text:
    A00A2181.
    POWLES v. THE STATE.
    (545 SE2d 153)
   Blackburn, Chief Judge.

Following a jury trial, Robert Marvin Powles appeals his conviction on four counts of aggravated assault on a peace officer (Counts 1 through 4), possession of a weapon during the commission of a crime (Count 5), cocaine trafficking (Count 6), possession of marijuana (Count 7), theft by receiving stolen property (Count 8), and possession of a firearm by a convicted felon (Count 9). Powles contends that the trial court erred by (1) not merging all but Counts 6 and 7 into the first count of aggravated assault, (2) dismissing his suppression motion for failure to provide adequate facts, and (3) ruling that the State proved a lawful entry and search.

note 27 by failing to provide this Court with any facts or citations to the record. “ ‘We have repeatedly held that it is not the function of this court to cull the record on behalf of a party.’” Chastain v. State. Because the issues raised on appeal are narrow, however, we will exercise our discretion and resolve this appeal on its merits. See id.

The evidence at trial showed that Agents Mickey Cox, Dennis Messman, Robert Bridgeman, and Reginald McCain forcibly entered Powles’ residence pursuant to a warrant. Cox entered the residence first, followed by McCain. A male later identified as Powles shot Cox from behind a bedroom door. Cox was able to fire back. After the shooting, Special Agent Noe was called in to execute the warrant. Noe seized powder cocaine, crack cocaine, marijuana, electronic scales, and four firearms from the home.

1. Powles argues that all of the counts aside from the drug counts (Counts 6 and 7) should merge into Count 1' (aggravated assault on Agent Cox) because the seven remaining counts relate to the act of shooting Agent Cox with a stolen .380 caliber pistol. We disagree.

A crime is included in another as a matter of fact if “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.” OCGA § 16-1-6 (1). Alternatively, a crime is included in another as a matter of law if “[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” OCGA § 16-1-6 (2); see Hardy v. State.

(a) First, we determine that Counts 2 through 4 (aggravated assault on Agents McCain, Bridgeman, and Messman, respectively) do not merge into Count 1 (aggravated assault on Agent Cox). To prove aggravated assault, the State must show simple assault with certain aggravating circumstances. See OCGA §§ 16-5-20; 16-5-21. Simple assault requires proof that the defendant “[a]ttempt[ed] to commit a violent injury to the person of another” or “[c]ommit[ed] an act which place [d] another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20.

Counts 2 through 4 do not merge a.s a matter of fact because each count required proof that a different officer was placed in reasonable apprehension of immediately receiving a violent injury. See OCGA §§ 16-1-6 (1); 16-5-20. Indeed, Agent McCain testified that he thought he was about to be shot. Agent Bridgeman, who entered the residence after McCain, testified that' he felt fear and apprehension because of the gunfire. Agent Messman, who was in the living room, testified that he tried to find cover when he heard the gunfire. Because Counts 1 through 4 involved separate victims, the counts also do not merge as a matter of law. See OCGA § 16-1-6 (2).

(b) Powles’ contention that Count 5 (possession of a weapon during the commission of a crime) merges into Count 1 (aggravated assault on Agent Cox) is unavailing. Such crimes do not merge because, as we have previously noted, “[t]he legislature intended to impose additional punishment against an individual who uses a firearm during the commission of certain crimes, including aggravated assault.” Pace v. State.

(c) Powles also contends that Count 8 (theft by receiving stolen property) merges into Count 1 (aggravated assault on Agent Cox) because the stolen property listed in the indictment was the .380 caliber pistol Powles used to assault Agent Cox. We disagree. “A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.” OCGA § 16-8-7 (a). This count does not merge into Count 1 as a matter of fact because it required proof that Powles knew or should have known that the firearm was stolen. See OCGA § 16-1-6 (1). No such proof is required for an aggravated assault conviction. See OCGA § 16-5-21. The counts also do not merge as a matter of law. See OCGA § 16-1-6 (2).

(d) Finally, Powles contends that Count 9 (possession of a weapon by a convicted felon) merges into Count 1 (aggravated assault on Agent Cox). We again disagree. This count does not merge into Count 1 as a matter of fact because it required proof that Powles was a convicted felon, and Count 1 did not. See OCGA § 16-1-6 (1). The counts also do not merge as a matter of law. See OCGA § 16-1-6 (2).

2. A trial court’s dismissal of a motion to suppress is within its discretion and “is not to be disturbed unless the appellate court finds abuse of that discretion.” Amerson v. State By statute, a motion to suppress evidence illegally seized “shall be in writing and state facts showing that the search and seizure were unlawful.” OCGA § 17-5-30 (b).

In his motion to suppress, Powles stated,
On or about December 12,1998, at 3:45 p.m. members of the Clayton County Narcotics Unit, consisting of Officers M. Cox, F.P.P.D., R. McCain, C.C.P.D., R. Bridgeman, C.C.P.D., and others smashed open the door to defendant’s residence and proceeded to search the residence and seize the defendant and others present. Defendant Powles stated that the officers entered the residence located [at] 4101 John Arnold Circle, Conley, Georgia without consent and without a valid warrant.

Citing State v. Goodman, Powles argues that the trial court erred by dismissing his suppression motion for insufficient facts because his motion contained pertinent information, including the date of search, the identity of the person searched, and the identity of the officer that conducted the search. We disagree.

In Goodman, the State disputed the trial court’s denial of its motion to dismiss Goodman’s suppression motion for insufficient facts. This Court, in upholding the trial court’s decision, noted that

with respect to warrantless searches, many of the necessary allegations in the motion to suppress are negative facts (e.g., the search was conducted without a warrant, the movant did not consent to the search) and conclusions based upon mixed questions of law and negative fact (e.g., the officer lacked probable cause to arrest or search). Thus, to determine the sufficiency of the motion to suppress evidence obtained in a warrantless search and seizure, the court examined the specific allegations set forth in the motion to determine whether those allegations were sufficient to put the state on notice as to the type of search involved (without warrant vs. with warrant), which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.

Decided February 8, 2001.

James W. Bradley, for appellant.

Robert M. Powles, pro se.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Goodman, supra at 170. Powles’ reliance upon Goodman is misplaced because the search here was performed pursuant to a warrant. Although Powles conclusively stated in his motion to suppress that the warrant was invalid, he did not provide any facts to support this conclusion. We have stated that “motions to suppress must state facts and not merely conclusions.” Rouse v. State Powles did not put the State on notice about how he intended to attack the validity of the warrant. Having found no abuse of discretion, we uphold the trial court’s dismissal of the motion.

3. Powles argues that the State failed to prove a lawful entry and search with competent evidence of a search warrant. Powles did not raise this issue below, only having stated that the warrant was invalid. Because Powles did not preserve this issue, we need not address it. See Smith v. State.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Chastain v. State, 237 Ga. App. 640 (516 SE2d 362) (1999).

        Hardy v. State, 210 Ga. App. 811, 813 (437 SE2d 790) (1993).

         Pace v. State, 239 Ga. App. 506, 509 (4) (521 SE2d 444) (1999).

        Amerson v. State, 177 Ga. App. 97, 100 (5) (338 SE2d 528) (1985).

        State v. Goodman, 220 Ga. App. 169 (469 SE2d 327) (1996).

        Rouse v. State, 241 Ga. App. 167, 168 (526 SE2d 360) (1999).

        Smith v. State, 221 Ga. App. 428 (2) (472 SE2d 4) (1996).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A00A2572.
    JACKSON v. THE STATE.
    (545 SE2d 148)
   Blackburn, Chief Judge.

Following a jury trial, Edward Jackson appeals his convictions for two counts of armed robbery, contending that the evidence was insufficient to support the verdict. Jackson also contends that (1) the trial court erred by denying his request for a charge on a lesser included offense; (2) the trial court erred by charging the jury that a knife is an offensive weapon per se; (3) he was denied effective assistance of counsel because counsel pursued a robbery by intimidation defense, which was not viable; (4) he was denied effective assistance of counsel because counsel failed to secure the presence of a witness; (5) the trial court erred by considering a prior conviction, which resulted in a higher sentence; and (6) the trial court erred by not allowing him to present more evidence regarding an earlier plea. For the reasons that follow, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Veal v. State. See Jackson v. Virginia.

So viewed, the evidence shows that on September 11, 1997, Danee and Donna Attebury went to the Red Lobster restaurant in Athens. Danee Attebury testified that after they parked their car and as they approached the restaurant, “I saw a guy and he walked up to me, and I thought he was going to ask me [for] directions or something, but he pulled a knife out and he said, drop the bag lady.” Danee continued, “[s]o my mom and I put our purses down and he picked them up and ran off.” The assailant was “within touching distance” and holding either a switchblade or pocketknife.

Donna Attebury, Danee’s mother, testified that she could see the blade of the knife, and, when asked whether she dropped her purse because the assailant had a knife in his hand, she responded, “[y]es, definitely.” Both victims identified Jackson as the assailant in a photographic lineup.

Police officers later recovered the purses nearby. Donna Attebury noticed that a silver coin, which was dated 1943, the year of her birth, was missing from her purse. When Jackson was arrested four days later, he had in his possession a pocketknife and a 1943 silver coin, both of which were identified by Donna Attebury.

1. Jackson argues the evidence was insufficient to support his convictions because there was no evidence that the knife was used in a menacing or threatening manner. We disagree because an armed robber need not use an offensive weapon in a menacing or threatening manner to accomplish the robbery.

“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.” OCGA § 16-8-41 (a). “The element of ‘use’ is present when the victim is aware of the weapon and it has the desired forceful effect of assisting to accomplish the robbery.” Oliver v. State. The evidence supports the verdict because Jackson “used” the knife to accomplish the robbery, as evidenced by Donna Attebury’s acknowledgment that she dropped her purse because the assailant had a knife in his hand.

2. Jackson argues that the trial court erred by denying his request for a charge on the lesser included offense of robbery by intimidation because it was his sole defense. We disagree.

Although “[t]he trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge,” Tarvestad v. State the evidence did not support the charge here.

As we held in Espinoza v. State,

where the uncontradicted evidence shows completion of the offense of armed robbery, and no evidence is presented to the effect that a weapon was not used in the robbery, the defendant is not entitled to a jury charge on the lesser included offenses of theft by taking or robbery by intimidation.

Id. Because, as discussed above, Jackson “used” the knife in the course of the robbery, he was not entitled to the charge on the lesser included offense.

3. Jackson contends that the trial court impermissibly charged the jury that the knife used was an offensive weapon per se. The court instructed the jury that

[a] person commits [the offense of] armed robbery when with [the] intent to commit theft , that person takes property of another from the person or the immediate presence of another by use of an offensive weapon. An offensive weapon is any object, device, or instrument which when used offensively against a person is likely to or actually does result in death or serious bodily injury.

Jackson insists that the term “when used offensively” took the determination of how the knife was used out of the hands of the jury. We disagree.

The instruction given by the trial court tracked the pattern jury instructions. See Prins v. State (citing Suggested Pattern Jury Instructions, Vol. II: Crim. Cases (2nd ed. 1991), p. 116). Moreover, pursuant to the trial court’s instructions, to convict Jackson of armed robbery, the jury had to find that he used the knife in order to take the property of the victims and that the knife, if used offensively, was likely to result in serious bodily injury. This is a correct statement of the law.

In Hambrick v. State, a case cited by Jackson, the defendant challenged “the nature and role of the pocketknife as an offensive weapon.” We stated that

[t]he term “offensive weapon” includes not only weapons which are offensive per se, such as firearms loaded with live ammunition. It also embraces other instrumentalities not normally considered to be offensive weapons in and of themselves but which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use.

Id. The term “manner and means of their use” does not refer to how the weapon was used during the robbery in question, but its potential for harm when used offensively. Indeed, in Hambrick, we noted that the knife used “though rather small and of a type suitable for carrying in the pocket, was arguably capable of inflicting the types of injuries which generally can be produced by knives, including death or great bodily injury.” Id.

4. Jackson argues that he was denied effective assistance of trial counsel because the sole defense he pursued was attempting to obtain a jury verdict on the lesser included offense of robbery by intimidation. Jackson asserts that “trial counsel’s strategy was unreasonable and deficient under the circumstances.”

To establish ineffectiveness, an appellant must show that (1) counsel’s performance was deficient and (2) the deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s outcome would have been different but for that deficiency. We need not address both prongs of this test if the showing on one prong is insufficient, nor must we address them in any particular order. We review a trial court’s finding that a defendant has been afforded effective assistance of counsel under the clearly erroneous standard.

(Footnotes omitted.) Scott v. State; Strickland v. Washington.

We note initially that although Jackson argues in this enumeration that robbery by intimidation was not a sufficient defense, he also argues earlier in this appeal that the trial court erred by not charging the jury on this lesser included offense.

Jackson does not suggest any other defense that counsel could have raised. Jackson instead insists that he was offered a plea for less than the life sentence he received after the trial. Counsel testified at the hearing on the motion for a new trial that Jackson was initially offered a plea, which he did not accept because counsel had not yet investigated the case. Counsel testified that the State did not make another offer after that, but that counsel attempted to offer a plea for a 20-year sentence. The State rejected counsel’s offer. On these facts, we cannot agree that trial counsel rendered ineffective assistance.

5. Jackson contends that he did not receive effective assistance of trial counsel because counsel failed to present evidence relating to a prior conviction for armed robbery, which was used to enhance his sentence.

Jackson was convicted of armed robbery in Toombs County in 1985. Jackson and his co-defendant were represented by the same attorney, Marcus Price, and both pled guilty to the charge. Jackson now states he mainly pled guilty because Price told him that his co-defendant was pleading guilty and would testify against him if he proceeded to trial. Jackson contends that counsel should have subpoenaed Price to testify at the sentencing hearing.

At the hearing on the motion for a new trial, trial counsel testified that he did not subpoena Price because Price told him that he did not remember anything about the case. Although Price did not testify at the sentencing hearing, Jackson testified at the sentencing hearing about the circumstances of the plea in Toombs County. Jackson was not prejudiced by counsel’s decision not to subpoena Price. See Scott, supra. The trial court did not err by denying Jackson’s motion for a new trial on this ground.

6. Jackson argues that the trial court erred by enhancing his sentence based on the conviction in Toombs County because he did not receive effective assistance of counsel in that case because counsel labored under a conflict of interest. Jackson further argues that because counsel was operating under a conflict of interest, Jackson essentially entered the plea without representation.

In Pope v. State, our Supreme Court held that a guilty plea that is invalid may not be used to enhance punishment in a subsequent trial. The Pope Court further held that “once the defendant raises the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the [S]tate to establish a valid waiver.” Id.

, In Nash v. State the Supreme Court overruled its decision in Pope, holding that “the burden in non-death penalty cases is on the recidivism defendant rather than the State to prove by a preponderance of the evidence that a previous guilty plea was not knowingly and voluntarily entered.” The Nash Court adopted the following method for determining whether the prior guilty plea was involuntary:

[T]he burden is on the State to prove both the existence of the prior guilty pleas and that the defendant was represented by counsel in all felony cases and those misdemeanor proceedings where imprisonment resulted. Upon such a showing, the presumption of regularity is then applied and the burden shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Defendant can attempt to meet his burden of production with a transcript, with testimony regarding the taking of the plea, or with other affirmative evidence. A silent record or the mere naked assertion by an accused that his prior counseled plea was not made knowingly and intelligently is insufficient. If the defendant is able to present evidence that a constitutional infirmity exists, then the burden of proving the constitutionality of the plea shifts to the State.

(Citations and punctuation omitted.) Nash, supra at 285.

At the sentencing in this case, the State presented evidence that Jackson signed a document in the Toombs County case, acknowledging that he was advised of his rights, his plea was given freely and voluntarily, and that he was guilty of the crime. The State also presented a transcript of the plea hearing in which Jackson acknowledged that he was aware of the rights he was giving up by entering a plea of guilty. Jackson testified at the sentencing hearing that he did commit the robbery for which he was convicted in Toombs County but opined that, in hindsight, he “would have beat the case” had it gone to the jury. Jackson testified that he entered the guilty plea because he wanted to get a deal. The trial court found that the plea was given freely and voluntarily and with the benefit of counsel.

Decided February 8, 2001.

David T. Wooten, for appellant.

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellee.

We uphold the trial court’s finding. “Single representation of multiple defendants raises no per se presumption of conflict of interest or prejudice.” Hamilton v. State Given Jackson’s admission of guilt and the evidence that he knew of the consequences of his plea, we find that the State met its burden of showing that Jackson was represented by counsel at his plea hearing and that Jackson has not rebutted the presumption of regularity. See Nash, supra.

7. Jackson argues that the trial court erred by not allowing him to present additional evidence regarding his plea in Toombs County. The only specific evidence mentioned by Jackson was that he was not permitted to present Price’s testimony. Jackson concedes, however, that Price may not have been able to recall any specific facts about the plea. Having therefore shown no prejudice resulting from the trial court’s decision, we find no reversible error. See Ortiz v. State.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

        Veal v. State, 242 Ga. App. 873 (1) (531 SE2d 422) (2000).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Oliver v. State, 232 Ga. App. 816, 817 (1) (503 SE2d 28) (1998).

        Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991).

        Espinoza v. State, 243 Ga. App. 665, 667 (2) (534 SE2d 127) (2000).

        Prins v. State, 246 Ga. App. 585, 588 (2) (539 SE2d 236) (2000).

        Hambrick v. State, 174 Ga. App. 444, 445 (1) (330 SE2d 383) (1985).

        Scott v. State, 242 Ga. App. 553, 554 (2) (530 SE2d 257) (2000).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Pope v. State, 256 Ga. 195, 209-210 (17) (345 SE2d 831) (1986).

        Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999).

        Hamilton v. State, 255 Ga. 468, 470 (2) (339 SE2d 707) (1986).

        Ortiz v. State, 222 Ga. App. 432, 434 (4) (474 SE2d 300) (1996).


author: SMITH, Presiding Judge.

text:
    A00A2042.
    McCAFFERTY v. THE STATE.
    (545 SE2d 91)
   SMITH, Presiding Judge.

Following a bench trial on stipulated facts, Brandon McCafferty was convicted on charges of driving under the influence of alcohol to the extent that it was less safe for him to be in actual physical control of a vehicle (OCGA § 40-6-391 (a) (1)); failure to stop (OCGA §§ 40-6-72; 40-6-1); and failure to maintain lane (OCGA §§ 40-6-48; 40-6-1). McCafferty appeals, contending the trial court erroneously excluded evidence that he rescinded his refusal to take the State-administered breath test. He also contends that the trial court erred in excluding evidence that would have impeached the testimony of the arresting officer. We find no error with respect to the trial court’s rulings concerning McCafferty’s refusal to take the breath test. But because we conclude that the trial court erred in excluding relevant evidence bearing on other issues in the case, we reverse.

1. We first address McCafferty’s contention that the trial court erroneously concluded he did not properly rescind his initial refusal to undergo a State-administered breath test. Before trial, McCafferty filed a motion in limine to exclude, among other things, evidence that he refused to take the breath test. Following a hearing, the trial court denied the motion, concluding that McCafferty’s attempted rescission was not timely under the requirements set out in Dept. of Public Safety v. Seay, 206 Ga. App. 71 (424 SE2d 301) (1992).

McCafferty was arrested by DeKalb County police officer Ryan Frost and was charged with several traffic violations, including DUI. During a hearing on a motion in limine filed by McCafferty, Frost testified that he read McCafferty’s implied consent rights and McCafferty indicated that he did not wish to take the State-administered breath test. Officer Frost stated that he reread the implied consent rights and McCafferty requested to speak with an attorney. Frost told McCafferty that he did not have the right to counsel at the time and transported McCafferty to jail. After McCafferty was booked at the jail, Frost left and returned to his duties. According to Frost, approximately two and one-half hours after he left the jail, while he was involved with another traffic stop, he received a radio call from Officer Brian McGrath, who told him that McCafferty had requested “an additional test at that time,” a blood test. Frost testified he told McGrath that McCafferty “had not satisfied the State’s requirement at the time, that he needed to satisfy the [S]tate’s requirement first, before he proceeds to be taken for an additional test.” Officer James Berg, who was on patrol with Frost when he arrested McCafferty and when he received the radio call from McGrath, testified that McGrath informed Frost that McCafferty had requested a blood test.

McCafferty presented conflicting evidence concerning his jailhouse request for a chemical test. Sergeant James Freeman testified that McCafferty told him he wanted to take a breath test. Freeman also testified that he spoke with McCafferty’s mother on the telephone and she similarly requested that McCafferty be given a breath test. Freeman stated that after McCafferty requested this test, Freeman talked with Officer McGrath, who “was bringing in another arrestee in the intake area,” and told McGrath that McCafferty had requested a Breathalyzer test. He testified that McGrath radioed Frost and advised him of McCafferty’s request to take a breath test and that Frost responded that McCafferty had “already refused the test.” McCafferty’s mother testified that she talked with him on the telephone and that, during their conversation, she heard him state to an officer at the jail that he wanted to take a Breathalyzer test. McCafferty was not given a chemical test of any sort. He contends that the trial court should not have excluded evidence that he rescinded his on-the-scene refusal to undergo the breath test.

Relying on Standish v. Dept. of Revenue &c., 235 Kan. 900 (683 P2d 1276) (1984), this court in Seay, supra, set out the factors to be considered when deciding whether an accused has effectively rescinded a refusal to submit to a State-administered chemical test. To be effective, consent to take a State-administered test must occur

(1) within a very short and reasonable time after the prior first refusal; (2) when a test administered upon the subsequent consent would still be accurate; (3) when testing 0 equipment is still readily available; (4) when honoring the request would result in no substantial inconvenience or expense to the police; and (5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.

(Citation and punctuation omitted.) Id. at 73 (1).

In its order denying McCafferty’s motion in limine, the trial court noted the conflicting evidence as to whether McCafferty requested a breath or blood test while at the jail but construed the evidence in McCafferty’s favor by presuming that McCafferty attempted to rescind “his refusal to take the requested breath test.” The court found that this attempted rescission, made after Frost had returned to his other duties, was “too late” and that McCafferty had not been in Frost’s custody and under his observation for the entire time since his arrest. Based on these findings, the trial court concluded that McCafferty had not complied with Standish, supra, and denied his motion.

Even assuming, as argued by McCafferty, that he rescinded his refusal only an hour and 15 minutes after the initial stop, and only 30 to 45 minutes after Frost left the jail, we cannot say the trial court abused its discretion in denying McCafferty’s motion to exclude evidence of his refusal. This is not a case, such as that noted for comparison in Standish, supra, in which a defendant refused a test at the scene and then changed his or her mind and requested the test “a few minutes later.” 235 Kan. at 903. Instead, like the defendant in Standish, McCafferty waited to rescind his refusal until after the arresting officer took him to jail and after the officer had left the jail. The evidence presented to the trial court showed that the rescission was not made within “a very short and reasonable time” and that at the time he attempted to rescind his refusal, McCafferty was no longer in Frost’s custody. The trial court therefore did not err in denying the motion to exclude evidence of the refusal.

We note McCafferty’s argument that the trial court too narrowly interpreted Seay by concluding that his rescission could not be effective since it was made after Officer Frost left the jail. But Standish, on which Seay relies, shows that just such an interpretation is intended by the guidelines set out in that case for determining whether a rescission was timely. Standish clearly states that an “arresting officer need not sit and wait for the person to change his or her mind, and thus neglect other duties.” 235 Kan. at 903.

2. McCafferty contends the trial court erred in refusing to allow him to introduce evidence that would have impeached the testimony of McGrath on the issue of whether he effectively rescinded his refusal to submit to the State-administered test. Just before trial was scheduled to begin, defense counsel indicated that he had witnesses present who would testify concerning McCafferty’s demeanor at the jail and who could impeach the State’s witnesses who would testify that McCafferty asked for a blood test. The trial court concluded that the issue of whether McCafferty rescinded his refusal had already been litigated and ruled on and that the issue would not be relitigated. The court found that McCafferty’s witnesses would simply testify concerning that issue and that he could not present “any evidence whatsoever of what took place at the jail.” Based on these rulings, McCafferty agreed to enter a stipulated case, while reserving his objections to the trial court’s order allowing evidence of his refusal and to the trial court’s refusal to permit him to present evidence concerning anything that occurred at the jail.

We find no error in the trial court’s conclusion that McCafferty could not present evidence concerning his attempted rescission of his initial refusal to take the breath test. That issue was fully litigated during the hearing on McCafferty’s motion in limine. Conflicting testimony on the issue was presented to the trial court, and the court resolved those conflicts against McCafferty, which it was authorized to do. See generally Thompson v. State, 234 Ga. App. 74 (1) (506 SE2d 201) (1998).

3. Although we conclude that McCafferty was not entitled to relitigate the issue of his attempted rescission of his refusal to take the State-administered test, we find merit in his contention that the trial court erred in precluding him from introducing any evidence of his sole defense — impeachment of the State’s witness on issues other than those concerning his attempted rescission of his refusal to take the chemical test. In addition to his attempt to impeach Officer Frost on the rescission issue, the record shows that McCafferty sought to introduce evidence at trial concerning the events that occurred at the jail in an effort to illustrate his demeanor at that location. Presumably, this evidence might have impeached the testimony of Officer Frost concerning his opinion as to whether McCafferty was a “less safe” driver under OCGA § 40-6-391 (a) (1). “Generally, a party may show anything which in the slightest degree affects the credit of an opposing witness.” (Citation and punctuation omitted.) Smith v. State, 190 Ga. App. 6, 7 (2) (378 SE2d 349) (1989). Testimony by other police officers or by McCafferty’s mother concerning his demeanor and actions at the jail might have conflicted with or impeached that of Frost concerning manifestations of intoxication shown by McCafferty. The trial court’s broad ruling that McCafferty could present no evidence concerning the events that transpired at the jail prevented McCafferty from introducing evidence of this defense.

Decided January 24, 2001

Reconsideration denied February 9, 2001

Magarahan, Villines & Honis, Charles T. Magarahan, Maurice Bennett, for appellant.

Gwendolyn R. Keyes, Solicitor, Lawrence A. Silverman, Lauren E. Waller, Assistant Solicitors, for appellee.

We note the State’s argument that even if the trial court erred, any error was harmless in light of the overwhelming evidence of McCafferty’s guilt. Using the report prepared by Officer Frost, the prosecutor stated the facts underlying the charges against McCafferty, and while reserving his objections to the trial court’s evidentiary rulings, McCafferty agreed that these facts would support convictions on the charges against him if the jury believed them.

Based on the record before us, we cannot conclude that the trial court’s refusal to allow McCafferty to present any evidence whatsoever concerning McCafferty’s behavior at the jail was harmless. The stipulated facts were, in large part, based on the observations of Officer Frost, whose credibility would have been in issue. And McCafferty preserved his right to appeal the trial court’s ruling on the issue by reserving his right to challenge the ruling that he “would not be allowed to introduce evidence of actions taken and statements made while [he] was at the jail.” To affirm on the basis that the evidence was overwhelming would prevent McCafferty from obtaining appellate relief on an issue expressly reserved by him and would defeat “the intent of the parties in preserving [his] right to raise the pretrial issues on appeal.” Richards v. State, 269 Ga. 483, 485-486 (500 SE2d 581) (1998). We therefore reverse the trial court’s ruling insofar as the court too broadly prohibited McCafferty from introducing evidence concerning his behavior at the jail.

Judgment reversed.

Johnson, R J., and Phipps, J., concur.


author: Miller, Judge.

text:
    A00A2418.
    GUNSBY v. THE STATE.
    (545 SE2d 56)
   Miller, Judge.

Lavorious Kenvion Gunsby appeals his convictions for two armed robbery counts arising out of the robbing of a Spectrum convenience store and for an additional armed robbery and a robbery count arising out of the robbing of a Kentucky Fried Chicken (“KFC”) store. He was acquitted on a fourth armed robbery count concerning another convenience store. He enumerates four errors: (1) the evidence was insufficient; (2) the court erred in denying his motion to suppress evidence obtained under an invalid search warrant; (3) the court erred in denying his motion to sever the Spectrum robbery charges from the KFC robbery charges; and (4) he received ineffective assistance of counsel. We discern no error and affirm.

l. The issue when reviewing a conviction for sufficiency of the evidence is whether, based on the evidence presented, a rational finder of fact could have found the accused guilty of the charged offenses beyond a reasonable doubt. Leaving the resolution of conflicting or contradictory testimony and the credibility of the witnesses to the jury, we construe the evidence in favor of the jury’s verdicts. In this regard, even though a witness may recant on the stand, his prior inconsistent statements constitute substantive evidence on which the jury may rely.

Spectrum Robbery. So construed, the evidence showed that at 1:30 a.m. on Sunday, February 15, 1998, a young male of defendant’s race, wearing a hooded mask and carrying a 30-30 rifle, entered a Spectrum convenience store in Troup County and demanded that the money from the cash register be placed in a bag. The robber then turned the rifle on a customer standing nearby and demanded money from him. The mask was homemade with the eye holes cut down to the bottom of the gunman’s nose. The cashier, who thought the gunman looked familiar, described him as five feet five inches in height, about 130-140 pounds, with the voice of a young boy and favoring a man who turned out to be Gunsby’s uncle.

When Gunsby came into the store the following Wednesday, the cashier immediately recognized him as the gunman and called police. At trial the cashier positively identified sixteen-year-old Gunsby (who weighed 132 pounds and was five feet six inches in height) as the gunman and positively identified the 30-30 rifle found at Gunsby’s residence as the robbery weapon. Gunsby admitted to an acquaintance that he had committed the Spectrum robbery.

KFC Robbery. On the day following the Spectrum robbery, the KFC store across the street was robbed by a young man of defendant’s race, wearing a homemade mask and carrying a 30-30 rifle, who demanded that the money from the cash register be placed in a bag and who also stole an employee’s wallet lying nearby. The witnesses described the gunman as approximately five feet five inches in height and as wearing a black leather jacket. The gunman did not demand money from another bystander, who turned out to be a friend of Gunsby. Gunsby later admitted to an acquaintance that he robbed the KFC store also and, as evidence, showed the acquaintance a large amount of cash that he received from both robberies.

A search of Gunsby’s residence produced the 30-30 rifle and a black leather jacket similar to what was worn by the gunman at the KFC robbery. When found, the rifle had wet and dry mud on it as well as grass blades, even though its owner (Gunsby’s father) had not used the gun for years. It was raining on the night of the KFC robbery. Evidence also showed that Gunsby owned a skullcap cut with homemade holes.

The evidence sufficed to sustain the verdicts for three counts of armed robbery and one count of robbery.

2. Gunsby complains that the search warrant for his residence was invalid, arguing that the underlying affidavit omitted material information, deliberately misrepresented underlying facts, and did not provide information from which the magistrate could determine the reliability of the informants. He contends that the court should have granted his motion to suppress the evidence discovered under the search warrant.

In reviewing a trial court’s holding on a motion to suppress, we construe the evidence most favorably to uphold the trial court’s judgment and do not disturb its findings if there is any evidence to support them. Our task on appeal is “simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed” based on the totality of the circumstances. If the underlying affidavit relies on informants, the informants’ veracity or reliability and their basis of knowledge are relevant considerations to determine if probable cause existed for the issuance of the warrant. And corroboration of the informants’ information may provide a substantial basis for finding probable cause, despite deficiencies in the informants’ veracity, reliability, or basis of knowledge.

Describing the Spectrum robbery, the police officer’s underlying affidavit set forth that the Spectrum cashier had told the officer within days after the robbery that the cashier recognized and identified Gunsby by name as the gunman who robbed the store. After interviewing the KFC cashier, who described the gunman as wearing a black leather jacket, the police officer also interviewed an informant named Benjamin Jones who advised that Gunsby admitted to robbing the KFC store and to receiving just over $900 in currency. This amount approximated the amount stolen, which information had not been released to the public.

Finally, the affiant officer stated that another officer told him a reliable source advised that Gunsby had committed the KFC robbery. No other information on this informant was provided. The affiant confirmed Gunsby’s address and requested a search warrant to search for the weapon and for the black leather jacket.

Since the cashiers were victims of the robberies, there was no requirement that their reliability be further corroborated in order to show probable cause. Thus, the victim’s identification of Gunsby by name was sufficient to establish probable cause that he committed the Spectrum robbery. This authorized the rational inference that implements or the fruits of the crime would be found at the 16-year-old’s residence. Jones’s statement about Gunsby admitting to the KFC robbery was corroborated by Jones’s identification of $900 as the stolen amount, which information had not been released to the public. This corroboration of Jones’s information provided a substantial basis for finding probable cause, despite the alleged deficiencies in Jones’s veracity, reliability, or basis of knowledge, even if that corroboration was marginal. This is so, particularly in light of the admonition that we should resolve doubtful or marginal cases in favor of finding the warrant valid. The inclusion of the statement to the other police officer from the unnamed and uncorroborated informant was surplusage and unnecessary for finding probable cause.

Citing Redding v. State, Gunsby claims that the affidavit omitted material information and deliberately misrepresented facts, and that the affidavit should be considered with the material facts added and the misrepresentations deleted. But neither this argument nor its underlying evidence was raised or presented to the court at the motion to suppress hearing, even though the hearing reflected that Gunsby received this evidence in discovery prior to the hearing. Nor did Gunsby ask the court during trial to reconsider its ruling or renew his motion to assert these additional grounds. Accordingly, the court did not abuse its discretion in declining to reconsider the ruling on these grounds at the motion for new trial hearing.

3. Gunsby contends that the court erred in failing to sever the Spectrum robbery charges from the KFC robbery charges. “A court has wide discretion in severance motions.” A trial court properly denies a motion to sever when

the crimes alleged were part of a continuous transaction or series of similar transactions conducted over a relatively short time, and from the nature of the entire transaction, it would be difficult to present to a jury evidence of one of the crimes without also referring to or permitting evidence of the others.

As in Roman v. State, the Spectrum and KFC robberies were strikingly similar and appeared to be a spree of criminal activity involving a common modus operandi. In each robbery, the perpetrator, as described by the victims, had similar physical characteristics, wore the same type of mask, used the same rifle to threaten the cashier, demanded that the money from the register be placed in a bag, and stole money from a bystander. The robberies were committed a day apart at stores across the street from each other. The court did not abuse its discretion in denying the motion to sever.

Decided January 23, 2001

Reconsideration denied February 9, 2001

Charles R. Floyd, Jr., for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee.

In his appellate brief, Gunsby attempts to expand the scope of his enumeration of error by arguing that the court should have also severed the fourth robbery charge, on which charge he was acquitted. A party cannot use his brief to expand his enumerations of error to include issues or rulings not raised in the enumerations of error.

4. Gunsby urges that he was denied effective assistance of counsel in that his counsel failed to (a) effectively cross-examine witnesses, (b) recall certain witnesses who had testified favorably to him during the State’s case, and (c) put on alibi witnesses and pursue an alibi defense. We have carefully reviewed the trial transcript and the motion for new trial transcript, in which Gunsby’s trial counsel defended his decisions in these matters. We find ample evidence to support trial counsel’s decisions. As in Esquivel v. State, we do not find it necessary to address specifically and individually each and every one of Gunsby’s numerous instances of challenged trial tactics. Suffice it to say that the decisions on which witnesses to call, whether to put on evidence so as to preserve the final word in closing argument, how to conduct cross-examinations, whether to call indefinite alibi witnesses, and whether to pursue an alibi defense are strategic and tactical decisions that, after thorough investigation and client consultation, are virtually unchallengeable and do not require a finding of ineffective assistance of counsel.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Arrington v. State, 244 Ga. App. 529, 531 (536 SE2d 212) (2000).

        Drake v. State, 238 Ga. App. 584, 586 (1) (519 SE2d 692) (1999); accord Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849) (1988) (whole court) (presumption of innocence no longer applies once jury has considered the evidence and determined the accused’s guilt).

        Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982).

       OCGA § 16-8-41 (a) (armed robbery); see Sims v. State, 242 Ga. App. 460, 461 (1) (530 SE2d 212) (2000).

       OCGA § 16-8-40 (a) (3) (robbery by sudden snatching); see Burns v. State, 245 Ga. App. 332 (537 SE2d 768) (2000).

        Sosebee v. State, 227 Ga. App. 21, 22 (488 SE2d 102) (1997); see generally Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

       (Citation and punctuation omitted.) Sosebee, supra, 227 Ga. App. at 22.

        Pailette v. State, 232 Ga. App. 274, 277 (501 SE2d 603) (1998).

        Butler v. State, 192 Ga. App. 710, 712 (1) (386 SE2d 371) (1989).

        Miller v. State, 219 Ga. App. 213, 216 (2) (464 SE2d 621) (1995); accord Devier v. State, 247 Ga. 635, 638 (5) (277 SE2d 729) (1981) (hearsay declarant shows reliability by stating he or she is a law enforcement officer, the victim of a crime, or a law-abiding and trustworthy concerned citizen, or even a declarant against penal interest).

       See, e.g., Wimberly v. State, 233 Ga. 386, 387 (4) (211 SE2d 281) (1974) (warrantless arrest for rape and armed robbery was not illegal but based upon probable cause, where victim recognized defendant and informed police).

        Williams v. State, 251 Ga. 749, 795 (8) (b) (ii) (312 SE2d 40) (1983); accord Huntley v. State, 244 Ga. App. 212, 213 (1) (535 SE2d 270) (2000).

        Butler, supra, 192 Ga. App. at 712 (1).

        Mincey v. State, 180 Ga. App. 898, 900 (1) (350 SE2d 852) (1986).

       Id.

       192 Ga. App. 87 (383 SE2d 640) (1989).

        Huntley, supra, 244 Ga. App. at 214 (2); see Pickens v. State, 225 Ga. App. 792, 796 (1) (c) (484 SE2d 731) (1997).

       (Citation and punctuation omitted.) Dennis v. State, 263 Ga. 257, 259 (6) (430 SE2d 742) (1993).

       (Citation and punctuation omitted.) Roman v. State, 245 Ga. App. 225, 226 (2) (537 SE2d 684) (2000).

       Id.

       See Collins v. State, 240 Ga. App. 289, 290-291 (1) (523 SE2d 359) (1999) (where same weapon was used in both robberies, no abuse to deny motion to sever); Sanders v. State, 236 Ga. App. 578, 580 (1) (a) (512 SE2d 678) (1999) (similar robberies committed within 16 days in same neighborhood need not be severed); Bailey v. State, 157 Ga. App. 222, 224 (3) (276 SE2d 843) (1981) (similar crimes separated by only a few days and one-fourth mile constitute a continuous series of acts; no abuse to deny severance).

        Felix v. State, 271 Ga. 534, 539, fn. 6 (523 SE2d 1) (1999); Duffey v. State, 232 Ga. App. 693 (498 SE2d 816) (1998).

       Cf. Esquivel v. State, 236 Ga. App. 325, 326 (512 SE2d 61) (1999).

       Id.

       Id.

        Silcox v. State, 241 Ga. App. 845, 846 (d) (528 SE2d 271) (2000).

        Ellison v. State, 242 Ga. App. 636, 639 (7) (c) (530 SE2d 524) (2000).

        Hall v. State, 243 Ga. App. 804, 806 (534 SE2d 196) (2000).

        Nelson v. State, 242 Ga. App. 63, 66 (8) (528 SE2d 844) (2000).


author: Mikell, Judge.

text:
    A00A2504.
    HODGES v. THE STATE.
    (545 SE2d 157)
   Mikell, Judge.

Edward Hodges was indicted on one count of aggravated battery, one count of aggravated assault, and two counts of possession of a firearm during the commission of a felony. A jury convicted him of aggravated assault and one weapon offense and acquitted him of aggravated battery and the corresponding firearm offense. On appeal, Hodges challenges the sufficiency of the evidence, the effectiveness of his trial counsel, and the admission of testimony concerning prior difficulties between Hodges and the victim. We affirm his conviction and remand for a hearing on his ineffective assistance of counsel claim.

1. Hodges first contends that the evidence was insufficient to support his conviction of aggravated assault. We disagree.

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 the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847) (1996).

Viewed in the light most favorable to the verdict, the evidence reveals that the victim met Hodges in 1994, when he paid her to have sex with him. An abusive, long-term relationship developed. The victim testified that Hodges always kept a loaded gun on the seat of his truck. On July 4, 1997, he arrived at her home at approximately 10:00 p.m. She was drunk on gin and beer and high on crack cocaine. The two went to a bar and, later, a restaurant. Hodges expressed a desire for sex, which the victim could not accommodate due to her period. Apparently, he wanted to solicit a prostitute. The next thing the victim recalled was seeing her hands “draw up.” Then she heard Hodges say, “Oh, shit, baby, look what you made me do.” The victim was shot in the front of her neck. The bullet lodged in her spine, rendering her a paraplegic. The victim could not recall whether she handled Hodges’ weapon that night. She admitted she had previously attempted suicide but denied shooting herself.

Hodges transported the victim to the hospital. There, he told Officer Charles Newman that the victim’s gunshot wound was self-inflicted. According to Officer Newman, Hodges stated that he and the victim were talking and laughing about prostitutes. Hodges said the victim became upset, placed the gun to her neck, and pulled the trigger.

Dr. Casey Graybeal, a general surgeon, treated the victim immediately upon her arrival in the emergency room. Dr. Graybeal, who qualified as an expert in the care and treatment of gunshot wounds, testified that he saw no evidence that the gun was fired in very close proximity to the victim’s skin. Dr. Graybeal explained that the factors associated with a wound inflicted by a gun fired at close range — skull fracture, gunshot powder burns, stippling, or “tattooing” — were absent in this case. He concluded that it would have been difficult to avoid “tattooing” if the gun was fired within a foot of the victim’s head.

Bernadette Davy, a firearm examiner employed by the State Crime Laboratory, testified that when a gun is fired at close range, gunpowder gases that exit behind the bullet tend to cause stellate, or star-shaped, tearing of the skin. Sergeant Carol Martin, who investigated the shooting for the Gainesville Police Department, testified that at the hospital, an emergency room physician reported to her that he did not observe gunshot residue or stellate tearing around the wound. According to Sgt. Martin, both factors are typical of pressed contact wounds. Davy testified that stippling, as opposed to stellate tearing, is the physical bruising of the skin from unburnt powder gases. According to Davy, a gunshot wound would not exhibit stippling if the weapon, in this case a nine millimeter MAC-11 semiautomatic pistol, had been fired while pressed against the skin or from a distance of eighteen to twenty-four inches. No gunshot residue was found on the hands of either Hodges or the victim.

Hodges argues that the expert testimony is consistent with the theory that the victim shot herself. However, by its verdict, it is clear that the jury chose to believe the evidence that Hodges fired the weapon. The weight to be given to the evidence, including the experts’ testimony, was for the jury to decide, Pugh v. State, 216 Ga. App. 253, 254 (1) (454 SE2d 538) (1995), and we find the evidence sufficient under the standard set forth in Jackson v. Virginia, supra, to support Hodges’ conviction of aggravated assault.

2. Hodges next argues that the trial court erroneously admitted evidence of his prior difficulties with the victim. The victim testified that Hodges had threatened to slit her throat and “drink the blood,” had pointed the gun at her between five and ten times, had struck her in the eye with the gun, had beaten her with his fists on several occasions, and had fired a shot into a couch where she was sitting. The victim speculated that in each instance, Hodges was inflamed by jealousy. Hodges contends that the victim had not made him jealous on the night of the incident; thus, the prior acts were irrelevant to his motive or state of mind. We disagree.

Decided February 9, 2001.

Thompson, Fox, Chandler, Homans & Hicks, Robert L. Chandler, for appellant.

In a statement made at the hospital, Hodges indicated that the victim had pointed the gun at him and said she would kill herself and Hodges before she would allow him to pick up a prostitute. The jury could have inferred from this evidence that Hodges became enraged when the victim threatened him. The prior difficulties evidence was clearly relevant to show Hodges’ tendency to assault or batter the victim when she angered him.

In any event, the Supreme Court has made it clear that “evidence of the defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim. . : .” Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998).

The rationale in Wall is that a defendant’s prior acts toward the victim are admissible as evidence demonstrating motive, intent, or bent of mind toward the victim, thereby establishing “a logical, probative connection between the crime charged and the prior difficulty. (Cit.)” Id. at 509. Because the relationship between the defendant and the victim is ' usually relevant, it is not surprising that the nature of that relationship is subject to proof at trial.

Porter v. State, 243 Ga. App. 498, 501 (2) (532 SE2d 407) (2000). The trial court did not abuse its discretion in admitting the prior difficulties evidence.

3. Hodges raises a claim of ineffective assistance of trial counsel for the first time on appeal. Because appellate counsel was appointed after Hodges’ amended motion for new trial was denied, we remand the case to the trial court for an evidentiary hearing on this claim. Potter v. State, 272 Ga. 430, 432 (3) (530 SE2d 725) (2000).

Judgment affirmed and case remanded.

Pope, P. J., and Miller, J., concur.

Lydia J. Sartain, District Attorney, Arturo Corso, Assistant District Attorney, for appellee.


text:
    A00A1869.
    GRAFF v. McREYNOLDS & ASSOCIATES, P.C.-PROFIT SHARING PLAN.
    (545 SE2d 159)
   Miller, Judge.

McReynolds & Associates, P.C.-Profit Sharing Plan (the “Plan”) obtained summary judgment against Sarah Graff on a note executed by a defunct corporation that she and her deceased husband had owned. She appeals on the ground that she is not personally liable for a corporate debt that she did not guarantee. Since the only grounds on which she could possibly be liable were not asserted in the motion for summary judgment, we reverse the grant of summary judgment against her.

She also appeals the denial of her motion for summary judgment on the liability issue. We affirm this portion of the judgment, as some inconclusive evidence could support a finding of liability against her.

Operative Facts

Sarah and her husband Charles owned and operated Graff & Associates, Inc. (“GAI”). GAI borrowed $20,000 from the Plan in 1986, which debt was guaranteed by Charles and was secured by certain real property owned by GAI. GAI was administratively dissolved in 1988, and Charles died in 1992. In 1996, GAI and Sarah sold the real property to Harris Trailers, Inc., but the closing attorneys allegedly did not pay off the Plan’s note nor hold back money for that purpose because they had not discovered the Plan’s recorded deed in the chain of title. Sarah (or GAI) received $44,197.72 at closing. When the Plan began foreclosure proceedings against the real property, Harris Trailers sued Sarah, the Plan, and the law firm that closed the sale to Harris Trailers and obtained a consent order enjoining the foreclosure.

The Plan cross-claimed against Sarah for the amount of the corporate note plus interest. The theory for recovery against Sarah was not stated. The Plan then moved for summary judgment on this cross-claim, asserting as its sole ground for summary judgment that because the note had not been paid and the statute of limitation had not run, Sarah was personally liable on the note. Sarah countered that she had not guaranteed the note nor otherwise assumed liability therefor.

Sarah also moved for summary judgment in her favor on the Plan’s claim. In response to her motion only, and not as a basis for summary judgment in its favor, the Plan for the first time explained the basis for liability against Sarah personally, claiming that some inconclusive evidence showed that (1) as the GAI corporate officer presiding over liquidation Sarah breached her fiduciary responsibility to the Plan (a GAI creditor) by not paying the Plan before herself, (2) as the executrix of Charles’s estate she breached her fiduciary responsibility to the Plan by not paying the Plan before herself, and (3) after Charles’s death she became the alter ego of GAI. Sarah chose not to respond to these arguments.

The court granted the Plan’s motion for summary judgment on its claim against Sarah personally and denied Sarah’s motion for summary judgment on the same claim. We affirm in part and reverse in part.

1. The Plan does not dispute Sarah’s evidence that she did not guarantee the GAI debt nor otherwise affirmatively undertake to personally pay the debt. Rather, the Plan argues that some evidence shows that she is liable for the debt on the grounds (1) as liquidator of GAI and as executrix of Charles’s estate, she breached fiduciary duties owed to the Plan as a creditor, and (2) she became GAI’s alter ego upon Charles’s death.

These grounds and theories of liability, however, were not asserted in the Plan’s motion for summary judgment, which argued only that the debt had not been paid and that the statute of limitation had not run. Accordingly, in responding to the Plan’s motion, Sarah had no obligation to present evidence on or to argue against these unasserted grounds. “The issues that must be rebutted on motion for summary judgment are those raised by the motion.” We will not consider whether summary judgment in favor of the Plan would have been proper based on issues and theories not initially raised in the Plan’s motion for summary judgment before the trial court.

Since no evidence showed that Sarah affirmatively obligated herself to pay the GAI debt, and she expressly denied such, the court erred in granting the Plan summary judgment on its claim against Sarah.

2. The court correctly denied Sarah’s motion for summary judgment on the claim, however. In response to Sarah’s motion, the Plan presented some evidence, not contradicted or addressed by Sarah, that she breached fiduciary duties owed as corporate liquidator and estate executrix when she allegedly transferred to herself corporate or estate assets that should have gone to pay off the debt owed to the Plan. Because some evidence supported the Plan’s claim, the court correctly denied Sarah’s motion for summary judgment.

Decided February 12, 2001.

Zachary & Seagraves, Kenneth L. Levy, John W. Lawson, for appellant.

Wasson, Sours & Harris, John D. Sours, Mark D. Gropp, Larry S. McReynolds, for appellee.

These rulings render moot the remaining enumerations of error.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Mikell, J., concur.

        Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995); accord Kauffman v. Eastern Food & Gas, 246 Ga. App. 103, 104 (1) (539 SE2d 599) (2000).

        Hodge, supra, 217 Ga. App. at 690 (1).

        Fedeli v. UAP/Ga. Ag. Chem., 237 Ga. App. 337, 339 (1) (514 SE2d 684) (1999).

       See OCGA § 53-7-1 (a); Home Ins. Co. v. Wynn, 229 Ga. App. 220, 222 (1) (493 SE2d 622) (1997) (executrix owes fiduciary duties to parties having an interest in the estate); Randall & Neder Lumber Co. v. Randall, 202 Ga. App. 497, 499 (1) (414 SE2d 718) (1992) (corporate officers may be personally liable for corporate debts when they make preferential transfers to themselves while corporation is insolvent).


text:
    A00A2106.
    BEDFORD et al. v. AWOD et al.
    (545 SE2d 162)
   Miller, Judge.

Plaintiff-appellant Michael T. Bedford brought this tort action against Najeh Awod, Rashied International, Inc. (RII), and Khalid Rashied, seeking to recover for personal injuries sustained in an automobile collision allegedly caused by the negligent driving of Awod.* The trial court granted summary judgment to RII and Rashied, concluding they were not vicariously liable for any negligence of Awod. On appeal, Bedford contends there is circumstantial evidence sufficient to create a jury issue as to whether or not Awod was acting within the course and scope of his employment. We affirm.

The following facts are undisputed: Rashied is the president and sole shareholder of RII, which imports textiles. He stores his products in a warehouse in Duluth, although he also uses his garage for small items where the customer wants less than a case quantity. Deliveries from the warehouse to linen wholesalers are made by commercial carriers unless the customer is in the Atlanta area. Rashied personally owns a full-size van used exclusively to make local deliveries. Rashied also owned a 1994 Honda Civic which was used for both personal and business travel. This car was never used to make deliveries because it was too small for the cases of linens.

The collision occurred at 2:36 p.m. on June 17, 1997. Awod was then the bookkeeper for RII. Awod was driving Rashied’s Honda Civic, with Rashied’s knowledge, consent, and permission, but only for Awod’s personal errands and not for RII’s business. Awod’s own car was unreliable, and Awod, a white collar employee, did not make deliveries for RII and never drove the van. Rashied expressly denied that Awod used Rashied’s personal car for RII business at any time. Only once or twice in 18 years has Rashied had an employee run company errands rather than performing them himself. The banking is done by the employee driving the van, and not once did Rashied send Awod to the bank.

In rebuttal, Bedford showed that, while Rashied originally claimed that Awod was on his lunch break at 2:30 when the accident occurred, Awod’s time sheet reflects that he was paid for the entire day, working from 8:40 a.m. to 4:45 p.m., even though Awod should have signed himself out if he were on break or running a personal errand. Rashied explained that he paid Awod for the entire day simply to avoid the hassle of figuring out any actual break time.

1. Contrary to Bedford’s assertions, this is not a proper case for application of the rule of Prophecy Corp. v. Charles Rossignol, Inc. Although Rashied could not testify as to what Awod’s actual errand was at the time of the accident, he testified unequivocally from his personal knowledge that Awod was not acting within the scope of his employment.

2. In Georgia,

[wjhere a vehicle is involved in a collision, and it is shown that the automobile is owned by a person, and that the operator of the vehicle is in the employment of that person, a presumption arises that the employee was in the scope of his employment at the time of the collision, and the burden is then on the defendant employer to show otherwise. This must be done by clear, positive and uncontradicted evidence.

In our view, the deposition testimony of Rashied is clear and positive that Awod was not acting in the scope of his employment at the time of the collision. This is sufficient to overcome the presumption and place the onus on plaintiff Bedford to come forward with some other fact which indicates employee Awod was acting in the scope of his employment.

3. The question then becomes whether Rashied’s testimony is contradicted by other evidence. Bedford relies on Awod’s time sheet for that day indicating he was paid for the entire day without a lunch break, arguing that he must have been on company business when the accident occurred.

If this “other fact” [indicating the employee was acting within the scope of his employment] is direct evidence, that is sufficient for the case to go to a jury. [But] when the “other fact” is circumstantial evidence, it must be evidence sufficient to support a verdict in order to withstand the defendant’s motion for summary judgment.

The time sheet is not direct evidence that Awod was acting within the scope of his business at 2:36 p.m. but does allude to that conclusion.

Circumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding for the plaintiff to that effect, will not support a verdict, when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed.

Rashied explained that the June 17, 1997 time sheet is not conclusive of the nature of Awod’s activities because he repeatedly failed to submit accurate records, and it was not worth the hassle to perfect them. Thus, the circumstantial evidence is perfectly consistent with the uncontradicted testimony that Awod was not acting within the scope of his employment because the local deliveries and banking were performed by other employees while driving the van, while Rashied himself purchased all the office supplies. In our view, the time sheet admits of only an inconclusive inference which is insufficient to withstand defendants’ motions for summary judgment on the question whether Awod was within the scope of his employment. The trial court correctly granted summary judgment on this ground.

Decided February 12, 2001.

Timothy N. Toler, for appellants.

Jay F. Eidex, Donald W. Osborne, for appellees.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       Plaintiff-appellant Wendy Bedford brought a derivative claim for loss of consortium.

       (Citations and punctuation omitted.) Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979).

       256 Ga. 27, 28 (1) (343 SE2d 680) (1986) (“The rule in Georgia is that the testimony of a party who offers himself as a witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal.”) (citations and puncomitted).

       (Emphasis in original.) Id. at 780.

       “ ‘Direct evidence’ means evidence which immediately points to the question at issue.” OCGA § 24-1-1 (3).

       (Citation and punctuation omitted.) Allen Kane’s Major Dodge v. Barnes, supra, 243 Ga. at 781.


text:
    A00A2183.
    MAGNUS HOMES, LLC v. DeROSA et al.
    (545 SE2d 166)
   Miller, Judge.

Dissatisfied with the inability and refusal of their builder, Magnus Homes, LLC, to remedy numerous construction defects and deficiencies in their new residence, Sam and Natalie DeRosa sued Magnus, alleging a variety of tort and contract claims. After a bench trial, the State Court of Henry County found by a preponderance of the evidence that “many items were deficient and were in breach of warranty standards, and were in breach of contract, and were the result of negligent construction.” The court further found by clear and convincing evidence that Magnus committed “gross negligence and fraud in reference to a few items,” and awarded plaintiffs judgment in the amount of $37,675, including $13,000 in attorney fees. On appeal, Magnus contends the trial court erred in denying its motion for directed verdict because plaintiffs failed to adduce evidence of the proper measure of damages and farther erred in awarding attorney fees because plaintiffs failed to differentiate between successful and unsuccessful claims. We affirm.

1. At the close of plaintiffs’ case, Magnus moved for a directed verdict on the ground plaintiffs failed to properly provide evidence of damages, arguing they proved only the costs to repair and failed to adduce any evidence of the diminution in the value of the residence as constructed.

In this regard, Magnus
correctly notes . . . that the true measure of damages [for breach of a construction contract or negligent construction] is the difference between the value of the work as actually done and the value which it would have had if it had been done properly [under] the contract. [But Magnus’s] contention that [the DeRosas] failed to offer any proof in accordance with this measurement is without merit since this difference in value can be shown by evidence of the reasonable cost of correcting the defect. Proof of the cost of repair because of the defective construction is illustrative of the difference in value claimed as damages, and is more likely to represent the true damage suffered from the failure of a contractor to complete his contract than would the opinion of an expert as to the difference in values, though such proof would also have been permissible.

The amount of reasonable costs to repair is circumscribed by the fair market value of the property and the contract price, because the owner cannot be placed in a better position than if the contract had not been breached.

In all nonjury trials, the trial court’s findings of fact “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” And at a bench trial, the trial court’s ruling on an OCGA § 9-11-41 (b) motion for involuntary dismissal will not be disturbed if there is “any evidence” to support it. Here, there is expert opinion evidence of the estimated costs (over $52,000) to replace or repair those defects for which recovery was granted. The evidence does not demand a finding that Magnus substantially complied with the duty the law imposes on builders to exercise that degree of reasonable care, skill, and ability as is ordinarily employed by others in the same profession. Consequently, the trial court did not err in refusing to grant an involuntary dismissal on this ground.

2. Magnus further enumerates the denial of its motion for directed verdict on the ground that “the conclusory opinions offered by the DeRosas’ expert. . . were not supported with any facts to provide the trial court with grounds to arrive at its decision.”

“A motion for directed verdict shall state the specific grounds therefor.” “By the great weight of authority, one appealing the denial of a motion for directed verdict may not raise for the first time on appeal a ground not specifically raised in the original motion.” In our view, this rule applies to OCGA § 9-11-41 (b) motions for involuntary dismissal as well.

Where the objection urged below is not argued here it must be treated as abandoned, and where an entirely different basis of objection is argued on appeal which was not presented at trial, we will not consider this as error, for we are limited on appeal to those grounds presented to and ruled upon by the trial court and then enumerated as error.

Magnus raised three grounds in its motion to the trial court, but an objection to conclusory opinions (in essence, an objection to lack of foundation) is not among them. The error enumerated was not properly made below and so was not preserved for appellate review. Consequently, no question is presented for decision on appeal.

3. The second enumeration contends the trial court erred in awarding OCGA § 13-6-11 attorney fees and expenses of litigation because plaintiffs failed to differentiate between costs attributable to the underlying litigation and those attributable to matters unrelated to this litigation.

Plaintiffs’ counsel stated in his place that he spent seven months trying to resolve the DeRosas’ complaints short of litigation and ultimately put in 122.5 hours, billing at an hourly rate about 13 percent below that charged by less experienced civil litigators in the area. In addition to his fees of approximately $16,000, counsel incurred more than $3,000 in expenses. Substantial research efforts and two court appearances were required to respond to Magnus’s motion to compel arbitration under the Federal Arbitration Act or, alternatively, under a homeowners warranty program. Plaintiffs propounded a single set of discovery requests and took no depositions, while Magnus took five depositions, including one on the eve of trial. Counsel affirmed that his time sheets reflected his attempts to settle the original dispute and his dealing with home buyers warranty issues. Counsel justified his inclusion of that time on the ground that “in large part the [warranty] items were spawned from the motion to stay [proceedings and compel arbitration].”

Decided February 12, 2001.

Glover & Davis, J. Littleton Glover, Jr., Peter A. Durham, for appellant.

John W Mrosek, for appellees.

Successful plaintiffs may recover under OCGA § 13-6-11 attorney fees and expenses of litigation only to the extent they are attributable solely to the claims on which they prevailed.

In our view, the trial court would have been authorized to conclude that time spent by plaintiffs’ counsel successfully defending the motion to compel arbitration, whether under the federal act or under a warranty program, was substantially related to the ultimate prosecution of the claims raised in the state court. Consequently, we do not agree with Magnus’s characterization that the DeRosas were “also pursuing a warranty claim against Home Buyers Warranty.” Rather, the evidence is that plaintiffs wrote letters to preserve warranty rights in the event Magnus successfully demanded arbitration. Moreover, the total award of OCGA § 13-6-11 expenses of litigation is $13,000, representing an award of only $10,000 in attorney fees after costs. This is at most only two-thirds of what the evidence authorized, indicating that the trial court gave Magnus a substantial discount precisely to avoid awarding costs not directly attributable to successful claims. Magnus has not enumerated the trial court’s finding of fraud, which independently supports an award of OCGA § 13-6-11 expenses of litigation. The evidence is sufficient to support this award against the residential builder.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       See OCGA § 13-6-11.

       In a bench trial, where there is no verdict by a jury, a motion for directed verdict is treated as a request for involuntary dismissal under OCGA § 9-11-41 (b). Pichulik v. Air Conditioning &c., 123 Ga. App. 195, 196 (2) (180 SE2d 286) (1971).

       (Citations and punctuation omitted.) Williams Tile &c. v. RA-LIN & Assoc., 206 Ga. App. 750, 751-752 (4) (426 SE2d 598) (1992).

       See Ryland Group v. Daley, 245 Ga. App. 496, 502 (7), fn. 18 and accompanying text (537 SE2d 732) (2000); Ray v. Strawsma, 183 Ga. App. 622, 623-624 (1) (359 SE2d 376) (1987). See also Small v. Lee & Bros., 4 Ga. App. 395 (61 SE 831) (1908) (cost to repair inappropriate measure of recovery where builder has substantially complied with contract terms and alleged defects amounted to only slight deviation which did not affect the use of the house for its intended purposes).

       OCGA § 9-11-52 (a).

        Hamil v. Stanford, 264 Ga. 801, 802 (1) (449 SE2d 118) (1994).

        Howell v. Ayers, 129 Ga. App. 899, 900 (1) (202 SE2d 189) (1973). See also Trustees of the Monroe Female Univ. v. Broadfield, 30 Ga. 1, hn. 1 (1859):
      When carpenters agree to do work, according to specifications, in a neat and workman-like manner, and fail, not only to comply with the contract, but do the work unskillfully and negligently, they are liable to respond in damages to the employer, for all injuries resulting from the breach of the contract.

       OCGA § 9-11-50 (a).

       (Citations omitted.) Johnson v. Hensel Phelps Constr. Co., 250 Ga. 83, 84 (295 SE2d 841) (1982).

       (Citations and punctuation omitted.) Boggs v. Madison County, 240 Ga. App. 849, 852 (524 SE2d 252) (1999).

       This ground could have been raised in a motion for new trial, which is a proper procedural vehicle to extend the time for filing a notice of appeal after a bench trial. OCGA § 5-6-38 (a); All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 233 (1) (387 SE2d 429) (1989).

        Boggs, supra, 240 Ga. App. at 852.

        United, Cos. Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) (475 SE2d 601) (1996).

         Kopp v. First Bank of Co., 235 Ga. App. 520, 524 (3) (509 SE2d 384) (1998).

       See Runion v. Hofer, 245 Ga. App. 854, 855 (1) (538 SE2d 462) (2000).


text:
    A00A2245.
    YATES v. THE STATE.
    (545 SE2d 169)
   Miller, Judge.

Following a nonjury trial, Scott Michael Yates was convicted of driving under the influence of alcohol to the extent that he was less safe to drive and of weaving over the roadway. On appeal, he claims the trial court erred in (1) denying his motion to suppress evidence of his refusal to submit to a state-administered chemical sobriety test and (2) denying his motion to dismiss. We reverse the DUI conviction because the arresting officer failed to comply with the statutory procedures for communicating with a hearing-impaired detainee.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to upholding the findings and judgment.” However, the application of the law to undisputed facts is subject to de novo appellate review.

The evidence shows that on August 16, 1998, at approximately 2:30 a.m., a police sergeant saw a van cross over the fog line on the right side of the road twice and then strike the curb while making a right turn. The sergeant pulled the van over and asked Yates, who was driving, for his license and registration.

The State stipulated that Yates was deaf. Yates told the sergeant he could read lips, and the sergeant understood that to mean Yates was hearing impaired. Yates complied with the request for license and registration and exited the van at the sergeant’s request. Yates smelled of alcohol, his eyes were red, and he was unsteady on his feet. When questioned by the sergeant, Yates admitted he had had a couple of drinks. Yates agreed to undergo an aleo-sensor test and tested positive for alcohol, but refused to continue with field sobriety tests.

The sergeant arrested Yates, placed him in the police car, and read him the implied consent notice. Yates told the sergeant he could not understand him. The sergeant asked Yates to read a card containing the implied consent notice along with him as he read the notice aloud to Yates. Yates repeatedly stated that he did not understand the sergeant. Yates reminded the sergeant that he was hearing impaired and announced he wanted his interpreter. The sergeant told Yates that an interpreter might be available through the 911 operator. Yates informed the sergeant that he wanted his own interpreter and that he would not take a breath test until his personal interpreter was there. The court denied the motion to suppress the evidence of Yates’s refusal of a breath test.

1. Yates contends the trial court erred in denying his motion to suppress, arguing that he was not properly advised of his implied consent rights. We agree.

Subject to OCGA § 40-6-392, motorists suspected of violating OCGA § 40-6-391 are legislatively deemed to consent to chemical testing of blood, breath, urine, or other bodily substances to determine the presence of alcohol or any other drug. And refusal to submit to such testing is admissible in evidence against the motorist. But the failure of the arresting officer to adequately warn the motorist of his right under OCGA § 40-6-392 (a) (4) to independent chemical testing will render the test result inadmissible and will justify the refusal to submit to a State-administered test, rendering such refusal inadmissible.

OCGA § 24-9-103 imposes additional obligations when a law enforcement agency takes a hearing-impaired person into custody. In such cases, the law enforcement agency is required to immediately request a qualified interpreter from the Department of Human Resources. “No interrogation, warning, informing of rights, taking of statements, or other investigatory procedures shall be undertaken until a qualified interpreter has been provided.” If an interpreter is requested but not available one hour after the request is made, an interrogation may be conducted in writing.

State v. Woody held that these requirements are mandatory:

OCGA § 24-9-103 is clear in its application to any hearing impaired person taken into custody for allegedly violating any criminal law. Furthermore, the requirements in the statute are mandatory, and if not met, the evidence acquired is not admissible under the statute.

Here, the arresting police sergeant failed to comply with the requirements of OCGA § 24-9-103. He did not try to obtain a qualified interpreter, nor did he communicate with Yates in writing after requesting an interpreter and waiting an hour for one to be provided.

The trial court nevertheless declined to suppress evidence of Yates’s refusal to submit to the State-administered sobriety test. The trial court distinguished State v. Woody because “the evidence in this case indicates that the Defendant had some hearing ability.” There are two problems with this conclusion. First, the evidence does not support it. The State expressly stipulated that Yates was deaf. Yates even told the sergeant that he could read lips as soon as he was stopped, and Yates was, consistent with an ability to read lips, able to communicate with the sergeant. But an ability to read lips is not “some hearing ability.” Second, the attempted distinction is irrelevant. “Hearing impaired” does not require a complete absence of hearing ability, but only an impairment that prohibits the person from understanding oral communications when spoken in normal conversational tone. Since it was stipulated that Yates was deaf, he certainly could not be found to hear let alone understand normal conversational tones. Only through his lip-reading capabilities, not through hearing normal conversational tones, was he able to understand the officer’s oral communications. Thus, he was indisputably hearing impaired under the statute.

The trial court also found that Yates failed to present the sergeant “any type of identification indicating that he was deaf.” This also is irrelevant. When first stopped, Yates immediately informed the sergeant that he read lips and later stated that he was hearing impaired while the sergeant was trying to read him the implied consent notice. Thus, the sergeant was aware that he could proceed with the implied consent notice only in compliance with the law governing communication with the hearing impaired.

The trial court also found that “the Defendant did not agree to a State-supplied interpreter, he demanded his own personal interpreter.” Based on this finding, the State argues that Yates’s demand for his own interpreter effectively negated the statutory requirement that the arresting agency attempt to obtain a qualified interpreter. What the law requires is that the notice be conveyed and, in the case of the hearing impaired, that it be conveyed by a “qualified interpreter,” or, if in certain circumstances an interpreter is not available, in writing. If the sergeant had obtained a “qualified interpreter” to convey the notice to Yates, then that would have been sufficient regardless of Yates’s alleged preference for his own personal interpreter. Yates’s statement that he wanted his own interpreter as opposed to a State-provided interpreter certainly did not excuse the sergeant from complying with the requirements of OCGA § 24-9-103 or excuse the trial court from enforcing its provisions. OCGA § 24-9-103 does not provide for judicial discretion in these matters and therefore must be strictly complied with by the court.

Lastly, the State argues that Yates waived the right to have a State-supplied interpreter. But any waiver of that right must be made in writing to be effective. The statutory requirements were not satisfied, and Yates did not waive his statutory protections. Accordingly, Yates was entitled to suppress evidence of his refusal to submit to a State-administered test of his breath, blood, urine, or other bodily substances. Consequently, his DUI conviction must be reversed due to the erroneous admission of his justified refusal to submit.

Decided February 12, 2001.

Charles G. Harbin, Jr., for appellant.

A. Robert Tawse, Jr., Solicitor, Arthur J. Creque, Assistant Solicitor, for appellee.

2. Yates was arrested on August 16, 1998, and issued Uniform Traffic Citations for DUI and weaving over the roadway in violation of OCGA § 40-6-48. On March 14, 2000 (the day before trial), the assistant solicitor preferred an accusation specifying that the DUI charge was fpr being a less safe driver. The trial proceeded, and, after the State rested, Yates moved for a directed verdict on the ground that the accusation was drawn and served only one day before trial. The denial of this motion is enumerated as error. Yates should have objected to the accusation before trial rather than waiting until after the State completed its presentation of the evidence. “All exceptions which go merely to the form of an indictment or accusation shall be made before trial.” Accordingly, Yates waived any valid exceptions to the mere form of the accusation by failing to urge them in a written pre-trial special demurrer.

Judgment affirmed as to weaving conviction and reversed as to DUI conviction.

Pope, P. J., and Mikell, J., concur.

       (Citation omitted.) Pickens v. State, 225 Ga. App. 792 (1) (484 SE2d 731) (1997).

        Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994).

       OCGA § 40-5-55 (a).

       OCGA § 40-6-392 (d).

        Nelson v. State, 135 Ga. App. 212, 214 (217 SE2d 450) (1975).

        State v. Leviner, 213 Ga. App. 99, 103 (3) (e) (443 SE2d 688) (1994). See Garrett v. Dept. of Public Safety, 237 Ga. 413, 415 (2) (228 SE2d 812) (1976).

       OCGA § 24-9-103 (b) (1).

       Id.

       OCGA § 24-9-103 (b) (2).

       215 Ga. App. 448 (449 SE2d 615) (1994).

       (Emphasis in original.) Id. at 450.

       OCGA § 24-9-101 (3).

       OCGA § 24-9-105.

        Allen v. State, 218 Ga. App. 844, 847 (1) (463 SE2d 522) (1995). Accord State v. Hendrix, 221 Ga. App. 331, 335 (3) (471 SE2d 277) (1996).

        Garrett v. Dept. of Public Safety, supra, 237 Ga. at 415.

       Uniform State Court Rule 31.1.

       OCGA § 17-7-113.

        Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993).


text:
    A00A2521.
    DUNDEE MILLS, INC. v. JOHN DEERE INSURANCE COMPANY.
    (545 SE2d 604)
   Miller, Judge.

The central question presented is whether a shipper can maintain a direct action against the insurer of an interstate motor carrier whose employee stole the shipper’s cargo. We answer in the negative and so affirm the trial court’s grant of summary judgment to the insurer.

According to the amended complaint, Dundee Mills, Inc. contracted with American Transportation Systems, Inc. to arrange for the delivery of a load of towels from Georgia to Miami, Florida. ATS selected W & A Harris Enterprises, Inc. to deliver the cargo, which never reached its destination because Harris’s driver stole the load in transit. Mills sued ATS, Harris, and John Deere Insurance Company to recover for the loss of its towels.

John Deere had issued a motor truck cargo insurance policy to Harris which was in effect at the time of the loss, but the policy excluded coverage for losses caused even indirectly by the dishonest or illegal acts of Harris, its employee, or agents. Based on this policy exclusion, John Deere moved for summary judgment which the trial court granted. On appeal, Mills argues that it was entitled to a direct recovery under the insurance policy irrespective of any exclusions which might apply to Harris. We disagree because, in this instance, Mills cannot maintain a direct action against the insurer, John Deere.

We conduct a de novo review of a trial court’s grant of summary judgment. In so doing, we construe the evidence in favor of the nonmovant to determine if any genuine issue of material fact exists and if the movant is entitled to judgment as a matter of law.

1. The general rule is that an insurer may not be joined as a party defendant with its insured when there has been no judgment obtained against the insured. Mills argues that it can nevertheless maintain this direct action against the insurer under OCGA § 46-7-12 (a) and (e) because it is a third-party beneficiary of the insurance contract.

Although OCGA § 46-7-12 authorizes a shipper, such as [appellant Mills], to bring a direct action against the insurer who provides liability coverage to a motor common carrier, that statute does not apply to a cause of action which arises out of interstate commerce.

“The sustaining of actionable injury is, under the statute, the only condition precedent to a suit on the policy.” But since it is undisputed that the loss of Mills’s cargo occurred in interstate commerce, OCGA § 46-7-12 cannot serve as the basis for a direct action by the shipper against the insurer John Deere based on the motor truck cargo coverage policy it issued to Harris.

2. The trial court concluded that the direct action statute was inapplicable, in part, because Mills failed to prove that the John Deere policy was approved by the Georgia Public Service Commission, and this ruling is enumerated as error.

Mills filed a cross-motion for summary judgment (but expressly based on the pleadings), and in reply, John Deere noted that Mills had not alleged and proved that the John Deere policy was approved by the Georgia PSC. Defendants further refuted any such contention with unrebutted evidence that Harris had no intrastate authority on file with the PSC, nor any insurance policy or endorsements because at all pertinent times the Georgia PSC did not require proof of insurance for carriers of general commodities cargo.

Summary judgment can be granted to a nonmoving party provided that the grant is proper in all other respects. A plaintiff proceeding against an insurer under OCGA § 46-7-12 must prove the existence of the policy of insurance, although the limits of coverage should be kept from the jury. While a nonmovant has no obligation to rebut issues not raised in a summary judgment motion, here the issue of PSC approval of the John Deere policy was clearly raised by the evidence submitted in opposition to Mills’s cross-motion for summary judgment. In that context, the trial court did not err in ruling that Mills bore the onus of proving that the PSC had approved John Deere’s motor truck cargo insurance policy, as this is a prerequisite to a direct action against the insurer under OCGA § 46-7-12 (e).

3. Mills relies on the policy itself as authority for this direct action. John Deere agreed to pay

any shipper or consignee for all loss of or damage to all property belonging to such shipper or consignee, and coming into the possession of the insured in connection with such transportation service, for which loss or damage the insured may be held legally liable. . . .

John Deere’s cargo insurance endorsement is required by federal regulations for motor common carriers. Consistent with these requirements, the endorsement provides coverage of up to $5,000 for loss or damage to property carried on any one motor vehicle. Relying on Commercial Union Ins. Co. v. Bradley Co., Mills argues that this endorsement allows it to sue John Deere directly. We disagree.

First, the language of this endorsement has been held to provide only contingent liability and so does not of its own force authorize a direct action against the insurer. Second, the Supreme Court of Georgia has concluded that the federal law requiring a motor carrier to provide surety for damage to cargo does not itself authorize a direct action against the motor carrier’s insurer. Third, the correct statement of the holding in the Commercial Union case, as applied to the facts of this case, is: “As a judgment creditor of [Harris], [Mills] would, however, be authorized to bring a direct action against [John Deere] in [its] capacity as [Harris’s] liability insurer.” It is undisputed that Mills has not obtained any judgment against Harris. If and when it does, it is then free to pursue John Deere as a potential source of satisfaction. The trial court correctly ruled that John Deere is not subject to a direct action by the aggrieved shipper in this case involving cargo lost in interstate commerce.

Decided February 12, 2001.

Newton & Howell, John T. Newton, Jr., Larry S. Mayfield, for appellant.

Dennis, Corry & Porter, Alisa W. Terry, Scott W. McMickle, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       The only question decided is whether the shipper can bring a direct action against the insurer without having first obtained a judgment against the insured motor carrier. In this sense, the instant grant of summary judgment to the insurer is not an adjudication on the merits of any ultimate responsibility to pay the shipper for the legal liability of the carrier once that liability is determined.

       The driver pled guilty to two counts of theft by taking in DeKalb Superior Court.

        Southern Gen. Ins. Co. v. Ross, 227 Ga. App. 191, 192 (489 SE2d 53) (1997).

       Id.

        Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (1) (359 SE2d 351) (1987).

       In cases of vehicles transporting freight, the holder of a certificate of public convenience and necessity shall give bond, with adequate security to secure the owner or shipper against “loss or damage to such freight for which the motor common or contract carrier may be legally liable.. . .”

       “[A]ny person having a cause of action arising under this article [Title 46, Chapter 7, Article 1 (OCGA §§ 46-7-1 through 46-7-39) may] join the motor [common] carrier and the insurance carrier in the same action .. .” if a policy of indemnity insurance is given in lieu of bond. This also includes liability insurance. Great American Indem. Co. v. Vickers, 53 Ga. App. 101, 106 (185 SE 150) (1936), aff’d, 183 Ga. 233 (188 SE 24) (1936).

       See, e.g., American Motorists Ins. Co. v. King Shrimp Co., 199 Ga. App. 847, 848 (1) (406 SE2d 273) (1991) (if carrier’s insurance policy is approved by the Georgia Public Service Commission under OCGA § 46-7-12, the policy becomes a substitute surety bond, the insurer is absolutely liable for any loss occasioned by its insured, and suit against the insurer is on the insurance contract “of which plaintiff is a third-party beneficiary under the law.... [Cit.]”). Nevertheless, the Georgia pre-judgment direct action statute does not apply unless an insurance policy is issued with the approval of the PSC. Glenn McLendon Trucking Co. v. Williams, supra, 183 Ga. App. at 509 (1).

       (Citations omitted.) Commercial Union Ins. Co. v. Bradley Co., 186 Ga. App. 610, 612 (1) (367 SE2d 820) (1988).

       (Emphasis in original.) Great American Indem. Co. v. Vickers, supra, 183 Ga. at 236.

       Id.

        Signet Bank/Va. v. Tillis, 196 Ga. App. 433, 434 (396 SE2d 54) (1990).

        Ashley v. Goss Bros. Trucking, 269 Ga. 449, 450 (499 SE2d 638) (1998).

       See Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995).

       (Emphasis supplied.)

       49 CFR § 387.303 (c).

       Supra, 186 Ga. App. at 612 (2).

        J. Aron & Co. v. Svc. Transp. Co., 486 FSupp. 1070, 1077 (D. Md. 1980).

        Hartford Ins. Co. v. Henderson & Son, Inc., 258 Ga. 493, 494-495 (371 SE2d 401) (1988).

       (Citations omitted; emphasis in original.) Commercial Union Ins. Co. v. Bradley Co., supra, 186 Ga. App. at 612 (2).

        Glenn McLendon Trucking Co. v. Williams, supra, 183 Ga. App. at 513 (12).