text:
    A93A0410.
    THE STATE v. LAW et al.
    (432 SE2d 110)
   Blackburn, Judge.

On February 13, 1992, a Hall County magistrate issued a search warrant concerning the appellees’ residence, pursuant to an application and affidavit submitted by an investigator with the sheriff’s department. During the execution of the warrant, approximately 300 grams of marijuana were seized, and one of the appellees admitted to traveling to Atlanta several times a week, purchasing one pound of marijuana on each trip. The next day, the magistrate issued another warrant to search a safety deposit box rented to the appellees, based upon another application and affidavit by the same investigator recounting the evidence seized the day before.

Subsequently, the appellees were indicted for possession of marijuana with the intent to distribute, and possession of more than one ounce of marijuana. They filed a motion to suppress the evidence seized during both searches, on the grounds that the applications and affidavits were insufficient to establish the requisite probable cause for issuance of search warrants. The trial court granted that motion, and this appeal by the state followed.

The affidavit submitted in support of the first warrant stated that the “affiant was contacted by a concerned citizen who affiant considers to be true and reliable. Said concerned citizen stated to affiant that on or between the above dates it, the concerned citizen, was at the above described premises and did personally observe a quantity of a green leafy material being kept and stored at the above described premises which was represented to it, the informant, as being marijuana. Said concerned citizen has provided affiant with information in regard to at least two separate on-going drug investigations, which affiant, through the course of independent investigations, has proven to be true and correct.”

At the hearing on the motion, counsel for the appellees stated that he was “not saying that [the information contained in the affidavit] wasn’t believable to the magistrate and that he didn’t have probable cause.” Rather, the appellees contended that some of the information before the magistrate was incorrect (specifically, one appellee owned a maroon Chevrolet pickup truck, and not a red Ford truck as reported); that the inconsistency between the description of the informant as a concerned citizen in the first affidavit, and as a confidential informant in the second affidavit cast doubt upon the reliability of the information obtained from the informant; and that the first affidavit failed to indicate how the concerned citizen knew that the substance was marijuana.

In its order granting the appellees’ motion to suppress, the trial court emphasized that although the informant personally observed the green leafy material, another individual had told the informant that the substance was marijuana. Because the affidavit neither identified the other individual nor stated how that individual knew that the substance was marijuana, the trial court considered the affidavit conclusory and insufficient to support a finding of probable cause. Further, because the affidavit submitted in support of the second warrant was predicated upon some information obtained in the first search, the trial court also excluded the evidence seized during the second sesixch

In Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), the Supreme Court adopted a “totality of the circumstances” test in determining the sufficiency of an affidavit to support issuance of a search warrant. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud(ing)’ that probable cause existed.” Id. at 238-239. See also Carr v. State, 185 Ga. App. 504 (364 SE2d 633) (1988).

Even before the Supreme Court’s adoption of the “totality of the circumstances” test, this court held that “[a] search warrant affidavit is not insufficient merely because it fails to show how the informant knew that the substance he saw was a narcotic.” State v. Hill, 135 Ga. App. 214, 216 (217 SE2d 190) (1975). In finding the affidavit in this case conclusory because of its failure to indicate how the informant knew the green leafy material was marijuana, the trial court relied upon State v. Casey, 185 Ga. App. 726 (365 SE2d 878) (1988). However, Casey involved an affiant who professed to identify marijuana in a condition not readily recognizable, i.e., residue in a pipe, without showing how that residue was distinguishable from a similar substance such as tobacco. Because the marijuana in the instant case was observed in its usual, green and leafy state, Casey is inapposite.

In McQueen v. State, 189 Ga. App. 743 (377 SE2d 682) (1989), this court upheld the denial of a motion to suppress, where the affidavit submitted in support of the search warrant stated that “ ‘the confidential and reliable informant did personally see a quantity of green leafy material being stored at the location which was represented to the confidential and reliable informant as marijuana.’ ” Although the affidavit identified the other individual as someone known to the informant as “Bill” who resided at the subject premises, it failed to state how the other individual knew that the green leafy material was marijuana. In this regard, the affidavit in McQueen is too similar to the affidavit in question here to be distinguished.

Decided May 26, 1993.

C. Andrew Fuller, District Attorney, Lee Darragh, John G. Wilbanks, Jr., Assistant District Attorneys, for appellant.

Whitmer & Law, James H. Whitmer, for appellees.

As in McQueen, we conclude that the information set forth in the first affidavit provided a substantial basis for a belief that marijuana could be found on the appellees’ premises. Accordingly, the trial court erred in granting the appellees’ motion to suppress.

Judgment reversed.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A93A0443.
    LAMB v. K. M. INSURANCE COMPANY.
    (431 SE2d 744)
   Johnson, Judge.

Provident General Insurance Company obtained a default judgment against Marvin Spencer on an action on account. Provident then filed a garnishment action against Spencer to recover some of the money awarded in the default judgment. Spencer filed a complaint against Provident and its attorney, T. Gordon Lamb, alleging that they acted fraudulently and maliciously in filing the action on account, obtaining the default judgment and filing the garnishment action against him because he has no account with Provident. Lamb filed a third-party complaint against Spencer’s insurer, K. M. Insurance Company, claiming that any damage suffered by Spencer was caused by K. M.’s failure to properly defend and settle the actions filed by Provident against Spencer. K. M. moved for summary judgment as to the third-party complaint. The trial court granted the motion and Lamb appeals.

Lamb contends that the court erred in granting summary judgment to K. M. on his third-party complaint. “A third-party complaint must be against one who is or may be liable to the third-party plaintiff for all or part of the original plaintiff’s claim against him. OCGA § 9-11-14 does not allow the tender of another defendant who is or may be liable to the plaintiff.” (Citations and punctuation omitted.) Mayor &c. of Savannah v. Southern Bulk Indus., 198 Ga. App. 867 (1) (403 SE2d 447) (1991). “[O]ur impleader provision does not allow a defendant to bring in a third-party for the purpose of enforcing a liability against the latter different from that on which the plaintiff is proceeding in an action at law. Impleader is not a device for bringing into an action any controversy which may happen to have some relationship with it. A defendant cannot assert an entirely separate claim against the third-party even though it arises out of the same general set of facts as the main claim. There must be an attempt to pass on to the third-party all or part of the liability asserted against the defendant but not to tender the third party as a substitute defendant. Only one who is secondarily liable to the original defendant may be brought in as a third-party defendant, as in cases of indemnity, subrogation, contribution, warranty and the like.” (Citations, punctuation and emphasis omitted.) Quality Ford Sales v. Greene, 201 Ga. App. 206, 207 (410 SE2d 389) (1991).

Decided May 26, 1993.

Lamb & Associates, T. Gordon Lamb, William L. Henderson, for appellant.

Gill, Peterson & Harris, Allan F. Harris, Harper, Waldon & Craig, J. Blair Craig, Frank Boucek III, for appellee.

In the instant case, Lamb has simply tendered K. M. as a substitute defendant. Lamb has made no showing that K. M. is secondarily liable to him for any of Spencer’s claims of fraud and malice; rather, he has merely asserted an entirely separate claim against K. M. based solely upon K. M.’s alleged failure to properly represent its insured. Because OCGA § 9-11-14 does not allow the tender of another defendant, the trial court did not err in granting K. M.’s motion for summary judgment on Lamb’s third-party complaint.

Judgment affirmed.

Blackburn and Smith, JJ., concur.


text:
    A93A0487.
    JOHNSON v. THE STATE.
    (431 SE2d 737)
   Johnson, Judge.

Douglas Johnson, Mark Brooks and Donald Gravitt were charged with conspiracy to possess methamphetamine with intent to distribute, attempt to possess methamphetamine with intent to distribute and possession of a firearm during the commission of a felony. At their joint trial, the State presented evidence showing that a broken package containing methamphetamine arrived at the Federal Express Shipping Service office in Gainesville, Georgia. The package, addressed to Gravitt, was sent from San Bernardino, California. Federal Express contacted the police, who had an officer pose as a Federal Express employee to make an undercover delivery of the package. When the officer arrived at Gravitt’s residence, Johnson and Brooks were standing outside the house waving at the Federal Express van. As Brooks approached the van to receive the package, Johnson monitored a police scanner that was in a pickup truck. Brooks signed Johnson’s name on the receipt form for the package and stated that the package was supposed to have been sent to Gravitt in care of Johnson. At that point, Gravitt arrived and also signed for the package. The undercover officer and two other officers then arrested all three defendants. The police removed a loaded gun from Johnson’s pants pocket. Johnson then said to Brooks and Gravitt, “Don’t lie to them; they know what’s going on.” Johnson was also found to be in possession of a small spiral notebook containing Brooks’ name and pager number, the telephone number for the Gainesville Federal Express office, several Federal Express tracking numbers and several telephone numbers from the San Bernardino area code.

Gravitt testified that he had previously agreed to let Brooks, who had done landscaping work for him, have a package of landscaping contracts delivered to his house. On the date of the incident, however, Gravitt was not expecting Johnson or Brooks to be at his home, he was not expecting a Federal Express package and he did not know the contents of the package delivered. Gravitt also presented several character witnesses. Johnson and Brooks did not testify or present any witnesses.

The trial court granted a directed verdict of acquittal to Gravitt. The jury returned a guilty verdict against Johnson and Brooks as to all three crimes charged. The court ruled that the charge of attempt to possess methamphetamine with intent to distribute merged into the conspiracy charge as a matter of fact. The court denied the motions for new trial of Johnson and Brooks. Johnson appeals from his convictions and the denial of his motion for a new trial.

1. Johnson’s challenge to the sufficiency of the evidence is without merit. A review of the evidence in the light most favorable to the jury’s verdict shows that a rational trier of fact could have found Johnson guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Johnson’s argument that the State’s circumstantial evidence failed to exclude his hypothesis that he was merely present at Gravitt’s house to do landscaping work is also unpersuasive. “ [I]t is well settled that in an entirely circumstantial case, the question whether there is a reasonable hypothesis favorable to the accused is the jury’s province. Questions as to reasonableness are generally to be decided by the jury which heard the evidence, and finds beyond a reasonable doubt that there is no reasonable hypothesis other than guilt. The appellate court will not disturb that finding, unless the verdict of guilty is insupportable as a matter of law. [Cits.] The appellate courts have no yardstick by which to ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of 12 jurors of rational mind. [Cit.] Moreover, in every case the jury is the arbiter of credibility including as to the defendant’s explanation, and the jury is the body which resolves conflicting evidence, and where the jury has done so, the appellate court cannot merely substitute its judgment for that of the jury. [Cit.]” Adams v. State, 187 Ga. App. 340, 344 (1) (370 SE2d 197) (1988). Because the jury’s finding in the instant case is not insupportable as a matter of law or outside the proven facts, we shall not disturb it. See Livingston v. State, 193 Ga. App. 502, 503-504 (2) (388 SE2d 406) (1989).

2. Johnson’s contention that the court erred in denying his motion to sever his trial from that of Brooks and Gravitt is without merit. “When two or more defendants are jointly indicted for a non-capital felony, such defendants may be tried jointly or severally, in the discretion of the trial court. OCGA § 17-8-4. The burden is on the defendant requesting a severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” (Citations and punctuation omitted.) Barnett v. State, 204 Ga. App. 491, 495 (2) (b) (420 SE2d 43) (1992). Johnson has not made such a showing; he has complained, but has not shown by the record, that the joint trial created confusion of the evidence and law applicable to each defendant, that the evidence admitted against Brooks and Gravitt was considered against him despite cautionary instructions and that the defendants’ defenses were antagonistic. The trial court did not abuse its discretion in denying Johnson’s motion to sever. See Freeman v. State, 205 Ga. App. 112 (421 SE2d 308) (1992); Cheeks v. State, 203 Ga. App. 47, 48 (2) (416 SE2d 336) (1992).

3. Johnson contends that the court’s denial of his motion to suppress evidence of the methamphetamine due to lack of standing was erroneous. “The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously.” (Citations and punctuation omitted.) Randall v. State, 194 Ga. App. 153, 154 (390 SE2d 74) (1990). “When, as in the instant case, the accused disavows ownership of the item searched, he has no legitimate expectation of privacy in that item, and thus a search violates no right.” (Citations and punctuation omitted.) Deych v. State, 188 Ga. App. 901, 902 (1) (374 SE2d 753) (1988). Johnson disavows any possessory or ownership interest in the package in which the drugs were found. He therefore has no standing to complain of its seizure. The trial court did not err in denying his motion to suppress.

Decided May 26, 1993.

Michael O. Horgan, for appellant.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.

4. Johnson claims that the trial court erred in denying his motion for a mistrial because the prosecutor’s remarks during closing argument that the defendants had not offered any reasonable hypothesis of innocence and had not presented any evidence to rebut the State’s circumstantial evidence impermissibly shifted the burden of proof to Johnson. “Though the prosecutor may not comment on a defendant’s failure to testify, it is not error, nor is it improper for the prosecutor to reflect upon the failure of the defense to present any evidence to rebut the proof adduced by the State.” (Citations, punctuation and emphasis omitted.) Martin v. State, 193 Ga. App. 581, 585 (4) (388 SE2d 420) (1989). Here, the prosecutor made no reference to the fact that Johnson did not testify, he simply commented on the defendant’s failure to rebut the State’s proof. The prosecutor’s comments were proper and did not shift the burden of proof to Johnson. “The trial judge in passing upon a motion for mistrial on account of alleged improper argument is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused.” (Citations and punctuation omitted.) Powell v. State, 198 Ga. App. 509, 512 (2) (402 SE2d 108) (1991). Since the trial court did not manifestly abuse its discretion in denying Johnson’s motion for a mistrial, its ruling will not be controlled by this court.

5. In his final enumeration of error, Johnson contends that the court erred in denying his motion for a new trial. He lists eight grounds upon which the motion was based. Four of those grounds, which pertain to his motions to sever and suppress and the sufficiency of the evidence, have already been ruled upon in Divisions 1, 2, and 3 of this opinion. The remaining four grounds address the admission and exclusion of certain evidence by the trial court and the State’s alleged failure to produce exculpatory material. Because none of these four grounds is supported by argument, citation of authority or proper reference to the record, they are deemed abandoned. Court of Appeals Rule 15 (c).

Judgment affirmed.

McMurray, P. J., concurs. Blackburn, J., concurs in judgment only. Smith, J., disqualified.


text:
    A93A0544.
    DEPARTMENT OF HUMAN RESOURCES v. McCORMICK.
    (431 SE2d 740)
   Johnson, Judge.

We granted this interlocutory appeal to review the denial of the Georgia Department of Human Resources’ motion for service outside the state, filed pursuant to OCGA § 19-7-41. Under OCGA § 19-7-41, a court may order service outside the state in a paternity action “upon a finding that there is a constitutionally permissible basis for jurisdiction over the person arising out of the fact that the child was conceived as a result of an act of sexual intercourse within this state while either parent was a resident of this state.” The motion was made in connection with an action filed by the department on behalf of Jasmin Gerrod McCormick seeking to determine paternity and establish child support obligations of the putative, non-resident father, Carl Ellis McCormick.

The trial court treated the action as one brought pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA). Since URESA provides a procedure by which child support can be collected in another state, the court reasoned that compelling a non-resident to incur the costs of defending a paternity and support action in Georgia would “offend the ends of justice.”

Under URESA, “ ‘Duty of support’ includes any duty of support imposed or imposable by law or by any court order, decree, or judgment . . . ; for purposes of this article, in determining the existence of a duty of support, the following criteria may be considered, without limitation: ... (6) Whenever a person has been adjudicated by a court of competent jurisdiction as the parent of a child born out of wedlock, the person shall be legally liable for the support of the child in the same manner in which the person would owe the duty of support if the child were a legitimate child.” OCGA § 19-11-43 (6). It is clear from the statute that a formal adjudication of paternity is not required for prosecution of support claims under URESA. Nonetheless, such an adjudication may be considered by a court in determining whether support obligations exist. See Evans v. State, 178 Ga. App. 1 (1) (341 SE2d 865) (1986).

URESA does not provide an exclusive procedure for enforcement of child support. OCGA § 19-11-45. While the department may have pursued this action under URESA and possibly had to confront the paternity issue as a defense, it chose to establish paternity in the state in which the child was conceived. While the trial court may be offended by the extension of jurisdiction pursuant to the specific long-arm provision contained in OCGA § 19-7-41, the Georgia Supreme Court has held that sexual contact in Georgia constitutes minimum contacts such that an action maintained here does not offend “ ‘ “traditional notions of fair play and substantial justice.” ’ [Cit.]” Bell v. Arnold, 248 Ga. 9, 10 (279 SE2d 449) (1981).

Decided May 26, 1993.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Staff Attorney, for appellant.

Carl E. McCormick, pro se.

There is no question that the child was conceived as a result of an act of sexual intercourse within this state while either parent was a resident of this state, satisfying the criteria outlined in the statute. See Garvey v. Mendenhall, 199 Ga. App. 241, 242 (1) (404 SE2d 613) (1991) (evidence that the act of intercourse resulting in conception did not occur in Georgia sufficient to defeat jurisdiction). We recognize that the provisions of OCGA § 19-7-41 do not require a trial court to order service and that matters lying within the discretion of the trial court are rarely disturbed on appeal unless a clear abuse of that discretion has been shown. Nonetheless, because it appears that the trial court’s ruling is based solely on a URESA analysis, we reverse and remand the case to the trial court for reconsideration in light of Bell, supra.

Judgment reversed and case remanded with direction.

Blackburn and Smith, JJ., concur.


text:
    A93A0634.
    THE STATE v. COBB.
    (432 SE2d 112)
   Johnson, Judge.

The State brings this appeal from the trial court’s order granting Cobb’s motion to suppress evidence. The State asserts that the trial court erred in granting the motion to suppress by finding: 1) that no probable cause existed for the initial stop because the stationary radar was not visible from a distance of 500 feet; 2) that no probable cause existed for the initial stop because the officer testified that he observed Cobb traveling at a speed he believed to be in excess of the speed limit; and 3) that the intoximeter results were the result of an illegal stop. We conclude that these asserted errors are not supported by the record.

Cobb was charged with speeding, no proof of insurance and driving under the influence. Cobb filed a motion to suppress evidence, specifically the results of an intoximeter test. In lieu of a transcript we have been provided with a summary of the proceedings in accordance with OCGA § 5-6-41 (g). At a hearing on the motion, the State relied exclusively on the testimony of the Clayton County police officer who had made the arrest. All of the testimony referred not to the intoximeter test, but to the radar results. The officer testified that at approximately 2:49 a.m., he was operating stationary radar from his patrol car which was parked at the lower end of an incline to the right side of the shoulder, southbound on 1-75. There were no street lights in the area and the patrol car had no lights on. The trial judge indicated that he was familiar with the particular stretch of 1-75 under discussion and concluded, presumably based on his own experience, that the officer would not have been visible to Cobb in violation of OCGA § 40-14-7, which requires that the vehicle from which a stationary speed detection device operated by a county officer be visible for a distance of at least 500 feet. See State v. Mallory, 180 Ga. App. 815, 816 (350 SE2d 823) (1986), in which the judge, as factfinder, permissibly drew from his own experience in evaluating evidence. Having ruled the radar results inadmissible, the summary indicates that the court found as a matter of fact that the stop of the defendant was a result of the officer’s operation of the radar.

The order entered in the case states only that after hearing evidence, the defendant’s motion to suppress is granted. There is no requirement that a court enter findings of fact and conclusions of law after a hearing on a motion to suppress. See Shirley v. State, 166 Ga. App. 456, 458 (3) (304 SE2d 468) (1983); Change v. State, 156 Ga. App. 316, 319 (6) (274 SE2d 711) (1980). We are not aware of any formal mechanism by which a party in a criminal case may request a court to enter findings of fact and conclusions of law analogous to OCGA § 9-11-52, which applies to civil cases. The absence of a formal mechanism for making such a request, however, should not have discouraged the State in this case from making such a request. We cannot determine from a review of the order what evidence the court relied on in granting Cobb’s motion to suppress, or conclude that the trial court made any findings with regard to probable cause.

“Since this is a court for correction of errors of law, our decision must be made upon the record and not upon briefs of counsel. Where there is nothing in the record to support the contention of error, there is nothing presented to this court for review.” (Citations omitted.) Wiggley v. State, 204 Ga. App. 583, 584 (2) (420 SE2d 82) (1992). Because of the inadequacy of the record in this case, the State is asking us on review to accept its theory that the court, in suppressing the radar results, found that the police officer lacked probable cause for making the stop and then concluded that the intoximeter results, having been obtained as a result of an illegal stop must be excluded. In this case, where there is no transcript, an inadequate summary and a form order, we cannot say that the State has met its burden of affirmatively showing error on the record. Having failed to demonstrate support in the record, we do not find error. Hollis v. State, 201 Ga. App. 224, 225 (1) (411 SE2d 48) (1991).

Decided May 26, 1993.

Keith C. Martin, Solicitor, Elizabeth A. Baker, Assistant Solicitor, for appellant.

Steven E. Lister, for appellee.

Judgment affirmed.

Blackburn and Smith, JJ., concur.

       The summary contains only a conclusion that the court found that the stop was a result of the officer’s operation of the radar, but goes no farther. We note that even if the radar results were inadmissible as substantive evidence, the results of the test in conjunction with the officer’s testimony that it appeared that Cobb was traveling at a rate of speed exceeding the speed limit may have constituted probable cause for a stop.


author: McMurray, Presiding Judge.

text:
    A93A0642.
    PERRYMAN v. THE STATE.
    (431 SE2d 742)
   McMurray, Presiding Judge.

Defendant was charged, via indictment, with aggravated assault in that he “did make an assault on the person of Larry Martin, with a shotgun, a deadly weapon.” Defendant was tried before a jury and found guilty of the crime charged. This appeal followed. Held:

1. Defendant challenges the sufficiency of the evidence, arguing there was no credible evidence showing that he intended to assault the victim.

The evidence adduced at trial reveals that defendant was instructed to leave the victim’s home during the afternoon of May 30, 1992, because of his vulgar and abusive conduct. The following testimony illustrates the events which followed: “[THE VICTIM:] I got up, and went outside on the porch, and I told [defendant], man, I don’t go to your mother’s house disrespecting your mother, I said, you’re not going to come to my house, to my mother’s house, disrespecting her. [STATE’S ATTORNEY:] Did Mr. Perryman have any response to that? Did he say anything? A. No, he didn’t. He walked off the porch. Q. Where did he go when he walked off the porch? A. He got into his truck. Q. Did you follow him to his truck? A. No, ma’am, I didn’t follow him to his truck. I came off the porch. Q. When you stepped, came off the porch, where would you be standing when you came off the porch of your mother’s house? A. Right in the driveway. Q. How far is it from the door of the porch at your mother’s house to the driveway? A. Two feet. Q. And once you were out in the driveway, did you approach [defendant’s] truck? A. No, ma’am, I didn’t. Q. Did you say anything to Mr. Perryman? A. Yes, ma’am. I told him, . . . next time you come disrespecting my mom’s house, I said we’re going to have to go toe-to-toe. And he said, we’re going right now. Q. Was he inside or outside the truck? A. He was inside the truck. Q. Was the door of the truck closed? A. Yes, it was. Q. At the time that you said the next time we’ll have to go toe-to-toe, how close were you to Mr. Perryman? A. About eight feet. Q. Did you have anything in your hand? A. No, ma’am. Q. Did you have any weapon at all? A. No ma’am. Q. Did you ever raise your fist to him? A. No, ma’am. Q. Did you ever try to hit him? A. No ma’am. Q. What did Mr. Perryman do after you said this to him and after he said ‘we can do this now’? A. He pulled the gun out of the window and shot me. Q. Where did he get the gun from? A. I’m not sure where he got it from, because my attention was up the street. And by that time, somebody called my name out, and I brought my attention back on [defendant], and I seen the gun pointed at me. . . . Q. When somebody called your name, where did you look? A. I looked to the right, up the street. Q. And when you looked back, what did you see? A. I saw a gun pointed out the window. Q. Was the gun visible through the window of the truck? A. Yes, ma’am, it was. Q. Do you know what kind of gun it was? A. It was a shotgun. Q. Who was holding that shotgun? A. Mr. Willie Perryman. Q. What happened next? A. When I seen the gun, I was facing him. When I seen it, I turned and tried to run. When I turned, I got shot, I got hit in the upper arm. . . . Q. What do you remember after you got shot? A. All I remember is hearing his truck crank up and all, all my family just ran, and, you know, started piling on top of me, started crying. That’s all I remember.”

“ ‘(N)othing is more firmly settled in the law than the principle that, in a jury trial, the jurors are the sole judges of the credibility of witnesses. (OCGA § 24-9-80).’ Walker v. State, 250 Ga. 230, 231 (297 SE2d 33).” Godfrey v. State, 187 Ga. App. 319, 321 (370 SE2d 183). In the case sub judice, the victim’s testimony alone is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Willingham v. State, 262 Ga. 324, 326 (2c) (418 SE2d 25). This enumeration is without merit.

2. Defendant contends the trial court erred in failing to give his written request to charge on the law of accident.

“Generally, either accident or self defense will be involved in a case, but not both. However, the facts of a case will, at times, present a situation where a party who is armed with a weapon contends that while he was defending himself from another party, his weapon accidentally discharged and killed [or injured the] other party.” Turner v. State, 262 Ga. 359, 360 (2b) (418 SE2d 52). In the case sub judice, defendant testified that he pointed the shotgun at the victim to protect himself and that the weapon accidentally discharged as he was fleeing.

Decided May 26, 1993.

John O. Ellis, Jr., for appellant.

J. Tom Morgan III, District Attorney, Barbara B. Conroy, Elisabeth G. Macnamara, Robert M. Coker, Assistant District Attorneys, for appellee.

A charge on accident is not appropriate where the accused admits that he intentionally committed acts which constituted the offense of aggravated assault. Lindsey v. State, 262 Ga. 665, 666 (2a) (424 SE2d 616). Compare Turner v. State, 262 Ga. 359, 360 (2b), supra. In the case sub judice, defendant admits he intentionally pointed the shotgun at the victim, thus completing the crime of aggravated assault as charged in the indictment. Consequently, the trial court did not err in refusing to give defendant’s request to charge on the law of accident as there is no evidentiary basis for such a charge. See Scott v. State, 261 Ga. 611 (1) (409 SE2d 511).

3. In his second enumeration of error, defendant contends the trial court erred in failing to give his request to charge on reckless conduct as a lesser included offense of aggravated assault.

An essential element of the offense of reckless conduct is criminal negligence. See Bowers v. State, 177 Ga. App. 36 (1), 37-38 (338 SE2d 457). In the case sub judice, there is no evidence that defendant was negligent when he pointed a shotgun at the victim. On the contrary, defendant admits he deliberately pointed the weapon at the victim. Under these circumstances, defendant “was guilty of aggravated assault or was not guilty of any crime. Accordingly, it was not error to refuse to give the requested charge on reckless conduct as a lesser included offense. See Riley v. State, 181 Ga. App. 667, 669 (3) (353 SE2d 598) (1987).” Day v. State, 188 Ga. App. 648, 650 (7) (374 SE2d 87).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Blackburn, Judge.

text:
    A93A0759.
    WIGGINS v. THE STATE.
    (432 SE2d 113)
   Blackburn, Judge.

The defendant, Larry Eugene Wiggins, was convicted by a jury of one count of incest and one count of aggravated sodomy and sentenced to twenty years’ imprisonment on each charge, to serve concurrently. The defendant’s motion for new trial was denied by the trial court, and this appeal followed.

R. L. W., the defendant’s daughter, was eighteen years of age at the time of his indictment on July 14, 1992, but the defendant began what became a pattern of sexual exploitation when she was only five years old. At the trial, R. L. W. testified that she resided in Gwinnett County from the latter part of 1989 to 1992. During this period, her father forced her to engage in sexual intercourse with him and “made [her] give him a blow job” at least once or twice a week, on a continuous basis. When she was five years of age, the defendant frequently fondled various parts of her body, including her vagina, and by the time she was eight, the defendant began engaging in sexual intercourse with her. It was precisely because of his position of authority as her father that he was able to begin and continue the sexual exploitation. As a means of guaranteeing her silence, the defendant threatened to remove his daughter from the family home and threatened to kill her if she disclosed the sexual encounters, that is, their “secret.” Because of the fear induced by her father’s threats, R. L. W. did not inform anyone of her father’s sexual abuse until 1992, when she disclosed her history of sexual abuse to a teenage friend at a movie theater. Thereafter, Charlene Boyd, the mother of the teenage friend, was informed by R. L. W. of her father’s sexually abusive behavior. Mrs. Boyd subsequently notified the Gwinnett County Police Department of the allegations, and the defendant was arrested.

Mrs. Boyd testified that R. L. W. had been crying and upset on the day that she informed her of the defendant’s sexual abuse. During a conversation with the defendant following the disclosure of the abuse, Mrs. Boyd informed the defendant that R. L. W. did not want to return to the family home. Although Mrs. Boyd did not discuss the allegations of sexual abuse, the defendant immediately denied having sex with his daughter. During his trial testimony, the defendant denied doing “anything that was improper with [his] daughter at any time regarding sex.” He stated that his daughter fabricated the sexual abuse allegations to get back at him for spending more time with his son. He also implied that his daughter was retaliating against him for restricting her contact with various boys. In reference to his conversation with Mrs. Boyd, the defendant declared that he never “told her that [he] had any kind of relationship with [his] daughter at any time.”

1. In his first enumeration of error, the defendant contends that the trial court erred in denying his motion for directed verdict and subsequent motion for new trial because the state failed to prove the essential elements of aggravated sodomy. We disagree.

“ ‘(Incest) ... as experience shows, is generally the act of a man upon a woman, over whom, by the natural ties of kindred, he has almost complete control, and generally he alone is to blame. There is a force used, which, while it cannot be said to be that violence which constitutes rape, is yet of a character that is almost as overpowering.’ [Cit.]” Richardson v. State, 256 Ga. 746, 747 (353 SE2d 342) (1987). “ ‘Sexual acts directed to children are, in law, forcible and against the will. [Cit.]’ [Cit.] Further, evidence of a victim’s lack of resistance induced by fear authorizes a finding of force.” Callahan v. State, 203 Ga. App. 898, 899 (418 SE2d 157) (1992). “The pattern of sexual exploitation presented in this case was ... as a matter of law, forcible and against the will, because of the [daughter’s] age at onset, and because of her familial relationship with [the defendant].” Richardson, supra at 747.

Only “[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty’ as to the entire offense or to some particular count or offense, the court may direct the verdict of acquittal to which the defendant is entitled under the evidence. . . .” OCGA § 17-9-1 (a). Where there are significant conflicts in the evidence regarding material issues, it cannot be said as a matter of law that the evidence, together with reasonable inferences and deductions therefrom, “demands” a verdict of acquittal. Elzey v. State, 168 Ga. App. 633 (309 SE2d 906) (1983). “It is for the jury to weigh the evidence, and for the appellate court only to determine whether there was sufficient evidence to support the verdict.” Id.

In the instant case, there were significant conflicts in the evidence regarding whether the defendant committed the offense of sodomy, and therefore “it cannot be said as a matter of law that the evidence, together with reasonable inferences and deductions therefrom, ‘demanded’ a verdict of acquittal.” Id. Although the defendant asserts that the term “blow job” is vague and lacking in definition, in Anderson v. State, 142 Ga. App. 282, 283 (235 SE2d 675) (1977), this court considered the vagueness and indefiniteness of the same term, and noted “that jurors, who are presumedly intelligent [cit.], also can be presumed to have some knowledge of slang expressions in common parlance in the vernacular. It would be completely unrealistic to require that witnesses, many of whom are unlearned or have limited vocabularies, describe the acts constituting the commission of crimes in statutory or technical language in order to prove the commission of such acts.” Id. Accordingly, we find that the testimony of the defendant’s daughter that she was forcefully induced to endure the acts of sodomy and give the defendant a “blow job” was sufficient to authorize the jury’s finding that the defendant is guilty, beyond a reasonable doubt, of aggravated sodomy. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Callahan v. State, supra; OCGA § 16-6-2.

2. The defendant also asserts that the trial court erred in overruling his motion for directed verdict in that the state failed to prove that he had sexual intercourse with his daughter within four years of the commission of the crime, as required by OCGA § 17-3-1 (c). On the contrary, the defendant’s daughter testified that from the latter part of 1989 until 1992, the defendant engaged in sexual intercourse with her at least once or twice a week. “The period of limitation runs from the commission of the offense to the date of the indictment.” Cain v. State, 144 Ga. App. 249 (1) (240 SE2d 750) (1977). However, “[t]he date of the offense need not be proved with preciseness, but only that it occurred during the period of limitation.” Id. Inasmuch as the defendant was indicted on July 14,1992, for sexual offenses which occurred between January 1, 1990 and March 31, 1992, we conclude that the offenses were prosecuted by the state within the statutory period. Consequently, this enumeration is without merit.

3. The defendant further contends that the trial court erred in overruling his motion for directed verdict as the state failed to prove that the incest occurred within Gwinnett County. Although he does not assert that venue was improper in Gwinnett County, he asserts that the state did not present sufficient evidence of venue. The defendant admits that he failed to contest venue at trial, and this court has repeatedly held that “enumerations of error which raise questions for the first time on appeal present nothing for decision.” (Citations and punctuation omitted.) Meriwether v. State, 204 Ga. App. 113, 115 (3) (418 SE2d 451) (1992).

“Generally, criminal actions must be tried in the county where the crime was committed. OCGA § 17-2-2 (a). And, venue must be established beyond a reasonable doubt. [Cit.] However, when the evidence is not conflicting [on the issue of venue] and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue.” Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988). Here, the evidence undisputably shows that the offenses occurred in Snellville and Lawrenceville, Georgia, cities within Gwinnett County. Because there is no evidence conflicting with the conclusion that the offenses were committed in Gwinnett County, we find this evidence sufficient to establish venue in Gwinnett County.

4. The defendant also contends that the trial court erred in allowing his daughter to testify to a pattern of sexual abuse exhibited toward her by the defendant as the procedure failed to provide him with proper notice to enable him to prepare his defense. The record shows that the defendant was provided with advance notice of his daughter’s statement to the police which discussed the defendant’s pattern of sexually abusive treatment towards her. However, his daughter’s testimony at trial of the defendant’s pattern of sexual misconduct toward her was not admitted as evidence of similar transactions, but was admitted as substantive evidence in support of the charge of aggravated sodomy because the offense was performed by force and against the will of his daughter. Therefore, we conclude that the trial court did not err in admitting this evidence. Moreover, as this court discussed in Murphy v. State, 195 Ga. App. 878, 880 (5) (395 SE2d 76) (1990), “since the testimony concerned acts against [the] victim in the case which, although not immediately related in time and place, were part of a continuous pattern, and considering all the evidence of [the defendant’s] guilt, it is highly probable that such error, if any, did not contribute to [the defendant’s] conviction.”

Decided May 26, 1993.

Moore & Davidson, Johnny R. Moore, for appellant.

Daniel J. Porter, District Attorney, Brenda J. Bernstein, Assistant District Attorney, for appellee.

5. Lastly, the defendant asserts as error the trial court’s refusal to allow evidence of disputes between the defendant and his daughter regarding her sexual relations with boys. We disagree.

Under OCGA § 24-2-3, “[i]n any prosecution for rape, evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses. . . .” In Murphy, supra at 880, this court recognized that this statute barred evidence of the past sexual behavior of victims in incest actions. Accordingly, the trial court’s exclusion of this evidence was not erroneous.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0787.
    ANZIANO et al. v. APPALACHEE ENTERPRISES, INC.
    (432 SE2d 117)
   Johnson, Judge.

Appalachee Enterprises, Inc., brought suit on a promissory note against Joe Anziano and Jalaine Brand. Anziano and Brand answered and counterclaimed for breach of contract. The trial court entered an order granting summary judgment in favor of Appalachee on both the main claim and the counterclaim. Anziano and Brand bring this appeal from that judgment.

In April 1985, real estate agents Anziano and Brand entered into a contract to purchase 22 lots in a subdivision known as River Valley Station from Appalachee. The lots were taken down over a period of several months as they were sold off to builders. The contract provided that earnest money in the amount of $30,000, an amount equal to the price of each lot, would be held by the seller until the lots were sold. The last four lots were conveyed to Anziano and Brand in October 1985. In conjunction with the final closing, Anziano and Brand executed a promissory note in favor of Appalachee in the amount of $9,000. It is undisputed that Anziano and Brand made no payments on the promissory note.

1. Anziano and Brand contend that the trial court erred in entering summary judgment on the main claim without first adjudicating the merits of the counterclaim. This contention is without merit. The trial court entered but one order, and the order dealt with both the main claim and the counterclaim. Even if the court had found that appellants’ counterclaim was meritorious and denied the plaintiff’s motion for summary judgment as to that claim, it would have been appropriate to grant plaintiff’s motion as to the main claim. In Mock v. Canterbury Realty Co., 152 Ga. App. 872, 874 (1) (264 SE2d 489) (1980), we held that it is proper for a trial court to address the merits of a motion for summary judgment, with an eye toward simplifying the number of issues presented at trial, without reaching other viable claims in the case.

2. Anziano and Brand contend that the trial court erred in entering summary judgment on their counterclaim for breach of the sales contract in that a genuine issue of material fact remains regarding what constitutes an “approved and buildable” lot, and whether lot 15 was such a lot. The evidence in this case shows that lot 15 was conveyed by warranty deed to the appellants. It was subsequently sold to a builder, who obtained all necessary approval, built a house on it and sold it for a profit. In their depositions, both Anziano and Brand admit that they never sought a building permit for lot 15 and spent no money improving the lot prior to selling it to a builder. It is clear, as a factual matter, that the lot was buildable. As a matter of law, the doctrine of merger renders any claim on a sales contract for unimproved realty a nullity after appellants accepted the warranty deed. Zarett v. Wasserman, 180 Ga. App. 565, 566 (2) (349 SE2d 518) (1986); see also Holmes v. Worthey, 159 Ga. App. 262 (282 SE2d 919) (1981), aff’d 249 Ga. 104 (287 SE2d 9) (1982). The trial court did not err in entering summary judgment against Anziano and Brand on their counterclaim for breach of contract.

3. Anziano and Brand next assert that summary judgment on the main claim was improper because Appalachee has failed to establish the non-existence of the affirmative defenses of duress, estoppel, failure of consideration, fraud, laches and release set forth in their answer. This assertion is without merit. The affirmative defenses of estoppel and release were withdrawn by the appellants’ counsel during Anziano’s deposition. The evidence in the record clearly refutes each of the remaining defenses raised by the appellants.

We will address the remaining affirmative defenses in the order in which they were asserted. With respect to the affirmative defense of duress, Anziano and Brand claim that Appalachee’s assertion that it would retain the earnest money if the deal failed to close constitutes duress. Appalachee made clear that it intended to exercise its legal remedy of retaining the earnest money in the event that Anziano and Brand refused to close. This does not constitute duress. Stroup v. Robbie Jon Dev. Corp., 159 Ga. App. 652, 653 (284 SE2d 667) (1981). As this court pointed out in Woods v. Wright, 163 Ga. App. 124, 126 (292 SE2d 545) (1982), the appellants could have pursued other legal remedies, even though they may have seemed unattractive, rather than going forward with the closing.

The defense of failure of consideration must fail, in that it is clear from the record that consideration for the promissory note was the conveyance of the warranty deed to the final four lots. Both the promissory note and the deed were executed under seal. Contracts under seal carry a prima facie presumption of consideration. See Jolles v. Wittenberg, 148 Ga. App. 805, 807 (2) (253 SE2d 203) (1979); Paige v. Jurgensen, 204 Ga. App. 524, 526 (2) (419 SE2d 722) (1992). Nothing in the record rebuts that presumption.

Appellants assert that Appalachee’s representative fraudulently represented to them that lot 15 was a buildable lot. As discussed in Division 2, above, the lot was sold and a house was built on it. The representation that the lot was buildable was not false and therefore the affirmative defense of fraud must fail. See C. P. D. Chemical Co. v. Nat. Car Rental System, 148 Ga. App. 756, 758 (2) (252 SE2d 665) (1979). Also, as discussed above, neither Anziano nor Brand made independent inquiries to county officials regarding the status of the lot. “ ‘[0]ne must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar [a defense] based on fraud.’ ” (Citations omitted.) Moran v. NAV Svcs., 189 Ga. App. 825, 826 (3) (377 SE2d 909) (1989).

Decided May 26, 1993.

Charles A. Mullinax, for appellants.

Webb, Tanner & Powell, Anthony O. L. Powell, Steven A. Pick-ens, for appellee.

The defense of laches is inapplicable to an action at law. Black & White Constr. Co. v. Bolden Contractors, 187 Ga. App. 805, 807 (2a) (371 SE2d 421) (1988).

Appalachee was entitled to summary judgment because the evidence presented as to each of the affirmative defenses fails to create a triable issue. See Barton v. Marubeni America Corp., 204 Ga. App. 346, 347 (419 SE2d 342) (1992). The trial court did not err in granting summary judgment to Appalachee on the main claim.

Judgment affirmed.

Blackburn and Smith, JJ., concur.

       The original contract included 23 lots. It was modified by mutual consent.

       Retaining all of the earnest money in transactions of this kind until all the lots have closed, instead of releasing it on a pro rata basis as the lots are sold, is a common practice which evolved to prevent “cherry-picking” of the choicest lots, forfeiting the remaining earnest money and leaving the developer with less desirable lots.


author: Birdsong, Presiding Judge.

text:
    A93A0276.
    MONTGOMERY v. THE STATE.
    (432 SE2d 120)
   Birdsong, Presiding Judge.

Tyrone Montgomery appeals his conviction for armed robbery of a Hardee’s restaurant in DeKalb County in October 1991. He contends the evidence was insufficient to prove armed robbery under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) because the victim did not actually see an entire gun but saw only a wooden “butt” which she was certain was the butt of a gun. He also contends the trial court erred by allowing evidence that Decatur police had disseminated a BOLO (“be on the lookout” bulletin) on appellant as a suspect in the robbery several months before he was arrested in 1992, which evidence the State hoped would constitute evidence of flight. Held-.

1. The victim testified that she knew appellant well, having worked with him for some time at the restaurant until he was fired the morning of the robbery; that evening he came in the restaurant and when the victim went to the back office to change a $100 bill for a customer, appellant nudged the victim in the knee and told her' he had come to shoot the manager and assistant manager, who were not present; he told the victim to open the safe but the victim laughed at first because she did not believe he was serious; then he told her he had robbed a McDonald’s and showed the butt of a gun from his duffel bag. The victim testified that she had seen guns before, that she was certain this was a gun, and that she felt threatened by the gun and by appellant’s statements that he had come to shoot others and that he had robbed another restaurant. When the victim opened the safe, appellant removed money from it and took the $100 bill held by the victim. He disabled the telephone and left with a threatening warning not to call the police.

Decided May 27, 1993.

John H. Tarpley, for appellant.

J. Tom Morgan III, District Attorney, Barbara B. Conroy, Gregory J. Giornelli, Robert M. Coker, Assistant District Attorneys, for appellee.

OCGA § 16-8-41 (a) provides that a person commits armed robbery when, with intent to commit a theft, he takes property “by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” Appellant contends that because the victim did not see the entire object, the evidence does not prove beyond a reasonable doubt that the wooden butt was a gun. However, under the plain words of the statute it is not necessary to prove appellant actually had a gun. See Pettway v. State, 204 Ga. App. 804 (420 SE2d 619). According to the standard of Jackson v. Virginia, supra, the evidence is sufficient to enable a rational trier of fact to conclude that appellant committed armed robbery, beyond a reasonable doubt.

2. The trial court did not, as appellant implies, admit in. evidence the BOLO document itself. What was admitted was evidence that Decatur police generated a document listing defendant as a suspect. This contributed nothing to a question of flight, and is irrelevant to the question of guilt. It was potentially prejudicial and the State should have resisted the urge to insist on its admittance; but the evidence of appellant’s guilt of the offense of armed robbery was so overwhelming that we find this testimony probably did not affect the verdict, and it provides no just cause to reverse it. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A0415.
    MALAGA MANAGEMENT COMPANY v. JOHN DEERE COMPANY.
    (431 SE2d 746)
   Birdsong, Presiding Judge.

Appellant/defendant MALAGA Management Company appeals the order of the superior court granting summary judgment to appellee/plaintiff John Deere Company and concurrently issuing a writ of possession of a John Deere mower.

In February 1990, MALAGA purchased and subsequently leased the St. Andrews Country Club to tenants Chris Wyant and to the Bear Lake Corporation. The lease preamble defines “improvements” to include all equipment described in an attached exhibit “B,” and defines “property” to include the land and the “improvements.” Paragraph nine of the lease allows the tenant to make reasonable alterations, changes, and modifications in and upon the “property” as the tenant may desire. Paragraph nine further authorizes the tenant to remove personalty from the property at the expiration or termination of the lease agreement, and provides that if the tenant fails to remove same by the end of the agreement said items shall become and remain property of MALAGA free and clear of all “tenant” claims thereto.

In June 1990, Metrac, Inc. sold a John Deere mower under a loan contract-security agreement listing the club and William Taylor as borrowers. Metrac subsequently assigned the loan contract-security agreement to John Deere who had provided the purchase money for the sale. The security agreement has never been perfected. Taylor is identified as a “president” on the loan contract; he was at the time president of Bear Lake. However, the loan contract could be reasonably construed as listing Taylor as “president” of the St. Andrews Golf Club. Taylor did not sign the contract; rather, the loan contract was signed by “Tony Musgrove, V.P.” Although Musgrove is alleged to be the CEO of Bear Lake, the loan contract could be reasonably construed as identifying him as Vice President of St. Andrews Golf Club. At the time of the lease, the club owned a fairway mower.

In February 1991, tenants defaulted on the lease and turned the club over to MALAGA who discovered their fairway mower missing and took possession of the John Deere mower left on the club premises. Appellee filed writ of possession of the John Deere mower and received grant of summary judgment.

MALAGA asserts the trial court erred in granting appellee’s motion for summary judgment because the tenant (Bear Lake Corporation) under the lease agreement owned the mower, and title to personal property of tenant was transferred by terms of the lease to appellant/lessor upon tenant’s default under the lease. John Deere alleges it is entitled, as a matter of law, to a writ of possession as MAL-AGA has no interest in the mower and it holds an unperfected purchase money security interest with the mower as collateral. The trial court granted appellee’s motion based on a finding that MAL-AGA did not have an ownership interest in the mower. Held:

1. Factual representations in briefs unsupported by the record will not be considered on appellate review. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223). The articles of incorporation of the Bear Lake Corporation are not contained in the record; accordingly we cannot consider this document.

2. MALAGA asserts there exists evidence of record that its mower was traded-in on the John Deere mower. However, in his deposition, the president of MALAGA testified that he did not have any evidence that their fairway mower was traded-in on the John Deere mower. MALAGA’S claim of evidence of a trade-in (“change” of mowers) fails, due to the lack of a reasonable explanation for this inconsistent testimony. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680).

3. Although appellant’s president testified that St. Andrews Country Club is a registered or reserved trade name, the record contains no documents establishing that fact, and assuming arguendo such action did occur, the record fails to establish when such trade name was registered or reserved. No reasonable inference can be drawn from the record as to when such registration or reservation may have been accomplished.

4. On the face of the lease and the loan-security agreement, the tenants in the lease are not the same legal entities and/or persons as are the owners of the John Deere mower under the express terms of the loan-security agreement. Appellant, however, asserts Musgrove and Taylor, doing business as St. Andrews Golf Club, is the alter ego of Bear Lake, and that the issue of piercing the corporate veil of Bear Lake is a jury issue. This issue, however, was not raised until appeal; after summary judgment is granted to a movant/plaintiff, a nonmovant/defendant may not raise an argument or defense not asserted in the trial court. Minor v. E. F. Hutton & Co., 200 Ga. App. 645, 646 (1) (409 SE2d 262).

Thus, we agree with the primary conclusion of the trial court that, on October 4, 1990, the John Deere mower was owned by “St. Andrews Golf Club and/or Tony Musgrove and/or William H. Taylor, Jr.,” and that “no party has presented proof of any transfer of title from those persons or entities to the tenants” listed in the lease agreement. A legal status (such as ownership) when proved to exist will be presumed to have continued to exist, until evidence is introduced to the contrary. See Esco v. Jackson, 185 Ga. App. 901, 906 (2) (366 SE2d 309). This rule of evidence constitutes a rebuttable presumption of continuation and is “separate from those rules allocating burdens of proof at trial and on motion for summary judgment.” Prophecy Corp., supra at 28.

At most, only a shadowy semblance of an issue remains whether appellant had an ownership interest in the John Deere mower. In disposition of summary judgment cases, while there may be some shadowy semblance of an issue a case may nevertheless be decided as a matter of law where, as in the case at bar, the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion. Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 424 (373 SE2d 515).

5. Additionally, the construction of both the lease and loan contracts, whether or not such contracts contained ambiguous provisions, presented questions of law for the trial court in this case. Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308); compare Borders v. Global Ins. Co., 208 Ga. App. 480 (430 SE2d 854). The trial court concluded in the alternative that the language of paragraph nine of the lease does not support a conclusion that title to the John Deere mower was transferred to the appellant/lessor by virtue of being left on the lease premises; and that paragraph nine is construed to apply “to normal modifications of the land itself, not to any and all personal property that a tenant might happen to bring upon the land.” In essence the trial court held that the term personalty in paragraph nine, when viewed in the context of the entire lease contract, applied only to such personalty as was brought upon the leased real property for the purpose of effecting an alteration, change, or modification in or upon said property. We find from an examination of the totality of the lease that an ambiguity exists in the lease contract regarding the meaning of the term “property” as used in various provisions thereof, and that the trial court did not err in its construction of either the lease or the loan-security contract in this case.

Further, assuming arguendo the term “property” included the original fairway mower, there exists no genuine material issue of fact (see Division 2 above) that the John Deere mower was used to alter, change, or modify said original mower, and thus no evidence exists that the John Deere mower would constitute “personalty” within the meaning of paragraph nine in any event. “[A] grant of summary judgment must be affirmed . . . if it is right for any reason.” Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (3) (405 SE2d 61).

6. Appellee made a prima facie showing of its legal entitlement to the mower by establishing attachment of its unperfected security interest. OCGA §§ 11-9-201; 11-9-203; 11-9-301; see OCGA § 11-9-306 (2); see generally Babson &c. Plan v. Cordele &c. Assn., 146 Ga. App. 266, 270 (1b) (246 SE2d 354). “ ‘ “Once the moving party for summary judgment has carried its burden of making out a prima facie case, the burden shifts and the opposite party must come forward with rebuttal evidence or suffer judgment against him.” ’ ” Hussey &c. v. Ga. Ports Auth., 204 Ga. App. 504, 505 (1) (420 SE2d 50). Appellant has failed to carry this burden.

For each of the above reasons, appellant’s contentions in support of its enumerations of error are without merit.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

Decided May 27, 1993.

Jett & Liss, Adam G. Jett, Jr., for appellant.

Thompson, O’Brien, Kemp & Nasuti, R. Michael Thompson, Thomas S. Kenney, for appellee.


text:
    A93A0706.
    GRIGGS v. THE STATE.
    (432 SE2d 591)
   McMurray, Presiding Judge.

Defendant Griggs and co-defendant Moss were jointly charged, via indictment, with selling cocaine in violation of the Georgia Controlled Substances Act. Co-defendant Moss entered a guilty plea and defendant Griggs was tried before a jury. The evidence adduced at a jury trial revealed the following:

At about 6:00 p.m. on February 10, 1992, Special Agent Darrell Bernard Chaneyfield of the Georgia Bureau of Investigation and a confidential informant went to defendant’s home to consummate a pre-arranged undercover drug buy. Defendant “answered the door and . . . the confidential informant asked Mr. Griggs was he ready to . . . sell the cocaine]. Defendant] said yes [and informed Special Agent Chaneyfield and the confidential informant that] Shawn Moss had been looking for [them and then defendant instructed the men to] come back in about ten minutes because he . . . had to go up the road for a minute to pick up the cocaine.” At 6:15 p.m., Special Agent Chaneyfield and the confidential informant returned and co-defendant “Shawn Moss opened the door and let [Special Agent Chaneyfield and the confidential informant] inside the residence [and] back into a small area like a kitchen . . . .” Defendant Griggs, co-defendant Moss and special agent Chaneyfield sat at the kitchen table. The confidential informant remained standing. Special Agent Chaneyfield then “asked Mr. Moss for the cocaine and he handed [the special agent] the cocaine which was in a white paper towel and . . . had a cookie shape form.” The special agent “took it from Mr. Moss and observed it [and] asked him how much was it. [Co-defendant Moss] said five hundred dollars.” After negotiating over price, Agent Chaneyfield “handed [co-defendant Moss] the money and [Moss] handed [over] the cocaine.” Special Agent Chaneyfield then “asked Mr. Griggs, did he have anything that I could put this in . . . because [the special agent] didn’t want to walk through the house with it in [his] pocket. [Defendant Griggs] said the best thing . . . was a paper towel.”

Defendant was found guilty of selling cocaine and this appeal followed. Held:

1. In his first three enumerations, defendant contends the evidence is insufficient to authorize a finding that he was a party to the crime of selling cocaine.

“Presence at the scene of a crime, even when coupled with knowledge and approval, not amounting to encouragement, is not sufficient to show that defendant is a party. Brown v. State, 250 Ga. 862 (1) (302 SE2d 347) (1983); Parker v. State, 155 Ga. App. 617 (2) (271 SE2d 871) (1980). However, ‘(c)riminal intent may be found by the jury “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6.’ Lunz v. State, 174 Ga. App. 893, 895 (332 SE2d 37) (1985). ‘While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. (Citation arid punctuation omitted.)’ Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980).” Smith v. State, 188 Ga. App. 415, 416 (1) (373 SE2d 97). In the case sub judice, Special Agent Chaneyfield testified that defendant informed the confidential informant that he was ready to consummate the drug transaction and that he needed ten minutes to retrieve' the cocaine. Special Agent Chaneyfield further testified that defendant was present, before, during and after the drug buy and that defendant gave him specific instructions on how to conceal the cocaine. This evidence reveals that defendant was more than a mere bystander to the illegal drug transaction. It sufficiently authorizes the jury’s finding that defendant is guilty, beyond a reasonable doubt, of being a party to the crime of selling cocaine in violation of the Georgia Controlled Substances Act. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Jackson v. State, 193 Ga. App. 636 (1), 638 (388 SE2d 881).

2. Defendant contends the trial court erred in denying his motion for a continuance based on a defense witness’ failure to appear at trial.

After voir dire, defense counsel moved for a continuance based on the absence of defense witness Glen Moore. Defense counsel stated that Moore resides in Homestead, Florida, and that the witness is not in court because of a home emergency brought on by the destruction of a Florida hurricane. Defense counsel stated that Moore witnessed the drug deal and that Moore “will testify that [defendant] Griggs had nothing to do with this sales transaction.” However, defense counsel admitted that he did not subpoena Moore when the witness was in the jurisdiction of the trial court, explaining that the witness gave “his assurance that.he would be [in court].”

“ ‘ “Each of (the) requirements (set forth in OCGA § 17-8-25) must be met before an appellate court may review a trial judge’s discretion in denying a motion for continuance based upon the absence of a witness.” (Cit.)’ Ledford v. State, 173 Ga. App. 474, 476 (326 SE2d 834) (1985).” Curry v. State, 177 Ga. App. 609 (1) (340 SE2d 250). This Code section provides, in pertinent part, that “[i]n all applications for continuances upon the ground of the absence of a witness, it shall be shown to the court. . . that he has been subpoenaed [and] that he does not reside more than 100 miles from the place of trial by the nearest practical route. . . .” OCGA § 17-8-25. In the case sub judice, defendant failed to satisfy either of these specific requirements. Consequently, there is no basis for overruling the trial court’s discretion in denying the motion for continuance. Curry v. State, 177 Ga. App. 609 (1), supra.

Decided May 28, 1993.

Glenn Zell, Rodney S. Zell, for appellant.

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

3. In his final three enumerations, defendant contends the trial court erred in instructing co-defendant Moss, in the presence of the jury, that the witness was not required to respond to defense counsel’s questions on direct examination. Defendant argues that the trial court’s instruction clouded the witness’ veracity and was erroneous, reasoning that co-defendant Moss gave up his right against self-incrimination when he entered a plea of guilty. Defendant further argues that the trial court’s instruction resulted in the witness’ refusal to respond to defense counsel’s question, thereby depriving him of a fair trial under the Fifth, Sixth and Fourteenth Amendménts of the United States Constitution.

“Grounds which may be considered on motion for new trial or on appeal are limited to those which were raised at trial. Pulliam v. State, 236 Ga. 460, 465 (224 SE2d 8); Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297). As the issue argued on appeal was not raised before the trial court, [defendant’s final three enumerations present] no question for consideration on appeal.” Proffitt v. State, 181 Ga. App. 564, 565, 566 (2) (353 SE2d 61) (1987).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A93A0268.
    PATTMAN v. THE STATE.
    (431 SE2d 706)
   Cooper, Judge.

Appellant was convicted by a jury of possession of cocaine with intent to distribute. He appeals from the denial of his motion for new trial, raising as his sole enumeration of error the denial of his motion to suppress.

The evidence adduced at the hearing on the motion to suppress revealed the following: On April 1, 1991, Officer Graham of the Athens-Clarke County Police Department received a telephone call from a confidential informant who had within the prior three weeks provided Officer Graham with information which led to the arrests of five or six persons for violations of the Georgia Controlled Substances Act. The informant stated that he was presently observing a person known as “Dog” and another known as “Booboo” selling cocaine at a local poolroom. Officer Graham knew that the poolroom was located in an area well known for drug activity and also knew “Dog” to be a street name used by appellant. The informant gave a description of the clothing appellant was wearing and further stated that appellant was concealing the cocaine in his clothing. Officer Graham and several other officers went to the poolroom where they saw a man who fit the description of “Booboo,” standing where the informant said he was standing. When “Booboo” saw the officers, he began to run, and all but one of the officers pursued him. The remaining officer walked around to the front of the poolroom where he saw appellant standing with several other men. Appellant was wearing an outfit which matched the description given by the informant. The officer approached appellant with his gun drawn, handcuffed appellant and conducted a pat-down search. The officer noticed that appellant was very nervous. The officer knew that drug sellers sometimes concealed drugs in their groin area, and he waited for another officer so that he could take appellant into the rest room of the poolroom to conduct a more extensive search. When another officer returned, the officers took appellant into the rest room and uncuffed one of appellant’s hands so that appellant could assist in the search of his groin area. As soon as appellant’s hand was uncuffed, appellant reached into his groin area and pulled out a paper towel which he tossed in the area of the sink. The paper towel was recovered, and inside was a canister containing 40 pieces of suspected crack cocaine. At this time appellant was arrested. At trial, the substance in the canister was positively identified as crack cocaine.

Appellant argues that the search of his groin area went far beyond the type of search authorized by a Terry stop, and since appellant was not under arrest until the contraband was found, the search was not authorized as a search incident to a lawful arrest. The State contends that there was probable cause for the search based on the informant’s tip.

“The duty of a reviewing court is to ensure that a ‘substantial basis’ for probable cause existed. We must determine under the ‘totality of the circumstances’ whether the evidence in this case showed a fair probability that contraband or evidence of a crime would be found in a particular place. [Cit.] It is well established 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. [Cit.] ‘Credibility of witnesses, resolution of any conflict or inconsistency, and weight to be accorded testimony (are) solely the province of the judge on a motion to suppress. (Cits.)’ [Cit.]” Butler v. State, 185 Ga. App. 478, 479-480 (1) (364 SE2d 612) (1988). The informant in this case had a past history of reliability. The record also reflects that the informant was relaying the information simultaneously with his observation of the drug sales and the officers responded immediately to the scene where the transactions were occurring. Looking at the totality of the circumstances, we conclude that the officers had probable cause to search appellant. See Butler, supra.

Decided May 11, 1993 —

Reconsideration denied June 1, 1993

McArthur & McArthur, John J. McArthur, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


author: Beasley, Presiding Judge.

text:
    A93A0322.
    THE STATE v. VANSANT.
    (431 SE2d 708)
   Beasley, Presiding Judge.

Vansant was indicted on a charge of DUI. OCGA § 40-6-391 (a) (4). The State appeals the trial court’s grant of his motion to suppress.

Citizen Spillers testified that at approximately 1:15 to 1:30 a.m. on March 8, 1992, he was at an IHOP restaurant in Albany, was sitting at a table across from Vansant, and “could tell that he had been drinking.” He saw him walk out of the restaurant, fall down, and get into a white, late-model GM van. Vansant backed the van into a truck but left without getting out of the van and checking for damage. Spillers called the police, reported a hit-and-run, gave his and Vansant’s names, described the van, gave the direction it was heading, and described Vansant as a white male. He then went to see if any damage had been done to the truck.

On cross-examination of Spillers, it was established that Vansant, an attorney, had represented Spillers’ former wife in a contempt action against him, and he had been forced to pay arrearages due under his divorce decree and attorney fees to Vansant shortly before the incident at the IHOP.

Police Officer Moored testified that he responded to the radio dispatch of the reported accident, which he was told involved a white van and a driver named Vansant, whom he did not know. Traffic was light as Moored drove to the location, and he intercepted Vansant’s van within one mile of the IHOP less than two minutes after he received the radio dispatch. He activated his blue lights and then his siren, but Vansant did not stop until he got to a red light. Moored parked and approached the van to talk to Vansant. On initial contact, Officer Moored detected very noticeable signs that Vansant was intoxicated. He advised Vansant that he was stopping him in regard to a reported accident at the IHOP and that another officer had gone to the IHOP to investigate damage to the other vehicle. Vansant stated that he had been at the IHOP but had not been in an accident.

Moored testified that he stopped the van to investigate the reported accident and not a possible DUI, he did not know which part of the van was involved in the accident, and he did not see any damage before he made the stop. Vansant was not speeding or violating any traffic law. Moored decided to stop the van before obtaining corroboration from the officer at the IHOP as to whether or not there in fact had been a hit and run, for the same reason, impracticability, that the police do not inspect a dwelling to see if there has in fact been a burglary before stopping a fleeing suspect.

Contending that the stop was illegal, Vansant filed a motion to suppress evidence obtained as a result of the stop. The motion was heard just before trial. The court distinguished this traffic stop from others, as one concerning a driver who allegedly bumped another car in a parking lot rather than one who drove in a manner posing a threat to the personal safety of the motoring public. Based on Officer Moored’s testimony that he would have stopped any white van he saw in the location Vansant’s van was supposed to be, the court ruled that this was an arbitrary stop and granted the motion to suppress.

The prosecuting attorney stated that the State would file a notice of appeal instanter. Vansant waived his right to jury trial and upon his request, the trial court stated that the case would proceed to trial. The State objected, arguing that the notice of appeal divested the court of jurisdiction to proceed. The trial court disagreed, stating that a trial court’s grant of a preliminary motion does not stay the proceedings. The State argued that its appeal of the trial court’s grant of the motion to suppress did stay the proceedings. The trial court rejected this argument and called the case for trial even though the State filed a notice of appeal while these discussions between the court and counsel were taking place. Thereafter, the court granted appellant’s motion for directed verdict of acquittal due to the State’s failure to offer evidence and entered judgment of acquittal.

1. The officer’s stop of defendant was authorized and not arbitrary.

“ ‘Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. (Cit.)’ [Cit.]” State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991).

We have repeatedly found reasonable and articulable suspicion authorizing a Terry-type stop where there has been a reported DUI. State v. McFarland, supra; Philpott v. State, 194 Ga. App. 452, 453 (1) (390 SE2d 664) (1990) and cits.; Holcomb v. State, 191 Ga. App. 379 (1) (381 SE2d 594) (1989); State v. Noble, 179 Ga. App. 785 (347 SE2d 722) (1986) and cits.; see also Chumbley v. State, 180 Ga. App. 603 (349 SE2d 823) (1986) (driving with a suspended license).

In analyzing police justification for Terry-type stops based on citizen reports, the court must take into account “common sense” and weigh not only the intrusion on the stopped citizen’s movement but also “the effect of discouraging private citizens who observe suspect conduct from reporting such conduct to law enforcement officials.” State v. Brown, 178 Ga. App. 307, 309 (1) (342 SE2d 779) (1986).

Reasonable and articulable suspicion has been found where there has been a report of a fleeing suspect committing burglary, armed robbery, or a personal assault. McGhee v. State, 253 Ga. 278, 279 (1) (319 SE2d 836) (1984); Pinkston v. State, 189 Ga. App. 851, 853 (1) (377 SE2d 864) (1989); Evans v. State, 162 Ga. App. 78 (290 SE2d 176) (1982); Starr v. State, 159 Ga. App. 386 (283 SE2d 630) (1981); Duffy v. State, 156 Ga. App. 847 (2) (275 SE2d 658) (1980); Butts v. State, 149 Ga. App. 492 (2) (254 SE2d 719) (1979).

“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 (Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) [(1968)]) recognizes that it may be the essence of good police work to adopt an intermediate response ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. (Cits.)” (Punctuation omitted.) Coley v. State, 177 Ga. App. 669, 670 (1) (341 SE2d 9) (1986), citing Stiggers v. State, 151 Ga. App. 546, 547 (1) (260 SE2d 413) (1979).

On the other hand, anonymous telephone tips that someone in a described vehicle is selling drugs does not authorize a forcible stop without further police investigation. See Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992) and cits.

The question is whether, under the totality of the circumstances, the telephone tip would “warrant a [person] of reasonable caution in the belief that a stop was appropriate.” Johnson v. State, 197 Ga. App. 538, 539 (398 SE2d 826) (1990), citing Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990). “ ‘ “Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized.” (Cit.)’ ” Johnson, supra at 539, citing Adams v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612) (1972). The right of a police officer to stop an automobile “is always dependent on the exigencies of the immediate situation.” Anderson v. State, 123 Ga. App. 57, 59 (1) (179 SE2d 286) (1970).

A “hit-and-run” such as the one reported here is a misdemeanor under OCGA § 40-6-271 (b), which poses an immediate damage to the pedestrian, the motoring public, and property. The police are authorized and required to investigate it.

Appellant argues that after stopping his van but before approaching it and questioning him, the officer should have awaited corroboration from the other officer as to whether any damage had been done to the other car. This argument does not persuade us that the officer’s conduct was unreasonable. Immediate inquiry of the driver would have resulted in a far briefer detention if the inquiry revealed that the driver was not Vansant and had not just left the IHOP. “ ‘The validity of an officer’s investigative or protective conduct upon making a “Terry stop” is determined in each case by balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which is sought to be advanced.’ [Cit.] In the instant case the state’s interest was in protecting the motoring and pedestrian public — an interest whose importance can hardly be overstated; and where a moving vehicle is involved, the interest could scarcely be other than immediate. On the other hand, the intrusion upon [defendant’s] privacy would have been minimal as to both time and extent had he not manifested indicia of intoxication, a misdemeanor offense when the subject is operating a vehicle. [Cit.]” State v. Brown, supra, 178 Ga. App. at 308.

Officer Moored’s stop of a white van driven by a white male within one mile of the IHOP less than two minutes after he received the radio dispatch in light traffic during early morning hours was not arbitrary on grounds that the officer had not been given a specific and detailed enough description of the fleeing suspect and vehicle. See McFarland, supra; Philpott, supra; Butts, supra.

Citing Daniels v. State, 183 Ga. App. 651 (359 SE2d 735) (1987), by way of comparison, Vansant argues that the stop should be held illegal on grounds that it was based on the false report of a crime by someone animated by malice toward him rather than by a disinterested citizen. However, Vansant did not invoke a ruling by the trial court on this issue, and we cannot hold that, as a matter of law, the stop was unauthorized for this reason.

2. The trial court erred in entering the judgment of acquittal.

In criminal cases, a direct appeal may be taken by the State from an order, decision, or judgment sustaining a motion to suppress evidence illegally seized in the case of motions made and ruled upon prior to the impaneling of a jury. OCGA § 5-7-1 (4); State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864) (1984). In the civil context, it is expressly provided that the filing of a notice of appeal of an interlocutory order acts as a supersedeas. OCGA § 5-6-34 (b); Lawrence v. Whittle, 146 Ga. App. 686 (1) (247 SE2d 212) (1978). This is an application of the general rule in both civil and criminal cases that the filing of a notice of appeal serves as supersedeas. OCGA §§ 5-6-45; 5-6-46. This general rule applies where, as here, the State files an immediate, direct appeal as of right from a trial court’s grant of a motion to suppress evidence illegally seized. A contrary rule would eliminate the State’s right of appeal and render OCGA § 5-7-1 (4) a nullity since the trial of the case would render questions as to the admissibility of the suppressed evidence moot. Where, as here, the evidence is critical to the State’s case, a directed verdict of acquittal necessarily follows. Entry of such a verdict based on an insufficiency of the evidence to support the charge is not generally appealable by the State. See State v. Warren, 133 Ga. App. 793 (213 SE2d 53) (1975); see also State v. Fly, 193 Ga. App. 190 (387 SE2d 347) (1989). An exception exists where, as here, the trial court dismisses charges on erroneous grounds before jeopardy attaches. See State v. Cooperman, 147 Ga. App. 556, 557-558 (2) (249 SE2d 358) (1978); see also Hunter v. State, 257 Ga. 571, 574 (4) (361 SE2d 787) (1987). Moreover, the trial court lost jurisdiction when the notice of appeal was filed.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.

Decided May 11, 1993 —

Reconsideration denied June 1, 1993

Britt R. Priddy, District Attorney, B. Martin First, Assistant District Attorney, for appellant.

Vansant, Corriere & McClure, K. Alan Dasher, Richard L. Hodge, for appellee.