald v. State, 156 Ga. App. 68, 69 (3) (274 SE2d 31) (1980); see Tidwell, 219 Ga. App. at 237 (4).

3. The evidence was sufficient to establish that Allen was a party to the crime of burglary, notwithstanding Allen’s argument that much of his co-defendants’ testimony conflicted. Although the co-defendants each tried to appear less culpable than the other and in so doing disagreed on many points, their testimony with regard to Allen’s aid to them was sufficiently corroborative to establish that Allen was a party to the burglary. OCGA § 16-2-20; compare Bullard v. State, 263 Ga. 682, 685 (1) (436 SE2d 647) (1993); see Allen v. State, 222 Ga. App. 492 (474 SE2d 698) (1996). For example, they both agreed that Allen asked them if they wanted to make some money, informed them about the house and the wealth of its frequently absent owners, and provided the sheriff department’s check sheet. Moreover, Allen’s co-worker’s testimony about Allen using the .22 caliber Colt derringers as collateral provided sufficient corroborative evidence to support the verdict. Swinney v. State, 217 Ga. App. 657, 658-659 (1) (458 SE2d 686) (1995).

Decided January 22, 1997.

Edwards & Edwards, H. B. Edwards III, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

4. We reject Allen’s contention that the trial court erred by permitting the State to question him about his illegitimate daughter. Allen placed his character in issue by testifying about his good character. State v. Braddy, 254 Ga. 366, 367 (330 SE2d 338) (1985). Thus, the trial court did not abuse its discretion in rejecting Allen’s relevance objection and permitting limited questioning on this issue. Fancher v. State, 190 Ga. App. 438, 439 (1) (378 SE2d 923) (1989).

5. Allen waived his argument, asserted for the first time on appeal, that the trial court committed reversible error by permitting two bad character witnesses to testify in rebuttal without requiring the proper foundation. Harrison v. State, 213 Ga. App. 366, 367 (1) (444 SE2d 613) (1994) (objections not raised at trial are waived). At trial, Allen challenged only the relevance of this testimony and the propriety of allowing bad character witnesses when he offered no good character witnesses other than himself.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A96A2405.
    MYERS et al. v. THORNTON et al.
    (480 SE2d 334)
   McMurray, Presiding Judge.

This is a negligence action in which plaintiffs Debra Thornton and Randy Thornton have sought damages for injury to person and property arising from a motor vehicle collision. Defendants Esther Ruth Myers and Robert Myers are the driver and owner of the other vehicle. The liability portion of the case was tried before a jury resulting in a verdict for plaintiffs in the amount of $9,558.80. Defendants then moved for several modifications of the verdict.

Portions of the motion for modification were granted, including the grant to defendants of a set off against the jury award to plaintiffs of $3,000 for property damage. Defendants were allowed a set off against that award in the amount of $7,138.01, the sum which had already been paid to plaintiffs on behalf of defendants via insurance proceeds for repairs to plaintiffs’ damaged vehicle. This reduced plaintiffs’ award for property damages to zero. Plaintiffs’ motion for reconsideration of the modification of the jury verdict was successful and the $3,000 award for property damage was reinstated. We granted defendants’ application for discretionary appeal and they enumerate as error the trial court’s refusal to grant a set off for the amount paid for repairs to the car and the trial court’s grant of the plaintiffs’ motion for reconsideration. Held:

A set off or reduction of the amount of verdicts to reflect payments previously made to plaintiffs on the defendants’ behalf has been approved, usually on the basis that such an adjustment avoids the payment of duplicate damages or a double recovery by plaintiffs. Johnson v. State Farm &c. Ins. Co., 216 Ga. App. 541, 545 (455 SE2d 91); Orndorff v. Brown, 197 Ga. App. 591 (391 SE2d 77); Hall v. Helms, 150 Ga. App. 257 (257 SE2d 349); Dept. of Transp. v. Great Southern Enterprises, 137 Ga. App. 710 (225 SE2d 80). We find nothing in OCGA § 9-12-9 or the several cases cited by plaintiffs, including, Kendall v. Curtis, 194 Ga. App. 37 (389 SE2d 550); Force v. McGeachy, 186 Ga. App. 781 (368 SE2d 777); Four Oaks Homes v. Smith, 153 Ga. App. 326 (265 SE2d 76), which support their contention that the trial court lacked authority to make such an adjustment.

There are two ways to prove damages to a motor vehicle caused by a collision. One alternative is by showing the difference between the fair market value of the vehicle before the collision as compared with the market value of the damaged vehicle after the collision.

Damages may also be proven by proof of the reasonable value of labor and material used for necessary repairs that are the direct and proximate result of the collision, together with hire on the vehicle while rendered incapable of use, plus the value of any permanent impairment in the value of the vehicle. This measure of damages is subject to a limitation, which is not relevant to the case sub judice, that any recovery may not exceed the market value of the car before the damage with interest. See Morris v. Bonner, 183 Ga. App. 499, 501 (3) (359 SE2d 244) (1987). See also Chapman v. Hepburn, 191 Ga. App. 909 (1) (383 SE2d 352) (1989).

Plaintiffs presented evidence of the permanent impairment or diminution in value of their car, that is, that prior to the collision the car was worth more than the value of the repaired car following the collision. Plaintiffs’ expert opined that this diminution in value was $3,000, the exact amount awarded in the verdict for property damage. Also, the testimony at trial made the jury aware that insurance proceeds had paid for the repair of the car.

Plaintiffs maintain that the amount of property damages included in the verdict consisted entirely and only of the amount of the diminution in value of their car caused by the collision. They argue that there is no evidence concerning the damage to the vehicle immediately after the accident and that the case involves only the damage to the vehicle after credit is given for the repairs paid for on behalf of defendants. This is apparently the view taken by the trial court which in its order granting plaintiffs’ motion for reconsideration refers to the jury’s award of property damages as “the addition of $3,000.00 plus the cost of any repair work done. . . .” Yet, the verdict of the jury states the award of damages for property damages without any suggestion of a credit for the sums paid on behalf of defendants for repair of plaintiffs’ car.

As presented through the testimony of plaintiffs’ expert, the evidence of the cost of repairs includes those which were necessary due to the collision but never attempted in the amount of $336. Further evidence as to the cost of the repairs took two forms. The expert found that some of the repairs attempted on plaintiffs’ car had not been accomplished correctly or had not been attempted even though paid for and he estimated the value of these repairs at $1,400. Using photographs to illustrate his testimony, plaintiffs’ expert described the nature of many of the repairs made to plaintiffs’ car. The jury was authorized to apply its knowledge of the cost of automobile repairs to formulate a conclusion as to the cost of the described repairs. Jim Ellis Atlanta, Inc. v. McAlister, 198 Ga. App. 94, 97 (2) (400 SE2d 389); White v. Miller, 194 Ga. App. 816, 817 (3) (392 SE2d 30); Gwinnett Commercial Bank v. C & S Bank, 152 Ga. App. 137, 139 (1), 141 (262 SE2d 453).

We are compelled to determine that the defendants are entitled to a set off and that the trial court erred in granting plaintiffs’ motion for reconsideration so as to include in the judgment the award bf $3,000 property damages. This is because under the evidence arid issues submitted to the jury, their verdict must be presumed to include an award for the cost of repairing plaintiffs’ car so that the set off is necessary to avoid a double recovery by plaintiffs.

The complaint sought an award for repair of plaintiffs’ car. The cost of repairing the car was identified as a trial issue in the pre-trial order. At trial the jury was instructed that plaintiffs sought to recover for the damage to their car and were provided both of the measures of damages discussed above. The jury was also instructed not to consider the existence or absence of insurance in reaching its verdict. And finally, the evidence presented at trial was sufficient to authorize a verdict for repairs to the car. While plaintiffs have relied upon OCGA § 9-12-9, it is they, rather than defendants, who must suffer the consequences of this rule that the judgment conform to the verdict.

Decided January 22, 1997.

Paul M. Ledbetter, Jr., Dargan S. Cole, for appellants.

Lavigno & Schlueter, William W. Lavigno III, Richard R. Schlueter, for appellees.

Judgment reversed.

Johnson and Ruffin, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A96A2463.
    In the Interest of P. A. W., a child.
    (480 SE2d 347)
   Birdsong, Presiding Judge.

P. A. W. was found to be a juvenile delinquent based on the offenses of burglary and arson. He contends the findings are error because the State offered no evidence of the burglary except the uncorroborated evidence of an alleged accomplice and because the State failed to prove the elements of arson, and that consequently the trial court erred in sentencing him for commission of a designated felony act under OCGA § 15-11-37 (e) (1). Held:

1. The State’s evidence shows that on November 13, 1995, the residence of Mary Albritton was broken into and a shotgun was stolen. A juvenile named B. J. C. testified that appellant broke into the Albritton house with him. B. J. C. admitted taking the shotgun himself, and he said that after leaving the house, appellant said “we need some money and stuff.” B. J. C. testified that he and appellant went to the home of another juvenile, B. P, and attempted to sell him the shotgun. B. P. refused to buy the gun, but B. J. C. signed a paper saying the gun was not stolen and left the gun at B. P.’s house.

The police chief testified that he interviewed appellant and told appellant, “I was aware that there was a possibility that he would be implicated in the burglary, that I knew that he had knowledge of the firearm being missing from that residence, and that I would advise him if he knew where the gun was to turn it in. . . . [Appellant and B. P] brought the gun to city hall. . . . They made a statement to me to the effect that. . . [B. J. C] came to this residence [where appellant was visiting] and drew up a little piece of paper, which I have not seen to this day yet, that supposedly B. P, [appellant], and B. J. C., and some more people had signed stating that [B. J. CJ had the gun, it was his gun, it was not stolen. And they got the gun from [B. J. C.] and sold it to someone in Charlton County.” (Emphasis supplied.) The police chief also testified that he did not charge anyone with burglary except B. J. C. but “then at a later date after B. J. C. made a statement to myself and Sheriff Howard, after he had been convicted of the burglary, he made a statement to me that he would not go down — he would testify that [appellant] was with him.”

B. P. testified that he, appellant and another boy were at B. P.’s house when B. J. C. came in and left the gun there. Appellant also testified he was at B. P.’s house when B. J. C. brought the gun to that house. B. P. testified he took the gun because B. J. C. wanted to get rid of it. At trial, when asked whether he thought appellant turned him in, B. J. C. answered: “I don’t really know.” Appellant testified he was with B. J. C. later when B. J. C. opened a truck and B. J. C. got a gun out of the truck but that he (appellant) had nothing to do with that and he thought B. J. C. might be lying because appellant was not charged with theft in that auto case.

We are unable to find in the evidence any independent corroboration (see OCGA § 24-4-8) of the confessed accomplice’s testimony that P. A. W. participated in the burglary, except the very ambiguous fact that appellant turned in a gun to the police chief after the confessed burglar left the gun at the house where appellant was visiting. The police chief told appellant that he had been implicated in the burglary and “that I would advise him if he knew where the gun was to turn it in.” That is what appellant did.

There must be “independent corroborating evidence which connects the accused to the crime,” (emphasis supplied) and such independent corroborating evidence must do more than merely cast on the defendant a grave suspicion of guilt. Edmond v. State, 267 Ga. 285, 287 (2) (476 SE2d 731); OCGA § 24-4-8. Although slight evidence identifying the accused as a participant in the crime is all that is needed to corroborate an accomplice’s testimony (Martin v. State, 209 Ga. App. 720 (434 SE2d 534)), that evidence must independently and directly connect the accused with the crime itself or lead to the inference that the accused is guilty. Castell v. State, 250 Ga. 776 (301 SE2d 234).

The sufficiency of corroborating evidence is a matter for the jury and if the verdict is based on the slightest evidence of corroboration, it is legally sufficient even if circumstantial. Id. However, a factfinder may connect wholly non-incriminating evidence with an accomplice’s testimony, and, as could have occurred in this case, may also connect it with the fact that the charge is presented with another criminal charge for which evidence of the defendant’s guilt does exist. The factfinder may then find such non-incriminating evidence to be “corroborating” when, independently of the accomplice’s testimony, it does not corroborate the accomplice’s implication of guilt, does not cast grave suspicion on his guilt {Edmond, supra), does not “ ‘[identify] the accused as a participant in the criminal act’ ” {Martin, supra at 722), and does not lead to the inference that he is guilty of the crime. Castell, supra. Therefore, in close cases, whether certain evidence amounts to “corroboration” of guilt and whether that evidence independently amounts to corroboration of guilt may be questions of law for the court.

The fact that appellant turned in the gun stolen from Ms. Albritton’s burgled house after the officer told him that if he “knew where the gun was to turn it in” was not independently incriminating of his participation in that burglary. Unexplained recent possession of stolen property is sufficient to support an inference that the possessor stole the property (Quinn v. State, 222 Ga. App. 423, 424 (474 SE2d 297)), but appellant was not simply found in unexplained recent possession of stolen property. The mere fact that a person turns in stolen property to the police does not independently “[identify him] as a participant” (Martin, supra at 722) in the theft. Although on appeal we are bound to construe the evidence with every inference and presumption in favor of upholding the findings of the trier of fact (In the Interest of R. A. W., 197 Ga. App. 225 (398 SE2d 261)), the fact that appellant knew where the stolen property was and turned it in to the police does not, in the circumstances of this case, imply guilt or even “cast grave suspicion” on his guilt (Edmonds, supra) so as to serve as corroboration of the accomplice’s testimony. Compare In the Interest of J. L. W., 213 Ga. App. 630 (445 SE2d 575) and In the Interest of J. H. M., 202 Ga. App. 79 (413 SE2d 515) where the evidence was independently corroborative of the accomplice’s testimony and directly led to the inference of the appellant’s guilt. To hold otherwise would discourage innocent witnesses from turning in stolen goods, reporting crimes or giving any evidence at all by exposing them to the real possibility of being convicted of the crime merely with the additional vengeful testimony of the true criminal. The only real evidence implying guilt in this case is the accusation of the confessed burglar who admitted leaving the gun at the place where appellant saw it, and this evidence is insufficient to authorize a finding of burglary against P. A. W. OCGA § 24-4-8; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The evidence is sufficient under Jackson v. Virginia, supra, to support the finding that appellant committed arson. Appellant was captured on videotape cashing a check which was taken from the burned house. It is specious if not absurd for appellant to argue that the State cannot prove the arson was unauthorized merely because the house was unoccupied when it was burned. Appellant himself admitted that no one gave him permission to start the fire and that if he started the fire, he did so without authority. The evidence shows the burning of the house was unauthorized, and the elements of arson are present in the case.

Decided January 22,1997.

McGee & McGee, James B. McGee III, for appellant.

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

3. As the court below was authorized to find appellant committed a felony (arson), the sentencing based thereon was proper.

Judgment affirmed in part and reversed in part.

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


author: Ruffin, Judge.

text:
    A96A1721.
    EDWARDS v. THE STATE.
    (480 SE2d 246)
   Ruffin, Judge.

A jury found Oliver Edwards guilty of violating the Georgia Controlled Substances Act by possessing cocaine with intent to distribute. Edwards appeals his conviction, and we affirm.

Viewed in a light most favorable to uphold the verdict, the evidence showed that Officer Van Johnson observed Edwards operating a motorcycle on the sidewalks and in a playground area of Grady Homes. Edwards was driving “very fast” directly in front of apartment doors. Officer Van Johnson stopped Edwards and asked for his license and proof of insurance. When Van Johnson discovered that Edwards did not possess a proper class of license to operate a motorcycle, he placed Edwards under arrest for reckless driving and the license violation. After being arrested, Edwards told Officer Van Johnson that his insurance card was inside the small glove box on the motorcycle. Officer Van Johnson opened the glove box and discovered a medicine bottle containing 29 small packages of crack cocaine. Edwards testified he had recently purchased the motorcycle and was not aware of the pill bottle’s presence inside the glove box.

1. In his first enumeration of error, Edwards contends the trial court erred in failing to grant his motion for continuance. Prior to trial, Edwards moved for a continuance so that he could attempt to locate a material defense witness. According to Edwards, the witness was the individual who sold him the motorcycle, and he could probably locate the witness by the next trial calendar. The court denied the motion for continuance.

Pursuant to OCGA § 17-8-25, “[i]n all applications for continuances upon the ground of the absence of a witness, it shall be shown to the court that the witness is absent; that he has been subpoenaed; that he does not reside more than 100 miles from the place of trial by the nearest practical route; that his testimony is material; that the witness is not absent by the permission, directly or indirectly, of the applicant; that the applicant expects he will be able to procure the testimony of the witness at the next term of the court; that the application is not made for the purpose of delay but to enable the applicant to procure the testimony of the absent witness; and the application must state the facts expected to be proved by the absent witness.” “Each of the requirements of OCGA § 17-8-25 must be met before an appellate court may review a trial judge’s discretion in denying a motion for continuance based upon an absent witness. [Cits.]” Vaughan v. State, 210 Ga. App. 381 (1) (436 SE2d 19) (1993).

In the present case, Edwards failed to meet each of the requirements of OCGA § 17-8-25. Edwards failed to show the witness was subpoenaed, and he failed to show the witness resided within 100 miles of the place of trial. Accordingly, we cannot find that the trial court erred in denying Edwards’ motion for continuance.

2. In his second enumeration of error, Edwards asserts the trial court erred by failing to give a charge on circumstantial evidence. While Edwards correctly points out that it is error for the trial court to fail to give a charge on circumstantial evidence, even absent a request, where the case against the defendant is based entirely on circumstantial evidence (see Jones v. State, 243 Ga. 584, 585 (1) (255 SE2d 702) (1979)), the present case was not based entirely on circumstantial evidence. “Because [Edwards] did not request a charge on circumstantial evidence, it was not incumbent upon the trial court to charge on the law of circumstantial evidence if the State’s case rested on both direct and circumstantial evidence. [Cit.]” Stubbs v. State, 265 Ga. 883, 884 (2) (463 SE2d 686) (1995).

According to Officer Van Johnson, Edwards was alone on the motorcycle, and the individuálly wrapped pieces of cocaine were located in the motorcycle’s glove box. In addition, Edwards admitted he was the owner of the motorcycle. In Stubbs, the Supreme Court held that the officer’s testimony that a metal bar was located in the defendant’s vehicle was direct evidence of the defendant’s possession of the bar. Id. at 886-887. This is true even though the defendant claimed that a man he did not know threw some items in his car and ran off. Id. Likewise, in the present case, Officer Van Johnson’s testimony that cocaine was located in the glove box of Edwards’ motorcycle is direct evidence of Edwards’ possession of the cocaine. This is true notwithstanding the fact that Edwards claimed he had recently purchased the motorcycle and did not know about the cocaine.

Since direct evidence of Edwards’ guilt was presented, the trial court was not obligated to give the unrequested charge on circumstantial evidence. Id.

3. In his third enumeration of error, Edwards contends he was denied his right to effective assistance of counsel. Specifically, Edwards argues his trial counsel was ineffective because he (1) failed to file any pretrial motions objecting to prejudicial and inadmissible evidence illegally seized from him and (2) failed to request a jury charge on circumstantial evidence. After a hearing in which trial counsel testified, the court determined that trial counsel was effective. We agree.

“In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makés both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” (Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). In addition, the trial court’s determination that a defendant has not been denied effective assistance of trial counsel will be affirmed on appeal unless that determination is clearly erroneous. Jones v. State, 217 Ga. App. 722, 723 (2) (458 SE2d 894) (1995).

(a) Edwards has failed to show trial counsel was ineffective because he did not file any pretrial motions objecting to the cocaine’s admissibility. “[I]t is clearly settled that the mere failure to file a suppression motion does not constitute per se ineffective assistance of counsel.” (Citation and punctuation omitted.) Avans v. State, 207 Ga. App. 329, 331 (3) (427 SE2d 826) (1993). “We will not presume a deficiency resulted merely from counsel’s failure to file standard pretrial motions. For example, it is not deficient to fail to file a motion which is frivolous. [Cits.]” Williams v. State, 219 Ga. App. 167, 168-169 (2) (464 SE2d 404) (1995). Even if a deficiency did result from trial counsel’s failure to file a motion to suppress, Edwards’ burden “is to make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed. [Cit.] In this regard, [Edwards] relied upon the trial evidence and presented no additional evidence at the hearing on his motion for new trial. Based upon that evidence, a conclusion by the trial court that a motion to suppress evidence would not have been successful, that is, that [Edwards] had been afforded effective counsel was not clearly erroneous and must be upheld.” Quinn v. State, 221 Ga. App. 399, 401 (3) (471 SE2d 337) (1996) (physical precedent only).

In this case, Edwards claims the cocaine should have been suppressed,because he should not have been arrested for a mere traffic violation and because a vehicle search may not be made incident to the driver’s arrest for a traffic violation. However, according to OCGA §§ 17-4-23 (a) and 17-4-20 (a), an officer may either physically arrest an offender for a traffic violation or issue a citation. See Polk v. State, 200 Ga. App. 17, 18 (406 SE2d 548) (1991). Clearly Officer Van Johnson was authorized to arrest Edwards for the traffic violations. See also Curry v. State, 155 Ga. App. 829 (2) (273 SE2d 411) (1980).

After Edwards was arrested for failing to produce a valid driver’s license for the motorcycle, the officer again asked him about proof of insurance. Edwards informed the officer that his insurance card was inside the glove box, at which point the officer opened the glove box to retrieve the insurance card and noticed the cocaine in plain view. According to the officer, he looked in the glove box for the insurance card rather than allowing Edwards to do so because Edwards was under arrest and “it’s safety precaution to go into the glove box at that time due to the fact that there could be a possible weapon in there, small gun or knife.”

“The Supreme Court has recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” (Citations and punctuation omitted.) Evans v. State, 216 Ga. App. 21, 23 (2) (453 SE2d 100) (1995). Accordingly, “the officer was authorized to insure his own safety by first searching the [glove box]. While doing so, the officer found the . . . cocaine. . . ” Fortson v. State, 262 Ga. 3, 5 (2) (412 SE2d 833) (1992). In addition, following Edwards’ arrest, a search of his motorcycle was authorized. See Baxter v. State, 188 Ga. App. 598 (2) (373 SE2d 834) (1988); Allison v. State, 188 Ga. App. 460, 462 (373 SE2d 273) (1988) (physical precedent only). Because the search of the glove box occurred incident to Edwards’ arrest, the cocaine was admissible.

Based on the evidence presented, Edwards has failed to demonstrate that the trial court clearly erred in finding that a motion to suppress would not have been successful. Accordingly, the trial court’s finding that Edwards was afforded effective assistance of counsel must be upheld. See Quinn, supra.

(b) Additionally, Edwards has not established “a reasonable probability that the result of his trial would have been different had his counsel requested a charge on circumstantial evidence.” Barner v. State, 263 Ga. 365, 368 (5) (434 SE2d 484) (1993). Accordingly, Edwards has not shown that trial counsel’s failure to request this charge constituted ineffective assistance of counsel.

4. In his fourth enumeration of error, Edwards claims the evidence was insufficient to support his conviction. We disagree. Edwards stipulated to the admissibility of the Georgia Bureau of Investigation lab report showing that the substance seized by Officer Van Johnson tested positive for cocaine. Edwards further stipulated that Officer Van Johnson was an expert in law enforcement of drug cases, the packaging of drugs, and the street price of drugs, and testimony concerning the price and packaging of drugs was all admitted without objection. In addition, Edwards admitted that he was the owner of the motorcycle. “Although [Edwards] testified he knew nothing about the cocaine, his credibility was a question for the jury.” (Citations and punctuation omitted.) Reed v. State, 186 Ga. App. 539, 540 (367 SE2d 809) (1988).

Decided January 7, 1997

Reconsideration denied January 23, 1997.

Marshall W. Taylor, for appellant.

Lewis R. Slaton, District Attorney, William C. Akins, John C. Culp, Assistant District Attorneys, for appellee.

The foregoing evidence, construed in a light most favorable to uphold the verdict, was sufficient to authorize a rational trier of fact to find Edwards guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A96A1638.
    DORILLAS v. THE STATE.
    (480 SE2d 351)
   Ruffin, Judge.

Pascal Dorillas appeals from his convictions for theft by taking and false imprisonment. For reasons which follow, we affirm.

1. In his first enumeration of error, Dorillas argues that the trial court erred in not striking for cause two prospective jurors. We disagree.

(a) Dorillas claims that the first juror’s responses during voir dire revealed a bias towards the State. Although initially concerned that past experiences would affect her impartiality, this juror indicated upon further questioning that she thought she could put those experiences aside and act objectively. The juror engaged in the following dialogue with the trial court: “The Court: The question, however, is basically could you, as a member of this jury, . . . consider this case and make a decision based upon the evidence that you hear in this case in this courtroom and my instructions to you as to the law, as opposed to having your, your decisions in this case dictated by previous feelings on things that are not related to this case? [The Juror]: I’d have to think about it. I think that I could, yes.”

“Before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.” Johnson v. State, 262 Ga. 652, 653 (2) (424 SE2d 271) (1993). “ ‘The fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand, as a matter of law that the juror be excused for cause.’. . . [Cit.]” Wilson v. State, 220 Ga. App. 487, 488 (1) (469 SE2d 516) (1996). We will not reverse a trial court’s refusal to strike a juror for cause absent manifest abuse of discretion. Scott v. State, 193 Ga. App. 577, 578 (2) (388 SE2d 416) (1989).

In this case, the juror admitted some doubt about her impartiality, but finally stated that she thought she could be objective. As shown through voir dire, the juror’s opinions were not so “fixed and definite” as to prevent her from deciding the case based upon the evidence and the trial court’s instructions. Under these circumstances, the trial court’s refusal to strike this juror for cause was not an abuse of discretion. See Scott, supra.

(b) Dorillas also argues that the trial court should have excused a second juror because of health problems. During voir dire, this juror indicated that she wanted to serve on the jury and viewed jury service as a privilege, but thought she might not be effective. In particular, she expressed concern that she would have to reschedule a checkup with her cardiologist, whom she had visited every four months since suffering a heart attack four years earlier. Before reporting for jury duty, she was also concerned that the courtroom would not be properly air conditioned. She agreed during voir dire, however, that she was no longer worried about the temperature in the courtroom.

Whether to excuse a juror for hardship lies within the trial court’s discretion. Wilson, supra at 489. Nothing in the record indicates that this juror was unable to reschedule her doctor’s appointment or that her health was at risk. Furthermore, the record reveals no inability on her part to follow the evidence and be fair and impartial. The juror served without apparent difficulty, and there is no evidence that she rushed to judgment. Accordingly, we find no abuse in the trial court’s refusal to strike this juror for cause. Id.

2. In his second enumeration of error, Dorillas argues that the evidence was insufficient to support his convictions for theft by taking and false imprisonment. We disagree.

A person commits the offense of theft by taking “when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” OCGA § 16-8-2. False imprisonment results when, “in violation of the personal liberty of another, [an individual] arrests, confines, or detains [that] person without legal authority.” OCGA § 16-5-41 (a). On appeal, Dorillas’ conviction will be upheld if the evidence, construed favorably to the verdict, was sufficient to authorize the jury to find him guilty beyond a reasonable doubt of these offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Williams v. State, 208 Ga. App. 460 (1) (431 SE2d 130) (1993).

Viewed favorably to the verdict, the evidence presented at trial showed as follows. One afternoon, Dorillas and Theron Christie entered the Gun Corral, a gun shop in DeKalb County, purportedly to purchase ammunition. Doug Hall, manager of the Gun Corral, was working alone that afternoon. Hall retrieved the ammunition and had begun ringing up the sale when Dorillas jumped over the counter, put a gun to Hall’s chest, and backed him into a corner. Hall recognized Dorillas’ gun as a custom-made competition pistol that was stolen from the shop the day before.

Although Dorillas told Hall not to “try anything,” Hall grabbed Dorillas’ weapon with one hand and drew his own .45 caliber gun with his other hand. The two struggled for Hall’s gun, which discharged one bullet into the store cash register. During the struggle, Christie ran out of the store, but was called back by Dorillas. Christie returned, jumped over the counter, and helped disarm and subdue Hall. Dorillas bound Hall’s hands and ankles with duct tape and explained that he and Christie were “just going to get the guns and get out of here.” Dorillas instructed Christie to “go get the guns” and then left Hall in the store’s back room.

After Dorillas left the back room, Hall heard cabinet doors opening, as well as Dorillas and Christie talking in hurried tones. Next, he heard police enter the shop and tell Dorillas and Christie to lie down on the floor. At that point, Hall freed himself from the duct tape and emerged from the back room. Hall noticed that the store’s gun cases were empty, ammunition boxes were in disarray, and two bags were on the floor next to Dorillas and Christie. These bags were filled with guns and ammunition.

The police had been called by the merchant next door, who saw Dorillas and Christie enter the Gun Corral and, within 30 seconds, heard a “commotion” and a gunshot. The merchant asked his partner to call the police, who reported quickly to the scene and found Dorillas and Christie in the shop. When confronted by police, Dorillas began to pull the .45 caliber handgun belonging to Hall out of his pocket, but was quickly subdued by the officers. Police also found an unloaded gun on Christie.

From this evidence, the jury was authorized to find Dorillas guilty beyond a reasonable doubt of theft by taking. Jackson, supra; Moore v. State, 208 Ga. App. 458 (430 SE2d 835) (1993). We similarly find the evidence sufficient to authorize Dorillas’ conviction, beyond a reasonable doubt, of the false imprisonment of Hall. Jackson, supra.

Decided January 23, 1997.

Peters, Roberts, Borsuk & Taylor, Lynne Y. Borsuk, Linda A. Pace, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Desiree S. Peagler, Assistant District Attorneys, for appellee.

3. In his brief, Dorillas also claims that his felony sentence for theft by taking was unsupported because the record did not establish the value of any firearm taken at more than $500. Dorillas, however, failed to enumerate this claim as error. “ ‘It is the basic appellate practice that error argued in the brief but not enumerated as error will not be considered on appeal. (Cit.)’ ” Strickland v. State, 221 Ga. App. 120, 121 (1) (470 SE2d 508) (1996). Furthermore, we note that pursuant to OCGA § 16-8-12 (a) (5), theft of a firearm is punishable as a felony.

Judgment affirmed.

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


text:
    A96A2243.
    LANDAUER et al. v. LITSKY.
    (480 SE2d 349)
   Birdsong, Presiding Judge.

On May 29, 1996, the DeKalb Superior Court granted a default judgment in favor of Hyman Litsky against defendants Konrad Landauer, Joseph Karolyi, and Johannes Schwarzenburg, individually and as partners d/b/a Pin Oak Circle Partnership. The default judgment awarded Litsky $15,000 and voided and rescinded a purchase and sale agreement for incapacity, defective execution and inadequate consideration. An amended judgment filed May 30, 1996, ordered that the premises be delivered to plaintiff Litsky and that defendants “vacate the premises immediately forthwith with the assistance and under the supervision of the DeKalb County Sheriff’s Department.”

Landauer et al. filed notice of appeal of the default judgment on June 3, 1996. They contend the judgment was error because defendants were not personally served in accordance with OCGA § 9-11-4 (d) (7), because the process server who served defendants in Illinois was not duly appointed by the Georgia court per OCGA § 9-11-4 (c), and because the default judgment represented an unliquidated claim as to which there was no evidentiary hearing as required by OCGA § 9-11-55 (a). Held:

Appellee Litsky failed to file a brief in this appeal and the attorney who filed his complaint, Steven A. Hart, is not heard from in this appeal, nor is there any record of withdrawal from the case by attorney Hart. Nevertheless, in the circumstances of this case we will address this case without prejudice to Litsky. The record shows that in the opinion of a Georgia Mental Health Institute psychologist stated in a letter filed of record, Litsky was not of sound mind when he entered the contract to sell property to defendants and “did not know what he was signing.”

Decided January 23, 1997.

Gerber & Gerber, Sanford J. Gerber, for appellants.

Hart & Hart, Steven A. Hart, for appellee.

We find that any question presented by this appeal and these facts is moot and this Court is without jurisdiction of this appeal. The record reveals that on the day this notice of appeal was filed (June 3, 1996), The Honorable Judge Arnold Shulman, in view of appellants’ motion to set aside the judgment or to stay the judgment on a showing that service of process may have been defective, issued an order staying the judgments of May 29 and 30, 1996, and ordering that “the parties shall take no further action to enforce said judgment until the above motion can be heard by this court.”

According to the record, this stay of judgment pending a hearing on defendants’ motion to set aside is still in effect. Therefore, this case and the entire record is remanded to the trial court for a hearing as stated in the trial court’s order of June 3, 1996.

Appeal dismissed and case remanded.

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


author: Pope, Presiding Judge.

text:
    A96A2376.
    JONES v. THE STATE. SMITH v. THE STATE.
    A96A2377.
    (480 SE2d 618)
   Pope, Presiding Judge.

Defendants Brandon Jones and Michael Smith were convicted of burglary. The trial court sentenced them to serve six years on probation, with the special condition that they would spend time in a probation boot camp and would remain incarcerated until there were places available for them in a boot camp. As additional special conditions of probation, the court required defendants to pay restitution to the victim and to reimburse the county for the costs of their court-appointed attorneys. On appeal, defendants accept the validity of their convictions but challenge the propriety of their sentences.

1. Although the sentencing court may provide that a defendant will be incarcerated for a portion of his sentence and serve the remainder on probation, it cannot probate the entire sentence but require a period of uninterrupted incarceration as a condition of probation. Pitts v. State, 206 Ga. App. 635, 637 (3) (426 SE2d 257) (1992). And that is what the court did here when it imposed fully probated sentences but then required that defendants be confined to jail until reporting to boot camp. See Johnson v. State, 219 Ga. App. 547, 550 (3) (466 SE2d 63) (1995), rev’d on other grounds, 267 Ga. 77 (475 SE2d 595) (1996). Accordingly, the court’s sentences must be vacated and the cases remanded to allow the court to resentence defendants.

We acknowledge that, to some degree, this distinction is purely semantic, since on remand the court can effectuate the same result by providing that defendants serve a term of incarceration with the remainder of their sentences probated. But it is a distinction which must be made in light of Pitts and Johnson.

2. The trial court ordered restitution as a condition of probation, but the record does not reflect that a hearing was held or specific findings made regarding restitution as contemplated by OCGA §§ 17-14-8 and 17-14-10. See Woods v. State, 205 Ga. App. 500 (422 SE2d 670) (1992). The State attached exhibits to its briefs in an attempt to show that the factors set forth in these Code sections were properly considered. Even if these exhibits were sufficient to show this, however, we could not consider them, since exhibits to briefs on appeal are not part of the record. See Leatherwood v. State, 212 Ga. App. 342 (1) (a) (441 SE2d 813) (1994). If the trial court again imposes restitution as a condition of probation on remand, it (and the State) should ensure that a hearing is held, the necessary factors are considered, and the necessary findings are made — on the record. See also Radford v. State, 223 Ga. App. 312, 313 (2) (477 SE2d 428) (1996); Howard v. State, 213 Ga. App. 542, 544 (2) (445 SE2d 532) (1994).

3. As another condition of probation, the sentencing court required defendants to reimburse the county for the costs of their court-appointed attorneys. See OCGA § 17-12-10 (c). But the record provides no basis for a determination that defendants were or are able to pay for the employment of attorneys. Thus, this portion of the sentences would have to be vacated even if we were not already vacating the sentences as a whole. See Owens v. State, 187 Ga. App. 262, 263 (1) (369 SE2d 919) (1988). Cf. Miller v. State, 221 Ga. App. 718, 720 (2) (472 SE2d 697) (1996).

4. We need not address defendants’ remaining enumerations of error, as they are unlikely to recur on remand.

Judgments of convictions affirmed. Sentences vacated and cases remanded for resentencing.

Andrews, C. J, and Smith, J, concur.

Decided January 23, 1997.

Parker & Day, Vallerina F. Day, for appellant (case no. A96A2376).

Schrade & Richardson, Melody Z. Richardson, for appellant (case no. A96A2377).

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


author: Andrews, Chief Judge.

text:
    A96A1911.
    WHITE v. ORTON INDUSTRIES, INC.
    (480 SE2d 620)
   Andrews, Chief Judge.

Duane White sued Orton Industries, Inc. (Orton), formerly known as Orton Fluidpower, Inc., to enforce an alleged oral agreement between the parties modifying the parties’ written agreement for the lease of commercial property. Orton denied there was any such oral agreement and moved for summary judgment on the basis that the alleged oral agreement violated the statute of frauds requirement in OCGA § 13-5-30 that any such agreement be in writing. White responded that part performance of the oral agreement pursuant to OCGA § 13-5-31 (3) removed it from the writing requirement of the statute of frauds. The trial court granted Orton’s motion for summary judgment concluding that the alleged oral agreement violated the statute of frauds and that there was no part performance sufficient to remove it from the operation of the statute of frauds. On appeal, White claims the trial court erred in granting summary judgment because a factual issue exists as to whether there was part performance of the oral agreement.

We agree with the trial court that the statute of frauds bars enforcement of the alleged oral agreement, and that, as a matter of law, the evidence did not show part performance of the alleged oral agreement sufficient to create an exception to the writing requirement of the statute of frauds. Accordingly, we affirm the grant of summary judgment in favor of Orton.

Duane White leased commercial property from Orton under a written lease with a three-year term and an option for renewal for an additional three-year term. Under the terms of the lease, White paid no rent during the first year in exchange for improvements specified in the lease that he agreed to make to the property. White alleges in his brief that, during the second year of the lease, he made additional improvements to the property not specified in the lease as an accommodation to Orton for which he received no compensation. The lease did not provide for White to make any additional improvements, and we find nothing under oath in the record to support this allegation. After White renewed the written lease for a second three-year term, he vacated the property prior to the expiration of the second three-year term and ceased paying rent. White claims he vacated the premises pursuant to an oral agreement with Orton providing for early termination of the written lease and for Orton to reimburse him $40,000 for all the improvements he made to the leased property. He brought the present action against Orton seeking to collect $40,000 pursuant to the oral agreement.

It is undisputed that the statute of frauds at OCGA § 13-5-30 required that the agreement leasing the property be in writing. Although subsection 13-5-30 (4), which applies to leases passing estates for years, does not apply because the written lease clearly set forth the parties’ intention to pass only a usufruct, subsection 13-5-30 (5) does apply because the lease was for a term in excess of one year. Macon-Bibb County Bd. of Tax Assessors v. Atlantic Southeast Airlines, 262 Ga. 119 (414 SE2d 635) (1992); Smith v. Top Dollar Stores, 129 Ga. App. 60, 61-62 (198 SE2d 690) (1973); Newton v. Allen, 220 Ga. 681, 682 (141 SE2d 417) (1965).

Where the statute of frauds requires a contract to be in writing, an alleged oral modification of it is ineffective unless the oral agreement falls within an exception to the operation of the statute of frauds. Johnson v. Ashkouti, 193 Ga. App. 810 (389 SE2d 27) (1989). OCGA § 13-5-31 (3) provides such an exception where there has been part performance of the alleged oral agreement sufficient to remove it from the operation of the statute of frauds. Id.; Hendricks v. Enterprise Financial Corp., 199 Ga. App. 577, 579-580 (405 SE2d 566) (1991); Cooper v. G. E. Constr. Co., 116 Ga. App. 690, 694 (158 SE2d 305) (1967).

White claims that his own act of vacating the property and ceasing the payment of rent, along with Orton’s occupation of the property and its failure to demand that he pay the remaining rent due under the written lease, is evidence of part performance of the alleged oral agreement sufficient to create a question of fact. We disagree. In Johnson, supra, a tenant who vacated the leased premises prior to the expiration of a written lease responded to the landlord’s suit for the remaining rent by claiming that his own act of vacating the premises was sufficient to avoid the operation of the statute of frauds because it showed part performance of his oral agreement with the landlord for early termination of the written lease. We rejected this claim holding that “the tenant’s mere act of vacating the premises prior to the expiration of the term established by his written lease is no more consistent with his performance of an alleged oral release than with his unilateral abandonment of the premises.” Id. at 811 (1). It follows that White’s act of vacating the premises and ceasing payment of rent does not tend to prove the existence of the alleged oral agreement. Similarly, even if, as White alleges, Orton occupied the premises after he vacated it, and Orton has not demanded payment of rent due under the written lease, these additional facts are not sufficient to show part performance of an alleged oral agreement to pay White $40,000 for improvements to the property. When part performance of an oral agreement is relied upon to establish an exception to the statute of frauds, “ ‘the part performance must be performance of an essential element of the contract sought to be proved, and of a character which would render it a fraud on the plaintiff if the defendant refused to comply.’ [Cit.]” Smith, supra at 63. None of the acts relied upon by White as evidence of part performance tend to prove the existence of a contract between the parties to pay White $40,000 for improvements he made to the property. See Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343, 344 (259 SE2d 729) (1979); Smith, supra at 63.

Decided January 24, 1997.

Timothy C. Price, for appellant.

James Alexander, pro se.

The trial court did not err by finding, as a matter of law, that there was no part performance sufficient to remove the alleged oral agreement from the operation of the statute of frauds. Hendricks, supra; Johnson, supra.

Judgment affirmed.

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


text:
    A96A2218.
    PENNINGTON et al. v. BRAXLEY et al.
    (480 SE2d 357)
   Blackburn, Judge.

After discovering that the house they recently purchased was infested with bats, Lee Wall Pennington and Carl C. Pennington sued the real estate agent who assisted the seller in the transaction, the agency he represented, and his broker. The Penningtons appeal the grant of defendants’ motion for summary judgment on their claim of professional malpractice, asserting that such a claim is not barred by the “entire agreement” clause contained within their sales contract. The Penningtons further assert that the entire agreement provision should be declared void as against public policy as it constitutes an impermissible exculpatory clause.

The Penningtons entered into a sales contract to purchase the home in July 1992. The contract they signed expressly stated that it contained the “entire agreement” of the parties and that the buyers were purchasing the property “as is.” On various occasions after taking possession of the property, the Penningtons received indications that bats were present inside the house, but the severity of the problem was not determined until June 1993 when approximately 125 live bats were found nesting inside the walls of the house. Because of the number of bats and the amount of bat guano located within the walls as well as other factors, the Penningtons determined that the infestation pre-dated their purchase. The Penningtons filed suit against Don Braxley, the real estate agent who represented the seller, on the grounds of fraud, misrepresentation, and professional malpractice. The Penningtons also sued Chambers Realty & Associates, C.R.A., the agency Braxley was affiliated with, and Frank Chambers, who was Braxley’s broker, claiming they were derivatively liable for Braxley’s acts and omissions. The seller was originally a party to the litigation but was dismissed from the underlying suit. The record reflects that Braxley knew that bats occasionally got inside the house at the time the Penningtons entered into the sales contract, but there is no indication he understood the severity of the problem.

The trial court granted the motion for summary judgment filed by Braxley, his agency, and his broker. The trial court found that because the Penningtons never rescinded the contract, their claims for fraud and negligent misrepresentation were barred by the entire agreement clause contained therein. The trial court also found that the allegations of malpractice, which concerned Braxley’s failure to disclose the bat problem, were so akin to the claims for fraud that they too were barred by the entire agreement clause within the contract.

1. The Penningtons assert the trial court erred in granting summary judgment on their claims of malpractice by treating it like a claim for fraud. To evaluate this contention, it is necessary to analyze when and why an entire agreement clause works to bar a fraud claim.

“When a vendee is induced to enter into a contract for the purchase of land by fraud of the vendor, when the vendee discovers the fraud he has an election of remedies. One of such remedies is to rescind the contract, and another is to affirm the contract and sue for damages for the fraud.” (Punctuation omitted.) Wilhite v. Mays, 239 Ga. 31 (235 SE2d 532) (1977). If the purchaser affirms the sales contract, he is “bound by the contract’s terms and is subject to any defenses which may be based on the contract.” Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, 524 (448 SE2d 271) (1994). In the event the contract contains an entire agreement clause, that clause operates as a disclaimer, establishing that the written contract completely and comprehensively represents all the parties’ agreement. This clause then bars the purchaser “from asserting reliance on the alleged misrepresentation” not contained within the contract. Id. at 523. Therefore, any fraud claim the purchaser might assert would be barred because reliance is an element essential to establishing fraud. Id. In Hightower, summary judgment was entered on the fraud claim of a purchaser who had sued the real estate agent who represented the seller. Summary judgment was granted because the purchaser affirmed the sales contract which contained an entire agreement clause.

The Penningtons contend that their malpractice claim should not be treated as fraud, arguing that a malpractice claim only requires a plaintiff to demonstrate (1) duty, (2) failure to perform that duty in accordance with the recognized standard of care, and (3) that the failure proximately caused injury to the plaintiff. See generally Grantham v. Amin, 221 Ga. App. 458, 459 (471 SE2d 525) (1996) (elements of medical malpractice); Perry v. Ossick, 220 Ga. App. 26, 29 (467 SE2d 604) (1996) (elements of legal malpractice). They argue that because reliance is not an element required to prove a malpractice claim, the presence of the entire agreement clause in their sales contract should not bar their malpractice claim. The Penningtons’ argument is without merit.

First, while reliance is not an express element of malpractice, in this matter, it must be implicitly proved. To demonstrate that Braxley’s concealment proximately caused their injury, a required element of a malpractice action, the Penningtons must demonstrate they relied on Braxley to disclose the bat problem. However, the entire agreement clause would prevent the Penningtons from demonstrating that Braxley’s misrepresentations were the proximate cause of their injury.

Second, whatever it is labeled, the malpractice claim against Braxley is, in essence, a claim of fraud. The inequity in treating this type of malpractice allegation as something different from fraud is apparent from the facts of this case, as one party could be held liable for certain conduct while another party who participates in the same or even more egregious conduct could escape liability. The record in this case reveals substantial evidence that the seller was aware of a long-term problem with bats — she had previously lived in the house, her tenants had complained of bats, she sought advice on how to alieviate the bat problem from a pest control company and the county extension agent, and she took measures inside the house to repel bats. While the record reflects that Braxley was aware that the seller had a problem with bats, there is no direct evidence that he knew of its severity. Despite substantial evidence of the seller’s knowledge, under the Penningtons’ reasoning, she could evade liability for her failure to disclose the bat problem by virtue of the entire agreement clause found in the sales contract. While the evidence of Braxley’s concealment is far weaker, he could not avoid liability for the simple reasons that his failure to disclose the problem could be described in terms of malpractice as well as fraud. To permit this type of malpractice claim to survive against Braxley, when a fraud claim would not, simply exalts form over substance. See Bytell v. Paul, 173 Ga. App. 83, 84 (325 SE2d 451) (1984) (“[f]orm should not prevail over substance”).

In light of the above, the trial court did not err in treating the Penningtons’ claim of malpractice, based solely on Braxley’s failure to disclose, in the same manner as a fraud claim.

2. The Penningtons contend that an entire agreement clause is similar to an exculpatory clause, and therefore its inclusion in their residential sales contract violates public policy. An entire agreement clause does not equate to an exculpatory clause. Exculpatory clauses limit liability, generally for negligent acts. For example, Porubiansky v. Emory Univ., 156 Ga. App. 602 (275 SE2d 163) (1980), the primary case cited by the Penningtons, concerned a contract provision where a dental patient waived any and all claims arising out of her treatment. By contrast, entire agreement clauses generally concern contractual liability, and provide that all oral representations have merged into the written contract. See Hightower, supra. While an entire agreement provision may, in some instances, result in a waiver of claims, the parties to the contract have ultimate control over its impact by reducing all the vital terms of their contract to writing. Also, a party signing a contract containing an entire agreement clause is not absolutely bound by it. If that party later learns of a fraud that induced the contract but is not reflected in the contract’s terms, the party has the choice of rescinding the contract and suing on the fraud or affirming the contract and being bound by its terms. The entire agreement clause will bar the fraud claim only in the latter instance.

Because of key differences in the purpose and effect of an exculpation clause as opposed to an entire agreement clause, this enumeration is without merit.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

Decided January 24, 1997

Adams & Jordan, Virgil L. Adams, Cynthia A. Wilson, for appel- . lants.

Lefco & Blumenthal, Stanley M. Lefco, for appellees.

       In certain circumstances, a real estate agent involved in the transfer of defective property may be liable to the buyer if the agent knows of the defects but does not disclose them. See Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 76 (441 SE2d 421) (1994).

       See Allen v. ReMax North Atlanta, 213 Ga. App. 644, 646-647 (2) (445 SE2d 774) (1994) (real estate brokers and salespersons are licensed professionals subject to malpractice claims).


text:
    A96A2281.
    KHAMIS ENTERPRISES, INC. v. BOONE.
    (480 SE2d 364)
   Judge Harold R. Banke.

After Frank D. Boone filed a declaratory judgment action attempting to assert a right to a sign easement on certain property, Khamis Enterprises, Inc. (“Khamis”) counterclaimed, seeking to eliminate Boone’s claim of an easement interest. Following a bench trial, the court granted declaratory relief to Boone and denied Khamis’ petition to quiet title. On appeal, Khamis enumerates seven errors.

In 1984, Boone acquired approximately one acre of undeveloped land. Several years later, Boone conveyed a “perpetual easement” to Nowlin Realty Trust, Inc. (“Nowlin”) for the express purpose of constructing, operating and maintaining one outdoor advertising sign. This “1988 sign easement,” recorded on June 8, 1989, did not specify a particular location for the sign. When Boone later sold the remaining land (“store property”) in 1989 to Synergy Marts Corporation (“Synergy”), he conveyed it subject to an exception for a legally described four foot square section (“small parcel”) intended as the base of a sign.

After Boone completed the transfer to Synergy, he pursued the acquisition of the sign easement from Nowlin so that he could erect a sign because Boone did not believe that the small parcel he owned was sufficient. In 1990, Nowlin and Tillman Nowlin Realty, Inc. (“Tillman”) quitclaimed the sign easement to Boone in exchange for $20,000 and properly recorded the deed.

In 1991, Synergy conveyed its interest to Randall G. Guill, a principal in Khamis, who transferred his interest to Khamis in 1994. It is not contested that Boone is the fee simple owner of the small parcel or that Khamis owns the main store property, a convenience store/gas station site. Khamis challenges the trial court’s determination that Boone is the holder and owner of rights to the sign easement on Khamis’ servient property. Held:

1. Khamis contends that the trial court erred in determining that the 1990 quitclaim deed from Nowlin and Tillman to Boone had the effect of transferring a sign easement to Boone. Khamis argues that the 1990 quitclaim deed failed to vest a sign easement in Boone and that Boone merely owns the small parcel, nothing more. Khamis further asserts that description in the 1988 easement conveyance was legally insufficient.

An easement interest can be effectively conveyed by the use of a quitclaim deed. McDonald v. Dabney, 161 Ga. 711, 729 (3) (132 SE 547) (1926). A quitclaim deed affords the same protection to a purchaser as a warranty deed when executed by the true owner and properly recorded. Archer v. Kelley, 194 Ga. 117, 122 (1) (21 SE2d 51) (1942); Pindar, Ga. Real Estate Law & Procedure, § 19-5 (4th ed. 1993).

In interpreting an express easement, the rules of contract construction apply and the cardinal rule is to ascertain the intent of the parties. Irvin v. Laxmi, Inc., 266 Ga. 204, 205 (1) (467 SE2d 510) (1996). Arriving at this intention requires consideration of the whole deed, the contract, the subject-matter, the object, the purpose, the nature of restrictions or limitations, the attendant facts and circumstances of the parties at the time of making the deed, and the consideration involved. Daniel v. Ga. Power Co., 146 Ga. App. 596, 599 (4) (247 SE2d 139) (1978).

The 1988 easement deed at issue here provides, “[s]aid perpetual easement is for the purpose of erecting, repairing, maintaining, improving and changing not more than one outdoor advertising structure(s) on the above described premises together with free right of ingress and egress. . . .” By its terms, Nowlin was to pay Boone $40,000 for the right to erect one sign anywhere on the property.

According to the express terms of the properly recorded 1990 quitclaim deed, Nowlin and Tillman agreed to “release, quitclaim and forever demise any interest they may have in the above-described property as may have been created by the easement deed recorded in Deed Book 5361, Page 206, Cobb County records and that sales contract recorded in Deed Book 5494, Page 140, Cobb County records.” By this symmetrical language, Boone obtained the same easement rights which Nowlin had earlier obtained from him, an easement to place one sign anywhere on the servient property. Thus, when Nowlin and Tillman sold and conveyed the 1988 sign easement to Boone transferring the interest by the 1990 quitclaim deed, Boone became the owner of a sign easement as legally described in the Cobb records. McDonald, 161 Ga. at 729 (3).

The trial court correctly ascertained that the purpose of the 1990 quitclaim was to convey a sign easement to Boone. See Rogers v. Pitchford, 181 Ga. 845, 847 (184 SE 623) (1936). Parol evidence may not be considered unless the written instrument is ambiguous. Irvin, 266 Ga. at 205 (1). Here, there was no ambiguity and the construction of the quitclaim deed at issue was a question of law for the court. OCGA § 13-2-1.

Notwithstanding Khamis’ claim to the contrary, when Boone conveyed his interest to Synergy, that transfer was subject to Nowlin’s existing duly recorded easement. Calhoun v. Ozburn, 186 Ga. 569, 572 (5) (198 SE 706) (1938). As the evidence shows that Nowlin was a purchaser for value and that the sign easement was properly recorded, Synergy and subsequent takers took subject to the sign easement. Webster v. Snapping Shoals Elec. Membership Corp., 176 Ga. App. 265, 266 (1) (a) (335 SE2d 637) (1985).

Khamis argues that Boone cannot enforce an easement which he alleged in an earlier lawsuit had been procured by deception, fraud, and in breach of fiduciary duty. It is undisputed that the 1990 quitclaim deed at issue was executed to settle Boone’s 1990 lawsuit against Nowlin and others. In that action, Boone alleged that Nowlin’s 1988 sign easement was “forged, altered, invalid, and obtained by fraud and deceit.” Relying in part on allegations from that suit, Khamis claims that the 1990 quitclaim deed merely terminated the alleged “forged easement” from 1988, evidenced Nowlin’s complete cancellation of any easement rights, and perfected Synergy’s rights. However, the earlier action which was dismissed with prejudice, lacked a court-rendered judgment, and had different parties. See OCGA § 9-12-40.

Boone’s allegations in the earlier suit did not constitute judicial admissions which could not be later denied or disputed. When admissions in pleadings are introduced as evidence in a later and different action, as here, they no longer operate as admissions in judicio, but rather as evidentiary admissions which may be explained or contradicted. Foster v. State, 157 Ga. App. 554, 556 (278 SE2d 136) (1981). Boone’s uncontroverted explanation was that he filed the prior action because he had not received full payment from Nowlin, desired to negotiate better terms, and wanted the easement in order to erect a billboard at a location other than on the small parcel.

Easements may only be terminated by operation of law or by the express terms of the deed granting the easement. Pindar, § 8-28. Because the instrument provided for a “perpetual” easement of indefinite duration, this easement could only be cancelled or terminated by operation of law. Khamis contends that the easement ceased to exist when Nowlin conveyed its easement rights to Boone because at that time the property interests reunited and merged. However, when Boone obtained the easement in 1990, he no longer owned the servient land, the store property, so no merger was possible. Compare Wallace v. City of Atlanta, 228 Ga. 166, 167 (184 SE2d 576) (1971).

Finally, we find no merit to Khamis’ assertion that the 1990 quitclaim deed contains two “utterly inconsistent” clauses so as to trigger the application of OCGA § 44-5-34. For the above reasons, the trial court did not err in finding that Boone is the owner and holder of a sign easement on Khamis’ servient property.

2. The trial court correctly determined that Boone was not out of the chain of title after 1989. At the time Boone conveyed the store property to Synergy, the sign easement was of record and owned by Nowlin. The warranty deed conveying the store property was subject to all easements of record. All subsequent owners of the store property were on notice of and took subject to, the sign easement. Deas v. Hughes, 264 Ga. 9, 11 (3) (440 SE2d 458) (1994) (even where easement not referenced in deed of conveyance, notice may subject purchaser to an existing easement).

Although Khamis’ expert, a real estate attorney, testified that she did not find an easement in her research of the grantor index, she admitted that she did not check the grantee index for Boone while doing the title search because she considered Boone out of the chain of title in 1989. However, the expert’s testimony that she did not believe that there was a reason to check the grantee index, is not dis-positive of the sign easement’s existence, as the recorded documents disclose its existence. Deas, 264 Ga. at 11 (3).

3. In three enumerations, Khamis asserts that the trial court improperly considered extraneous matters and inadmissible evidence in determining the validity of Boone’s easement interest. Easements may originate by express grant, prescription, implication, and condemnation. OCGA § 44-9-1. The easement right asserted here is based on an express grant, not a mistaken impression by the servient landowner or its agent. Guill’s testimony that he offered to swap another small parcel with Boone after deciding that Boone’s small parcel would interfere with his development plans is irrelevant to the issue of whether Boone had obtained an easement by express grant. Similarly, Guill’s admission that he knew that Boone was claiming a right to the small parcel and a sign easement before he sold the store property to Khamis is also immaterial. The evidence supported the trial court’s determination that the legal documents showed the creation of an easement. Daniel, 146 Ga. App. at 599 (4).

Nor must we consider whether the trial court incorrectly admitted testimony and exhibits relating to Boone’s dealings with Khamis or with Corey Advertising. Whether the trial court considered Boone’s negotiations with them is immaterial because a judgment right for any reason will be affirmed. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991).

4. The trial court did not err in determining that Khamis was chargeable with notice of all conveyances duly recorded. Khamis claims that the trial court erroneously relied upon a 1991 legally deficient easement which Khamis tendered as Defendant’s Exhibit 8 and to which Khamis refers as a “void easement.” The document, purportedly between Ted Crolley of Synergy and Boone in 1991, fails to specify a grantor, lacks a legible signature and is an invalid instrument. Both Boone and Khamis’ expert testified it was not valid. Notwithstanding Khamis’ argument, the record fails to show that the trial court gave any consideration to this document.

Decided January 24, 1997

McLarty, Robinson & Van Voorhies, John E. Robinson, Pratt H. Davis, for appellant.

Talley & Darden, David P. Darden, for appellee.

5. Inasmuch as the trial court did not err in finding that Boone is the owner and holder of an easement interest, it necessarily follows that the trial court properly denied Khamis’ counterclaim to quiet title.

Judgment affirmed.

Beasley and Blackburn, JJ, concur.