text:
    A95A2323.
    LEDFORD v. THE STATE.
    (469 SE2d 401)
   Andrews, Judge.

Joseph Kane Ledford was convicted of violating the Georgia Controlled Substances Act (OCGA § 16-13-30). On appeal, Ledford seeks to overturn the court’s denial of his motion to suppress.

When reviewing a trial court’s ruling on a motion to suppress, evidence is construed by this Court most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Morgan v. State, 195 Ga. App. 732, 735 (2) (394 SE2d 639) (1990). So viewed, the evidence showed that: on March 25, 1994, at about 10:00 p.m., the Riverdale police arranged with an individual (informant no. 1) to set up a marijuana deal for the next morning. The next morning, Riverdale police confronted an individual (informant no. 2) in possession of an ounce of marijuana. Informant no. 2 advised police that Ledford was involved in the sale and distribution of marijuana. From the police department, informant no. 2 called a pager number belonging to Ledford. When the page was returned, informant no. 2 asked the caller to deliver an ounce of marijuana to the Stop and Go located at the corner of Taylor Road and Highway 138. The caller stated that he would send two individuals to deliver the marijuana. The officers and informant no. 2 then proceeded to the Stop and Go and confronted two individuals who subsequently consented to a search revealing an ounce of marijuana. Informants nos. 3 and 4, previously unknown to the officers, claimed that they had just left Ledford at his house nearby and he had a pound or one and one-half pounds of marijuana in the trunk of his 1984 Ford Thunderbird. Informants nos. 3 and 4 then arranged for Ledford to meet them at the Stop and Go and instructed Ledford to bring the pound and a half of marijuana with him.

After transporting informants nos. 3 and 4 to jail, at about 5:00 p.m., the police set up a roadblock on Taylor Road about three-fourths of a mile from the Stop and Go, directly on Ledford’s route. The stated purpose of the roadblock was to check licenses and insurance, and police stopped all cars. Compare Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979). Officer Knowles radioed Sergeant Dorner, who was working the roadblock, to watch specifically for Ledford, who was expected to be driving a dark-colored 1984 Ford Thunderbird. Dorner had transported one of the informants to jail just prior to establishing the roadblock.

After police stopped Ledford at about 5:25 p.m., Dorner detected the odor of alcohol and administered field sobriety tests. Ledford, then underage, admitted he had been drinking. Because Dorner thought that Ledford might be under the influence of drugs, he asked Ledford to consent to a search of his vehicle and Ledford repeatedly refused. Police read Ledford his Miranda rights but did not formally place him under arrest while they awaited the arrival of a K-9 unit, dispatched and en route before Ledford was stopped. Ledford was not permitted to leave and was forced to await the drug detection unit’s arrival. The trial court determined that the length of Ledford’s detention from the conclusion of the field sobriety tests to the arrival of the drug unit was about 12 minutes. At approximately 6:12 p.m., Agent Hudson arrived on the scene with a drug detection dog. After the K-9 dog indicated the presence of drugs in Ledford’s vehicle’s trunk and on the passenger side of the vehicle, police placed Ledford under arrest.

1. Ledford contends that the trial court erroneously denied his motion to suppress because the police lacked articulable suspicion to justify an investigatory stop of his vehicle.

An initial investigative stop requires that the arresting officer have only reasonable, articulable suspicion, not probable cause. State v. Thomason, 153 Ga. App. 345 (1) (265 SE2d 312) (1980). An officer may conduct a brief investigatory stop of a vehicle, if such stop is justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Evans v. State, 216 Ga. App. 21 (2) (453 SE2d 100) (1995); Burdette v. State, 210 Ga. App. 471 (436 SE2d 502) (1993) (holding reasonable inference of suspect’s presence in an area for reasons related to present or incipient drug activity sufficient to justify investigative stop).

The police had the following information. Three informants had implicated Ledford as having a substantial amount of marijuana. Two informants described Ledford’s vehicle and the location of the drugs inside the car. Two claimed that Ledford had dispatched them to the Stop and Go to effectuate a small marijuana sale. Ledford arrived at the traffic check point on the route the informants had predicted that he would travel. We find that the police had specific articulable facts sufficient to give rise to reasonable suspicion. Evans, 216 Ga. App. at 23.

2. Ledford contends that the motion to suppress was erroneously denied because the roadblock was established by police for pretextual purposes. Ledford claims there is no evidence that the police set up the roadblock for any other purpose other than to intercept him because they had knowledge that he would be driving northbound on Taylor Road. Ledford argues that he was singled out among other motorists based on uncorroborated information.

Pretermitting an analysis of whether the police created the roadblock to snare Ledford, we initially note, as discussed in Division 1, that the police had reasonable suspicion to stop Ledford, independent of any roadblock. However, having completed the license and insurance check as well as the field sobriety testing, the police did not permit Ledford to leave. The issue is whether it was reasonable to detain Ledford for about 12 minutes pending the arrival of the drug detection unit.

Relying on VonLinsowe v. State, 213 Ga. App. 619 (445 SE2d 371) (1994), Ledford contends his detention was illegal and he should have been permitted to leave. We disagree. VonLinsowe’s detention was premised on an anonymous tip of unknown reliability. Here, the brief seizure of Ledford was based on the following specific facts: 1) informant no. 2, arrested with a small amount of marijuana, claimed that Ledford was his source; 2) informant no. 2, after using what he maintained was Ledford’s pager number, arranged another small marijuana sale to occur at the Stop and Go; 3) pursuant to the pager call allegedly to Ledford, informants nos. 3 and 4 appeared at the proper time and at the designated location for a sale of marijuana arranged by informant no. 2 and purportedly involving Ledford; 4) informants nos. 3 and 4 stated that Ledford had sent them to conduct the marijuana transaction (a fact supported by their appearance at the appointed time and place); 5) both informants nos. 3 and 4 claimed they had just observed a substantial amount of marijuana in Ledford’s vehicle; 6) both informants described Ledford as a white male and stated he would be driving a dark-colored Ford Thunderbird in a northbound direction as he approached the Stop and Go; 7) the police knew that the person they were detaining was Ledford. The brief investigatory detention was not designed to be arbitrary or harassing. See Foster v. State, 208 Ga. App. 699 (1) (431 SE2d 400) (1993). Given the amount of corroborated and first-hand information the police possessed, we find the grounds for detaining Ledford for a relatively brief time and for a limited purpose were reasonable under the circumstances. See generally United States v. Sharpe, 470 U. S. 675, 686 (105 SC 1568, 84 LE2d 605) (1985) (detaining suspected drug dealer stopped for traffic violation and waiting 20 minutes for Drug Enforcement Agency agent was reasonable where articulable suspicion of drugs); United States v. Place, 462 U. S. 696, 709-710 (103 SC 2637, 77 LE2d 110) (1983) (holding 90-minute stop lacking probable cause disapproved); Jackson v. State, 191 Ga. App. 439 (382 SE2d 177) (1989) (holding two-hour detention neither brief nor momentary).

Having determined that there was an adequate basis for briefly detaining Ledford, independent of a roadblock, we need not address a tangential matter, the propriety of the roadblock itself. See State v. McCloud, 187 Ga. App. 580, 582 (370 SE2d 831) (1988) (ruling of trial court that traffic stop pretextual reversed); Evans v. State, 190 Ga. App. 856 (380 SE2d 332) (1989) (setting forth factors for determining the objective reasonableness of a roadblock). Because Ledford has failed to show any error, the trial court properly denied his motion to suppress.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided February 20, 1996.

Stephen E. Boswell, for appellant.

Robert E. Keller, District Attorney, Per B. Normark, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A95A2358.
    THE STATE v. CANIDATE.
    (469 SE2d 710)
   Andrews, Judge.

The State appeals the trial court’s granting of Driscoll Eldon Canidate’s motion to suppress. The sole issue to be decided on appeal is whether the police officer had a reasonable suspicion of criminal conduct so as to justify the investigatory stop.

The evidence at the hearing showed that, on January 26, 1995, Officer Callihan was responding to a report of a stalled car when he noticed a brown Nissan Maxima in the driveway of a house which he knew had previously been raided. Callihan drove past and continued to respond to the call on the stalled car. When he arrived at the reported location, there was no stalled car, so Callihan turned around and drove back in the direction of the house. He saw a brown Maxima coming toward him and, thinking the driver may have been buying drugs at the house, pulled around behind the car to get the tag number and see if there were any equipment violations or anything else that would give him probable cause to pull the car over. The officer testified that the car appeared to accelerate as he was turning around to pull in behind it. Callihan testified that he was behind the car for a total of ten or fifteen seconds before the driver pulled over. Callihan said the car quickly pulled over into the parking lot of a real estate business, and the driver, later identified as Canidate, got out. Callihan followed the car into the parking lot and asked Canidate why he was trying to avoid him. Canidate explained he was trying to get to the real estate agent’s to see about buying a house. After questioning Canidate, Callihan went back to his car to run the information and found that Canidate’s driver’s license was suspended. Callihan then asked Canidate for his driver’s license. Canidate started looking for the license and Callihan noticed an open container of alcohol in the car. Officer Callihan asked Canidate if he could look in his car and Canidate refused. The officer then told Canidate that he already had criminal charges against him for driving with a suspended license and explained to him that the police knew about the reputation of the house where he had been parked. At that point, Canidate said, “Well, go ahead. You can look.” When Officer Callihan bent down to look in the car, he saw the end of a gun sticking out from the area between the seat and the console. As Callihan reached in to pull the gun out, Canidate turned and ran. Canidate was eventually caught and charged with carrying a concealed weapon, DUI, obstruction of an officer, possession of a firearm by a convicted felon, and driving with a suspended license.

Canidate’s version of the incident differs from Officer Callihan’s. Canidate testified the police car turned around in the middle of the street and followed him with just a few feet in between the cars. Canidate stated that he slowed down and pulled over to see if the officer wanted to get by, but instead of passing him, the officer blinked his lights and then turned on all his flashing lights, at which point Canidate turned into the parking lot of the real estate office.

The trial court found that Officer Callihan effected a stop by pulling around behind Canidate, following him closely and pulling in after him when Canidate turned into the parking lot. The court found that the stop was based on a hunch and not a particularized and articulable suspicion that Canidate was involved in some criminal activity.

“On motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.” (Citations and punctuation omitted.) Dimick v. State, 178 Ga. App. 60, 61-62 (341 SE2d 914) (1986). In reviewing the record and pertinent case law, we find that the trial court correctly determined that Officer Callihan did not have a particularized and objective basis for suspecting Canidate of criminal activity. United States v. Cortez, 449 U. S. 411, 418 (101 SC 690, 66 LE2d 621) (1981).

Officer Callihan freely admitted that he did not have any basis for stopping Canidate when he pulled in behind him. He also stated that he followed Canidate into the parking lot with the intention of questioning him. But, the State contends that when Canidate sped up and pulled into the parking lot and got out of his car, then the totality of the circumstances created an articulable suspicion that something was going on and Callihan was justified in detaining him.

The standard for a Terry stop has been set forth repeatedly. “Although an officer may conduct a brief investigative stop of a vehicle, [cit.], such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968). [Cit.]” (Punctuation omitted.) Tarwid v. State, 184 Ga. App. 853 (1), 854 (363 SE2d 63) (1987). “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. [Cits.]” (Punctuation omitted.) Tarwid, supra at 854.

Decided February 20, 1996.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Assistant District Attorney, for appellant.

Corinne M. Mull-Milsteen, for appellee.

Case law applying these standards supports our conclusion that the investigatory stop was not justified. In State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994), the defendant made a wide U-turn in the middle of the street, apparently to avoid driving by two police cars parked by the side of the road. In addition, the driver did not use his turn signal before making the turn. In light of this “suspicious” behavior, the officer stopped the driver for failing to signal and cited him for DUI. We affirmed the trial court’s granting of a motion to suppress, finding the stop was not justified since the officers did not observe the driver commit any crime and there were no facts to indicate he was about to violate the law. Id. at 594. A “hunch” that someone has turned around to escape police detection of some wrongdoing is insufficient as the basis for an investigative stop. Jones, supra at 594 (citing Terry, supra).

Here, Canidate’s act of pulling over into the parking lot did not furnish any additional reason sufficient to create an articulable suspicion justifying a Terry stop. Jones, supra. See also Postell v. State, 264 Ga. 249 (443 SE2d 628) (1994) (officers who were given information that a drug courier was making a delivery at a certain address had no reason to stop defendant near that address, even though defendant had been stopped previously several times on informant’s tip that he was a drug courier); Brown v. State, 188 Ga. App. 184 (372 SE2d 514) (1988) (no reason to stop defendant although car fit drug courier “profile” and after officer began following the car made a quick lane change and crossed into the emergency lane). Accordingly, for the reasons discussed above, we find the officer did not have an articulable suspicion as a basis for the investigatory stop, and, therefore, the trial court did not err in granting Canidate’s motion to suppress.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A95A2496.
    BUDGET RENT-A-CAR OF ATLANTA, INC. v. WEBB.
    (469 SE2d 712)
   Blackburn, Judge.

Budget Rent-a-Car of Atlanta, Inc., (Budget) brought the underlying action against Lance Webb to recover damages to its rental vehicle caused by Webb’s negligent operation of the vehicle and violation of the “Use Restrictions” of their rental agreement. At the close of evidence, the trial court denied Budget’s motion for directed verdict and the jury returned a defendant’s verdict. The trial court denied Budget’s motion for judgment n.o.v., and this appeal followed.

Webb traveled to Georgia on behalf of his employer Lumber Systems, Inc. (Lumber). The credit card which Webb used in the transaction was in the name of “Lance N. Webb” with the name “Lumber Systems Inc.” immediately under Webb’s name. In defendant’s amended answer however, he admitted that he and plaintiff had entered into the subject rental agreement and that it provided that the “vehicle will not be used or operated by anyone . . . [w]ho is not capable of safely driving the vehicle due to . . . drowsiness.” Defendant was listed as the “Renter” on the agreement and the agreement required that the renter return the vehicle in the same good operating condition.

On the night of the wreck, Webb got home from work around 6:00 or 7:00 p.m. and drove alone to Augusta to have dinner. During this trip Webb, while driving at 65 mph, fell asleep and wrecked the vehicle which was ultimately returned to Budget in a damaged condition. Budget’s expert testified that the fair market value of the vehicle prior to the wreck was $12,163 and that the fair market value of the wrecked vehicle was $2,000. On the second attempt, they were able to sell the wrecked vehicle at public auction for $2,000. Defendant has never compensated plaintiff for damages to the involved vehicle.

Webb argues that his employer, Lumber, is a co-obligor of any obligation and plaintiff’s failure to name Lumber as a party is fatal to its claim. He further argues that he was acting as the agent for Lumber, within the scope of his employment at all times relevant to this action and was not personally liable under the agreement.

1. Budget contends that the trial court erred by denying its motion for directed verdict and its motion for judgment n.o.v. in that the undisputed evidence showed that Webb had breached the rental agreement and was personally liable for such breach.

“A contract is an agreement between two or more parties for the doing or not doing of some specified thing.” OCGA § 13-1-1. “[A]n action at law lies for breach of a contract and that damages are given as compensation for the injuries sustained. The elements of a right to recover for a breach of contract are the breach and the resultant damages to the party who has the right to complain about the contract being broken.” (Citations omitted.) Graham Bros. Constr. Co. v. C. W. Matthews Contracting Co., 159 Ga. App. 546, 550 (284 SE2d 282) (1981). It is uncontroverted in the record that Webb rented a 1990 Chrysler LeBaron from Budget pursuant to a valid, written rental agreement and thereafter wrecked it after falling asleep at the wheel while driving alone on Interstate 20. As a result of the wreck, the car was damaged and sold for salvage.

“ ‘In determining whether the trial court erred by denying [plaintiffs] . . . motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. “A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict.” ’ ” (Citations omitted.) Parks v. Howard, 197 Ga. App. 405, 407 (398 SE2d 308) (1990).

Webb’s admission that he and plaintiff had entered into the rental agreement, contained in his answer, constitutes a judicial admission, which he is not permitted to deny. OCGA § 24-3-30; State Hwy. Dept. v. Lumpkin, 222 Ga. 727 (152 SE2d 557) (1966). In view of the contractual requirement that Webb was to return the vehicle in the same good condition and the undisputed fact that he did not, it was error for the trial court to deny Budget’s motion for judgment n.o.v. as to Webb’s liability for damages arising from a breach of the rental agreement.

2. Budget further contends that the trial court erred in failing to grant its motion for directed verdict and motion for judgment n.o.v. based on the undisputed evidence that Webb negligently damaged Budget’s vehicle.

Questions of negligence are ordinarily matters for resolution by a jury. Where the evidence is undisputed, however, that a driver has fallen asleep at the wheel and a wreck results therefrom, the driver bears the burden of showing that he was not negligent in damaging the vehicle. When he fails to meet this burden, the driver is negligent as a matter of law. Blunt v. Spears, 93 Ga. App. 623 (92 SE2d 573) (1956), rev’d on other grounds, Southern Bell Tel. &c. Co. v. Spears, 212 Ga. 537 (93 SE2d 659) (1956); Ga. Power Co. v. Murray, 57 Ga. App. 141 (194 SE 403) (1937). In view of the unrefuted evidence that the wreck resulted from Webb falling asleep while driving, and his failure to make any showing that he was not negligent, the trial court erred in failing to grant Budget’s motion for judgment n.o.v. as to Webb’s liability to Budget for damages to the rental vehicle based upon his negligent conduct in causing the wreck.

The question of the amount of damages to which Budget is entitled must be resolved by a jury in view of the arguably conflicting evidence on this issue. The judgment of the court is hereby reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

McMurray, P. J., and Andrews, J., concur.

Decided February 20, 1996.

Fulcher, Hagler, Reed, Hanks & Harper, Scott W. Kelly, for appellant.

Charles C. Mayers, for appellee.


text:
    A95A2828.
    HEAD v. THE STATE.
    (469 SE2d 406)
   Andrews, Judge.

Marion Head appeals the judgment entered on a jury verdict finding him guilty of armed robbery, kidnapping, aggravated assault, and attempted armed robbery. Head raises the general grounds that the evidence was insufficient to support the verdict and also that the trial court erred in not directing a verdict of acquittal. The evidence at trial, viewed in the light most favorable to the jury’s verdict, was as follows.

The charges against Head stem from two robberies, both of Roy Aaron, who owned a package store and also ran a check cashing business. At the first robbery, in January 1994, Aaron had just returned to his store from the bank and had a large amount of cash with him for his check cashing business. As he was getting out of his truck, a man, later identified as Fred Cornell, pointed a gun at him and stole the bags of money, approximately $40,000.

The second robbery was in June 1994, under similar circumstances. Aaron had just returned from the bank with money for his check cashing business when he was held up by two men, later identified as Quillian Demon Smith and Carl Martel Sullivan. As Aaron was getting out of his truck, the two men forced him into his store at gunpoint. Once inside, they began taping his wrists and then asked him where the money bags were. Aaron told them the bags were still in the truck and one of the men went out to get them. He came back and said there were cops outside. Sullivan then put the gun to Aaron’s head and walked him out the door. Aaron testified that when the police told Sullivan to put the gun down, Sullivan said, “No, I’m going to waste this mother.” Aaron then went limp and dropped to the ground and the deputies were able to convince Sullivan to drop the gun. In the meantime, Smith ran out the door and police eventually caught him hiding in a warehouse.

When questioned by investigators, both Smith and Sullivan stated that Marion Head planned both robberies. But, upon being called to testify at trial, Smith refused to answer any questions and Sullivan gave testimony inconsistent with his prior statements to investigators. The audiotapes of their statements to investigators were then played for the jury. Fred Cornell, the person who committed the first robbery, refused to implicate Head when questioned at trial.

There was additional testimony from a bondsman who stated that Head was one of a group who came to him to post bond for Smith. Also, Head’s former girl friend testified that the gun taken from Sullivan was one she had reported stolen on the day of the robbery. The State also called a man who lived near Aaron’s shop, who stated that he saw a red car circle around the area on the morning of the January robbery. His description of the car was similar to the one given by Smith and Sullivan of the car belonging to Head.

Head testified in his own defense. He admitted that Smith’s family asked if they could borrow money from him for Smith’s bond, but denied having anything to do with either of the crimes.

1. The standard of review of the denial of a motion for directed verdict of acquittal is that from Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Harvey v. State, 212 Ga. App. 632, 634 (2) (442 SE2d 478) (1994). After reviewing the record and in light of the testimony as outlined above, we find there was sufficient evidence to warrant the denial of a directed verdict and to support the verdict of the jury. “The weight of the evidence and credibility of witnesses are questions for the triers of fact, and this court passes on the sufficiency of the evidence, not its weight.” (Punctuation omitted.) Johnson v. State, 204 Ga. App. 277, 279 (3) (419 SE2d 118) (1992). Accordingly, we find that a rational trier of fact could find from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, supra.

2. Head also claims the trial court erred in denying his motion for a continuance. In moving for the continuance, defense counsel did not state that he did not have adequate time to prepare, but only that he was concerned that his client was not properly dressed and he had been unable to talk with him recently.

“A refusal to grant a continuance will not be disturbed by appellate courts unless it clearly appears that the judge abused his discretion in this regard.” (Citations and punctuation omitted.) Pope v. State, 256 Ga. 195, 207 (345 SE2d 831) (1986). We find no abuse of discretion by the trial court in the instant case.

3. Next, Head asserts as error the trial court’s statements to Smith that there would be sanctions taken against him if he refused to testify. Head does not cite, and we do not find, any authority for his contention that this was error. This enumeration is without merit.

In the same enumeration, Head claims that the trial court erred in allowing into evidence the tape of Smith’s statement to investigators because it was hearsay. He contends that this was inadmissible as a prior inconsistent statement because Smith refused to testify at trial. We agree that the admission of this taped statement was error.

In Barksdale v. State, 265 Ga. 9 (453 SE2d 2) (1995), the Supreme Court held that when a witness refuses to testify, a previously taped statement is not admissible as prior inconsistent testimony. Barksdale, supra at 12. The Supreme Court also found in that case that admitting the taped statement violated the defendant’s right of confrontation because the declarant was not subject to cross-examination, the taped statement was not admissible under any other exception to the hearsay rule and, since it was a statement of a co-defendant while in custody, the court could not hold that it was made under circumstances showing particular guarantees of trustworthiness. Barksdale, supra at 12-13. But, in Barksdale the declarant was called to the stand after the playing of his taped statement for purposes of cross-examination and when asked by the defense attorney if he were going to continue to refuse to answer questions, the declarant replied that he was. Barksdale, supra at 11.

Here, Smith readily answered questions put to him on cross-examination by defense counsel after the playing of the taped statement. The constitutional requirements of the confrontation clause are satisfied when the hearsay declarant is present at trial and subjected to unrestricted cross-examination. United States v. Owens, 484 U. S. 554, 560 (108 SC 838, 98 LE2d 951) (1988). “The confrontation clause guarantees the defendant in a criminal trial the general right to cross-examine the witness, that being the principal means by which the believability of a witness and the truth of his testimony are tested.” Henderson v. State, 182 Ga. App. 513, 517 (356 SE2d 241) (1987), rev’d on other grounds, 257 Ga. 618 (362 SE2d 346) (1987). There is no violation of this Sixth Amendment right if the witness is present and available for cross-examination. Henderson, supra at 517.

The inquiry then becomes whether the hearsay testimony was harmful as a matter of law. We find that it was not. “This court has recognized the general rule that in order to justify a new trial or reversal, the trial court’s ruling must be both erroneous and harmful to the appellant.” Glass v. State, 235 Ga. 17, 19 (218 SE2d 776) (1975). The test for harmful error is whether it is “highly probable” that the error contributed to the judgment. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). In determining whether hearsay testimony is harmful, this Court has found “[inadmissible hearsay which is received over objection does not require a new trial if it appears that the evidence could not have affected the verdict because other evidence by a witness with immediate and personal knowledge is sufficient to establish the fact in question.” Glass, supra at 19. Here, there was sufficient evidence by a witness with personal knowledge from which the jury could find Head planned the robberies without Smith’s taped testimony. As discussed above, Sullivan, who did testify at trial, also told investigators that Head planned the crimes. Accordingly, we find the admission of Smith’s statement to be harmless error.

Decided February 20, 1996.

J. Terry Brumlow, for appellant.

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

4. Lastly, Head contends it was error for the trial court to allow the jurors to read a transcript of the tapes while the tapes were being played. This issue has already been decided adversely to Head in Guess v. State, 264 Ga. 335 (443 SE2d 477) (1994). As long as a proper foundation is laid and certain safeguards are utilized, the jury is permitted to have transcripts of the taped conversation. Id. at 336. Here, the foundation was properly laid and the court carefully instructed the jury as to the use of the transcripts. Accordingly, this enumeration of error is without merit.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A95A2299.
    MARCELLO v. THE STATE.
    (469 SE2d 252)
   Andrews, Judge.

Liboris Mancuso Marcello, Jr., appeals from his conviction after a jury found him guilty of rape, statutory rape, incest, aggravated child molestation, aggravated sodomy, and two counts of child molestation.

1. In his first enumeration of error, Marcello claims that the trial court erred in denying his motion for a continuance. Marcello contends that the victim in this case had been sexually molested by a neighbor when the family lived in Louisiana and additional time was necessary to obtain records from that incident. In addition, Marcello claims he needed additional time for expert examination of the victim. Further, Marcello’s trial counsel claimed to be in pain from a back problem and stated that he would either have to try the case in pain or “pilled up.”

“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.” Payne v. State, 207 Ga. App. 312, 314 (428 SE2d 103) (1993). Here, the court found that Marcello had known of charges pending against him for three months and had not attempted to get any information on the Louisiana incident during that time. Further, the trial court correctly denied Marcello’s motion to have the victim examined by an expert because the victim was very adamant in stating that she did not want to be examined. See Rhodes v. State, 193 Ga. App. 28, 29 (386 SE2d 857) (1989) (no abuse of discretion in denying involuntary examination of victim). Further, the court noted that trial counsel had submitted nothing to support a conclusion that he was physically unable to proceed with a trial. In addition, the judge noted that counsel was representing his client very effectively at that point. Therefore, we find no abuse of discretion in the trial court’s denial of Marcello’s motion for continuance.

2. Next, Marcello argues that his trial counsel rendered ineffective assistance of counsel at trial. However, while Marcello is correct that this issue may be raised for the first time on appeal and remanded to the trial court for an evidentiary hearing, this is a case in which remand would serve no useful purpose and may be decided on the record by this Court. Norman v. State, 208 Ga. App. 830, 831 (432 SE2d 216) (1993); Brundage v. State, 208 Ga. App. 58, 59 (430 SE2d 173) (1993).

Marcello fails to support this enumeration by citing to any instance in which counsel rendered ineffective assistance. He merely states that trial counsel was having back trouble and the trial court denied his motion for continuance. Marcello cites to no instances at trial in which counsel was ineffective and fails to allege any harm due to counsel’s back problems.

A defendant alleging ineffective assistance of counsel has the burden of establishing “(1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Punctuation omitted.) Bowley v. State, 261 Ga. 278, 280 (404 SE2d 97) (1991) (citing Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984)).

The trial court found that counsel was physically capable of conducting the trial and further noted that counsel was effectively representing his client in spite of any physical discomfort. Accordingly, it is apparent as a matter of law that Marcello cannot satisfy either prong of the Strickland test. Therefore, we need not remand for a hearing on this issue. Brundage, supra at 59.

3. Last, Marcello claims that his conviction on the incest count merged with that of the statutory rape count, and therefore, the sentence imposed for his conviction for incest must be vacated. This court has held, applying the alternative test of Pryor v. State, 238 Ga. 698 (234 SE2d 918) (1977), that the crime of incest is included within the crime of rape. See Love v. State, 190 Ga. App. 264, 265 (378 SE2d 893) (1989); McCranie v. State, 157 Ga. App. 110, 111 (276 SE2d 263) (1981). But, in both McCranie and Love, supra, the charges arose from a single incident. Here, the victim testified to multiple acts of sexual intercourse from January 1, 1993 through March 21, 1994, the time period specified in the indictment. When there are multiple acts of sexual intercourse, the defendant may be convicted and sentenced for each offense based upon their occurrence on separate occasions. Young v. State, 199 Ga. App. 520, 521 (405 SE2d 338) (1991); Kirby v. State, 187 Ga. App. 88, 89 (369 SE2d 274) (1988).

Decided February 5, 1996

Reconsideration denied February 21, 1996

Richard D. Allen, Jr., Frank J. Petrella, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: Beasley, Chief Judge.

text:
    A95A1882.
    McGARR et al. v. GILMORE.
    (469 SE2d 720)
   Beasley, Chief Judge.

After Gilmore fell from a highway overpass, he sued the corporate roadway contractors, the Georgia Department of Transportation (“DOT”), and ten employees of DOT, three of whom were McGarr, Lowman, and Mailhot (“employees”). He alleged that the individual and corporate defendants were negligent in “not placing or causing to be placed a warning or protective device of some kind to warn of and/or prevent this type of foreseeable tragedy from occurring.” The complaint also alleged that the affidavit of a professional expert was unavailable for contemporaneous filing but would be filed within 45 days, expressly invoking the grace period offered by OCGA § 9-11-9.1 (b). When DOT and its employee defendants did not respond within 45 days of the complaint Gilmore sought and obtained a default judgment. On appeal, this Court reversed the judgment because OCGA § 9-11-9.1 (c) provides that when a plaintiff avails himself of the delay permitted by OCGA § 9-11-9.1 (b), a “defendant shall not be required to file an answer to the complaint and affidavit until 30 days after the filing of the affidavit” and defendants’ answer was within 45 days of Gilmore’s filing of his expert professional engineer’s affidavit. Dept. of Transp. v. Gilmore, 209 Ga. App. 656 (434 SE2d 114) (1993).

Upon remittitur, Gilmore moved to revise the judgment, arguing that evidence acquired since the appeal showed that the employees were not professional engineers, nor qualified to be such, and consequently could not claim the extension of time provision granted by OCGA § 9-11-9.1 (c). The court granted the motion and reinstated default judgments for $2,150,000 against McGarr, Lowman, and Mail-hot. The court relied upon the portion of our earlier opinion that stated: “The applicability of this holding is necessarily limited to those defendants against whom professional malpractice is alleged or implied.” Dept. of Transp., supra at 658 (2).

The employees appeal, as permitted by the trial court’s authorization as provided by OCGA § 9-11-54 (b). They contend that the revision of the judgment violates the “law of the case” rule: “any ruling by the . . . Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court . . . [and] in the Court of Appeals as the case may be.” OCGA § 9-11-60 (h). See Jebco Ventures v. City of Smyrna, 259 Ga. 599, 601-602 (1) (385 SE2d 397) (1989).

The trial court, and Gilmore, misunderstand the sentence quoted from ohr earlier opinion and ignore the statement that “Gilmore made the same general allegations of negligence against all defendants.” Dept. of Transp., supra at 658. It is what is in the complaint, not what is alleged or proved afterwards, that governs whether the extension for the answer is afforded to defendants. By invoking the grace period for the affidavit as provided by OCGA § 9-11-9.1 (b) and by relating that affidavit to all defendants by way of general allegations of negligence directed to all, Gilmore automatically activated the statute’s provision giving defendants the same period of time from the filing of the affidavit as they would have had from the service of the complaint if it had not been an affidavit case. It is a practical and efficient provision, allowing a single answer when the complaint is complete and thereby avoiding the necessity for a defendant to file an answer to the affidavit-less complaint and then amending the answer or supplementing it to respond to the affiant’s assertions. As made clear in our original opinion in this action, “the express invocation of the 45-day extension of time to file an expert’s affidavit, allegedly because of the imminent running of the statute of limitation and the time constraints in obtaining the affidavit, as provided by OCGA § 9-11-9.1 (b), caused the time to file an answer to the complaint and affidavit to be extended for the 30-day period as provided by OCGA § 9-11-9.1 (c), and appellee is estopped to argue otherwise. See OCGA § 24-3-30.” (Emphasis omitted.) Dept. of Transp., supra at 658 (2).

This estoppel is based not upon the professional status of the defendants but upon the allegations of Gilmore’s complaint. He did not distinguish between these employees, who the trial court subsequently found are not “professional engineers” and do not “possess the qualifications to be professional engineers,” and those defendants against whom he asserted professional negligence. If, as he says, he could not do so until after he filed suit and conducted the discovery which is thereby authorized under the Civil Practice Act, it is of no consequence to the issue at hand. A finding that these employees are not subject to a professional negligence claim relieves Gilmore of the burden of proving professional negligence dependent on expert testimony showing their departure from professional standards; he need prove only simple negligence against such employees. But it does not relate back to establish the time within which these employees were required to answer the complaint alleging professional negligence against them.

We note that a plaintiff’s dilemma of having to determine at the complaint stage which defendants are in the professional status category will arise only when plaintiff does not file a contemporaneous affidavit. When the affidavit is filed with the complaint, all defendants, whether professional or not, have 30 days from the date of service to answer it.

In taking advantage of the statutory grace period for the completion of his complaint, Gilmore afforded all defendants in this case a delay in the time required for their answer, to be measured from the time his complaint was complete. A plaintiff cannot sabotage a defendant by invoking an extension for himself and then, after defendant relies on his correlative extension, say the latter did not apply because plaintiff did not need an extension as to this defendant. The Civil Practice Act is founded on the principle of notice pleading. Plaintiff’s notice to defendant that he asserts a professional negligence claim brings to it the procedures outlined in OCGA § 9-11-9.1.

Thus, Gilmore’s contention that the court had power to revise the judgment because new evidence came to light based upon depositions of the employees, see Lee v. Dept. of Transp., 198 Ga. App. 716 (402 SE2d 551) (1991), misses the controlling factor. The issue is resolved not by whether the individuals were professional engineers who were simply unlicensed pursuant to OCGA § 43-15-29 (b) (4) but by the form of Gilmore’s complaint and his invocation of OCGA § 9-11-9.1 (b). By structuring his complaint as he did, he told all defendants they would have the benefit of the extension.

Infusing the whole debate about this procedural issue is the simple notion that Gilmore shows no harm whatsoever flowing to himself or to like-situated plaintiffs, other than the loss of a non-favored default judgment, see Ewing v. Johnston, 175 Ga. App. 760, 764 (1) (c) (334 SE2d 703) (1985), from the extension he instigated. Nor can we imagine one. As in Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 402 (314 SE2d 199) (1984), “the plaintiff has not been prejudiced . . . and . . . the interests of truth and justice will be served by allowing these defendants to set up the defenses in their responsive pleadings.” They are legally entitled to do so.

Decided February 21, 1996

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, C. Latain Kell, Assistant Attorney General, for appellants.

Buchanan & Land, Jerry A. Buchanan, Taylor, Harp & Callier, J. Sherrod Taylor, Jefferson C. Callier, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Charles A. Gower, for appellee.

Judgment reversed.

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

       No separate category was mentioned for DOT.

       These were the only defendants left in the suit, since the contractors and one DOT employee were dismissed without prejudice and one employee was never served.


author: Ruffin, Judge.

text:
    A95A2036.
    TRUCKSTOPS OF AMERICA, INC. et al. v. ENGRAM.
    (469 SE2d 425)
   Ruffin, Judge.

In this discretionary appeal, Truckstops of America, Inc. and its workers’ compensation insurer, Pacific Employers Insurance Company, (collectively “Truckstops”) appeal from the superior court’s order reversing the award of the appellate division of the State Board of Workers’ Compensation. Truckstops asserts that the superior court erred in concluding Pinkie Engram’s notice of appeal was sufficient and in holding that the appellate division applied an incorrect standard of review. For reasons which follow, we reverse.

Engram, who was employed by Truckstops as a waitress, sustained a work-related injury to her right knee on January 20, 1992, and a work-related injury to her left knee on August 4, 1993. After each accident, Engram received benefits including disability, and after treatment was released to work by her treating physician, Dr. Melvin Deese. Engram continued working for Truckstops until February 9, 1994, when she was terminated for allegedly stealing money. Engram did not find other employment after being terminated, and on February 21, 1994, returned to Dr. Deese complaining of pain in both knees.

On May 25, 1994, a hearing was held before an administrative law judge to determine whether Engram experienced a change in condition that would require Truckstops to recommence total disability benefit payments. The ALJ found that Engram’s failure to find suitable employment was the proximate result of her Truckstops injuries and that as of February 9, 1994, she experienced a change in condition that required Truckstops to recommence payment of total disability income benefits.

On October 19, 1994, the appellate division conducted a de novo review of the case and on December 23, 1994, issued an award concluding that Engram did not carry her burden of showing a change in condition. The board found that although Engram was not entitled to the total disability benefits awarded by the ALJ, because she continued to have work restrictions, she was entitled to continuing temporary partial disability benefits.

Engram appealed the appellate division’s award to the superior court. The superior court found that the appellate division erroneously conducted a de novo review of the evidence and concluded that under the amended version of OCGA § 34-9-103 (a), the ALJ’s award was “supported by a preponderance of the competent and credible evidence. ...” The superior court reversed the decision of the appellate division and ordered the board to “effectuate the decision of the [ALJ]. . .

1. Truckstops asserts that the superior court erred in failing to dismiss Engram’s appeal because her notice of appeal did not properly state the grounds for her appeal. Engram’s notice of appeal to the superior court stated in part that she was “dissatisfied with the Findings of Fact, the Conclusions of Law and the Award made by Harr ill L. Dawkins, Administrative Law Judge, [sic] dated December, 23, 1994. . . .”

OCGA § 34-9-105 (b) requires an appeal to the superior court to be “in writing stating generally the grounds upon which such appeal is sought.” OCGA § 34-9-105 (c) includes as grounds for appeal that “[t]he facts found by the members do not support the decision . . . [and that t]he decision is contrary to law.” “[I]t is not essential to a valid appeal that the exact language of the statute be embodied in the assignment of error on appeal. It is sufficient if the appeal can reasonably be construed as assigning error on one of the grounds provided for by the statute.” Thompson v. Walker, 99 Ga. App. 748, 749 (1) (109 SE2d 833) (1959).

Under this standard, we believe Engram’s notice was sufficient. The notice raised as grounds the sufficiency of the finding of facts and the conclusions of law, both of which are grounds for appeal listed in OCGA § 34-9-105 (c). Furthermore, the notice properly stated that Engram was appealing from the award dated December 23, 1994, which was the date of the award of the appellate division. While Engram mistakenly identified the award on that date as the award of the ALJ, it is clear that the ALJ’s award was issued on July 22, 1994. Accordingly, because we look at substance, not form, and the substance of Engram’s notice could reasonably be construed as assigning error on grounds provided for by OCGA § 34-9-105 (c), the trial court did not err in failing to dismiss the appeal. See Comm. for Better Govt. v. Black, 216 Ga. App. 173 (1) (453 SE2d 772) (1995).

Decided February 21, 1996.

Drew, Eckl & Farnham, John A. Ferguson, Jr., Nicole D. Tifverman, for appellants.

2. Truckstops also asserts that the trial court erred in reversing the award of the appellate division and holding that the appellate division erroneously conducted a de novo review, when it should have applied the standard of review provided in the amended version of OCGA § 34-9-103 (a). The amended version of OCGA § 34-9-103 (a), effective July 1, 1994, provides that on appeal to the appellate division, “[t]he findings of fact made by the [ALJ] in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.” Truckstops argues that because the standard of review is a substantive law, it applies only prospectively.

This issue is controlled by this Court’s recent decision in Clinical Arts &c. v. Smith, 218 Ga. App. 681 (462 SE2d 757) (1995). As in Smith, we find here that “the appellate division erred by failing to apply the amended version of the statute when it rendered its decision on [December 23, 1994]. The statute is procedural, there is no vested right in preserving appellate review of the ALJ’s decision under the version of OCGA § 34-9-103 (a) which existed at the time the ALJ [heard] the case, and the Legislature did not express an intent that the amendment not be applied retroactively. [Cit.] Therefore, when the appellate division rendered its decision on [December 23, 1994], it should have applied the amended version of OCGA § 34-9-103 (a) as the standard of review, rather than the de novo review applicable under the former version of the statute. [Cits.]” Id. at 683.

However, although we agree with the superior court that the appellate division applied the wrong standard of review, we also agree with Truckstops that the superior court should have remanded the case to the appellate division to apply the correct standard. Accordingly, we reverse and “remand the case to the superior court with directions that the case be recommitted to the appellate division of the Board for review under the proper standard as set forth in this opinion.” Id.

Judgment reversed and case remanded with directions.

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

Edward, E. Boshears, for appellee.


author: McMurray, Presiding Judge.

text:
    A95A2047.
    GREENE v. STATE OF GEORGIA.
    (469 SE2d 428)
    Decided February 21, 1996.

      Moser, Folsom, Gilbert & Baker, William R. Folsom, for appellant.

      H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

The State followed procedures prescribed by OCGA § 16-13-49 (n) seeking forfeiture of $11,635 in United States currency that was seized by law enforcement officers during a traffic stop on February 5, 1995. After filing a claim for the money, the driver of the car, Bryan D. Greene, admitted at the forfeiture hearing that “the response [he] filed was not an adequate response [under OCGA § 16-13-49 (n) (4)].” Thereafter, the trial court entered an order of forfeiture based on the finding that “[n]o answer has been filed by any party claiming an interest in the named property within thirty (30) days of service of Notice of Seizure ... in accordance with O.C.G.A. § 16-13-49 (n) (3).” This appeal followed. Held:

In support of his sole enumeration, Greene does not challenge the trial court’s adjudication of forfeiture based on the lack of a timely answer. He, instead, challenges the sufficiency of the evidence regarding the State of Georgia’s notice and claim that the money was subject to forfeiture because it was seized as proceeds derived from a violation under Georgia’s Controlled Substances Act.

The trial court’s authority to consider Greene’s claim to the seized money depended entirely upon a properly filed answer to the State of Georgia’s notice of forfeiture. State of Ga. v. Cannon, 214 Ga. App. 897, 899 (449 SE2d 519). Greene, however, admitted that his answer was deficient under OCGA § 16-13-49 (n). The trial court, therefore, could not reach Greene’s claims regarding the sufficiency of the evidence and did not err in entering an order forfeiting the money that was seized from Greene’s car.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Pope, Presiding Judge.

text:
    A95A2286.
    BELL v. THE STATE.
    (469 SE2d 714)
   Pope, Presiding Judge.

A jury convicted defendant Thomas Andrew Bell of theft by taking a motor vehicle. Following the denial of his motion for a new trial, he appeals contending that the evidence was insufficient to support his conviction because a fatal variance existed between the allegations contained in the indictment and the proof adduced at trial, and that the trial court erred in allowing the State to introduce similar or connected transaction evidence to the jury. Finding no merit to these contentions, we affirm.

On April 2, 1994, defendant and Timothy Pinson escaped from the Gilmer County jail. Two days later, after hitchhiking to Forsyth County, Georgia, they went to a Dodge dealership. At the dealership, salesman Mike Rosenblum approached them. Defendant, who did most of the talking, told Rosenblum that defendant and Pinson had a truck in the service department and that they were interested in purchasing another truck. Defendant also told Rosenblum that defendant and Pinson worked for a local company. The record demonstrates that the above statements were untrue. According to Pinson, the real reason they wanted a vehicle was because they needed transportation after having escaped from jail.

Based on the above misinformation, Rosenblum allowed defendant and Pinson to “test drive” a red 1991 Dodge Dakota truck. Instead of test driving the truck, however, defendant, that same day, drove himself and Pinson to a Nissan dealership in Knoxville, Tennessee. There, as he had done at the Dodge dealership, defendant misled car salesman John Washburn into believing that defendant was in the market for a new vehicle. Consequently, Washburn allowed defendant to test drive a Nissan Maxima. Washburn testified that he was not concerned about letting defendant drive the Maxima because defendant left the Dakota truck at the Nissan dealership.

Once in the Maxima, defendant picked up Pinson and the clothing they had left in the truck. Then defendant drove 90 miles to Williamsburg, Kentucky. There, he and Pinson were arrested by a police officer, who had received a bulletin that the Maxima had been stolen. While in custody, Pinson gave a voluntary statement to Forsyth County police wherein he admitted that he and defendant had stolen the Dakota truck after escaping from jail. He also stated that he and defendant intended to drive to Ohio, where defendant had relatives. Pinson testified to the same at trial.

1. Defendant contends that there was a fatal variance between the allegata and the probata in that the indictment alleged an unlawful taking of the Dakota truck, whereas the evidence at trial established that defendant had unlawfully appropriated the truck after first obtaining lawful possession of it. Either of the above acts constitutes theft by taking under OCGA § 16-8-2, which provides that “[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.” In Walker v. State, 146 Ga. App. 237 (1) (246 SE2d 206) (1978), however, we held that where an unlawful taking is alleged in the indictment, the conviction cannot be predicated on evidence demonstrating an unlawful appropriation of lawfully obtained property.

But, unlike the trial court in Walker, the trial court in this case “did not charge the jury that theft by taking could consist of the unlawful appropriation of property lawfully obtained, and thus there is no possibility that the jury based its verdict on that theory rather than the theory alleged in the indictment.” Mullen v. State, 203 Ga. App. 170, 172 (2) (416 SE2d 784) (1992). Moreover, construed in favor of the verdict, the evidence in this case was sufficient to enable a rational jury to conclude beyond a reasonable doubt that defendant deceived Rosenblum into letting him test drive the Dakota truck, and that such deception constituted an unlawful taking. See Stull v. State, 230 Ga. 99, 101 (1) (196 SE2d 7) (1973); Cole v. State, 186 Ga. App. 243, 244 (1) (366 SE2d 844) (1988). Accordingly, we conclude that no fatal variance existed and that the State’s evidence was sufficient to warrant defendant’s conviction under the standard of proof set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant contends that the trial court erred in allowing the State to introduce similar or connected transaction evidence of his escape from the Gilmer County jail and his subsequent theft of the Nissan Maxima. The record demonstrates that before the trial court allowed the State to introduce the above evidence, it held a pre-trial hearing in accordance with Uniform Superior Court Rule 31.3 (B). After that hearing, the trial court determined that the State had made the showings required by Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). We agree. Moreover, we conclude that in its presentation to the jury, the State demonstrated through the testimony of several witnesses, including both car salesmen and Pin-son, “that [defendant] was the perpetrator of the [independent crimes], and . . . [that] there [was] sufficient similarity or connection between the independent crimes and the offense charged that proof of the former tend[ed] to prove the latter.” (Citation and punctuation omitted.) Jordan v. State, 192 Ga. App. 69, 70 (2) (383 SE2d 631) (1989). Consequently, we find no error in the trial court’s decision to admit the above evidence.

Decided February 21, 1996.

Pamela D. Boles, for appellant.

Garry T. Moss, District Attorney, Kimberly K. Frye, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A2362.
    STEWART v. THE STATE.
    (469 SE2d 424)
   Ruffin, Judge.

James Stewart was convicted of driving with an unlawful blood alcohol level and driving after being declared an habitual violator. At trial, Officer Tommy Harrison testified that he was at the scene of an automobile accident when Stewart approached in his car. Because Harrison had previously seen Stewart in court and knew Stewart did not have a driver’s license, he stopped him and asked to see his license. When Stewart told Harrison that he did not have a license, Harrison smelled alcohol on his breath. After Stewart took a breath test, Harrison arrested him for driving under the influence of alcohol.

1. Stewart contends the trial court erred in denying his motion to dismiss the two counts against him because Officer Harrison lacked probable cause to stop his car. Stewart argues that Harrison had only a “hunch” that he did not have a license, and a hunch is insufficient to authorize such a stop. We do not agree that a police officer who has previously encountered a defendant in court and therefore knows the individual does not have a driver’s license is acting on a mere “hunch.” Rather, the officer has knowledge of a specific, articulable fact sufficient to give rise to a reasonable suspicion that the individual was engaged in criminal conduct. See Lovell v. State, 178 Ga. App. 366 (1) (343 SE2d 414) (1986); Evans v. State, 216 Ga. App. 21 (2) (453 SE2d 100) (1995). Accordingly, Harrison was authorized to stop Stewart, and the court did not err in denying Stewart’s motion to dismiss on this ground.

2. Stewart also contends the court erred in admitting the notice Stewart received from the Department of Public Safety which declared him an habitual violator and revoked his driver’s license because the previous violations listed on the notice were not redacted. As in Curry v. State, 206 Ga. App. 350 (425 SE2d 389) (1992), we believe that although the better practice may be to redact such information, the court’s failure to do so in this case was not harmful error.

Like Curry, the court in this case properly instructed the jury on the definition of an habitual violator, which put them on notice that such status was the result of previous convictions. Similarly, Stewart did not contest that he was an habitual violator; rather, his defense was that Officer Harrison lacked probable cause to arrest him. “Under the circumstances, we fail to see how [Stewart] could have been prejudiced by the admission of this information.” (Citations and punctuation omitted.) Id. at 351. Thus, assuming it was error to admit the unredacted notice, such error was harmless because it is highly probable that it did not contribute to the jury’s verdict. Id. at 352.

Decided February 21, 1996.

Cramer & Peavy, Timothy C. Cramer, for appellant.

William T. McBroom, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A95A2385.
    THE STATE v. DURAN et al.
    (469 SE2d 429)
   Beasley, Chief Judge.

An indictment was returned against Duran and his common law wife Guerra charging them with trafficking in cocaine. OCGA § 16-13-31 (a). They filed separate motions to suppress, and a joint amended motion, challenging the legality of the search that resulted in the seizure of the cocaine. After conducting hearings, the court denied the amended motion. The defendants moved for reconsideration based upon Smith v. State, 216 Ga. App. 453 (454 SE2d 635) (1995), and the State appeals the order granting that motion.

The evidence introduced at the hearings showed that Georgia State Patrolman Ogden stopped an automobile in which Duran was driving. Guerra was the front seat passenger, and their two children were in the back seat. Prior to stopping the automobile on 1-95, Ogden determined that it was traveling 85 mph in a 65 mph speed zone, that Duran had been following too close to the vehicle in front of him, and that he was not wearing a seat belt. Ogden cited Duran for all three offenses.

Ogden communicated with Duran through Guerra because Duran spoke no significant amount of English. During the course of the traffic stop, Ogden asked questions of Guerra concerning the registration of the car and the purpose of the trip, which she said was from Miami to New York. According to Ogden, she gave inconsistent answers to his questions.

After he issued the citations to Duran and returned his driver’s license, Ogden asked Guerra where their clothes , were. She said they were in the trunk. Ogden then asked of Guerra: “Would you mind opening the trunk? Do you mind? Does he mind?” There was no verbal response, but Duran and Guerra stepped out of the car and Duran unlocked the trunk, where a large quantity of clothing was observed covering the floor of the trunk. Ogden asked Duran to stay there for a second and walked to the patrol car. The videotape which had been recording this ceased recording until eight minutes later, when it focused on the interior of the trunk. Ogden said: “I appreciate you letting me search your car, okay?” The search commenced and produced a large quantity of cocaine from under a false floor in the trunk.

The video camera did not record the part of the stop in which Ogden testified that he asked for permission to search the car and its contents. Ogden explained this as being attributable to a malfunctioning alternator. Duran and Guerra testified that Ogden did not ask them if he could search the vehicle and its contents, but rather asked if he could “check the car.”

Through the amended motion to suppress, defendants challenged the legality of the search on grounds that Ogden did not have any reason to believe the defendants were involved in any criminal activity other than the commission of traffic offenses, that Ogden manually turned off the video camera before allegedly asking them for permission to search the automobile and its contents, and that the scope of the search exceeded any consent given.

1. The State asserts that Guerra lacked standing to contest the search, based on Duran’s testimony that the automobile was loaned to him and that he did all of the driving and never gave the keys to Guerra.

The evidence shows that Guerra is Duran’s common law wife and that at the time of the stop they and their two children were jointly occupying the automobile on a trip from Miami to New York. The trunk contained clothing belonging to Guerra as well as Duran. This evidence establishes that Guerra was more than a “mere passenger” and had a joint possessory interest as well as a legitimate expectation of privacy in the trunk. Therefore, she has standing to contest the search. See generally Rakas v. Illinois, 439 U. S. 128 (99 SC 421, 58 LE2d 387) (1978); compare State v. Combs, 191 Ga. App. 625 (1) (382 SE2d 691) (1989), with Mecale v. State, 186 Ga. App. 276 (367 SE2d 52) (1988).

2. The State also argues that Smith, supra, is distinguishable from this case. We agree. In Smith, it was uncontroverted that the defendant did not consent to the search of his vehicle. Nonetheless, the trial court’s grant of the defendants’ motion for reconsideration was based not only on Smith, but also on its further review of the record and of the citations and arguments previously made by defendants. The transcripts and videotape were on file at that time. As recognized by the State, the ultimate issue raised by the defendants is whether the scope of the search exceeded any consent given.

Decided February 21, 1996.

Glenn Thomas, Jr., District Attorney, George C. Turner, Jr., for appellant.

Christopher A. Frazier, Clyde M. Urquhart, for appellees.

The trial court’s ruling on questions of fact and credibility must be accepted unless clearly erroneous; they will not be disturbed if there is any evidence to support them. Rogers v. State, 206 Ga. App. 654 (426 SE2d 209) (1992). We must also construe the evidence most favorably to upholding the trial court’s judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). The evidence supports a finding favorable to the defendants on this issue. See Amato v. State, 193 Ga. App. 459 (388 SE2d 54) (1989). Applying these principles, the court’s grant of the motion is affirmed. See generally Kersey v. United States Shoe Corp., 211 Ga. App. 655, 658 (440 SE2d 250) (1994).

Judgment affirmed.

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


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A2652.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. FIFE.
    (469 SE2d 420)
   Andrews, Judge.

We granted Metropolitan Atlanta Rapid Transit Authority’s (MARTA) request for an interlocutory appeal to determine whether the trial court erred in denying MARTA’s motion for summary judgment on Sharon Fife’s slip and fall claim. Fife’s complaint alleged MARTA was negligent in failing to warn of a hazardous condition because she twisted her ankle in front of the College Park MARTA station as she stepped off the curb into a drainage culvert underneath a manhole cover.

In the order denying MARTA’s motion for summary judgment, the trial court found that Fife was familiar with the MARTA station where the accident occurred, had an unrestricted view of the manhole cover, and the manhole cover was the same size and appearance as manhole covers found in the Atlanta area and elsewhere. But, the trial court held there was an issue of material fact as to whether MARTA was negligent in not posting a warning near the culvert.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.] A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiffs case. . . . [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Construing the evidence, as we must, in favor of Fife as non-movant on summary judgment, the record shows that on October 6, 1992, Fife walked out of the College Park MARTA station at around 7:15 in the evening. It was not quite dark yet and she saw her sister, who was picking her up, pull over to the curb in front of the station. Fife was “very familiar” with the College Park MARTA station. She testified that previously she had been picked up in this same spot. Fife agreed that her sister was not parked in the “kiss and ride” area designated for picking up and dropping off passengers at the MARTA station. When shown a picture of the curb at her deposition, Fife stated the culvert appeared to be in plain view in the picture; however, she could not see it as she was walking toward it. But, Fife admitted in her deposition that she was aware that a manhole cover indicated a drainage space.

1. MARTA contends this is a static condition which is open and obvious and, therefore, it had no duty to warn. Fife claims the plain view doctrine does not apply in this instance because she could not see the drainage culvert as she was walking toward it or before she fell.

“Q. When you first looked after the fall, was it easy to see? A. No. Q. Why not? A. I just couldn’t see it. Had I saw it then I wouldn’t have fallen into it. I just couldn’t see it. . . . Q. Could you see it before you fell? A. No.”

When asked what she was looking at as she stepped off the curb, Fife replied: “A. I was looking at the handle on the door to open the door. Q. You were not looking where you were stepping? A. I guess I was focusing on the door.”

Also, when asked if there was anything to prevent her from seeing where she was stepping, Fife responded, “Yes. . . . The car door.”

Thus, Fife has not introduced any evidence which would show that the hazard was not in plain view, but, rather that she did not look down and see the hazard because she was looking at the car door. Indeed, the picture of the curb in question shows the depression to be plainly visible to anyone standing at the curb. Accordingly, Fife’s contention that the plain view doctrine does not apply is without merit.

2. Since the drainage depression was open and obvious, MARTA was under no duty to warn. An owner or occupier of land has a duty of exercising ordinary care to keep the premises and approaches safe for invitees. OCGA § 51-3-1. The basis of the owner’s liability is a superior knowledge of the condition that subjected the invitee to an unreasonable risk of harm. Pound v. Augusta Nat., 158 Ga. App. 166 (279 SE2d 342) (1981). The hazard in this case is a “static” condition which is not dangerous unless someone fails to observe it and steps into it. Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811, 813 (440 SE2d 545) (1994). In cases involving static conditions, “if the invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.” (Citation and punctuation omitted.) Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379) (1992). Also, we have held that where there is nothing to obstruct or interfere with the invitee’s ability to see the static defect, the owner is justified in assuming that the visitor will see it and realize the risks involved. Crenshaw v. Hogan, 203 Ga. App. 104, 105 (416 SE2d 147) (1992). A claim involving a static defect differs from other slip and fall cases in that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. Brown v. Carlisle, 214 Ga. App. 483, 484 (448 SE2d 256) (1994). See also Thomas v. Southwest Ga. Community Action Council, 215 Ga. App. 638 (451 SE2d 800) (1994) (an elderly lady who elected to exit the building by slippery brick landing and who had done so one or two times previously was presumed to have knowledge of this dangerous static condition).

Here, the hazard was in plain view and Fife testified that she was very familiar with this MARTA station and had been picked up at that same spot in the past. Therefore, Fife is presumed to have knowledge of any hazard associated with the area.

Further, where an invitee departs from the route designated and maintained by the owner for the invitee’s safety, then “the degree of caution required by the invitee’s duty to exercise ordinary care for her own safety is heightened by any increased risk resulting from that choice.” Gaydos, supra at 813. In Gaydos, the plaintiff cut across the lawn to the parking lot instead of using the walkway provided, and tripped and fell when stepping off the sloping concrete curb. We rejected plaintiff’s contention that the rule regarding static defects was inapplicable because the defect, a crack in the concrete, was not visible to a person walking toward it, and found plaintiff should have been aware of any lack of visibility and exercised greater caution. Id. at 813.

In the instant case, MARTA provided an area for picking up passengers so that they would not have to enter and exit on the street. But, Fife chose to use the street instead. Accordingly, when an unauthorized route is being used improperly, the invitee assumes the risk and must use greater caution for her safety. Gaydos, supra at 813.

Therefore, for the reasons discussed above, we find MARTA was under no duty to warn of this static condition and Fife failed to exercise ordinary care for her own safety. Thus, the trial court erred in denying MARTA’s motion for summary judgment.

Judgment reversed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Johnson, Blackburn and Smith, JJ., concur. Ruffin, J., concurs in the judgment only. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the judgment of reversal which effectively grants summary judgment on behalf of defendant Metropolitan Atlanta Rapid Transit Authority (“MARTA”) in plaintiff Sharon Fife’s tort action arising out of a dangerous condition on MARTA’s property. According to the complaint, on October 6, 1992, at approximately 7:15 p.m., plaintiff “tripped and fell in a trench at the curb, ... in an area of [defendant’s College Park train] station designated for customer drop off and pick up.” Plaintiff denied that there was any lighting on this particular spot, but “it wasn’t dark yet, so it was kind of — it was dusk.” Plaintiff saw her sister, who would give her a ride home, “just as [plaintiff] stepped out of the MARTA train station.” Plaintiff “looked at her [sister’s] car to notice it and then . . . just walked towards the car.” When the sister “pulled up to the curb, . . . [plaintiff] stepped off the curb and that’s where [she] fell.” Plaintiff “was watching where [she] was stepping, but when [she] got to the car door, then [she] looked at the handle on the car door.” When asked whether the place where she fell was easy to see, plaintiff replied, “No. ... I just couldn’t see it. Had I saw it then I wouldn’t have fallen into it. I just couldn’t see it.” Plaintiff expressly clarified that, before she fell, she “didn’t see any of that. And I really don’t think that it looked like it looks now [in March 1994].” Plaintiff identified defense Exhibit 1 at her deposition as depicting “a trench or drainage,” i.e., a slanted gutter leading to a manhole in the curb. “From the angle on the picture it’s in plain view, but from the direction [plaintiff] was coming it was not in plain view.” (Emphasis supplied.) “When [plaintiff] stepped off the curb, [she] expected to step on a flat surface so [when she] put [her] foot on the [slanted surface of the drainage gutter], ... it twisted.”

Based upon this recitation from plaintiff’s deposition, I do not join in the majority’s characterization of the evidence, namely that plaintiff “has not introduced any evidence which would show that the hazard was not in plain view[.]” (Majority opinion, ante, p. 299.) Furthermore, MARTA introduced no evidence that the curb was painted in marked contrast to the gutter or that patrons were warned to step down or step carefully. Judging from MARTA’s own photographic exhibit, the trier of fact could very well agree with plaintiff that the slanted trench was not in plain view from the direction and perspective of the plaintiff as she exited the train station but instead was hidden. Consequently, the fact that plaintiff frequented this train station before proves nothing as to her knowledge of the danger posed by the hidden slant of the drainage gutter at this particular location, just as “ ‘(t)he mere fact that (she) has been in the area before will not preclude (her) from recovery for injuries received from defective premises unless (her) failure to observe the defect amounts to a lack of that care which an ordinarily prudent person would exercise under the circumstances.’ Kreiss v. Allatoona Landing, 108 Ga. App. 427, 435 (2b) (133 SE2d 602) (1963).” Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348, 350 (2) (349 SE2d 241). It is the general rule that “questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them except in plain and indisputable cases. Added to that list are related issues of assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in failing to foresee a condition which could cause injury, and even where there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable man. Unless no other conclusion is permissible, questions of negligence are matters for jury resolution and are not ordinarily susceptible to summary adjudication.” (Citations and punctuation omitted.) Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 836 (331 SE2d 899). In my view, a jury question is presented in the case sub judice as to whether plaintiff Sharon Fife should have seen the dangerously obscured slanting gutter she admits she did not see and testified she could not see from her direction and perspective. The trial court correctly perceived that genuine issues of material fact remain for jury resolution and denied MARTA’s motion for summary judgment. As my colleagues in the majority would nevertheless reverse that correct determination, I respectfully dissent.

Decided February 21, 1996.

George E. Powell, Jr., for appellant.

Divida Gude, for appellee.