text:
    A97A0802, A97A0803.
    IMAGING SYSTEMS INTERNATIONAL, INC. et al. v. MAGNETIC RESONANCE PLUS, INC.; and vice versa.
    (490 SE2d 124)
   Beasley, Judge.

Magnetic Resonance Plus, Inc. (“MRP”) sued North Georgia Diagnostic Imaging, Ltd. and its managing agent Imaging Systems International, Inc. (collectively “NGDI”) for breach of contract arising out of NGDI’s prematurely terminating its contract with MRP. Following a bench trial, the judge awarded MRP damages equal to MRP’s anticipated profit on the contract, despite a contract provision prohibiting MRP from recovering “any lost profits.” We hold that the contract provision precluded the award and reverse.

On March 23, 1994, NGDI entered into a three-year contract with MRP for MRP to service and repair NGDI’s magnetic resonance imaging (“MRI”) equipment in Atlanta. After a period of months, NGDI became dissatisfied with MRP’s performance and terminated the contract “effective immediately,” despite a contract provision requiring that NGDI give MRP a 30-day written notice to cure before termination. NGDI would not allow MRP back on the premises to service the MRI. Protesting this action, MRP nevertheless offered to rescind a related contract and refund monies paid thereunder if NGDI returned certain equipment, which NGDI did. MRP, however, refused to refund the monies. When MRP sued NGDI for breach of contract, NGDI counterclaimed for the unrefunded monies.

At trial, MRP presented evidence of what was remaining due under the contract and what some of its expenses would have been had it been allowed to complete the contract. Following the presentation of MRP’s case, NGDI moved for an involuntary dismissal on MRP’s claim on the grounds that (1) the contract prohibited the damages sought by MRP and (2) MRP had failed to prove its damages. The trial court denied the motion and, following the presentation of NGDI’s case, (1) awarded MRP $21,584.37 as MRP’s anticipated ten percent profit on the amounts remaining due under the contract, (2) awarded MRP its attorney fees pursuant to a contractual provision, and (3) awarded NGDI the unrefunded monies requested under its counterclaim. The court also awarded NGDI its attorney fees incurred in pursuing that counterclaim, upon finding that MRP was stubbornly litigious and caused unnecessary trouble and expense in litigating the counterclaim. Citing the grounds set forth in its involuntary dismissal motion, NGDI appealed the awards to MRP, and MRP cross-appealed the amount of damages on those awards.

1. The contract provides: “5.1 LIMITATION OF LIABILITY NEITHER THE CUSTOMER NOR MRP WILL BE LIABLE TO EACH OTHER OR ANY OTHER PARTY FOR ANY LOST PROFITS OR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT.” NGDI contends that this provision prohibits MRP from recovering the profits it would have received had it been allowed to perform under the contract. Clearly it does.

“The construction of a contract is a question of law for the court.” OCGA § 13-2-1. “The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” OCGA § 13-2-3. The question is whether this contract provision prohibited the trial court’s award to MRP.

Where a party sues on a terminated executory contract, the damages are similar to those recoverable by a contractor suing on a terminated construction contract. See Franklin v. Demico, Inc., 179 Ga. App. 775, 779 (2) (347 SE2d 718) (1986). “The basic component of damages recoverable by a contractor when a construction contract is wrongfully breached by the owner is the net profit to which the contractor would have been entitled had full performance of the contract been permitted. That figure is reached by subtracting from the contract price the amount which full performance would have cost the contractor” and further subtracting any progress payments already received by the contractor. Williams v. Kerns, 153 Ga. App. 259, 266-267 (1) (265 SE2d 605) (1980). “[T]he net result of these calculations is that the contractor is awarded the benefits of his bargain, the profit he would have realized had he been permitted to perform the contract completely.” Id. at 261. See Franklin v. Demico, Inc., supra, 179 Ga. App. at 779 (the plaintiff is entitled to “the profits necessarily inherent in the contract”).

Following this formula, the trial court reviewed MRP’s evidence concerning the expenses it saved and found MRP did not prove some key variable costs. Relying instead on a letter in which MRP projected its net profit to be between five and ten percent, the trial court concluded that MRP’s “profit would have been $21,584.37, which is 10% of the remaining payments for service (i.e., $215,843.75),” and this became the award to MRP. Because the contract specifically prohibited the recovery of “any lost profits,” this award was error.

MRP claims that the lost profits prohibited by the contract are “profits lost by the rest of [MRP’s] business that arise as a consequence of the other party’s breach of one particular contract, such as the loss of goodwill to the company, the resulting loss of other business contracts or clients, the loss of other business opportunities, and other consequential losses.” Citing Redman Dev. Corp. v. Piedmont Heating &c., 128 Ga. App. 447 (197 SE2d 167) (1973), MRP argues that the term is not intended to prevent MRP from recovering the benefit of the bargain of this particular contract, for otherwise “the plaintiff would have no right to any recovery for breach of contract.”

MRP’s arguments fail. First, the loss of other business opportunities, other profits and goodwill falls squarely within the meaning of consequential losses, which are separately listed in the contract as other kinds of damages and are also prohibited. See OCGA § 13-6-8; American Car Rentals v. Walden Leasing, 220 Ga. App. 314, 317 (1) (b) (469 SE2d 431) (1996); Piggly Wiggly Southern v. Eastgate Assoc., Ltd., 195 Ga. App. 10, 12 (392 SE2d 337) (1990). Consequential damages, which may include “profits which might accrue collaterally as a result of the contract’s performance,” are a separate concept from direct damages, which may include “profits necessarily inherent in the contract.” Franklin v. Demico, Inc., supra, 179 Ga. App. at 779 (2). Thus there are two types of lost profits: (1) lost profits which are direct damages and represent the benefit of the bargain (such as a general contractor suing for the remainder of the contract price less his saved expenses), and (2) lost profits which are indirect or consequential damages such as what the user of the MRI would lose if the machine were not working and he was unable to perform diagnostic services for several patients. The contract at issue did not distinguish between the two types; it forbade the recovery of “ANY LOST PROFITS.” No exceptions were provided for. The meaning of “any” in context is “all.” Both consequential damages and direct damages (to the extent direct damages concern lost profits) are not recoverable under the contract.

Second, even though this contract provision may severely if not completely restrict MRP’s ability to recover for this breach of contract, parties are free to agree to such provisions. “Absent a public policy interest, contracting parties are free to contract to waive numerous and substantial rights, including the right to seek recourse in the event of a breach by the other party.” (Citations and punctuation omitted.) Piedmont Arbors Condo. &c. v. BPI Constr. Co., 197 Ga. App. 141, 142 (397 SE2d 611) (1990). “[I]n Georgia there is no generally applicable rule of law forbidding one contracting party from waiving all recourse in the event of breach by the other. [Cit.]” Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 369 (203 SE2d 587) (1973). See West Side Loan Office v. Electro-Protective Corp., 167 Ga. App. 520 (306 SE2d 686) (1983) (contract provision enforced in which party disclaimed responsibility for any losses due to “ ‘failure to perform any obligation under’” the agreement); Stefan Jewelers v. Electro-Protective Corp., 161 Ga. App. 385, 387 (288 SE2d 667) (1982) (provision upheld in which plaintiff waived any recovery for losses caused by defendant’s breach); Monroe v. Martin, 137 Ga. 262 (73 SE 341) (1911) (note provision upheld in which plaintiff agreed not to sue on the note). MRP’s reliance on Redman Dev. Corp. v. Piedmont Heating &c., supra, 128 Ga. App. 447, is unavailing, for Redman simply held that a prohibition against recovering lost profits, which was found in the contract paragraph discussing remedies for delay, applied only to delay claims and not to the plaintiff’s claim in that case for lost profits arising from premature termination of the contract.

Provisions severely restricting remedies act as exculpatory clauses and therefore “ ‘should be explicit, prominent, clear and unambiguous.’ ” (Citation omitted.) Dept. of Transp. v. Arapaho Constr., 180 Ga. App. 341, 343 (1) (349 SE2d 196) (1986), aff’d, 257 Ga. 269 (357 SE2d 593) (1987). See Altama Delta Corp. v. Howell, 225 Ga. App. 78, 80 (1) (483 SE2d 127) (1997); Dept. of Transp. v. APAC-Ga., 217 Ga. App. 103, 106 (3) (456 SE2d 668) (1995). The exculpatory clause is set off in its own paragraph with the heading “LIMITATION OF LIABILITY” and with the key language all capitalized. The prohibition against the recovery of “any lost profits” clearly and unambiguously refers to the measure of damages which would have been available to MRP for NGDI’s wrongful termination. Accordingly, the provision is enforceable as written.

Moreover, the contract also prohibits the recovery of “special damages” relating to the agreement. Special damages are “those which actually flow from a tortious act.” OCGA § 51-12-2. “[E]ven though the statutory definitions of general and special damages (see OCGA § 51-12-2 (a) and (b)) refer to tortious acts, general and special damages also may be recovered in contract actions if the general and special damages are not remote or consequential (OCGA § 13-6-8) and ‘are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.’ OCGA § 13-6-2.” Bill Parker & Assoc. v. Rahr, 216 Ga. App. 838, 841 (4) (456 SE2d 221) (1995). Similar to the lost profit calculation discussed above, “special damages” in an executory contract action may be calculated by subtracting from the total amount remaining due on a contract the expenses the nonbreaching party will save by not having to complete the contract. Solon Automated Svcs. v. Pines Assoc., 156 Ga. App. 34 (1), 35 (274 SE2d 12) (1980). See Piggly Wiggly Southern v. Eastgate Assoc., Ltd., supra, 195 Ga. App. at 13 (“special damages” in a contract action are those that flow directly from the breach, such as expenses incurred at the breaching party’s direction of as a consequence of the breach, less the benefits accruing to the nonbreaching party). A contractual provision prohibiting the recovery of special damages precludes an award for contractual profits actually lost as a result of the breach. Thus, the award of lost profits to MRP also fails under this language.

The award of $21,584.37 to MRP is vacated. Because the trial court awarded attorney fees based on its award of lost profits to MRP, the attorney fees award to MRP is also vacated.

2. In light of the holding in Division 1, the other enumerations of error, all of which go to the calculation of the damages awarded to MRP, are moot. The awards on the counterclaim not having been appealed, those awards remain intact.

3. On remand, the trial court may not award MRP nominal damages, for MRP did not ask for nominal damages in the pre-trial order nor at trial. See Ackley v. Strickland, 173 Ga. App. 784 (328 SE2d 549) (1985) (plaintiff must ask for nominal damages before or during trial); Bradley v. Godwin, 152 Ga. App. 782, 784-789 (3) (264 SE2d 262) (1979). But the trial court should consider whether, in light of the holdings of this opinion, MRP is entitled to attorney fees under the contract. See Hardwick, Cook & Co. v. 3379 Peachtree, Ltd., 184 Ga. App. 822, 824-825 (2) (363 SE2d 31) (1987). Cf. Herrli Homes v. Roon, 175 Ga. App. 85, 87 (3) (332 SE2d 379) (1985).

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

Andrews, C. J., McMurray, P. J., Birdsong, P. J., and Ruffin, J., concur. Smith and Eldridge, JJ, dissent.

Smith, Judge,

dissenting.

I respectfully dissent. I would affirm the judgment because, in my view, the contract provision prohibiting the recovery of lost profits does not preclude the recovery sought by MRP.

I agree with the majority that the measure of damages applicable for breach of contract in this case is similar to that used when a contractor brings an action for breach of a construction contract. That measure is the unpaid contract price less the amount saved by the contractor as a result of the breach — the contractor’s costs involved in completing the contract. Williams v. Kerns, 153 Ga. App. 259, 262 (265 SE2d 605) (1980). This measure is sometimes referred to as “anticipated profit” or “expected profit.” It is not identical to “lost profits.” Anticipated profit in a case like this, where one is prevented from reaping the benefit of a bargain, is the measure of the direct damage. Unlike “lost profits,” it may never exceed the contract price. Crankshaw v. Stanley Homes, 131 Ga. App. 840, 841-842 (1) (207 SE2d 241) (1974). And unlike “lost profits,” it is not speculative; it is defined by the contract price.

Paragraph 5.1 of the contract prohibits only liability for “lost profits or any incidental, special, or consequential damages.” The term “lost profits” is a term of art. It has often been used in contracts to mean a particular type of consequential damages. See, e.g., American Car Rentals v. Walden Leasing, 220 Ga. App. 314, 316-317 (1) (b) (469 SE2d 431) (1996) (lost profits included in general contractual prohibition against “‘consequential, special, exemplary, punitive, incidental or indirect damages’ ”). As such; it is intended to allow as a recovery for breach of the contract only those damages directly attributable to the acts of the other party and to prohibit recovery of those items of damage only indirectly so attributable. See Hixson-Hopkins Autoplex v. Custom Coaches, 208 Ga. App. 820, 821 (1) (b), (c) (432 SE2d 224) (1993) (lost profits are consequential damages not directly attributable to failure to pay on contract).

Decided July 11, 1997

Reconsideration denied July 28, 1997

Chambers, Chambers & Chambers, Timothy D. Chambers, John W. Chambers, Jr., for appellants.

Adam R. Gaslowitz & Associates, Adam R. Gaslowitz, Michael S. Wakefield, Timothy J. McGann, for appellee.

The contract provision in issue here did just that. But the loss of MRP’s “anticipated” or “expected” profit is a direct result of NGDI’s terminating the contract prematurely. It is therefore recoverable. I would affirm the judgment.

I am authorized to state that Judge Eldridge joins in this dissent.

       Even though the agreement states that it is to be construed in accordance with the laws of the United States and the State of California, no party has pled California law. OCGA § 9-11-43 (c). Nor is there a federal statute on the general construction of contracts. Accordingly, this Court applies the law of the State of Georgia. Avnet, Inc. v. Wyle Laboratories, 263 Ga. 615, 621 (3) (437 SE2d 302) (1993).

       The contract in American Car Rentals v. Walden Leasing, supra, defined the only lost profits at issue there as consequential damages. The court in that case did not address whether, absent this limiting definition in the term, “lost profits” would also include direct damages that represent the benefit of the bargain. See also Hixson-Hopkins Autoplex v. Custom Coaches, 208 Ga. App. 820, 821 (1) (b) (432 SE2d 224) (1993) (plaintiff sought only to recover those lost profits which would constitute consequential damages, not those which would constitute direct damages).

        Redman was overruled to the extent it misstated the correct measure of damages. Crankshaw v. Stanley Homes, 131 Ga. App. 840, 842 (1) (207 SE2d 241) (1974).

       Any ambiguity in an exculpatory clause is construed against the drafter. Altama Delta Corp. v. Howell, supra, 225 Ga. App. at 80. Here we have no ambiguity.

        Crankshaw, supra, overruled Redman Dev. Corp. v. Piedmont Heating &c., 128 Ga. App. 447 (197 SE2d 167) (1973), relied upon by MRP (and mentioned in the majority opinion) and several other cases because Redman and those other cases incorrectly state the applicable measure of damages.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A0959.
    TOLBERT v. THE STATE.
    (490 SE2d 183)
   Ruffin, Judge.

In a bench trial, Floyd Tolbert was convicted of driving with a revoked or suspended license in violation of OCGA § 40-5-121. Because the State did not present admissible evidence showing Tolbert’s license was suspended and showing that he had been notified of that suspension, we reverse.

We agree with Tolbert that the State produced no admissible evidence showing the status of his license or showing that he had been notified his license was suspended. At trial, an employee of the Coweta County Solicitor’s Office testified that she had physically obtained a copy of Tolbert’s driving history from the State Patrol office. She identified this document, and the State tendered it. Tolbert objected on several grounds, including his assertion that the record was not certified and, therefore, hearsay. The trial court overruled the objection and also overruled Tolbert’s motion for directed verdict based on the State’s failure to prove that he had notice of the license suspension.

Although the document at issue reflects that Tolbert’s license was suspended and that he was notified of the suspension, this document was hearsay and without probative value because the State failed to lay a foundation for its admission. Under OCGA § 24-3-17, a driving history such as this may be admitted if the State (a) shows it is a certified copy of a Department of Public Safety record or (b) proves the driving record was obtained from a computer terminal lawfully connected to the Georgia Crime Information Computer. Here, the State proved neither of the requisite foundational facts. See Tipton v. State, 213 Ga. App. 764 (2) (445 SE2d 860) (1994); Waters v. State, 210 Ga. App. 305, 306-307 (1) (436 SE2d 44) (1993). Citing Duckworth v. State, 223 Ga. App. 250, 255 (4) (477 SE2d 336) (1996), the State argues that Tolbert’s failure to have a license on his person at the time of the traffic stop created a “rebuttable presumption” that he had no valid license. Duckworth, however, involves a statutory presumption created by OCGA § 40-5-29 (b) and has no application to the offense with which Tolbert was charged. Therefore, because the State did not present admissible evidence showing that Tolbert’s license had been suspended or that he had been notified of his license suspension, the evidence is insufficient to support his conviction. Farmer v. State, 222 Ga. App. 591, 592 (474 SE2d 760) (1996).

Decided July 28, 1997.

Saia & Richardson, Joseph J. Saia, for appellant.

John H. Cranford, Solicitor, for appellee.

Judgment reversed.

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


author: Eldridge, Judge.

text:
    A97A1500.
    SIMPSON CONSULTING, INC. et al. v. BARCLAYS BANK PLC.
    (490 SE2d 184)
   Eldridge, Judge.

Appellee, Barclays Bank PLC d/b/a Barclays Wholesale Consumer Services (“Barclays”), was granted summary judgment on November 27, 1996, on the multiple theories of liability set forth in the permissive joinder of claims and parties in a complaint by each of the appellants, Simpson Consulting, Inc.; Link Financial Consulting, Inc.; Financial Software Consultants; Comoro Services, Inc.; Monkiewicz Services, Inc.; Logan Computer Associates, Inc.; Datagen, Inc.; SDF & Associates, Inc.; Goforth Consulting, Inc.; Bandy Consulting, Inc.; North East Software Solutions, Inc.; and JHR Consultants, Inc.; each of which had separate and independent claims that were virtually identical except as to the individual damages. Appellants timely filed its notice of appeal, as amended.

The complaint asserts the following theories of liability: (1) fraud; (2) breach of contract (written/oral); (3) federal RICO; (4) Georgia RICO; (5) promissory estoppel; and (6) third-party beneficiary liability.

The complaint fails to set forth the circumstances constituting fraud, which “shall be stated with particularity.” OCGA § 9-11-9 (b). Appellants contend that statements made by appellee’s agents to independent contractors working as its purchasing agents were relied upon by each of the appellants to its detriment and were false, although such statements were never made directly to any appellant or in its presence. None of the appellants entered into written contracts with appellee, even though the work was to be performed over more than 12 months; the parties made no oral contract. However, appellants contend that their agreement was binding, notwithstanding the lack of specificity, definiteness, or formality, due to custom and practice in the trade.

Appellants each entered into separate independent contractor agreements and confidentiality agreements, not with Barclays, but with independent contractors, Scott International Banc Systems, Inc. (“SIBS”) and Manley & Associates, Inc. (“M & A”). Barclays had a contract with M & A but not with SIBS; M & A subcontracted such work with SIBS. Patrick E. Manley (“Manley”) was president of M & A as well as an officer and shareholder of SIBS. Eric Scott (“Scott”) was a vice president of Barclays as well as owner and president of SIBS; Barclays’ management and Scott’s superiors were unaware of the existence of SIBS; that Scott was president of SIBS; or that SIBS had a contract with M & A to do Barclays work. Such dealings between M & A and SIBS, and Scott’s secret relationship and business with each while employed by Barclays, violated Barclays’ employment and operations policies. Manley, on behalf of M & A, paid to Scott substantial sums, $15,000 and $60,000, which Scott deposited into his checking account.

Although Scott insisted that each appellant become a separate corporate entity and appellants as corporate entities dealt solely with the independent contractors, M & A and SIBS at all times and never with appellee, appellants assert that each appellant has a direct action against appellee.

Each appellant asserted special damages for unpaid work performed. Appellants also assert that each is entitled to damages for holding itself available for possible future work, but do not state with enforceable particularity the terms, rates, and conditions for such future work. Appellants invoiced the independent contractors for the work done and received checks drawn on the account of SIBS for the invoiced amounts. The checks that appellants received from SIBS were returned for insufficient funds.

Appellants’ only enumeration of error is that the trial court erred in granting summary judgment because material issues of fact as to each theory of liability exist for jury determination. We do not agree.

In the case sub judice, appellee’s motion for summary judgment pierced appellants’ pleadings on at least one essential element of each theory of liability, thereby requiring appellants to come forward with evidence to create material issues of fact. It must also be remembered that appellants have separate and individual causes of action that may be similar, or even identical, but not a common cause of action or a class action; thus, each appellant as to their respective claim, although treated collectively, must individually show that there exist material issues of fact as to their claim. Appellants collectively and individually have failed to meet this shifted burden of proof. Lau’s Corp. v. Haskins, 261 Ga. 491, 493-494 (2) (405 SE2d 474) (1991).

1. Fraud.

OCGA § 51-6-1 codifies an action for common law fraud. The essential elements of fraud and deceit are that: (1) the defendant made the representation; (2) at the time he made the representation, he knew that the representation was false; (3) he made the representation with the intention and purpose of deceiving the plaintiff; (4) the plaintiff reasonably relied upon such representation; and (5) the plaintiff sustained loss and damages as the proximate result of the representation. Eckerd’s Columbia v. Moore, 155 Ga. App. 4 (270 SE2d 249) (1980); Tolar Constr. Co. v. GAF Corp., 154 Ga. App. 127 (267 SE2d 635) (1980) rev’d on other grounds, 246 Ga. 411 (271 SE2d 811) (1980); Brown v. Ragsdale Motor Co., 65 Ga. App. 727 (16 SE2d 176) (1941).

If there is a promise made without mutuality of obligation so that the promise is not enforceable as a contract, then the failure to perform is not actionable as fraud; further, mere breach of contract is not fraud. Williams v. Southland Corp., 143 Ga. App. 111, 113 (1) (237 SE2d 639) (1977); Kinard Realty v. Evans, 152 Ga. App. 813, 814 (2) (264 SE2d 282) (1979); Ely v. Stratoflex, Inc., 132 Ga. App. 569, 571-572 (2) (208 SE2d 583) (1974); Bullard v. Western Waterproofing Co., 63 Ga. App. 547, 548-549 (1) (11 SE2d 713) (1940); Tallent v. Scarratt, 51 Ga. App. 577 (181 SE 141) (1935). Mere speculation or puffing as to a future performance is not a material misrepresentation of fact that is actionable as fraud. Vaughan v. Oxenborg, 105 Ga. App. 295, 299-300 (1) (124 SE2d 436) (1962). Statements of opinion are not such factual representations that are actionable as fraud. Buckner v. Mallett, 245 Ga. 245, 246 (1) (264 SE2d 182) (1980); Puck ett Paving Co. v. Carrier Leasing Corp., 236 Ga. 891, 892 (225 SE2d 910) (1976); R. L. Kimsey Cotton Co. v. Ferguson, 233 Ga. 962, 966-968 (4) (214 SE2d 360) (1975); U-Haul Co. of Western Ga. v. Dillard Paper Co., 169 Ga. App. 280, 281 (312 SE2d 618) (1983). A promise to perform some future act is not fraud unless made with the present intent not to perform or with a present knowledge that the future event will not take place. Craft v. Drake, 244 Ga. 406, 408 (260 SE2d 475) (1979); Clare Dev. Corp. v. First Nat. Bank of Columbus, 243 Ga. 709 (256 SE2d 452) (1979); First Nat. Bank &c. v. Thompson, 240 Ga. 494, 495 (241 SE2d 253) (1978); Hayes v. Hallmark Apts., 232 Ga. 307, 308-309 (1) (207 SE2d 197) (1974); Ga. Real Estate Comm. v. James, 152 Ga. App. 193, 195-196 (262 SE2d 531) (1979).

In the case sub judice, construing appellants’ allegations of fraud most favorably, there exists no representation made directly to an appellant that was false and that was made with the intent to deceive the appellant into relying upon the representation to appellants’ detriment. All that exists in the case sub judice is a business proposal that fell apart prior to it becoming formalized into a legally binding contract.

Appellants misplace reliance upon Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983) and Southeast Consultants v. O’Pry, 199 Ga. App. 125 (404 SE2d 299) (1991), which are distinguishable on both the law and facts from the case sub judice. Factually in these cases, the tortfeasors prepared written documents as professionals, providing expert opinion and services for a fee, which documents contained erroneous, mistaken, or misleading statements of fact. The tortfeasors negligently gave such documents to another with the full expectation that such documents, unchanged, would be given to and relied upon by the plaintiffs. Liability was premised, not on scienter, but upon negligence in making the representations relied upon as experts upon whom it is reasonably expected that others will rely. “Under this standard [Restatement, Torts Second, § 552], one who supplies information during the course of his business, profession, employment, or in any transaction in which he has a pecuniary interest has a duty of reasonable care and competence to parties who rely upon the information in circumstances in which the maker was manifestly aware of the use to which the information was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly. . . . If it can be shown that the representation was made for the purpose of inducing third parties to rely and act upon the reliance, then liability to the third party can attach.” Robert & Co. Assoc. v. Rhodes-Haverty Partnership, supra at 681-682.

The foregoing cases are a hybrid “fraud” action, based upon professional negligence, not scienter. Such standard applies under very limited factual circumstances that would give a right of action for professional malpractice, but for the absence .of “privity.” In the case sub judice, appellee was neither a professional paid to render the oral statement nor was the statement anything other than future expectations, intentions, or opinions as to future circumstances. Therefore, the case sub judice does not come within the ambit of such case law either legally or factually. See Badische Corp. v. Caylor, 257 Ga. 131, 132 (356 SE2d 198) (1987); First Nat. Bank of Newton County v. Sparkmon, 212 Ga. App. 558, 559 (442 SE2d 804) (1994). Appellants have failed, upon the shifting of the burden of proof on summary judgment after appellee pierced the pleadings, to come forward with evidence to create a material issue of fact.

2. (a) Breach of Contract — Written.

A written contract must either be an agreement executed by both parties or a series of writings which have been signed by both parties and which show an offer, acceptance, and mutually binding promises as consideration and contain the necessary terms of the contract. OCGA § 13-3-1; Bd. of Regents v. Tyson, 261 Ga. 368 (404 SE2d 557) (1991); Baker v. Jellibeans, Inc., 252 Ga. 458, 460 (314 SE2d 874) (1984); Cassville-White Assoc. v. Bartow Assoc., 150 Ga. App. 561, 564 (4) (258 SE2d 175) (1979). The terms of the contract must be agreed upon unconditionally and be sufficiently definite or ascertainable for enforcement, or the purported agreement has no enforceability as a binding agreement. Green v. Johnston Realty, 212 Ga. App. 656, 658-659 (1) (442 SE2d 843) (1994); Lamb v. Decatur Fed. &c. Assn., 201 Ga. App. 583, 585-586 (1) (411 SE2d 527) (1991); Panfel v. Boyd, 187 Ga. App. 639, 645-646 (3) (371 SE2d 222) (1988); Farmer v. Argenta, 174 Ga. App. 682, 683-684 (331 SE2d 60) (1985). There exists no written contracts signed by each individual appellant and by the appellee; nor does any series of writings signed and agreed upon by appellee and by each individual appellant exist. There is a failure of proof that a written contract exists between the parties.

(b) Breach of Contract — Oral.

Under OCGA § 13-5-30 (5), a contract that will take longer than one year to perform must be in writing; the alleged oral contract for services to begin in the future and to continue for more than one year comes within the statute of frauds and is void. Katz v. Custom Spray Prods., 168 Ga. App. 451, 452 (309 SE2d 663) (1983); Lewis v. Southern Realty Invest. Corp., 42 Ga. App. 171 (1), (2) (155 SE 369) (1930). However, if the alleged oral employment contract is for an indefinite period, which could be less than one year, and terminable at will by either party at any time, then such oral contract would not come within the statute of frauds, but is terminable at will, giving no right of action for future loss of employment or future benefits. See Vitner v. Funk, 182 Ga. App. 39, 42-43 (2) (354 SE2d 666) (1987); Wood v. Dan P. Holl & Co., 169 Ga. App. 839 (315 SE2d 51) (1984); Brazzeal v. Commercial Cas. Ins. Co., 51 Ga. App. 471 (180 SE 853) (1935).

The alleged agreements fail to become binding contracts because of the uncertainty and lack of agreed upon terms. Appellants sought to create such terms by resort to prior custom; however, such prior course of dealing was with an independent contractor so that there never was a meeting of the minds between the appellants and appellee as to terms or privity. See Liberty Nat. Bank &c. Co. v. Diamond, 229 Ga. 677, 680 (1) (194 SE2d 91) (1972); Associated Mutuals v. Pope Lumber Co., 200 Ga. 487, 491 (2) (37 SE2d 393) (1946); Hartrampf v. Citizens & Southern &c., 157 Ga. App. 879, 881 (1) (278 SE2d 750) (1981); Wells v. H. W. Lay & Co., 78 Ga. App. 364, 367-368 (1), (2) (50 SE2d 755) (1948). Therefore, the trial court did not err in finding that there was no enforceable contract and granting summary judgment on such theory of liability.

3. Federal RICO.

The Organized Crime Act of October 15, 1970, R L. 91-452, Title IX, § 904, 84 Stat. 947, created the Racketeer Influenced & Corrupt Organizations Act (RICO), 18 USCS §§ 1961-1968. Concurrent jurisdiction exists for a federal RICO action to be brought in a state court. See Tafflin v. Levitt, 493 U. S. 455 (110 SC 792, 107 LE2d 887) (1990). For liability on an action under federal RICO, the plaintiff must prove criminal liability on the part of the defendant which caused damages to the plaintiff. See Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 488-493 (105 SC 3275, 87 LE2d 346) (1985); Taffet v. Southern Co., 967 F2d 1483, 1486-1487 (11th Cir. 1992).

In the case sub judice, appellants have failed to come forward with proof that shows the required predicate acts and the pattern of criminal conduct. Appellants contend that there was common law fraud, mail fraud, and wire fraud as predicate acts. The common law fraud was disposed of in Division 1, supra. Wire and mail fraud are similar in their essential elements, and these crimes differ from common law fraud in that there is no necessity of reliance. The common elements of each are that: (1) the defendant either directly, or as an accessory must have a scheme or artifice to defraud; (2) the defendant, or an associate within the scheme, used the wire or mail or caused the wire or mail to be used; and (3) the purpose of using the wire or mail was to execute the scheme or in furtherance of the scheme. McLaughlin v. Anderson, 962 F2d 187, 191 (2nd Cir. 1992); Fleischhauer v. Feltner, 879 F2d 1290, 1297-1298 (6th Cir. 1989); Armco Indus. Credit Corp. v. SLT Warehouse Co., 782 F2d 475, 480-481 (5th Cir. 1986); see also Taffet v. Southern Co., supra at 1487, n. 6. Appellants have failed to make out an issue of material fact as to each such element.

4. Georgia RICO.

The United States Supreme Court has held that the standard of proof in a category of cases “serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision,” so that the intermediate standard of proof, clear and convincing evidence, will be used in those cases affecting fundamental rights, stigma, and property rights. Addington v. Texas, 441 U. S. 418, 423 (99 SC 1804, 60 LE2d 323) (1979); see also In the Matter of Winship, 397 U. S. 358 (90 SC 1068, 25 LE2d 368) (1970). This intermediate standard of “clear and convincing” evidence has been applied where the consequences to the person are significant. The United States Supreme Court has not decided the issue as to what standard of proof to use in federal civil RICO cases. In civil forfeiture cases under RICO, the criminal standard of “beyond a reasonable doubt” has been applied. Some federal courts, which does not include the Eleventh Circuit, have applied the lowest civil standard of proof, “preponderance of the evidence” in federal civil RICO cases, based upon reasoning from similar federal statutes. “A RICO claim, replete with the ruinous threat of treble damages, can not be assembled by cobbling together plainly inconsistent allegations of fraud.” McLaughlin v. Anderson, supra at 191. The United States Supreme Court, when it was called upon to decide whether punitive damages violated due process, considered but did not decide whether or not the standard of proof for imposition of punitive damages should be “clear and convincing” evidence, but held that other procedural safeguards were adequate to protect the person. Thus, the United States Supreme Court and the Eleventh Circuit have not determined which civil standard of proof to apply in federal civil RICO. Generally, Georgia courts follow federal decisions interpreting RICO. See Stanton v. Shearson Lehman/American Express, 622 FSupp. 293 (N.D. Ga. 1985). However, the federal and Georgia RICO acts are not identical; the Georgia RICO is both broader in parts and narrower in parts. Where the public policy of Georgia differs, Georgia courts will not follow federal precedent, because Georgia courts are free to afford its residents greater protection than that given by the federal courts. Chancey v. State, 256 Ga. 415, 418 (349 SE2d 746) (1986).

The General Assembly, in passing Ga. L. 1980, p. 405, § 1 et seq., OCGA § 16-14-1 et seq. did not specify the standard of proof in a civil RICO action under OCGA § 16-14-6 (c). Treble damages under OCGA § 16-14-6 (c), as well as punitive damages and attorney fees, would constitute a severe economic sanction of a penal nature upon any RICO defendant and would attach a stigma of quasi-criminal liability.

In passing Ga. L. 1987, p. 915, § 5, OCGA § 51-12-5.1 (b) and (c), dealing with punitive damages, the General Assembly expressed Georgia’s public policy that punitive damages in instances involving aggravating circumstances, i.e., intentional torts or entire want of care, which would raise the presumption of conscious indifference to the consequences, are to be proven by the standard of proof of “clear and convincing” evidence in order to penalize, punish, or deter such tortious conduct. Mack Trucks v. Conkle, 263 Ga. 539 (436 SE2d 635) (1993); Clarke v. Cotton, 263 Ga. 861 (440 SE2d 165) (1994); Gen. Motors Corp. v. Moseley, 213 Ga. App. 875 (447 SE2d 302) (1994). Since the intent of the General Assembly as expressed in OCGA § 16-14-2 (b) is to impose sanctions and to compensate private individuals who have been injured, then the purposes of treble damages and punitive damages are substantially the same, thereby requiring the same standard of proof, i.e., “clear and convincing” evidence. The General Assembly has imposed such intermediate standard of proof under many statutes, because of the effect of such statutes on personal or property rights, such as civil commitment, child custody and adoption, termination of parental rights, and property rights. When statutes failed to safeguard individual rights, either personal or property,-by imposing too low a standard of proof the Supreme Court of Georgia has required that the intermediate standard, “clear and convincing evidence,” be applied rather than the less protective standard of “preponderance of the evidence.” When a common law tort action significantly impacts upon the constitutional rights of a defendant, the courts have mandated that the standard of proof be “clear and convincing evidence.” New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (84 SC 710, 11 LE2d 686) (1964); Barber v. Perdue, 194 Ga. App. 287, 288 (390 SE2d 234) (1989). Thus, under the clear public policy of Georgia the standard of proof in a civil RICO action pursuant to OCGA § 16-14-6 (c) is “clear and convincing evidence.” Upon the shifting of the burden of proof on summary judgment, appellants have failed to come forward with evidence that even remotely satisfies such standard or to at least create a material issue of fact hereunder. See Barber v. Perdue, supra at 288.

5. Promissory Estoppel.

Ga. L. 1981, p. 876, § 2, OCGA § 13-3-44 (a), codified an equitable action for promissory estoppel. See 20/20 Vision Center v. Hudgens, 256 Ga. 129, 135 (7) (345 SE2d 330) (1986); Insilco Corp. v. First Nat. Bank of Dalton, 248 Ga. 322 (283 SE2d 262) (1981); Pepsi Cola Bottling Co. v. First Nat. Bank of Columbus, 248 Ga. 114, 116 (2) (281 SE2d 579) (1981); see also Gen. Communications Svc. v. Ga. Pub. Svc. Comm., 244 Ga. 855, 856 (262 SE2d 96) (1979); Pethel v. Waters, 220 Ga. 543, 552 (4) (140 SE2d 252) (1965). Under the Geor: gia action for promissory estoppel, the essential elements are that: (1) the defendant made a certain promise or promises; (2) the defendant should have reasonably expected , the plaintiff to rely on such promise or promises; (3) plaintiff did, in fact, rely on such promise or promises to his detriment; and (4) an injustice can be avoided only by the enforcement of the promise, because the plaintiff surrendered, forgoes, or rendered a valuable right. OCGA § 13-3-44 (a); Pethel v. Waters, supra at 551-552; Gen. Communications Svc. v. Ga. Pub. Svc. Comm., supra at 856; Doll v. Grand Union Co., 925 F2d 1363 (11th Cir. 1991); Nickell v. IAG Fed. Credit Union, 213 Ga. App. 516, 519 (4) (445 SE2d 335) (1994); Lake Tightsqueeze v. Chrysler First Fin. Svcs. Corp., 210 Ga. App. 178, 180 (2) (435 SE2d 486) (1993). Since promissory estoppel is an equitable doctrine, there must be reasonable reliance on such promise. This means that the plaintiff relied exclusively on such promise and not on his or her own preconceived intent or knowledge; that the plaintiff exercised due diligence, so as to justify such reliance as a matter of equity; and that there was nothing under the circumstances which would prevent the plaintiff from relying to his detriment. Knotts Landing Corp. v. Lathem, 256 Ga. 321, 324 (3) (348 SE2d 651) (1986); Pethel v. Waters, supra at 551-552; Doll v. Grand Union Co., supra at 1363; W. R. Grace & Co.-Conn. v. Taco Tico Acquisition Corp., 216 Ga. App. 423, 426 (1) (454 SE2d 789) (1995); LaVeau v. Republic Health Corp. of Central Ga., 181 Ga. App. 106, 109 (4) (351 SE2d 506) (1986); Fidelity &c. Co. v. West Point Constr. Co., 178 Ga. App. 578, 580 (344 SE2d 268) (1986); Atkinson v. American Agency Life Ins. Co., 165 Ga. App. 102, 104-105 (2) (299 SE2d 600) (1983). Plaintiff need not be in privity with the defendant for promissory estoppel to apply when (1) the assurance was made directly to the plaintiff, so that there would be no rejection by plaintiff’s contractor at plaintiff’s insistence; (2) the plaintiff was the third-party beneficiary of any express or implied warranty of the product, services, or work; and (3) reliance was reasonable by plaintiff and expected by the defendant. See Irvin v. Lowe’s of Gainesville, 165 Ga. App. 828, 829-830 (3) (302 SE2d 734) (1983). Promissory estoppel may apply to an executory promise without any other consideration, because detrimental reliance supplies consideration as a matter of waiver and estoppel. Thus, if the promise is to be performed in the future and conditioned on a future event, then promissory estoppel may apply so that “performance becomes due only upon the occurrence of the condition or upon the arrival of a specified time.” Restatement, Contracts, Second, § 91; Pethel v. Waters, supra at 552; Kemira, Inc. v. Williams Investigative &c. Svcs., 215 Ga. App. 194, 199 (2) (450 SE2d 427) (1994).

While the alleged contracts were under New York law, promissory estoppel is a Georgia equity doctrine, so that Georgia case law applies, as a matter of conflict of law. Nickell v. IAG Fed. Credit Union, supra at 519. The public policy of Georgia is expressed by OCGA § 34-7-1, which makes employment terminable at will absent a written contract -for a specified time period of employment. See Land v. Delta Air Lines, 130 Ga. App. 231 (203 SE2d 316) (1973); see also Barker v. CTC Sales Corp., 199 Ga. App. 742 (1) (406 SE2d 88) (1991). “[T]his court has held that while the principle of promissory estoppel, codified in OCGA § 13-3-44 (a), ‘provides that, in certain circumstances, the reliance by the promisee or third party upon the promise of another is sufficient consideration, in and of itself, to render the executory promise enforceable against the promisor, [cit.], this principle has no application in the instant case (where the promise relied on was for employment for an indefinite period).’ Loy’s Office Supplies v. Steelcase, Inc., 174 Ga. App. 701, 702 (331 SE2d 75) (1985). Accordingly, as the promise relied on by appellants] was for employment for an indefinite period, the trial court did not err by refusing to recognize this ‘exception’ to the general rule, as urged by appellants].” Barker v. CTC Sales Corp., supra at 743; see also Johnson v. MARTA, 207 Ga. App. 869, 870 (1) (429 SE2d 285) (1993). In the case sub judice, as a matter of Georgia public policy, appellants have no cause of action under the Georgia equity doctrine of promissory estoppel as to any alleged contracts terminable at will.

6. Third-Party Beneficiary.

Under OCGA § 9-2-20 (b), a third-party beneficiary to a contract may sue in his own name to enforce the contract; however, the contract must expressly specify and identify the person as a third-party beneficiary to the contract. Miree v. United States, 242 Ga. 126, 135 (3) (249 SE2d 573) (1978); Backus v. Chilivis, 236 Ga. 500, 502 (224 SE2d 370) (1976); Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 752-753 (206 SE2d 857) (1974), aff’d, 233 Ga. 578 (212 SE2d 377) (1975); see also Donalson v. Coca-Cola Co., 164 Ga. App. 712, 713-714 (2) (298 SE2d 25) (1982).

The third-party beneficiary must be the intended beneficiary of the contract; the mere fact that a third party would benefit incidentally from the performance of the contract is not alone sufficient to give such person standing to sue on the contract. Whitley v. Bryant, 198 Ga. 328 (31 SE2d 701) (1944); Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 349 (1) (411 SE2d 75) (1991), overruled on other grounds, Lemonds v. Walton County Hosp. Auth., 212 Ga. App. 369 (441 SE2d 821) (1994); Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389, 391-392 (1) (367 SE2d 278) (1988); Bartley v. Augusta Country Club, 172 Ga. App. 289, 290 (322 SE2d 749) (1984); Southeast Grading v. City of Atlanta, 172 Ga. App. 798, 800 (1) (324 SE2d 776) (1984).

The agreement between appellee and its independent contractors was made for the benefit of the named parties and any benefit which flowed to appellants individually under such agreement was merely incidental to such agreements. Thus, appellants were not the third-party beneficiary of any agreement made by appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur in judgment only.

Decided July 28, 1997

Gray & Hedrick, William E. Gray II, Law Office of David W. M. Boone, Robert G. Ballard, for appellants.

King & Spalding, James N. Gorsline, Ralph B. Levy, Flournoy & Gentry, William C. Gentry, for appellee.

        Santosky v. Kramer, 455 U. S. 745 (102 SC 1388, 71 LE2d 599) (1982) (termination of parental rights); Addington v. Texas, supra at 423 (civil commitment); Woodby v. INS, 385 U. S. 276 (87 SC 482, 17 LE2d 362) (1966) (deportation); Chaunt v. United States, 364 U. S. 350 (81 SC 147, 5 LE2d 120) (1960) (denaturalization).

       In Sedima, S. P. R. L. v. Imrex Co., supra at 491, the Court indicated that a civil, rather than the criminal, standard of proof would be appropriate, and probably the preponderance of the evidence standard. But this opinion did not decide whether to use the “preponderance of evidence” or “clear and convincing” evidence as the appropriate standard.

        United States v. Ragonese, 607 FSupp. 649, 650-651 (S.D. Fla. 1985), aff’d without opinion, 784 F2d 403 (11th Cir. 1986); United States v. Horak, 633 FSupp. 190, 199-200 (N.D. Ill. 1986), aff’d in part and vacated in part on other grounds, 833 F2d 1235, 1241-1242 (7th Cir. 1987).

        Liquid Air Corp. v. Rogers, 834 F2d 1297, 1302-1303 (7th Cir. 1987); Fleischhauer v. Feltner, supra; Wilcox v. First Interstate Bank of Oregon, 815 F2d 522 (9th Cir. 1987); Cullen v. Margiotta, 811 F2d 698, 731 (2nd Cir. 1987); Armco Indus. Credit Corp. v. SLT Warehouse Co., supra at 480-481; United States v. Local 560 of the Intl. Brotherhood &c., 780 F2d 267, 279-281 (3rd Cir. 1985); United States v. Cappetto, 502 F2d 1351, 1357 (7th Cir. 1974). The reasoning was that the RICO Act borrowed language from the Clayton Act, which also imposes triple damages and which applies a preponderance of the evidence standard. However, in regard to a different issue under RICO, the United States Supreme Court held that the use of language from the Clayton Act did not import into RICO all the baggage of interpretation of the Clayton Act. Tafflin v. Levitt, supra. A second rationale was that, at common law, fraud required the standard of proof of “clear and convincing” evidence, but the Supreme Court had not followed such intermediate standard in security fraud cases under the Securities & Exchange Act of 1934, § 10 (b). Herman & MacLean v. Huddleston, 459 U. S. 375 (103 SC 683, 74 LE2d 548) (1983); see Liquid Air Corp. v. Rogers, supra at 1303; United States v. Local 560 of the Intl. Brotherhood &c., supra at 279, n. 12.

        Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 23, n. 11 (111 SC 1032, 113 LE2d 1) (1991).

       OCGA §§ 7-1-812; 7-1-813; 9-11-12 (b) (4), (5) and (d); 10-1-15; 10-1-787; 12-8-23.1 (a) (3) (B); 15-11-2; 15-11-18; 15-11-33; 15-11-41; 15-11-81; 15-11-86; 19-7-1; 19-7-4; 19-7-5; 19-8-10; 19-8-23; 19-9-1; 23-1-8; 24-9-47 (t) (2); 29-5-3 (a); 29-5-6 (e) (4); 29-5-8 (b) (1), (e); 29-5-11 (a); 30-5-5 (d); 37-3-64; 37-4-2 (7); 37-4-42; 37-7-1; 43-3-13; 44-5-80; 44-12-262 (a); 47-3-122; 53-1-5 (d); 53-2-3 (2) (A) (v); 53-2-4 (b) (1) (E); 53-12-92 (c); 53-12-153.

       See Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982); In re Suggs, 249 Ga. 365, 367 (291 SE2d 233) (1982); Motes v. Hall County DFACS, 251 Ga. 373, 374 (306 SE2d 260) (1983); In re Baby Girl Eason, 257 Ga. 292, 295 (358 SE2d 459) (1987); In re L. H. R., 253 Ga. 439, 445 (321 SE2d 716) (1984); Thorne v. Padgett, 259 Ga. 650 (386 SE2d 155) (1989); Brooks v. Parkerson, 265 Ga. 189, 192 (454 SE2d 769) (1995).


text:
    A97A1502.
    STEWART v. THE STATE.
    (490 SE2d 194)
   Eldridge, Judge.

Appellant James Stewart, Jr., challenges his conviction for possession of cocaine with intent to distribute by asserting that the trial court erred in denying his motion for a directed verdict of acquittal. There was no error.

Appellant was arrested on November 3,1994 at 2:30 p.m. in Bibb County. He had 11 pieces of crack cocaine in his possession. He was tried by a jury on March 1,1995. At the end of the State’s case, appellant moved for a directed verdict on the basis that “there was no evidence presented to the jury on distribution of the cocaine.” The motion was denied, and the jury found appellant guilty of possession of cocaine with intent to distribute. As a recidivist with five prior felonies, appellant was sentenced to life imprisonment without parole under OCGA § 17-10-7 (b). Appellant’s motion for a new trial was denied, and this appeal was filed. Held:

Appellant asserts that the trial court erred in denying his motion for a directed verdict of acquittal. The appropriate standard of review for such denial is to determine whether the evidence, viewed in the light most favorable to the verdict, is sufficient for a rational trier of fact to find the defendant/appellant guilty beyond a reasonable doubt of the charged offense. Cody v. State, 222 Ga. App. 468, 470 (474 SE2d 669) (1996), citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Harvey v. State, 212 Ga. App. 632, 634 (442 SE2d 478) (1994). On appeal, appellant no longer enjoys a presumption of innocence. Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990).

1. Upon making his motion at trial, appellant argued that there was no evidence that appellant actually distributed the cocaine, so that he was entitled to a directed verdict of acquittal. However, appellant’s brief to this Court cites no facts or law that support his contention. In fact, appellant makes no argument whatsoever regarding these asserted grounds for reversal. Therefore, there is nothing for this Court to review and this assertion will be treated as abandoned pursuant to Court of Appeals Rule 27 (c) (2).

2. Appellant also argues that he was entitled to a directed verdict of acquittal because the trial court failed to suppress the crack cocaine evidence, when it was allegedly the product of an illegal search. We reject appellant’s assertion that the search of appellant was improper.

In reviewing the trial court’s ruling on his objection to the admission of the cocaine, the “evidence is construed most favorably to uphold the findings and judgment. The court’s findings of fact will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Pickens v. State, 225 Ga. App. 792 (484 SE2d 731) (1997); see also Baldwin v. State, 263 Ga. 524, 525 (435 SE2d 926) (1993); State v. Williams, 220 Ga. App. 100, 102 (2) (469 SE2d 261) (1996); Burse v. State, 209 Ga. App. 276 (433 SE2d 386) (1993).

“A police officer is authorized to make a brief, investigatory detention of an individual where the intrusion can be justified by specific, articulable facts giving rise to a reasonable suspicion of criminal conduct. What is demanded of the police officer is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.” (Citations and punctuation omitted.) Williams v. State, 214 Ga. App. 101 (446 SE2d 792) (1994); see also Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1967) (“Terry”); Burdette v. State, 210 Ga. App. 471, 473 (436 SE2d 502) (1993); Clinkscale v. State, 158 Ga. App. 597, 598 (281 SE2d 341) (1981); Radowick v. State, 145 Ga. App. 231, 237 (244 SE2d 346) (1978). In other words, the articulable suspicion which will authorize a Terry stop has been defined as whether, under the totality of the circumstances, the law enforcement officer has “ ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).” Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994). “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Graves v. State, 138 Ga. App. 327, 328 (226 SE2d 131) (1976), citing Adams v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612) (1972).

Further, incident to the investigatory Terry stop, officers are allowed to “pat down” a target “when the officer reasonably believes that it is necessary to protect him from attack. It is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed.” (Citations and punctuation omitted.) Wilson v. State, 210 Ga. App. 886, 887 (437 SE2d 867) (1993); see also Tedford v. State, 213 Ga. App. 252 (444 SE2d 156) (1994); Dowdy v. State, 209 Ga. App. 311 (433 SE2d 293) (1993); State v. Jarrells, 207 Ga. App. 192 (427 SE2d 568) (1993); Hayes v. State, 202 Ga. App. 204 (414 SE2d 321) (1991).

In defining the parameters of such a pat-down search, the United States Supreme Court, in Minnesota v. Dickerson, 508 U. S. 366 (113 SC 2130, 124 LE2d 334) (1993), “approved a ‘plain feel’ exception to the warrant requirement of the Fourth Amendment, which exception correlates to the ‘plain view’ doctrine developed earlier. See, e.g., Arizona v. Hicks, 480 U. S. 321 (107 SC 1149, 94 LE2d 347) (1987). The Court held that if‘a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons under Terry, if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.’ [Minnesota v. Dickerson, supra at] 375-376.” Andrews v. State, 221 Ga. App. 492, 493 (471 SE2d 567) (1996); see also Howard v. State, 220 Ga. App. 579 (469 SE2d 746) (1996). Such is the situation in the case sub judice.

The evidence shows that the arresting officers were told by a reliable confidential informant that appellant’s co-defendant, Smith, was “loaded,” i.e., “carrying a large quantity of crack cocaine”; the informant was considered by the officers to be “completely” reliable and had assisted the officers on several previous occasions. The police officers approached Smith and patted him down for weapons out of concern for their own safety. At that time, the officers found two match boxes which contained crack cocaine. Smith voluntarily told the officers appellant’s name; that appellant had just passed by in a brown car with a female passenger; that appellant had given Smith cocaine to sell; and that appellant still had cocaine in his possession. He also pointed out the brown car in the parking lot to officers, and told the officers that they could find appellant across the street in the J & J Restaurant. One of the police officers independently recalled seeing the brown car arrive in the parking lot a few minutes earlier occupied by a male and a female.

Following up on Smith’s information, the officers found appellant in the J & J Restaurant, asked him to step outside, and patted him down for weapons. During the pat down, the officer felt 11 pieces of crack cocaine in appellant’s left front pocket of his shirt; the cocaine was removed and sent to a crime laboratory.

Decided July 28, 1997.

Cedric T. Leslie, for appellant.

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

Under the totality of the circumstances, we find that the information provided by appellant’s co-defendant was sufficiently specific, accurate, and reliable to create a reasonable and articulable suspicion that appellant was engaged in criminal activity. See Leonard v. State, 213 Ga. App. 503, 504-505 (445 SE2d 330) (1994). This Court has held that “neither the basis of an informant’s knowledge, nor evidence of his veracity, nor corroboration of these elements is an entirely separate and independent requirement to be exacted in every case, but rather these elements are simply useful in illuminating the common sense, practical question whether there is probable cause to believe that contraband or evidence of a crime is located in a particular place.” Leonard v. State, supra at 504; see also Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983); Thomas v. State, 208 Ga. App. 476, 477 (430 SE2d 849) (1993); McKinney v. State, 184 Ga. App. 607, 608-609 (362 SE2d 65) (1987). Accordingly, we also find that the evidence supports a determination that the pat down of appellant was incident to a lawful detention.

Further, the cocaine was admissible as evidence either because it was discovered under the “plain feel” doctrine, Minnesota v. Dickerson, supra, or because the evidence presented supports a finding that the police officers had probable cause to believe that appellant had contraband on his person. See Leonard v. State, supra at 505; Thomas v. State, supra at 477.

Therefore, there was no error in the trial court’s determination that the confiscated cocaine was not the product of an illegal search. As such, the trial court properly admitted the cocaine into evidence.

Further, after viewing the evidence in the light most favorable to the verdict, we hold that a reasonable factfinder could find appellant guilty beyond a reasonable doubt of possession of cocaine with intent to distribute, so that appellant was not entitled to a directed verdict of acquittal.

Judgment affirmed.

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

       We note that, while appellant attempts to question the legality of the pat-down search of his co-defendant, he lacks standing to challenge the alleged search of a third party. See Delgado v. State, 192 Ga. App. 356, 357 (384 SE2d 680) (1989); Gilbert v. State, 159 Ga. App. 326, 327 (283 SE2d 361) (1981).


author: Johnson, Judge.

text:
    A97A1535.
    VARNADOE v. THE STATE.
    (490 SE2d 517)
   Johnson, Judge.

A jury found Jason Varnadoe guilty of armed robbery and burglary, but not guilty of aggravated assault and possession of a firearm during the commission of a crime. He appeals from the denial of his motion for new trial.

Viewed in a light to support the verdict on appeal, facts introduced at trial are as follows: On July 27, 1995, Phillip Griffin discovered his shotgun was missing from underneath his bed. Less than four hours later, Galen Noll, an off-duty police officer working a second job delivering pizza, was robbed in a residential neighborhood by at least three assailants, one of whom was armed with the stolen shotgun and one armed with a pistol. Noll testified that some or all of the assailants were wearing blue bandannas. The shotgun, the pistol, Noll’s cellular phone, a pizza delivery bag and a blue bandanna were found in the woods near an apartment complex. Several people in the neighborhood observed what they considered to be suspicious activity and at least two of them called 911 with descriptions of four teenagers they had seen sitting in a car and then running from a house where pizza had been delivered to a car parked in a dark area behind a school. One of the callers was able to give a partial car tag number to the police which led to Varnadoe’s arrest.

Fred Jones, one of the perpetrators, testified for the state. He said that Varnadoe and another young man stole the shotgun used during the robbery earlier the same day. He told the jury that Varnadoe loaded the shotgun and wiped fingerprints off of the gun with a blue bandanna. He described the discussions leading to the commission of the armed robbery and told the jury that Varnadoe had participated in the planning, provided transportation to and from the crime scene, and volunteered to make the phone call luring Noll to the robbery site. These details of the crime were corroborated by Kenneth Cooper who also testified for the state under a plea agreement. Cooper also described how the guns, pizza bag, bandanna and cellular phone were disposed of in the woods.

Finally, the lead investigator in the case testified that, after he advised Varnadoe of his Miranda rights, and in the presence of his stepfather, Varnadoe gave a confession which was consistent with the trial testimony of Jones and Cooper. In that statement Varnadoe described how he had driven around with the other three men, helped plan the robbery, ordered the pizza, and waited at a nearby school for the victim to arrive. He also admitted that he had stolen the shotgun and that this same shotgun was used during the robbery.

1. Varnadoe’s contention that the trial court erred in refusing to sever the burglary count from the armed robbery count is without merit. Where joinder is based on a series of acts connected together, severance of the various counts in an indictment lies within the sound discretion of the trial court. Bland v. State, 264 Ga. 610, 611 (2) (449 SE2d 116) (1994). Varnadoe’s argument that “the events giving rise to the burglary were wholly unrelated and unconnected to the remaining charges” is not supported by the facts of this case. Likewise, the fact that Varnadoe admits his willing participation in the burglary but claims he was coerced into participating in the subsequent armed robbery has no bearing on whether the acts constitute a continuing series of acts. Although the burglary and the armed robbery occurred several hours apart, the appropriation of a shotgun used in the robbery shows a continuing course of criminal conduct. Accordingly, we conclude that the denial of the motion to sever the offenses was not an abuse of the trial court’s discretion. See Whitfield v. State, 217 Ga. App. 402, 403 (1) (457 SE2d 682) (1995).

2. In his second enumeration of error Varnadoe argues that the trial court erred in denying Varnadoe’s motion for new trial based on the general grounds. This enumeration of error is normally an attack on the sufficiency of the evidence presented at trial. But here Varnadoe argues that the verdict, guilty of armed robbery but not guilty of possession of a firearm during the commission of a crime, is an inconsistent and therefore impermissible verdict. Milam v. State 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). We disagree. Varnadoe’s reliance on Strong v. State, 223 Ga. App. 434 (477 SE2d 866) (1996), is misplaced. In Strong the appellant was acquitted of aggravated assault but found guilty of possession of a firearm during the commission of a felony. We held that “[a] conviction of possession of a weapon during the commission of a felony must stand or fall in conjunction with the underlying felony upon which the charge is predicated.” Id. at 435. The facts of this case are clearly distinguishable. Here, Varnadoe was acquitted of the possession of a firearm charge but convicted of armed robbery. The jury was instructed that a person may be a party to a crime if that person either directly commits the crime or intentionally helps in the commission of the crime. The jury was further charged that any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that the person was a party to it. See OCGA § 16-2-20. The jury heard testimony that Varnadoe assisted not only in the planning of the crime, but placed the call which ensured that the victim would appear. And although there was evidence before the jury that weapons were used during the commission of the armed robbery, the jury apparently believed that Varnadoe was not the person wielding either the shotgun or the handgun, making him guilty of armed robbery as a party, but not guilty of actually possessing the weapon. This Court does not reweigh the evidence or speculate about which evidence a jury chose to believe or disbelieve. There was sufficient evidence presented in this case to support the jury’s conclusion that Varnadoe was guilty of armed robbery. See Leigh v. State, 223 Ga. App. 726, 728-729 (2) (478 SE2d 905) (1996).

3. Varnadoe’s assertion that the trial court erred in denying his motion for new trial because trial counsél was ineffective is without merit. “To show inadequacy of trial counsel, a defendant must establish not only that counsel’s conduct fell below an objective standard of reasonableness, but, further, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations and punctuation omitted.) Lindo v. State, 218 Ga. App. 756, 758 (2) (463 SE2d 148) (1995). In denying Varnadoe’s motion for new trial based on his claim that trial counsel was ineffective, the trial court was “of the firm opinion that the trial counsel conducted the case with due skill and diligence and effectiveness.”

Specifically, Varnadoe argues that trial counsel failed to discover that Ashley Finch, as he was named on the state’s witness list, was Robert Ashley Finch, and therefore could not effectively cross-examine this crucial witness. On direct examination Varnadoe testified he had never been in a gang and had never had anything to do with gang activity. Finch was called by the state as a rebuttal witness to testify that Varnadoe was a member of a gang and that Varnadoe’s participation in the armed robbery was either part of his initiation into the gang or compliance with his role as a gang member. We agree with the trial court’s assessment that this testimony was neither exculpatory nor critical to the trial. Therefore Varnadoe cannot show a reasonable probability that the result of the proceeding would have been different but for counsel’s failure to ascertain the identity of Ashley Finch prior to trial.

“A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless it is clearly erroneous. [Cit.]” (Citations and punctuation omitted.) Id. The trial court’s conclusion in this case that Varnadoe’s trial counsel was not ineffective on this ground was not clearly erroneous. Accordingly, the trial court did not err in denying Varnadoe’s motion for new trial based on ineffective assistance of counsel.

4. Finally, Varnadoe asserts “the trial court erred by failing to grant appellant a mistrial where appellant was irreparably harmed by prosecutorial misconduct which directly resulted in witness perjury as to critical and paramount elements of appellant’s case.” In the argument presented in support of this enumeration of error, we find no citation to the record regarding where a motion for mistrial based on this issue was made. See Court of Appeals Rule 27 (a) (1). We believe appellant intended to assert that the trial court erred in failing to grant a new trial on these grounds. “[A] conviction obtained by the knowing use of perjured testimony is' fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” (Citations and punctuation omitted.) Williams v. State, 250 Ga. 463, 465 (298 SE2d 492) (1983). These serious allegations were presented to the trial court which heard evidence regarding Finch’s alleged perjury and concluded in its order: “[The witness’] story at the motion for new trial was inconsistent on many occasions and his demeanor indicated to the court that his contentions made at the motion for new trial are totally without merit and not to be believed.” “We will not reverse the trial court’s fact findings which underpin its legal conclusion made at a motion for new trial hearing unless they are clearly erroneous.” (Citations and punctuation omitted.) White v. State, 221 Ga. App. 860, 862 (2) (473 SE2d 539) (1996). This Court will not second guess the trial court which heard testimony from this witness both at trial and at the motion for new trial hearing and was in a position to evaluate the demeanor of the witness and the credibility of his testimony. Having failed to establish that the witness’ testimony was perjured, Varnadoe’s claim that the prosecutor suborned this alleged perjury cannot stand.

Decided July 28, 1997

Debra G. Gomez, for appellant.

Kelly Burke, District Attorney, A. James Rockefeller, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J, and Blackburn, J., concur.

       Alternatively, Varnadoe contends later in his brief that his primary defense at trial was that he believed that the events leading up to the armed robbery were a prank being played on him by gang members.


text:
    A97A1542.
    GASTON v. THE STATE.
    (490 SE2d 198)
   Eldridge, Judge.

Patricia Ruth Gaston appeals a State Court of Fulton County jury’s verdict finding her guilty of the offenses of improper lane change, expired license tag, and DUI — excessive blood alcohol concentration pursuant to OCGA § 40-6-391 (a) (5). Appellant’s enumerations of error hinge upon her contention that the trial court erred in denying her motion in limine to exclude the results of her chemical test to determine blood alcohol content.

Appellant filed a pretrial motion in limine seeking a determination regarding the admissibility of her breath test results. A hearing was held prior to trial wherein appellant called State Trooper J. M. Webb, the Georgia State Patrol area supervisor who had inspected the Intoxilyzer 5000 upon which appellant was tested. Trooper Webb testified as to his Georgia Bureau of Investigation (“GBI”) Division of Forensic Sciences (“DFS”) training and license to inspect and certify the operations of the Intoxilyzer 5000. The Certificates of Inspection for the machine, which are issued quarterly, were produced, and appellant did not question Webb thereon or contest the validity thereof. Trooper Webb testified in detail as to his quarterly inspections of the machine on dates both prior to and after appellant’s June 9, 1995 breath test; Webb testified that the inspections followed all procedures set forth by the DFS. Webb also testified that, following such inspections, the Intoxilyzer 5000 was working properly pursuant to statutory requirements.

Appellant’s counter to such testimony was, essentially, to go through a run down of the Intoxilyzer 5000’s myriad parts and ask the officer if he had taken the machine apart during the quarterly inspections and tested each and every component. Trooper Webb repeatedly responded that the machine worked properly pursuant to the diagnostic testing procedures promulgated by the DFS, and therefore, there was no reason to take the machine apart and test each and every component. Appellant then argued that the State failed to prove that the machine was operating with “all its electronic and operating components . . . attached ... in good working order” pursuant to OCGA § 40-6-392 (a) (1) (A).

The trial court determined that the testimony of Trooper Webb was sufficient to satisfy the foundational statutory requirements for the admission of the appellant’s breath test results pursuant to OCGA § 40-6-392 (a) (1) (A). Held:

1. In her first enumeration of error, appellant contends that the State failed to prove that the Intoxilyzer 5000 was operating with all its components attached and in good working order pursuant to OCGA § 40-6-392 (a) (1) (A), because the State’s witness, Trooper Webb, did not actually test each component individually to determine if it was in good working order during his quarterly inspections and testing. This contention is meritless.

The results of a breath test are not admissible, over proper objection, unless a foundation is laid by the State. State v. Johnston, 249 Ga. 413, 415 (291 SE2d 543) (1982). As appellant correctly notes, the State may lay the required foundation for the admission of chemical test results in “one of two ways”: through either the testimony of a “live witness” or “with an easier method for proving this requirement than with a live witness,” i.e., the introduction of “self-authenticating Certificates of Inspection.” As has been recognized by this Court, the certification requirement of OCGA § 40-6-392 (a) (1) (A) and (f) “is an administrative and evidentiary procedure designed to relieve the State from the time-consuming and costly burden of having to produce live witnesses,” and nothing in the statute is meant to preclude the State “from proving a DUI offense by other admissible evidence.” State v. Kampplain, 223 Ga. App. 16, 19 (477 SE2d 143) (1996); Hobbs v. State, 224 Ga. App. 314 (480 SE2d 330) (1997). The “other admissible evidence” that may satisfy the requisites of OCGA § 40-6-392 (a) (1) (A) is the live testimony of an appropriate witness concerning such requirements; the admission of the Certification, itself, is simply an aid to the admission of the chemical test results. See Bazemore v. State, 225 Ga. App. 741 (484 SE2d 673) (1997); Jordan v. State, 223 Ga. App. 176, 179, n. 2 (477 SE2d 583) (1996); Carr v. State, 222 Ga. App. 776, 777-778 (476 SE2d 75) (1996); Harden v. State, 210 Ga. App. 673 (436 SE2d 756) (1993); Broski v. State, 196 Ga. App. 116, 118-119 (395 SE2d 317) (1990). Further, the admission of such evidence “rests within the sound discretion of the trial court which appellate courts will not disturb absent evidence of its abuse.” Howard v. State, 206 Ga. App. 610 (426 SE2d 181) (1992); Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536) (1986).

In the case sub judice, it is undisputed that DFS issued the Certificate of Inspection for the Intoxilyzer 5000 used to test appellant. In addition, the testimony of Trooper Webb satisfied the foundational requirements of OCGA § 40-6-392 (a) (1) (A) in that his testimony demonstrated that, at the time of appellant’s breath test, the Intoxilyzer 5000 had been tested and maintained under the methods and provisions promulgated by the DFS, which methods and provisions showed that the machine was operating with the components prescribed by its manufacturer properly attached and in good working order. Williams v. State, 224 Ga. App. 368, 370 (481 SE2d 535) (1997); see also Lattarulo v. State, 261 Ga. 124, 127 (401 SE2d 516) (1991).

Contrary to appellant’s argument, the plain language of the statute does not direct that the Intoxilyzer 5000 machine be taken apart and each component tested individually, when the diagnostic procedures and methods approved by the DFS demonstrate to the licensed inspector that the machine is operating properly. Statutes must be construed in order to square with common sense and sound reasoning, as well as to effectuate the purpose of the General Assembly. Jordan, supra at 182. A ridiculous result would obtain should this Court find OCGA § 40-6-392 (a) (1) (A) requires that an Intoxilyzer 5000 machine, which is working properly according to DFS approved diagnostic tests, must be taken apart and all its component parts individually tested in order to prove that the machine is working properly, as was already established by the DFS approved diagnostic tests. The statute, by its plain terms, does not require such a circular process, and the intent of the General Assembly “to provide for the admissibility of breath samples” would be frustrated by such an interpretation. Ga. L. 1995, p. 1160.

OCGA § 40-6-392 (a) (1) (A) specifically permits the DFS to establish and approve the methods and provisions for the testing and maintenance of breath test machines. The evidence showed that such methods and provisions were followed in the case sub judice, and that the Intoxilyzer 5000 was working properly pursuant to statutory requirements; appellant did not demonstrate otherwise. Accordingly, the trial court did not abuse its discretion in finding that the appellant’s breath test was admissible under the statute.

2. Next, appellant contends that the foundational requirements of OCGA § 40-6-392 (a) (1) (A) for the admissibility of chemical test results must be proved in front of the jury. We disagree.

A motion in limine is the proper vehicle by which to interpose an objection to the admissibility of chemical test results on the basis urged by appellant herein, non-compliance with the provisions of OCGA § 40-6-392 (a) (1) (A). Johnston, supra at 414-415; Smith v. State, 185 Ga. App. 531 (364 SE2d 907) (1988). “A motion in limine is a pretrial motion which may be used two ways: 1) The movant seeks, not a final ruling on the admissibility of evidence, but only to prevent the mention by anyone, during the trial, of a certain item of evidence or areá of inquiry until its admissibility can be determined during the course of the trial outside the presence of the jury[; and] 2) The movant seeks a ruling on the admissibility of evidence prior to the trial. The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. If, however, the trial court decides to rule on the admissibility of evidence prior to trial, the court’s determination of admissibility is similar to a preliminary ruling on evidence at a pretrial conference, and it controls the subsequent course of action, unless modified at trial to prevent manifest injustice.” (Citations and punctuation omitted; emphasis supplied and in original.) Johnston, supra at 415.

Decided July 28, 1997.

Monte K. Davis, for appellant.

Carmen Smith, Solicitor, Allison L. Byrd, Phillip Jackson, Assistant Solicitors, for appellee.

In the instant case, appellant sought and received a pretrial ruling regarding the admissibility of her breath test results. At the pretrial hearing, the State laid the required foundation for the admission of appellant’s chemical test results. Thereafter, the trial court’s ruling controlled this matter of law, and the State was not required to re-prove the legal issue of admissibility to the jury. If appellant, subsequently, desired to raise an inference to the jury that her breath test had some, margin for'error or may have given an erroneous result, appellant was free to call appropriate witnesses to do so. “[N]o procedure is infallible. An accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction.” Lattarulo, supra at 126. However, such evidence would relate to the weight rather than the admissibility of appellant’s breath test results. Id. The determination of admissibility, pursuant to the foundational requirements of OCGA § 40-6-392 (a) (1) (A), is never a jury question. See, e.g., Kitchens v. State, 256 Ga. 1, 6 (342 SE2d 320) (1986) (Gregory, J., concurring specially). There was no error.

3. As appellant’s chemical test results were properly admitted into evidence, we find the evidence was sufficient to support the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

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

       See also OCGA § 40-5-67.1 (g) (2) (P) (copy of the operator’spermit and original copy of test results, or copy of crime lab report, shall satisfy admissibility requirements under OCGA § 40-6-392 (a) (1) (A)).

       Would the machine need to be taken apart again in order to make sure all components are still properly attached and working after the machine’s reassembly, ad infinitum?


text:
    A97A1704.
    MULLINAX v. THE STATE.
    (490 SE2d 201)
   Eldridge, Judge.

Appellant, Michael Sean Mullinax, challenges his conviction for possession of a controlled substance and possession with intent to distribute. We affirm in part and reverse in part.

The facts, viewed in the light most favorable to the verdict, show the following: on the evening of July 15, 1995, appellant attended a party in Douglas County, Georgia. Appellant’s “fanny pack,” which contained his wallet, identification, cash, and jewelry, was stolen by an acquaintance, Jamie Collins, who then quickly left the party with two friends.

Upon learning that the pack had been stolen, appellant left the party in his truck to find Collins and retrieve the pack. Appellant searched for six hours before finding Collins in Paulding County the next morning. Appellant proceeded to chase Collins for at least an hour at high speeds, repeatedly attempting to run her off of the road, and flashing his lights at her. Frightened, Collins noticed two police cars along Highway 278 in Paulding County; she intentionally alerted the police, who pulled over both vehicles after observing them speeding and squealing their tires.

The police officers questioned both appellant and Collins. For safety reasons and due to the number of people involved in the incident, the officers placed appellant in the back seat of a patrol car. Appellant told the officers that Collins had stolen his black fanny pack and that he was attempting to retrieve it; he also told the officers that the pack contained his wallet, identification, an electronic scale, and some jewelry. Collins gave permission for the police to search her vehicle; the fanny pack was found under the driver’s seat. Inside the pack, the police officer found appellant’s wallet, his ATM bank card, other identification, a small electronic scale, a small black drawstring pouch, a lighter, and several small plastic zip-lock bags, some of which contained a white powder later identified as methamphetamine. Upon seeing the contents of the pack, appellant denied that the pack belonged to him, asserting instead that his pack was black leather, unlike the black vinyl pack found by police. However, the officers arrested appellant and transported him to the Paul-ding County jail. A few hours later, prior to transporting anyone else, police officers searched the back seat of the police car in which appellant had been transported and found a small vial of powdery residue; the residue was tested and determined to be methamphetamine.

Appellant was charged with possession of a controlled substance with intent to distribute (Count 1) and possession (Count 2). He was tried by a jury on December 3, 1996, and was found guilty on both counts. Appellant moved for a new trial, which was denied; he timely appeals his conviction.

1. Appellant asserts that the trial court erred in overruling his motion for directed verdict, which was premised on improper venue, as to Count 1, possession with intent to distribute. He claims that there was no evidence of his possession of the methamphetamine in Paulding County, so that the Paulding County Superior Court lacked jurisdiction over the case. We agree.

“Generally, criminal trials shall be tried in the county where the crime was committed, and venue is a jurisdictional fact that must be proven as part of the general case. Additionally, although venue must be proven beyond a reasonable doubt, if venue is not contested at trial, slight proof of venue will suffice.” (Citations and punctuation omitted.) McGee v. State, 209 Ga. App. 261, 262 (433 SE2d 374) (1993); see also OCGA § 17-2-2; Dennis v. State, 263 Ga. 257 (430 SE2d 742) (1993); Green v. State, 260 Ga. 625 (398 SE2d 360) (1990); Graves v. State, 227 Ga. App. 628 (490 SE2d 111) (1997); Clark v. State, 213 Ga. App. 313, 315 (444 SE2d 806) (1994).

In the case sub judice, however, appellant specifically moved for a directed verdict on the basis of improper venue. Appellant had no burden of proof as to such issue and, by raising the venue issue in the motion for directed verdict, appellant contested venue, so that the State had the burden to prove venue beyond a reasonable doubt.

As to the substantive issue of whether or not appellant “possessed” the methamphetamines, this Court’s review is limited to the sufficiency, not the weight, of the evidence presented at trial. Hunt v. State, 222 Ga. App. 66 (473 SE2d 157) (1996). The evidence of possession in Paulding County, even when viewed in the light most favorable to the verdict, is insufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant is guilty of possession with intent to distribute the drugs in Paulding County; therefore, the trial court erred in its denial of a motion for a directed verdict of acquittal as to Count 1, possession with intent. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Cody v. State, 222 Ga. App. 468 (474 SE2d 669) (1996); Hunt, supra; Harvey v. State, 212 Ga. App. 632 (442 SE2d 478) (1994).

Georgia law “ ‘ “recognizes two kinds of possession, actual possession and constructive possession. ... A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” [Cit.]’ ” Billingsley v. State, 220 Ga. App. 69 (467 SE2d 377) (1996); Llaguno v. State, 197 Ga. App. 789, 790 (399 SE2d 564) (1990); Allen v. State, 191 Ga. App. 623, 624 (382 SE2d 690) (1989). However, “[a] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity.” Llaguno, supra at 790-791.

In the case sub judice, it is clear that appellant lost “dominion and control” over the drugs while in Douglas County and never regained such dominion and control after entering Paulding County. The evidence presented showed that appellant, when stopped by police in Paulding County, was engaged in a high speed, dangerous chase of Collins’ vehicle following an extraordinary six-hour effort to retrieve a stolen fanny pack which contained his wallet and other identification, in addition to methamphetamine, plástic packets, and a scale. It is undisputed that the pack was in the possession of Collins. When questioned by police, appellant specifically told police that he was attempting to retrieve the pack and that the pack contained, inter alia, his wallet and an electronic scale. The evidence indicates that appellant lost both actual and constructive possession in Douglas County and never regained possession in Paulding County. While appellant sought to regain actual possession, the continuing flight by Collins and chase by appellant shows a lack of constructive possession. As such, no evidence was presented at trial by the State that raised a jury issue regarding whether or not the appellant was in actual, joint, or constructive possession of the drugs with intent to distribute while in Paulding County. The trial court’s denial of appellant’s motion for a directed verdict on the basis of venue as to Count 1, possession with intent to distribute, was error.

However, the police officers testified that the police car in which appellant was transported after his arrest was searched prior to such transportation and no drugs were found; and that the vial with methamphetamine residue was found in the same police car following transportation of appellant, and prior to transportation of anyone else. This evidence supports a finding that appellant had the vial in his possession while in the police car and is sufficient to support the jury’s guilty verdict on Count 2, possession of the methamphetamine. Thus, there was no error in the trial court’s refusal to direct a verdict of acquittal as to Count 2 of the indictment.

2. In his second enumeration of error, appellant asserts that the trial court erred when it admitted into evidence the vial found in the police vehicle. Appellant claims that the vial was the product of an illegal search, as police officers had no probable cause to arrest appellant prior to the search, and that, if the vial had been excluded from trial, appellant was entitled to a directed verdict of acquittal on Count 2 for lack of evidence of possession of methamphetamine.

However, the evidence shows that appellant was stopped while speeding in an erratic, dangerous manner; as such, his investigatory detention was supported by reasonable, articulable suspicion that appellant was breaking the law. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); see also Allen, supra at 624. The néxus between the fanny pack, which contained appellant’s wallet, ATM card, and scale, as well as contraband, Collins’ statement that the fanny pack belonged to appellant, and appellant’s statement that he was attempting to retrieve his fanny pack, gave the officers probable cause to believe that a felony had occurred, even if venue was later determined to be improper in Paulding County. Therefore, the resulting search of the police vehicle was incident to a lawful arrest and the vial was admissible as evidence.

Further, the search of the police car did not offend appellant’s right to be protected against unlawful search and seizure, as he had no reasonable expectation of privacy in the back seat of a police car. See generally United States v. McKinnon, 985 F2d 525 (11th Cir. 1993); Carr v. State, 267 Ga. 701 (482 SE2d 314) (1997); Burgeson v. State, 267 Ga. 102 (475 SE2d 580) (1996). Appellant’s complaint that the police officers searched a police vehicle is entirely without merit.

Decided July 28, 1997.

Donald R. Donovan, for appellant.

James R. Osborne, District Attorney, Grover W. Hudgins, Assistant District Attorney, for appellee.

Finally, we find that the contraband had been abandoned, so that any constitutional protections against unlawful seizure were lost. Orman v. State, 207 Ga. App. 671 (428 SE2d 813) (1993); Guess v. State, 197 Ga. App. 40 (397 SE2d 453) (1990); Williams v. State, 171 Ga. App. 546, 547 (320 SE2d 389) (1984).

Accordingly, there was no error in the trial court’s denial of a directed verdict of acquittal as to Count 2.

Judgment affirmed in part and reversed in part.

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

       Collins was convicted of possession of the methamphetamine during the same trial.