text:
    A92A1982.
    BACON v. THE STATE.
    (427 SE2d 32)
   Andrews, Judge.

Bacon was tried and convicted of two counts of armed robbery and one count of aggravated assault and appeals.

In his sole enumeration of error, Bacon contends that the trial court erred in not granting a mistrial because of the State’s failure to notify him prior to trial that one of the witnesses it would call had prior felony convictions.

The record before us reveals that Bacon was co-indicted with Gregory Hagan and Wayne Lovett for armed robbery and aggravated assault. Bacon filed a request for disclosure pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), in which he requested disclosure by the State of any exculpatory information. In a motion to disclose impeaching information, Bacon specifically requested information of felony convictions of the witnesses called by the State.

On March 16, 1992, a hearing on the case was held at which time Hagan entered a plea of guilty. Immediately prior to the court’s acceptance of Hagan’s plea, the attorney for Bacon requested the court’s permission to leave the courtroom. Bacon’s attorney contends that he was not in the courtroom to witness Hagan’s plea and subsequent testimony, although this fact is not clear from the record. During the subsequent portion of the hearing the court asked Hagan if he had a prior criminal record and he admitted that he did.

The trial was held on March 24, 1992 and Hagan was called by the prosecution as a witness. His testimony was that during the robberies he held his gun on the victims and instructed Bacon. Hagan’s testimony was corroborated by two witnesses and by Bacon, who also testified.

The record reveals that at the time of the trial, Bacon’s attorney had a copy of the transcript of the hearing at which Hagan admitted that he had prior convictions. Further, there is no indication from the record before us that the State actually had copies of Hagan’s prior convictions in its files.

Because there was no evidence that the State possessed Hagan’s criminal records, we find no error in the State’s failure to provide copies of the records themselves. “There is no affirmative obligation on the prosecution to seek out information for the defense, although it might be more easily accessible to the prosecution.” (Citations and punctuation omitted.) Hill v. State, 187 Ga. App. 150 (1) (369 SE2d 790) (1988).

Decided January 6, 1993.

Jon G. Branan, for appellant.

Dupont K. Cheney, District Attorney, for appellee.

Thus, the question becomes whether the trial court erred in denying Bacon’s motion for a mistrial on the grounds that the State had an obligation to inform him of Hagan’s criminal record after the March 17 hearing and prior to the start of trial. Pretermitting the question of whether the State was required to reveal this information (see, e.g., Lariscey v. State, 254 Ga. 241, 242 (2) (328 SE2d 213) (1985)), we find no error. First, it is apparent from the record that Bacon was aware of this information during trial. “Brady holds that suppression by the prosecution of evidence favorable to the accused which is material to either guilt or punishment violates due process. It does not require pre-trial disclosure of materials sought under a Brady motion, nor is there a Brady violation where information sought becomes available to the accused at trial.” Shearer v. State, 259 Ga. 51 (1) (376 SE2d 194) (1989). Moreover, Bacon has failed to show how any alleged failure by the prosecution to provide this information materially affected his case. See generally Wallin v. State, 248 Ga. 29, 33 (6) (279 SE2d 687) (1981).

Finally, Bacon argues that the State’s failure to disclose the convictions prevented him from performing an investigation which would have revealed a deal between Hagan and the State regarding his testimony at trial. There was no evidence of a deal and we find this enumeration without merit. See generally Griggs v. State, 181 Ga. App. 618, 620 (6) (353 SE2d 97) (1987); Sams v. State, 197 Ga. App. 201, 203 (3) (397 SE2d 751) (1990).

Judgment affirmed. Birdsong, P. J., concurs. Beasley, J., concurs in the judgment only.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A92A2172.
    WIMPEY et al. v. OTTS et al.
    (427 SE2d 34)
   Beasley, Judge.

Appellants-plaintiffs, Larry Wimpey and his wife, brought this suit against appellees-defendants, Ron and Yvonne Otts, seeking various damages for injuries sustained by Wimpey while doing work on the Ottses’ property. The Wimpeys appeal the trial court’s grant of the Ottses’ motion for directed verdict.

Terry Price, who is a home builder and remodeler, agreed to install siding and do trim and cornice painting on the Ottses’ residence. Yvonne Otts is Price’s sister. She chose the color of the vinyl and paint and purchased some of the materials, while Price purchased others. The parties agreed that Price would do the job without any charge for labor but that the Ottses would reimburse him for the cost of the materials he purchased. Yvonne told him that there were some materials in her backyard and that he was welcome to use any of them. Although she was in the real estate brokerage business, she knew nothing about the installation of siding or paint work.

Wimpey, who is Price’s brother-in-law and is employed by him, volunteered to help him. Although Wimpey knew that Price was going to do this job free of charge, he testified that it was common for the two of them to help each other with things like that.

In order to do some of the work, it was necessary for Price and Wimpey to stand on scaffolding. There was some lumber in the Ottses’ backyard that Price used for the scaffold boards, because they were the right size and using them would lessen the cost of materials. Price selected the boards, and Wimpey helped him put them on the scaffolding jacks. Price tested the boards by jumping up and down on them a little bit, and the boards seemed sturdy and without defect. After working for a few days on the scaffolding boards, one of them suddenly gave way. Wimpey fell to the ground and into a hole, causing him to break his leg in several places and become disabled.

Wimpey and his wife alleged in their complaint that the Ottses knew the old and dangerous condition of the wooden boards and failed to warn Wimpey and Price of the impending danger. However, they did not present any evidence at trial as to the condition of the wood, or how its condition or any defect in it caused it to give way; nor did they present any evidence of any actual or constructive knowledge by the Ottses of these matters. Finding that no evidence had been presented by the Wimpeys authorizing a recovery against the Ottses, the trial court granted the Ottses’ motion for directed verdict.

The Wimpeys argue that there was evidence to support a finding that an agency relationship existed between the Ottses and Price, so that the jury could have found that Price was negligent and then imputed that negligence to the Ottses.

The evidence showed that Price was an independent contractor and not an employee of the Ottses, in that they did not have the right to, nor did they, direct the time, manner, methods, and means of his execution of the work, but rather asked him to produce a desired re-suit. See Sloan v. Hobbs Sporting Goods Shop, 145 Ga. App. 255, 257 (243 SE2d 673) (1978). It is the general rule that an independent contractor’s employer is under no duty to protect the contractor’s employees against the consequences of the contractor’s negligence or provide for their safety, although the contractor’s employer owes the contractor’s employees “the ubiquitous duty of not imperiling their lives by his or her own affirmative acts of negligence.” United States v. Aretz, 248 Ga. 19, 24 (1) (280 SE2d 345) (1981).

Decided January 6, 1993.

Minor, Bell & Neal, Rickie L. Brown, Robert D. Jenkins, for appellants.

An owner or occupier of land is liable in damages to invitees for injuries caused by his or her failure to exercise ordinary care in keeping the premises safe. OCGA § 51-3-1. The ordinary care standard has been defined as “whether a reasonably prudent person at the time and in the circumstances would have foreseen danger and what he reasonably would have done to prevent injury.” Smith v. Poteet, 127 Ga. App. 735, 736 (1) (195 SE2d 213) (1972).

Factually, this case is closely akin to Shepherd v. Whigham, 111 Ga. App. 274 (141 SE2d 583) (1965). Plaintiff was standing on a ladder in defendant’s home helping him install an attic fan. Although defendant used the ladder regularly and there was nothing apparently wrong with it, the bottom rung of the ladder “just gave way” while plaintiff was standing on it, causing plaintiff to fall and injure himself. The trial court’s grant of summary judgment to defendant was affirmed: “By the evidence it is shown that there was no danger to be reasonably anticipated by the defendant or, for that matter, to be anticipated by the plaintiff. No man can be expected to guard against harm from events which are not reasonably to be anticipated at all.” Id. at 277 (2).

The true ground of premises liability is the landowner’s superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property; it is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted. Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 392 (394 SE2d 345) (1990); First Pacific Mgmt. Corp. v. O’Brien, 184 Ga. App. 277, 280 (361 SE2d 261) (1987). There is no evidence in this case that the Ottses had any knowledge of a dangerous condition superior to that of Price or Wimpey, or of any danger known or reasonably to have been anticipated by the Ottses. Compare Swint v. Smith, 204 Ga. App. 54 (418 SE2d 375) (1992).

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

Leitner, Warner, Moffitt, Williams, Dooley, Carpenter & Napolitan, George W. Carpenter, Sharel L. Van Sandt, for appellees.


text:
    A92A1900.
    DeKALB COUNTY v. GERARD.
    (427 SE2d 36)
   Beasley, Judge.

Gerard was convicted in the DeKalb Recorder’s Court of violations of the county’s soil erosion ordinance, and she was fined $2,850. She filed a petition for writ of certiorari in superior court pursuant to OCGA § 5-4-1, “for the correction of errors committed by [the] inferior judicatory. . . .” The superior court granted the writ and overturned the convictions. Gerard then filed a motion for an award of attorney fees and litigation expenses pursuant to OCGA § 9-15-14, which applies “[i]n any civil action in any court of record of this state . . . .” OCGA § 9-15-14 (a). Holding that the proceedings in superior court but not recorder’s court were civil in nature, the superior court awarded those attorney fees which it found to have been reasonably incurred in connection with counsel’s representation of Gerard in superior court. We granted the county’s application for discretionary appeal, which was brought under OCGA § 5-6-35 (a) (10). We reverse.

1. A prosecution for violation of a city or county ordinance is a “quasi-criminal” case having the nature of a criminal case, and where a party convicted of an ordinance violation files a petition for certiorari in superior court seeking review of the conviction, the proceeding in superior court is criminal and not civil. City of Gainesville v. Butts, 127 Ga. App. 140, 141 (193 SE2d 59) (1972), and the decisions cited therein; Commissioners of Pilotage of St. Simons v. Tabbott, 72 Ga. 89, 91 (1883). See also OCGA §§ 5-4-13; 5-4-20 (a). “ ‘ “The decision of the superior court on certiorari reversing the judgment of a municipal court convicting one of a violation of a municipal ordinance is not subject to review by [the Court of Appeals].” [Cits.]’ [Cits.] . . . Only the accused may appeal an adverse judgment in a criminal proceeding. [OCGA § 5-6-33].” Butts, supra at 141. The county concedes that it could not appeal the superior court’s grant of the writ.

Gerard states that the superior court treated this as a civil action by the case number it assigned, but of course this is not determinative. The nature of the certiorari subject matter was no different in the superior court than it was in the recorder’s court. It was on appeal from an inferior judicatory, brought on a petition for writ of certiorari pursuant to OCGA § 5-4-1, a special statutory appellate proceeding. See Cochran v. City of Rockmart, 242 Ga. 732 (251 SE2d 259) (1978). Since it was criminal, or quasi criminal, it was not a “civil action” within the coverage of OCGA § 9-15-14.

Decided January 7, 1993.

Albert S. Johnson, Nancy F. Rigby, for appellant.

Schreeder, Wheeler & Flint, Warren 0. Wheeler, Mark W. For-sling, for appellee.

2. Because OCGA § 9-15-14 does not apply to the certiorari proceedings in this case, it is unnecessary to reach the enumeration challenging the amount of the award.

Judgment reversed. Birdsong, P. J., and Andrews, J., concur.


text:
    A92A1933.
    BAIRD v. THE STATE.
    (427 SE2d 37)
   Beasley, Judge.

Appellant was convicted of the burglaries of the residences of Center and Grayson (OCGA § 16-7-1 (a)), theft by taking an automobile van (OCGA § 16-8-2), and felony escape from the Oconee County Jail (OCGA § 16-10-52). He was acquitted of the burglary of a third residence.

The State’s evidence showed that appellant was incarcerated in the county jail because of a prior conviction of felony escape. He and fellow inmate Smallwood escaped from the jail in the early morning hours of October 27, 1990. Over the next 24 hours, they burglarized the Center and Grayson residences (appellant stated to police that Smallwood burglarized the third residence without his knowledge), and they then stole the car and drove away. These crimes occurred in Oconee County.

The next evening they broke into a sporting goods store in Elbert County and took a large number of weapons. In the early morning hours of October 29, they went to a residence in Madison County and asked the homeowner to assist them with the van. He alerted the police. When apprised of this, appellant and Smallwood fled. The police were alerted to their location by the sound of weapons discharging. The police found the two men in a church with pistols drawn. Other weapons from the sporting goods store were in their possession and in the vicinity of the van.

1. Appellant contends that the trial court erred in admitting evidence of the burglary of the sporting goods store in that it was an independent crime for which he was not indicted (it occurred in another county) and was irrelevant.

The evidence was admitted as part of the res gestae and upon a ruling that its probative value outweighed its prejudicial effect. See Bixby v. State, 234 Ga. 812, 813 (1) (218 SE2d 609) (1975); Blackshear v. State, 199 Ga. App. 839, 840 (2) (406 SE2d 269) (1991) (applying a balancing test where evidence of the circumstances of the arrest also shows commission of independent crimes).

“It is well settled in this state that ‘(a)cts are pertinent as a part of the res gestae if they are done pending the hostile enterprise, and if they bear upon it, are performed whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard it, or to evince essential motive or purpose in reference to it. . . .’ [Cits.] . . . “‘ ‘One of the exceptions to the rule that on prosecution for a particular crime evidence which tends to show that the defendant committed another crime wholly independent from that for which he is on trial is irrelevant and inadmissible, is where the other crime is a part of the res gestae.’ ” ’ [Cits.] ‘Therefore, a trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous.’ [Cit.]” Sypho v. State, 175 Ga. App. 833, 835 (3) (334 SE2d 878) (1985). The admission of the evidence of the events which were part of a crime spree that ignored county lines was not clearly erroneous.

2. Appellant contends that the trial court erred in admitting evidence of the burglary of the sporting goods store for the additional reason that he was not given proper notice of the State’s intention to introduce evidence of a prior similar transaction, as required by USCR 31.3 (B).

USCR 31.3 (E) states that “[n]othing in this rule is intended to prohibit the state from introducing evidence of similar transactions or occurrences which are . . . immediately related in time and place to the charge being tried, as part of a single, continuous transaction.” The offense in issue here, being part of the res gestae, was qualified. Rollins v. State, 202 Ga. App. 88 (1) (413 SE2d 261) (1991).

3. Appellant contends that the trial court erred in admitting evidence of the burglary of the sporting goods store, for yet a third reason, that it was not sufficiently similar to the indicted charges, and evidence of it was not admitted in accordance with the requirements of Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). The answer, adverse to his contention, is given in Division 1.

4. Finally, appellant challenges the denial of the motion to suppress his incriminating statement to the police, citing Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981). He argues that he made the statement after invoking his rights to counsel and to remain silent, and that the police, rather than he, initiated further communications which resulted in the statement. See Roper v. State, 258 Ga. 847, 849 (1) (375 SE2d 600) (1989).

Decided January 7, 1993.

Cook, Noell, Tolley & Wiggins, Edward D. Tolley, M. Mark Wiggins III, D. Todd Wooten, for appellant.

Harry N. Gordon, District Attorney, James B. McClung, Assistant District Attorney, for appellee.

Both the sheriff and chief jailer testified that they did not initiate questioning after appellant exercised his right to remain silent. The chief jailer testified that appellant said he wanted to talk to the sheriff. He was later taken to the sheriff’s office. After the sheriff advised appellant of his Miranda rights, he made an incriminating statement which the sheriff recorded on a tape recorder. After conducting a Jackson v. Denno hearing, the trial court found the statement to be admissible, and the tape was played to the jury.

Unless clearly erroneous, a trial court’s factual determinations relating to the credibility of witnesses and the admissibility of confessions will be upheld on appeal. E.g., Sumpter v. State, 260 Ga. 683 (2) (398 SE2d 12) (1990). The trial court’s finding in favor of admissibility was not clearly erroneous.

Appellant suggests that his statement was also tainted, because authorities placed him in solitary confinement in a manipulative effort to get him to make an incriminating statement so as to be moved out of solitary. The sheriff testified that appellant was placed there because he had escaped twice and was thus a very high-risk inmate, and that he was given everything due him, such as showers, telephone, and meals. A hope of benefit “ ‘which originates in the mind of the person making the confession and which originates from seeds of his own planting would not exclude a confession.’ [Cit.]” Hall v. State, 180 Ga. App. 366, 367 (1) (349 SE2d 255) (1986).

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


text:
    A92A2216.
    JONES v. THE STATE. STINSON v. THE STATE.
    A92A2217.
    (427 SE2d 40)
   Beasley, Judge.

Jones and Stinson were jointly indicted, tried before a jury and found guilty of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b). Their separate appeals from the judgments of conviction and sentences have been consolidated. Morgan, a third co-defendant, pled guilty to the lesser offense of possession of cocaine, OCGA § 16-13-30 (a).

An officer attached to the Grady County Drug Squad received information from a confidential informant that certain persons in a blue, four-door, Ford Grenada were in possession of cocaine. The car was subsequently seen entering the parking lot of an American Legion facility. The officer observed Stinson walking from the driver’s side around the rear of the vehicle. Jones and Morgan had exited the car and were standing outside on the passenger side. As the officer exited the unmarked patrol car, he observed Stinson make a throwing motion and observed a light-colored object coming from his hand toward Jones. The officer called out to Stinson, who stepped back to the rear of the car. The officer found two small plastic zip-lock bags which appeared to him to be within “the trajectory of Stinson’s toss.” One bag contained three pieces of crack cocaine and was located near Jones’ feet; the other contained six larger pieces and was found on the ground between Jones and Stinson. The officer testified that in his experience, this method of packaging the contraband is indicative of distribution. A set of keys to the car was also found on the ground between Jones and Stinson. A pipe commonly used to smoke crack cocaine was found at Morgan’s feet. During the booking process following arrest of the three men, Jones consented to submit to urinalysis, which later tested positive for cocaine compound.

Case No. A92A2216

1. Jones contends that the trial court erred in denying his motion in limine to exclude evidence of the results of the urinalysis. The motion in limine was filed in court after the selection of the jury and before the presentation of evidence. It was predicated solely on the ground that introduction of the report “would unfairly prejudice the jury by impermissibly placing defendant’s character in question.” Although on appeal Jones asserts additional grounds which he claims require exclusion of the evidence, only that ground for objection which was asserted and ruled on below is considered. See generally Rhodes v. State, 200 Ga. App. 193 (2) (407 SE2d 442) (1991).

“The state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. [Cit.] This is true even if the defendant’s character is incidentally placed in issue.” Satterfield v. State, 256 Ga. 593, 598 (6) (351 SE2d 625) (1987). The challenged evidence demonstrated that Jones had introduced cocaine into his body within 48 hours of submitting the urine sample. It was admissible as part of the res gestae and as circumstantial evidence that he was involved in drug activity.

Admission of the evidence violated neither USCR 31.1 nor USCR 31.3 (A), (B) and (C), which require the State to provide pretrial notice of its intention to present evidence of similar transactions. Instead, USCR 31.3 (E) applies: “Nothing in this rule is intended to prohibit the state from introducing evidence of similar transactions or occurrences which are lesser included alleged offenses of the charge being tried, or are immediately related in time and place to the charge being tried, as part of a single, continuous transaction.” Accord Branam v. State, 204 Ga. App. 205 (5) (419 SE2d 86) (1992).

2. In enumerations of error 2 and 4, respectively, Jones challenges the denial of his motion for a directed verdict of acquittal and the sufficiency of the evidence.

The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the “proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or . . . upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). See also OCGA § 17-9-1.

The evidence against Jones was entirely circumstantial. “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. The jury was so instructed. See Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991); Postell v. State, 261 Ga. 842 (1) (412 SE2d 831) (1992). They were also charged on the “two theories” of circumstantial evidence, Hamilton v. State, 260 Ga. 3 (4) (389 SE2d 225) (1990), as well as parties to a crime.

“Whether every reasonable hypothesis except that of guilt of the defendant has been excluded is a question for the jury where the jury is properly instructed.” Barfield v. State, 160 Ga. App. 228 (3) (286 SE2d 516) (1981). The evidence presented to the jury was sufficient to enable a rational trier of fact to find Jones guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Jackson v. Virginia, supra.

3. The court did not err by refusing to give two requested instructions. The first, that mere presence alone does not authorize conviction, is correct as an abstract principle of law. But the evidence established more than Jones’ presence in the vicinity of the cocaine. Jones, who was known to the investigating officer, was initially seen in the suspicious vehicle. The officer later observed Stinson toss the drugs to him, and they were found at his feet. The presence of cocaine in his system adds to the accumulation of a predisposition to violate the Controlled Substances Act.

The second request was predicated on Porter v. State, 182 Ga. App. 624 (1) (356 SE2d 703) (1987), to the effect that the conviction of one defendant does not necessarily require the conviction of another. Unlike the present case, such a charge was required in Porter because the evidence against two co-defendants was not identical and because each defendant presented separate alibi defenses. It was not mandated here.

Case No. A92A2217

4. In enumerations of error 2 and 3, Stinson, who is indigent, contends the trial court erred in denying his motion for funds to hire an investigator, in violation of the Sixth Amendment right to counsel under the United States Constitution and the Fifth Amendment guarantee of due process of law “as applied to the State of Georgia through the Fourteenth Amendment.” His brief simply incorporates his original motion, which was based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Since he does not address the Sixth Amendment and did not do so below, that issue is not before us. In the first place, this enumeration of error is not supported by argument or citation of authority and is deemed abandoned. Weeks v. State, 190 Ga. App. 373, 375 (2) (378 SE2d 895) (1989); Rule 15 (c) (2). In the second place, a ground not raised below may not be newly raised on appeal. McGarity v. State, 190 Ga. App. 139 (1) (378 SE2d 179) (1989).

As to the due process ground, it must be considered under the Fourteenth Amendment rather than the Fifth. The latter applies to federal court cases. Cf. Bolling v. Sharpe, 347 U. S. 497 (74 SC 693, 98 LE 884) (1954). The cases cited by appellant involved the Fourteenth Amendment.

Stinson relies on Griffin v. Illinois, 351 U. S. 12 (76 SC 585, 100 LE 891) (1956), in support of his due process claim. It held that a state’s failure to furnish an indigent defendant with his trial transcript for purposes of appellate review deprived Griffin of equal protection of the laws and due process of law. It is not determinative of the issue before us, which relates to trial preparation. Neither Boddie v. Connecticut, 401 U. S. 371 (91 SC 780, 28 LE2d 113) (1971), nor Tate v. Short, 401 U. S. 395 (91 SC 668, 28 LE2d 130) (1971), also cited by appellant, address the issue. Boddie held that a state denies Fourteenth Amendment due process of law to indigent persons by refusing to allow them to file divorce actions except on payment of court costs; Tate held that imprisonment solely because of an indigent’s inability to pay a fine violated the equal protection clause of the Fourteenth Amendment.

In this state, “the grant or denial of a motion for funds to employ an investigator lies within the sound discretion of the trial judge and will not be overturned unless an abuse of discretion is shown.” Cunningham v. State, 248 Ga. 558, 560 (4) (284 SE2d 390) (1981). See also Whitaker v. State, 246 Ga. 163 (3) (269 SE2d 436) (1980); Smith v. State, 258 Ga. 179 (5) (366 SE2d 687) (1988). When the trial court inquired concerning the need for investigative services, defense counsel replied that he sought access to potential state’s witnesses as follows: “I don’t want any information on the folks from the crime lab or the policemen. We’re not questioning that at all, but anyone else that might be brought in.”

Decided January 7, 1993.

Billy M. Grantham, for appellant (case no. A92A2216).

John W. Bass, Sr., for appellant (case no. A92A2217).

J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.

The State called a total of five witnesses; one was the GBI agent who analyzed and identified the contraband, two were connected with the State crime lab and testified to the chain of custody and test results of the urine specimen, and the final two were the investigating and arresting officers. As in Cunningham, “[t]he case against the defendant was factually simple and did not depend on a large volume of evidence of a technical nature.” Id. at 560. Stinson has not demonstrated that, due to lack of an investigator, he was deprived of interviewing witnesses. Having shown neither special need for the investigative services, nor harm arising from the denial of the motion, Ennis v. State, 249 Ga. 222 (2) (290 SE2d 50) (1982), we find no abuse of discretion which would constitute a deprivation of federally guaranteed due process of law.

5. In enumerations of error 1 and 4, Stinson challenges the denial of his motion for a directed verdict of acquittal and the sufficiency of the evidence. For the reasons set forth in Division 1, the evidence was sufficient under the standard of Jackson v. Virginia, supra.

Judgments affirmed. Birdsong, P. J., and Andrews, J., concur.

       Appellant also cites Christian v. United States, 398 F2d 517 (10th Cir. 1968), but that case applies 18 USCA § 3006A (e) to the request for an investigator, which statute does not govern state court cases.


author: McMurray, Presiding Judge.

text:
    A92A2242.
    CLARK v. THE STATE.
    (427 SE2d 43)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted on two counts of aggravated child molestation and three counts of child molestation. This appeal followed an order granting defendant’s motion to file an out-of-time appeal. Held:

1. Defendant contends the trial court erred in denying his motion for directed verdict of acquittal, arguing that the evidence was insufficient to support the verdicts.

“A directed verdict of acquittal in a criminal case is authorized 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.” ’ .(Emphasis supplied.) OCGA § 17-9-1 (a). See Summers v. State, 99 Ga. App. 183 (108 SE2d 140). When ... a conviction is upheld on appeal because the evidence is such that a rational trier of fact could find [the] appellant’s guilt beyond a reasonable doubt, according to the standard in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), it cannot possibly be said the evidence demanded a verdict of acquittal.” Miller v. State, 201 Ga. App. 108 (1) (410 SE2d 328).

In the case sub judice, the five-year-old victim testified and gave a detailed account of how defendant committed acts which constitute the crimes charged in the indictment. This evidence was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of two counts of aggravated child molestation and three counts of child molestation. Jackson v. Virginia, 443 U. S. 307, supra; Mantooth v. State, 197 Ga. App. 797, 798 (2) (399 SE2d 505). Consequently, the trial court did not err in denying defendant’s motion for directed verdict of acquittal.

2. Defendant contends the trial court erred in allowing evidence of acts which form the basis of his 1985 conviction (entered pursuant to guilty pleas) for aggravated child molestation, enticing a child for indecent purposes and false imprisonment.

Officer Octavia Holboro testified that in 1985 an eight-year-old victim reported acts committed by defendant which constitute aggravated child molestation, enticing a child for indecent purposes and false imprisonment. Officer Holboro testified that defendant affirmed the young victim’s account of the forced sexual encounter and that defendant entered guilty pleas to an indictment charging him with aggravated child molestation, enticing a child for indecent purposes and false imprisonment. Defendant argues that these prior criminal acts bare no similarity to the crimes charged in the case sub judice and should therefore not have been admitted into evidence at trial.

“ ‘ “The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts (or other conduct) perpetrated upon them, is of sufficient similarity to make the evidence admissible.” (Cits.)’ Boynton v. State, 197 Ga. App. 149[, 150] (1) (397 SE2d 615) (1990).” Hall v. State, 204 Ga. App. 469, 471 (1) (419 SE2d 503). The act of sodomy which forms the basis of defendant’s 1985 conviction for aggravated child molestation is virtually identical to an act of sodomy which forms the basis of one charge of aggravated child molestation in the case sub judice. Further, defendant molested both victims in his home and he admonished both victims not to tell. These similarities are relevant to prove defendant’s motive, intent, bent of mind, absence of mistake or accident, plan, scheme or course of conduct in committing at least one of the crimes charged in the case sub judice. Consequently, the trial court did not err in allowing evidence of acts which were the basis of defendant’s 1985 conviction for aggravated child molestation, enticing a child for indecent purposes and false imprisonment. See Boynton v. State, 197 Ga. App. 149, 150 (1), supra.

Decided January 8, 1993.

Bates, Kelehear & Starr, J. Raymond Bates, Jr., Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, David W. McLeod, Assistant District Attorney, for appellee.

Judgment affirmed. Cooper and Blackburn, JJ., concur.


text:
    A92A2277.
    BROOKS v. THE STATE.
    (426 SE2d 914)
    Decided January 8, 1993.

      Jennifer A. Bonanno, for appellant.

      Robert E. Wilson, District Attorney, Barbara B. Conroy, Jeffrey

      H. Brickman, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of violating Georgia’s Controlled Substances Act, i.e., defendant “did possess and have under his control and did sell, cocaine.” This appeal followed the denial of defendant’s motion for new trial. Held:

In his sole enumeration, defendant challenges the sufficiency of the evidence. At trial, two undercover law enforcement officers testified that they paid defendant $40 for two bags of a substance which was identified as cocaine. This evidence is sufficient to sustain the jury’s finding that defendant is guilty, beyond a reasonable doubt, of violating Georgia’s Controlled Substances Act, selling cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed. Cooper and Blackburn, JJ., concur.


text:
    A92A2314.
    WARREN v. THE STATE.
    (427 SE2d 45)
   McMurray, Presiding Judge.

Defendant Warren was indicted for possession of more than one ounce of marijuana. The evidence adduced at a jury trial reveals the following: After arriving at Atlanta Airport on a flight from Jamaica on September 4, 1991, Tina Rochelle Brown attempted to sneak a cooler containing over six pounds of marijuana through U. S. Customs. However, Inspector Carolyn Baxley Watson with the U. S. Customs Service found the marijuana and Brown informed Inspector Watson that the cooler “was given to her by a man on the flight [and that] his name was Warren.” Another U. S. Customs officer discovered that defendant Warren was a passenger on Brown’s flight and that defendant Warren’s roundtrip flight itinerary matched Brown’s roundtrip flight itinerary, i.e., Chicago to Jamaica via Atlanta and Jamaica to Chicago via Atlanta. Defendant Warren later “made a voluntary statement that he would have cooperated with [U. S. Customs Agents] had [they] talked to him first instead of talking to that girl first.”

Defendant was found guilty of the crime charged. This appeal followed. Held:

In his sole enumeration, defendant challenges the sufficiency of the evidence.

At trial, Brown testified that defendant was not a close friend but that she and her child traveled to Jamaica with defendant because of his promise to pay for their trip. Brown explained that defendant paid for the trip; that defendant instructed her not to talk, sit or be seen with him during the flights to and from Jamaica and that defendant gave her the marijuana-laden cooler before arriving at Atlanta Airport. Defendant argues that this uncorroborated testimony is insufficient to support his conviction.

“ ‘In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8 (Code Ann. § 38-121). The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. Allen v. State, 215 Ga. 455 (111 SE2d 70) (1959). “However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. (Cit.) Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support the verdict. (Cit.)” Reaves v. State, 242 Ga. 542, 543 (250 SE2d 376) (1978).’ Castell v. State, 250 Ga. 776, 778 (1 c), 780 (301 SE2d 234).” Brown v. State, 199 Ga. App. 18, 21 (4) (404 SE2d 154).

Decided January 8, 1993.

Billy J. Dixon, for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.

In the case sub judice, U. S. Customs Inspector Watson testified that it was common for drug smugglers to use innocent looking people to carry contraband into the United States and that smugglers often follow their drug couriers on the same flight. Special Agent Stanley Ward with U. S. Customs Service testified that defendant’s flight itinerary was identical to Brown’s flight itinerary and that defendant “made a voluntary statement that he would have cooperated with [U. S. Customs Agents] had [they] talked to him first instead of talking to that girl first.” This evidence sufficiently corroborated Brown’s testimony, independently identifying defendant as a participant in the criminal act charged. Further, the evidence was sufficient to sustain the jury’s finding that defendant is guilty, beyond a reasonable doubt, of possession of more than one ounce of marijuana. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed. Cooper and Blackburn, JJ., concur.


text:
    A92A1719.
    PHELAN v. WELLS FARGO CREDIT CORPORATION.
    (427 SE2d 46)
   Beasley, Judge.

On August 6, 1991, Wells Fargo Credit foreclosed on certain real property owned by Phelan. On September 5, Wells Fargo filed an Application for Confirmation and Report of Foreclosure Sale pursuant to OCGA § 44-14-161. A hearing was set by rule nisi for November 26. At the hearing, Wells Fargo informed the court that Phelan had not been served with notice of the hearing. The court directed that he be served within ten days or that the case would be dismissed. Phelan was not served within ten days, and the court dismissed the case on December 10. Phelan was personally served with the application and rule nisi on December 12, notwithstanding the dismissal two days earlier. The rule nisi still gave November 26 as the hearing date.

In view of the fact that Phelan was served on December 12, the trial court entered an order on January 7, 1992, setting aside the dismissal, reinstating the case to its original status, and setting the matter down for a hearing on February 7. Notice of the February 7 hearing was sent to Phelan by certified mail and received by him at least five days prior to the hearing. Phelan was not personally served with notice.

Decided January 11, 1993.

Thomas C. Blaska & Associates, David N. Levine, for appellant.

Lefkoff, Duncan, Grimes & Miller, John R. Grimes, for appellee.

At the February 7 hearing, Phelan moved for a directed verdict at the close of Wells Fargo’s case, on the ground that he was not personally served with notice of the hearing as required by OCGA § 44-14-161 (c). The trial court held that personal service was not required since the application for confirmation of the foreclosure sale had already been served upon Phelan.

OCGA § 44-14-161 (c) provides that notice of the hearing on an application for confirmation of a non-judicial foreclosure sale “shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale.” Henry v. Hiwassee Land Co., 246 Ga. 87, 88 (269 SE2d 2) (1980); see Chastain Place v. Bank South, 185 Ga. App. 178, 179 (2) (363 SE2d 616) (1987).

Where, as here, no action is pending between the parties, personal service of the application is required in order to give legal notice, and notice by certified mail will not suffice. Henry, supra. By appearing at the confirmation hearing without objecting to the manner in which notice was given, a defendant waives any objection to lack of personal service. Id. The fact that the defendant obtained actual knowledge of the confirmation hearing as a result of service by mail and then failed to attend the hearing is of no consequence if service by mail is legally inadequate. Id.

Phelan appeared at the hearing but asserted his defense of insufficient service, which was meritorious and should have been sustained.

Judgment reversed. Birdsong, P. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A92A1744.
    SMITH v. THE STATE.
    (427 SE2d 48)
   Johnson, Judge.

Bobby Gene Smith was convicted of two counts of aggravated child molestation. He appeals from his convictions and the denial of his motion for new trial.

1. Smith complains that the trial court erred by admitting hearsay statements of the child victim, his daughter, regarding sexual abuse she sustained, contending that the statements were unreliable. We disagree.

OCGA § 24-3-16 provides: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.,” (Emphasis supplied.) Smith argues that the statements at issue failed to meet factors previously identified by this court which may be used by trial courts in determining the reliability of such statements.

In Gregg v. State, 201 Ga. App. 238 (411 SE2d 65) (1991), we enumerated factors which the trial court may consider in determining whether hearsay testimony offered under OCGA § 24-3-16 is sufficiently reliable. Those factors include, but are not limited to, the following: “(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. [Cits.] These factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness.” (Emphasis omitted.) Id. at 240-241.

The testimony Smith complains of was given by June Jarrett, the residential manager of a mobile home park in which the victim lived, and by Jo Beth Dyer, a caseworker with the Paulding County Department of Family & Children’s Services. Jarrett testified that the victim said “my daddy is playing with my thing,” pointing to her own genital region as she said it. Jarrett also testified that the victim told her that Smith had placed his mouth on her “thing” and that he made her do the same to him. Jarrett testified that she had not questioned the victim; the victim told her this information spontaneously and while crying. Later that day, the victim made substantially the same statements to Dyer. Dyer further testified that at the insistence of the victim’s mother she interviewed the victim a second time, several days later. During this subsequent interview, the victim told Dyer that her uncle was the perpetrator, instead of her father. Dyer further testified, however, that the victim told her that her mother had instructed her to change her story to implicate her uncle.

Decided January 11, 1993.

Robert N. Susko, P. C., Charles E. Lake, Jr., for appellant.

William A. Foster III, District Attorney, for appellee.

The admissibility of evidence is a matter which rests largely within the sound discretion of the trial court. In the absence of an abuse of discretion, this court will not interfere with the trial court’s ruling. See Palmer v. State, 186 Ga. App. 892, 898-899 (369 SE2d 38) (1988). After reviewing the record in this case, we are satisfied that the trial court did not err in finding that the statements at issue were sufficiently reliable. Therefore, the court did not abuse its discretion in allowing the jury to hear the challenged testimony.

2. Smith contends that the trial court erred in failing to conduct a competency hearing of the child victim. “ ‘ “Where the trial judge examines a child as to [her] understanding of the nature of an oath, as was done in the instant case, and determines the child is competent to testify, the court’s discretion, absent manifest abuse, will not be interfered with by this court.” . . .’ [Cit.]” Benton v. State, 184 Ga. App. 684, 685 (362 SE2d 421) (1987). There is no evidence in the record which would support Smith’s contention that the child victim in this case was mentally retarded or “without use of reason” within the meaning of OCGA § 24-9-5. Smith did not challenge the competency of the victim at trial, nor did he request that a competency hearing be held. He has therefore waived any right to challenge the victim’s competency. See generally Miller v. State, 201 Ga. App. 374, 375 (2) (411 SE2d 112) (1991).

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


text:
    A92A1909.
    USAA PROPERTY & CASUALTY INSURANCE COMPANY v. WILBUR.
    (427 SE2d 49)
   Beasley, Judge.

Defendant USAA Property & Casualty Insurance Company, was granted interlocutory appeal from the trial court’s denial of its motion for summary judgment. Plaintiff Wilbur claims $50,000 of survivor’s no-fault benefits (PIP) following his wife’s death. He also alleges that USAA acted in bad faith in refusing the claim and seeks a 25 percent penalty, attorney fees, and punitive damages in the amount of $5,000,000. USAA denied the claim on the ground that the injury and death to plaintiff’s wife resulted from intentional criminal acts and not the operation, maintenance, or use of the vehicle.

Wilbur’s wife was kidnapped in a grocery store parking lot by two men looking for a car, shoved into the insured vehicle, assaulted and raped in the vehicle, and driven to Kentucky. There she was forced to exit the car and walk to a nearby patch of woods, where she was stabbed to death. The question of law is whether or not there is no-fault coverage under such circumstances.

The Georgia Motor Vehicle Accident Reparations Act, OCGA § 33-34-1 et seq., imposed two requirements for no-fault recovery. Kelley v. Integon Indem. Corp., 253 Ga. 269, 274 (320 SE2d 526) (1984). First, the accidental bodily injury must occur while the victim is “occupying” the insured vehicle. Ga. L. 1975, p. 1202, § 6 (formerly found at OCGA § 33-34-7 (1990); Ga. L. 1974, p. 113, § 7 (formerly found at OCGA § 33-34-7 (1990)). The occupancy requirement is met when the victim is “in or upon a motor vehicle or engaged in the immediate act of entering into or alighting from the motor vehicle.” Ga. L. 1974, p. 113, § 2 (formerly found at OCGA § 33-34-2 (8) (1990)). Second, the accidental bodily injury must arise out of the operation, maintenance or use of the vehicle as a vehicle. Ga. L. 1974, p. 113, § 7 (formerly found at OCGA § 33-34-7 (a) (1990)); Ga. L. 1987, p. 1116, § 1 (formerly found at OCGA § 33-34-2 (9) (1990)).

The occupancy requirement had been broadly construed. For example, one remains an occupant of the car from which one is involuntarily ejected after an accident until one is able to remove oneself, or be removed, to a neutral zone. State Farm Mut. Auto. Ins. Co. v. Holmes, 175 Ga. App. 655 (333 SE2d 917) (1985). See also Partridge v. Southeastern Fidelity Ins. Co., 172 Ga. App. 466 (323 SE2d 676) (1984).

The instant case differs from Partridge and Holmes in that it involves intentional criminal conduct resulting in the victim’s death. The victim was murdered away from the insured vehicle, in a patch of woods. She was, however, forced to exit the car by at least one assailant and fatally injured before she could remove herself to a neutral zone. This would meet the involuntary ejection requirement of occupancy articulated in Holmes, if it is broadly construed.

Mrs. Wilbur’s death might also be deemed an accident under Georgia insurance law. An intentional act may be an accident when, viewed from the victim’s perspective, it is something unforeseen, unusual, and unexpected and not caused by the victim’s own misconduct. American Protection Ins. Co. v. Parker, 150 Ga. App. 732, 733 (258 SE2d 540) (1979). See also State Auto. Mut. Ins. Co. v. Nichols, 710 FSupp. 1359, 1362 (N.D. Ga. 1989) (murder of insured on floorboard of insured vehicle held to be accident according to Georgia insur anee law).

Assuming without deciding that Wilbur’s claim meets the occupancy and accident requirements, the impediment to recovery is the additional requirement that the death arise from the operation, maintenance or use of the motor vehicle. Georgia law requires a causal connection between the use of the vehicle and the injury sustained. Westberry v. State Farm Mut. Auto. Ins. Co., 179 Ga. App. 700, 701 (347 SE2d 688) (1986). See also King v. St. Paul Fire &c. Co., 201 Ga. App. 851 (412 SE2d 614) (1991). Wilbur’s position is that such connection exists because his wife’s assailants wanted to steal a car and, but for the car, his wife would not have been kidnapped. USAA asserts that Mrs. Wilbur’s injuries were too remote to the use of her vehicle, especially since she was not murdered inside the car.

This case resembles cases involving gunshot injuries in which a victim occupies the insured vehicle. In deciding whether a gunshot wound sustained by an insured in a motor vehicle can be considered an injury arising out of the use of the vehicle, the general rule is that “ ‘where a connection appears between the “use” of the vehicle and the discharge of the firearm and resulting injury such as to render it more likely that the one grew out of the other, it comes within the coverage defined.’ ” Westberry, supra at 701. There must be more of a connection between the use of a vehicle and the discharge of the firearm and resulting injury than mere presence in the vehicle when the injury is sustained. Westberry, supra at 702.

In Westberry, a taxi driver was killed with a handgun as he was robbed while seated in the front seat of his taxi in a parking lot. The court affirmed summary judgment for the insurer on the ground that there was no causal connection between the injury and the use of the vehicle, even though the assailants indicated that the crime had been committed to rob the proceeds obtained from the use of the vehicle as a taxi. Similarly, in Washington v. Hartford Accident &c. Co., 161 Ga. App. 431, 432 (288 SE2d 343) (1982), the court found no causal connection where a passenger on a school bus was attacked with a pistol because the injury “resulted from a deliberate assault which took place in the vehicle simply because that is where the victim happened to be when the assailant came ‘gunning’ for him.”

In Parker, supra, on the other hand, the plaintiff revoked her attacker’s permission to drive the insured vehicle. The attacker beat her, placed her in a semi-conscious state on the road behind the car and ran over her body twice with the car. The court affirmed summary judgment for the insured because the vehicle became “uninsured” when the permission to drive it had been revoked. The victim was classified as a pedestrian injured by an uninsured motorist.

The instant case is distinguishable from Parker because the vehicle was not used to murder the victim. Nor was the car the locus of the crime. It was simply used to transport her to Kentucky. Such use is too remote and attenuated to establish the required causal nexus. See Westberry, supra at 702. To hold that coverage for injuries arising out of the operation, maintenance, or use of an insured vehicle extends to injuries suffered whenever the vehicle is involved in any way would be contrary to the original intent of the contracting parties. Nichols, supra at 1363.

Decided January 11, 1993.

Dennis, Corry, Porter & Gray, William E. Gray II, Robert G. Ballard, for appellant.

Nicholas E. Bakatsas, for appellee.

The insurer is entitled to summary judgment.

Judgment reversed. Birdsong, P. J., and Andrews, J., concur.


text:
    A92A2023.
    In the Interest of S. B., a child.
    (427 SE2d 52)
   Beasley, Judge.

The State appeals from the juvenile court’s grant of the minor appellee’s motion to suppress. The motion asserted that as the result of an illegal vehicle stop, officers recovered a gun allegedly stolen in a burglary and arrested the juvenile for theft by receiving. OCGA § 16-8-7. .

The motion hearing was not transcribed, but the parties stipulated the facts established by the testimony. OCGA § 5-6-41 (g). Two female county plain-clothes detectives, who were driving an unmarked police car, saw two white male teenagers sitting in an automobile parked on the wrong side of the road in downtown Brunswick at about 1:00 on a weekday afternoon. The officers thought this “just did not look right” because they were in a predominantly black neighborhood which was a high crime and drug area. Driving past the suspicious car, they pulled over to the side of the road to observe it. The boys drove away, turned right at the next intersection and, when the detectives followed, stopped on the right side of the road. After the detectives passed the car, then backed up and parked behind it, the boys moved off and turned at the next corner, then stopped again.

The detectives did not follow but remained in place and called in the tag number of the boys’ car. Appellee left the car and walked around the corner back towards the unmarked police car to offer his driver’s license and insurance card. When the detectives were notified by police radio dispatch that appellee’s car had been stopped by a patrolman a short time earlier, they got out of their car to talk to the boys. Appellee told them he had just dropped off a friend known as “Teddy Bear” who lived in the neighborhood. The detectives had previously received information that “Teddy Bear” was in possession of guns stolen from a local hardware store. The detectives learned that the car belonged to appellee and asked for his consent to search it. He replied, “Have at it.” A .22 caliber pistol which had been reported stolen was found under the driver’s seat.

The juvenile court granted the motion to suppress, without stating a reason. The parties stipulated that the ground was that the detectives had unintentionally effectuated a stop without any suspicion of wrongdoing by appellee and his friend. Assuming this to have been the court’s basis, “‘[i]n the absence of evidence of record demanding a finding contrary to the judge’s determination, this court will not reverse the ruling sustaining a motion to suppress. (Cit.)’ [Cit.]” State v. Combs, 191 Ga. App. 625, 627 (2) (382 SE2d 691).

The State contends that the actions of the detectives should not be construed as constituting an unlawful detention under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); and even if they did unintentionally make a stop, the search and seizure of the stolen gun were not necessarily invalidated as only an articulable suspicion of a violation was required for a valid stop and the appellee consented to the search of his car. Under the facts stipulated, no unlawful Terry stop has been shown, and the subsequent search and seizure were consensual and valid.

“Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. . . . [Appellee and his companion] were not unlawfully detained under Terry v. Ohio, supra; they were subjects of a permissible police and citizen encounter involving no coercion or detention. . . . Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. . . . United States v. Mendenhall, (446 U. S. 544 (100 SC 1870, 64 LE2d 497, 509) (1980)).” (Citations, indention and punctuation omitted.) State v. Jackson, 201 Ga. App. 810, 813-814 (2) (412 SE2d 593) (1991).

The detectives employed no physical force or show of authority to restrain appellee’s freedom of movement; at no time did they attempt to detain him. He voluntarily stopped after having driven away, and he approached the officers without their bidding and initiated the production of his driver’s license and proof of insurance, apparently aware he was under police surveillance. The record conclusively establishes that appellee was not initially stopped and detained by the detectives for any purpose whatsoever. O’Donnell v. State, 200 Ga. App. 829 (1) (409 SE2d 579) (1991).

The facts stipulated also show that appellee voluntarily agreed to allow the search of his car. “[M]erely approaching an individual and requesting that he give his consent for a search does not constitute a seizure and need not be supported by an articulable suspicion. ‘(E)ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, (cits.); and request consent to search . . ., (cit.) — as long as the police do not convey a message that compliance with their requests is required.’ Florida v. Bostick, 501 U. S._,_(111 SC 2382, 115 LE2d 389, 398) (1991).

“Accordingly, the validity of a warrantless consent search is ultimately dependent upon whether the officer’s conduct during the encounter was such as to demonstrate the effectuation of a non-consensual ‘seizure,’ not upon whether the initiation of the encounter has been authorized by the officer’s possession of an ‘articulable suspicion.’ . . . ‘[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free “to disregard the police and go about his business,” (cit.), the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.’ Florida v. Bostick, supra at 398. ‘(T)he existence of an articulable suspicion would have to be shown if the State had been seeking to uphold the search as the non-consensual product of an initial seizure of appellee. However, the State was not seeking to do so. It was the State’s position that the search was the consensual product of a mere verbal encounter which had involved no initial seizure of appellee and which need' not have been supported by the existence of an articulable suspicion.’ (Emphasis in original.) [Cit.] Thus the trial court erred insofar as it predicated the grant of appellee’s motion upon the lack of an ‘articulable suspicion’ to initiate the encounter.” (Emphasis in original.) State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992). The same result is compelled in this case.

Judgment reversed. Birdsong, P. J., and Andrews, J., concur.

Decided January 11, 1993.

W. Glenn Thomas, Jr., District Attorney, Stephen D. Kelley, Assistant District Attorney, for appellant.

Susan E. Perry, for appellee.


text:
    A92A2045.
    NUCKLES v. THE STATE.
    (427 SE2d 54)
   Beasley, Judge.

Appellant was arrested for selling crack cocaine to an undercover officer. At trial the State introduced similar transaction evidence of a prior drug sale to such an officer. Appellant was convicted and sentenced to life imprisonment pursuant to OCGA § 16-13-30 (d). His amended motion for new trial was denied.

1. The first enumeration is that the court erred in allowing the evidence of a prior plea of guilty of selling drugs, for the purpose of proving identity, because the offenses were not sufficiently similar so that proof of one would tend to prove commission of the other. He does not claim that the evidence was admitted for an improper purpose. At the hearing to determine admissibility of this evidence, the State showed that the prior sale occurred less than two years earlier. Both offenses were committed in the same town about one street apart, one at 4:00 p.m. and the other around 8:00 p.m. Both were $20 sales and on both occasions appellant was approached by vehicles with unfamiliar drivers as he stood in the street. Appellant admitted committing the prior offense and denied involvement in the incident on trial. The evidence met the necessary conditions warranting admission to prove identity, and it was not inadmissible for any reason assigned. Mosley v. State, 203 Ga. App. 275 (1) (416 SE2d 736) (1992). Accord Hunt v. State, 204 Ga. App. 799 (2d) (420 SE2d 656) (1992); Martin v. State, 204 Ga. App. 782 (3) (420 SE2d 645) (1992); Johnson v. State, 204 Ga. App. 246 (4) (419 SE2d 107) (1992); Gray v. State, 204 Ga. App. 33 (3) (418 SE2d 412) (1992).

2. Appellant further asserts that the trial court erred in overruling his objection to cross-examination concerning the prior offense, as this was irrelevant matter which only served to call his character in issue. “OCGA § 24-9-64 provides that all parties to a criminal proceeding are entitled to a thorough, sifting cross-examination as to the witnesses called against him. ‘The scope of cross examination rests largely within the discretion of the trial judge, and his discretion will not be controlled by the reviewing court unless abused.’ [Cits.] If a defendant testifies, he may be cross-examined by the prosecution like any other witness. [Cit.] [Having held in Division 1 that the evidence of the prior drug sale was admissible to prove identity], the issue was relevant to the case, and the appellant could be cross-examined concerning those prior actions of the appellant. . . . The appellant has failed to demonstrate any abuse of discretion in the area of cross-examination.” (Indention omitted.) Hooks v. State, 253 Ga. 141, 143 (3) (317 SE2d 531) (1984). See also Brown v. State, 183 Ga. App. 476 (1) (359 SE2d 233) (1987).

Decided January 11, 1993.

Robert Greenwald, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

3. In his final two enumerations appellant challenges the mandatory life sentence provisions of OCGA § 16-13-30 (d) as contributing cruel and unusual punishment and thus contrary to, respectively, the United States and Georgia Constitutions.

These two issues were not raised at the time of sentencing, which occurred immediately following the verdict. Defendant agreed that the sentence was mandatory under the statute and did not challenge it. It was not until the amendment to the motion for new trial that defendant raised the issues of state and federal constitutionality. This being untimely, the two enumerations present nothing for appellate review. Shivers v. State, 261 Ga. 736 (1b) (410 SE2d 122) (1991), and cases cited therein.

Even if the issues had been properly raised, the federal ground has been rejected by the Supreme Court of Georgia. Grant v. State, 258 Ga. 299, 300 (2) (368 SE2d 737) (1988). The United States Supreme Court held in Harmelin v. Michigan, 501 U. S._(111 SC 2680, 115 LE2d 836) (1991), that Michigan’s mandatory life term without possibility of parole, for possessing 672 grams of cocaine, did not violate the Eighth Amendment.

As to the state constitutional ground, since it was tardy and thus procedurally defective, it is unnecessary to transfer the case to the Supreme Court of Georgia, due to its exclusive jurisdiction of such matters, for consideration of the merits. Ga. Const. 1983, Art. VI, Sec. VI, Par. II (1).

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


text:
    A92A2097.
    HILL v. THE STATE.
    (426 SE2d 915)
   Beasley, Judge.

Hill was indicted and tried in six counts for (1) vehicular homicide in the first degree by driving a vehicle in reckless disregard for the safety of persons and property (guilty); (2) vehicular homicide in the first degree by causing death through driving and being in actual physical control of a moving vehicle while under the influence of cocaine and marijuana to a degree which rendered him incapable of safely driving (not guilty); (3) reckless driving in disregard of persons and property (merged with Count 1); (4) driving under the influence of drugs while in actual physical control of a moving vehicle to the extent that it was less safe to drive (guilty); (5) homicide by vehicle in the second degree for unlawfully driving a vehicle so as to cause the death of another person by improperly passing another vehicle in a no-passing zone (merged with Count 4); and (6) improper passing (guilty). He appeals from the denial of his motion for new trial.

The evidence presented at trial showed that Hill was driving a refrigerated truck west on Highway 138 between Athens and Atlanta near Conyers. The driver of a county dump truck in front of Hill testified that he was driving at about 45 or 50 mph starting up a hill on a two-lane road with a left-turn-only lane in the middle. He thought he saw Hill’s truck pulling up to come around him in the left turn lane. When the truck got to the rear tires of the dump truck, he “heard brakes and the flash of a car go by” from the opposite direction, and then heard a collision directly behind him. In his rear view mirror he saw Hill’s truck slide sideways and turn over, and he radioed the police before he went back to check on the collision. Hill was sitting on the ground and shook his head when asked if he was okay.

Another witness testified that he was driving east on Highway 138 when he saw a white truck with a refrigerated compartment come over the centerline from the turning lane about two feet into his lane. The witness thought the truck was going to hit his vehicle, but it missed and he heard it hit the car right behind him. He stopped when he saw Hill’s truck overturn and was the first person to get to the victim’s car, where he discovered she was dead. The victim’s car left about 46 feet of skid marks prior to impact; the entire driver’s side was damaged and the roof was crushed in with the victim trapped inside. Hill’s truck had lost a front axle and left front tire and was damaged along the side where the gas tank and refrigerated unit protruded. The truck left no skid marks prior to impact but traveled 162 feet after impact before it overturned.

Hill was taken by ambulance to the hospital complaining of pain. His eyes were not dilated and his speech was not slurred. After he was read the implied consent rights and signed a form agreeing to such tests, blood and urine samples were taken. A blood analysis was performed by the State Crime Lab which revealed the presence of marijuana metabolites indicating that Hill had either used marijuana within the past several hours or was a chronic abuser. The urinalysis disclosed a minute amount of cocaine in Hill’s system. The officer who acquired Hill’s consent to administer the tests testified that Hill told him at the hospital that “he should not have taken no street drugs.” Hill admitted at trial that he had ingested both cocaine and marijuana but swore he had not used any drugs in the 72 hours prior to the collision. He claimed he was not attempting to pass the county dump truck but was driving down the road when he heard a bump, and the next thing he knew he was lying on the side of the road.

1. Appellant contends that since he was acquitted of the Count 2 charge of driving while under the influence of drugs, the evidence was insufficient to convict him of vehicular homicide by reckless driving under Count 1 of the indictment because there could be no evidence of drug use to prove any reckless driving.

This court has previously held that where an accused is charged with reckless driving, test results showing his use of drugs are admissible because the reckless driving violation could have been precipitated by the drug usage. Nash v. State, 179 Ga. App. 702 (4) (347 SE2d 651) (1986). “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover an appellate court . . . does not weigh the evidence or determine witness credibility. [Cit.] And, the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) ‘is the proper test for (an appellate court to employ) when the sufficiency of the evidence is challenged. . . .’ [Cits.]” Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367) (1991). “The evidence was sufficient for any rational trier of fact to find beyond a reasonable doubt that appellant’s conduct in [driving while under the influence of drugs, attempting to pass in a no-passing lane and] driving on the wrong side of the road constituted ‘reckless disregard for the safety of (others).’ OCGA § 40-6-390.” Shadix v. State, 179 Ga. App. 644, 645 (3) (347 SE2d 298) (1986).

2. Appellant complains that the trial court erred in failing to charge in regard to the standard of proof by circumstantial evidence under OCGA § 24-4-6. He concedes that the court did define circumstantial evidence in the charge, and that he neither requested an instruction containing the statutory language nor objected to the charge as given. Objections not made at trial are deemed waived and cannot be raised for the first time on appeal. Jacobson v. State, 201 Ga. App. 749, 751 (2) (412 SE2d 859) (1991). Even where proper request is made, the failure to give the requested instruction is not ground for a new trial where the charge given substantially covers the same principies. Burris v. State, 204 Ga. App. 806, 811 (3) (420 SE2d 582) (1992). This enumeration is without merit.

3. Appellant contends that the trial court’s charge on criminal negligence was in error as criminal negligence has no part in the prosecution of the crime of vehicular homicide. To the contrary, “[s]uch a charge is applicable to vehicular homicide, regardless of the grade of the offense. [Cits.]” Conyers v. State, 260 Ga. 506, 509 (6d) (397 SE2d 423) (1990). Compare Abernathy v. State, 191 Ga. App. 350 (2) (381 SE2d 537) (1989).

This issue was not preserved for appellate review. When the trial court asked if there were any exceptions to the charge as given, defense counsel responded “no.” A party cannot acquiesce to a charge and then complain of it on appeal and, as there was no error in the charge or harm as a matter of law, there is no merit in this enumeration. Pressley v. State, 197 Ga. App. 270 (4) (398 SE2d 268) (1990).

4. Appellant complains that the trial court erred in its recharge to the jury on the issue of driving under the influence of drugs by repeating one sentence at the request of the jurors, as such “bifurcation” served to over-emphasize this part of the charge. The complete charge, to which no objection was made when it was first given, was taken from OCGA § 40-6-391 (a) (2) and (5); the sentence the jury asked to hear again was from subdivision (a) (5).

“ ‘A mere repetition of a principle of law, while unnecessary, will not work a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law in relation to the defendant’s rights. Mere repetition of a correct and applicable principle of law is not such error as requires reversal unless it takes color of an argumentative or opinionative utterance so as to tend to prejudice the minds of the jury.’ (Citations and punctuation omitted.) [Cits.]” Bradford v. State, 202 Ga. App. 724, 725 (2) (415 SE2d 697) (1992). Appellant has offered no rationale for his assertion that the repetition of this correct statement of law served to prejudice the minds of the jury, and we perceive no ground for reversal.

5. Appellant contends he was subjected to double jeopardy under the federal and Georgia constitutions by his conviction under Count 4, for driving under the influence of drugs while in actual physical control of a moving vehicle to the extent it was less safe to drive (OCGA § 40-6-391 (a) (2)), when he was acquitted of Count 2, for causing the death of another person through such driving (homicide by vehicle in first degree, OCGA § 40-6-393 (a)). He cites the federal Fifth Amendment and the thirteenth paragraph of Georgia’s Bill of Rights, as well as OCGA § 16-1-6; 16-1-7; and 16-1-8. The statutes expand the constitutional prohibitions and place limitations on multiple prosecutions, convictions, and punishment for the same conduct. Stone v. State, 166 Ga. App. 245 (1) (304 SE2d 94) (1983); Collier v. State, 195 Ga. App. 380, 381-382 (393 SE2d 509) (1990).

It is true that, if appellant had been convicted of both crimes, the conviction of the lesser crime in Count 4 would have merged with the greater crime in Count 2, for all of the elements of Count 4 were included in Count 2. Count 2 required the additional element that such conduct cause the death of another person, so it was the greater crime. A defendant may be prosecuted for each crime arising from the same conduct but may not be convicted of more than one crime if one is included in the other. State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974). The trial court recognized the merger principle by applying it to the verdict of guilty in Count 3.

But in this instance, no such merger was necessary, because appellant was found not guilty of Count 2. Having been convicted of only one of the two offenses involving driving under the influence of drugs, as contained in Counts 2 and 4, no double jeopardy occurred.

6. In his final enumeration, appellant claims that he was denied the right to effective counsel in violation of his state and federal constitutional rights. Appellant was represented by another attorney through the trial and by present counsel after the verdict was rendered. Although his appellate counsel filed a motion for new trial, the issue of ineffective assistance of counsel was not raised or ruled upon by the trial court. The question presented here was conclusively resolved by the Supreme Court in White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991), which stated: “It is a well established rule that any allegation of a violation of the right to counsel should be made at the earliest practicable moment. [Cit.] Because an attorney cannot reasonably be expected to assert or argue his or her own ineffectiveness, claims of ineffective assistance of counsel are often properly raised for the first time in a habeas corpus petition. However, in Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987), we held that where new counsel appointed or retained after the trial amends the motion for new trial without raising the issue of ineffective assistance, the claim was waived. In Johnson v. State, 259 Ga. 428 (383 SE2d 115) (1989), we held that the claim may be raised for the first time in the direct appeal if the direct appeal marks the first appearance of new counsel. The rule is consistent: New counsel must raise the ineffectiveness of previous counsel at the first possible stage of post-conviction review.” Since this rule was not followed here, the issue has been waived in this direct appeal.

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

Decided January 11, 1993.

Donald C. Turner, Walter M. Henritze, Jr., for appellant.

Cheryl F. Custer, District Attorney, for appellee.

         As shown by the jury’s verdict of “guilty” on Count 1 and “not guilty” on Count 2, the jury found that appellant’s reckless manner and place of driving, rather than his drugged condition, caused the homicide.


author: Carley, Presiding Judge.

text:
    A92A1661.
    CANAL INDEMNITY COMPANY/STRICKLAND GENERAL AGENCY, INC. et al. v. ALLSTATE INSURANCE COMPANY.
    (427 SE2d 66)
    Decided January 12, 1993.

      Crim & Bassler, Thomas S. Bechtel, Mitchell S. Evans, Joseph M. Murphey, for appellants.

      Chambers, Mabry, McClelland & Brooks, Jan P. Cohen, F. Scott Young, for appellee.
   Carley, Presiding Judge.

The relevant facts in this appeal are as follows: Ms. Carol Holder was injured while operating a borrowed vehicle. This vehicle was covered by a policy issued by appellant-plaintiff. Appellant paid no-fault benefits to Ms. Holder and took from her an assignment of her right to recover those benefits under a policy that had been issued to her parents by appellee-defendant. Pursuant to this assignment, appellant brought suit against appellee. The trial court granted appellee’s motion to dismiss for failure to state a claim and appellant appeals.

Appellant is an insurer that provided no-fault benefits to Ms. Holder. Compare Santiago v. Safeway Ins. Co., 196 Ga. App. 480 (1) (396 SE2d 506) (1990) (wherein the assignee of the no-fault claim was a health-care provider and not a no-fault carrier). As an insurer that provided no-fault benefits to Ms. Holder, appellant cannot be subrogated to Ms. Holder’s rights except in the two instances specified in former OCGA § 33-34-3 (d) (1). Neither of those two specified instances are applicable in the instant case. It follows, therefore, that the trial court correctly granted appellee’s motion to dismiss for failure to state a claim.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A1724.
    NATIONAL MEDIA SERVICES, INC. v. THORP.
    (427 SE2d 61)
   Carley, Presiding Judge.

Appellee-plaintiff filed suit, seeking to recover commissions which he had allegedly earned during his employment with appellant-defendant. Appellant answered and also moved to disqualify appellee’s counsel. The trial court denied appellant’s motion, but certified its order for immediate review. Appellant applied for an interlocutory appeal and the instant appeal results from the grant of that application.

1. Appellant’s motion was premised upon Crawford W. Long Mem. Hosp. &c. v. Yerby, 258 Ga. 720 (373 SE2d 749) (1988). In that case, counsel, who had formerly defended malpractice suits brought by patients of the hospital, filed a malpractice suit on behalf of a hospital patient. The events which underlay the malpractice suit brought by counsel had occurred during the same period of time as the events which underlay the malpractice suits previously defended by him. It was held that “[t]he circumstance of representing a client against a former client in an action that is of the same general subject matter, and grows out of an event that occurred during the time of such representation, creates an impermissible appearance of impropriety. It is therefore prohibited by the Canons of Ethics. For this reason, the motion to disqualify should have been granted.” (Emphasis omitted.) Crawford W. Long Mem. Hosp. &c. v. Yerby, supra at 722.

Appellee’s counsel in the instant case had previously undertaken the collection of debts which were owed to appellant by its advertising clients for the services rendered to them. In the instant case, however, he does not represent one of appellant’s clients in a suit involving appellant’s advertising services. Appellee is a former employee of appellant, not a former client, and his claim is premised upon the services that he performed in his capacity as appellant’s employee, not upon the advertising services that appellant rendered to its clients. Appellant’s former legal efforts to collect the debts owed by its clients and appellee’s instant action to recover commissions from appellant may both involve contracts, but appellant’s advertising contracts with its clients and appellee’s employment contract with appellant are “unrelated [contract] claims [which] would not contravene the rule” of Crawford W. Long Mem. Hosp. &c. v. Yerby, supra at 722, fn. 2. Under appellant’s theory, appellee’s present counsel could never serve as opposing counsel in any suit even remotely connected with appellant’s business-related contracts. However, the motion to disqualify was granted in Yerby because counsel, having previously defended against allegations of the hospital’s professional negligence, was seeking to prove allegations of the hospital’s professional negligence. The malpractice actions may not have been “substantially related” to one another, but they all related to the “same general subject matter” of the quality of care provided by the hospital. The instant action concerns a former employee’s compensation claim against his employer. It is neither “substantially related” to the former employer’s claims against its clients nor does it relate to the “same general subject matter” of the former employer’s advertising services. In his former representation of appellant, appellee’s present counsel may have gained general knowledge concerning appellant’s business operations. However, “there was no evidence that [appellant’s] confidences or secrets had been or would be disclosed, or that any other improper actions had been or would be taken.” Knoxville Med. Investors, Ltd. v. Nat. Healthcorp L. P., 192 Ga. App. 460, 461 (2) (385 SE2d 110) (1989). It follows that the Yerby decision does not mandate the grant of appellant’s motion to disqualify appellee’s present counsel. See also Hastings v. Courtland, 197 Ga. App. 508, 509 (1) (398 SE2d 747) (1990).

2. Appellee’s present counsel has an office-sharing arrangement with appellant’s former general counsel. Compare McMahon v. Seitzinger Bros. Leasing, 506 FSupp. 618 (E.D. Penn. 1981). Urging that appellee could not be represented by its former general counsel, appellant contends that appellee’s present counsel is likewise disqualified.

Directory Rule 5-105 (D) of the Rules and Regulations of the State Bar provide: “If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.” However, any disqualification of appellant’s former general counsel from representing appellee would be based upon Disciplinary Standard 69 of the Rules and Regulations of the State Bar and not upon DR 5-105. Accordingly, “DR 5-105(D) is not grounds for the disqualification of [appellee’s present counsel] even if he could be considered an associate of [appellant’s former general counsel].” Dodson v. Floyd, 529 FSupp. 1056, 1065 (IV) (N.D. Ga. 1981).

Although they have an office-sharing arrangement, there is no evidence that appellant’s former general counsel has or will disclose confidences or secrets of appellant to appellee’s present counsel. See Dodson v. Floyd, supra at 1066 [14, 15]. Instead, the evidence shows that appellant’s former general counsel has severed his connection with appellant and has not been actively involved in the instant case. Compare McMahon v. Seitzinger Bros. Leasing, supra. Accordingly, the trial court did not err in finding that the office-sharing arrangement constituted no basis for disqualifying appellee’s present counsel.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.

Decided January 12, 1993.

Goodman & Bush, F. Clay Bush, Norman L. Smith, for appellant.

Wagner & Johnston, C. David Johnston, John H. Watson, for appellee.


text:
    A92A1789.
    CHANEY v. THE STATE.
    (427 SE2d 63)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of possession of cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict and enumerates as error only the denial of his motion to suppress.

Appellant urges that the cocaine was discovered as the result of an unauthorized seizure of his person. However, “[a] police officer may make a brief, investigatory stop, provided the officer has a reasonable, articulable suspicion that the person stopped has been, is, or is about to be engaged in criminal activity, and the nature and extent of the detention is minimally intrusive. [Cit.] In the instant case, the officer[s’] personal observation^] of what appeared to be a drug sale provided sufficient basis for conducting a brief, investigatory stop.” Hamrick v. State, 197 Ga. App. 89, 90 (1) (397 SE2d 503) (1990). “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.” State v. Misuraca, 157 Ga. App. 361, 364 (276 SE2d 679) (1981). “Although it is obvious that every arrest includes detention, not every detention is an arrest. . . .” Radowick v. State, 145 Ga. App. 231, 238 (3) (244 SE2d 346) (1978).

Not only were the officers authorized to effectuate a brief, investigatory stop of appellant, they were also authorized to conduct a pat-down of appellant to determine whether he was armed. See generally Hayes v. State, 202 Ga. App. 204 (414 SE2d 321) (1991). The encounter did not become an illegal “arrest” simply because the officers requested that appellant step some 20 feet into a better-lighted area in order to conduct the investigation and pat-down. “ ‘An officer may take appropriate self-protective measures when he lawfully confronts an individual and reasonably believes him to be armed or otherwise dangerous to the officer or others. The usual police response will be to conduct a frisk, patting the individual’s clothing in search of a weapon. (Cits.) Where an immediate frisk is not feasible, however, the officer will be justified in approaching the suspect with weapon drawn or at the ready. (Cits.) The key question in all cases remains whether the protective measures taken by the officer were reasonable under the circumstances.’ [Cits.]” Edwards v. State, 165 Ga. App. 527, 528 (301 SE2d 693) (1983). Under the circumstances of this case, the officer’s request that the appellant move into a better-lighted area was a reasonable protective measure.

Decided January 12, 1993.

Alexandrina H. Douglass, for appellant.

Lewis R, Slaton, District Attorney, Carl P. Greenberg, William C. Akins, Anita Wallace, Assistant District Attorneys, for appellee.

After the pat-down, one of the officers observed appellant drop onto the ground what appeared to be cocaine and then attempt to conceal it with his foot. When appellant was seen attempting to dispose of the cocaine and to conceal it, the officers’ “reasonable suspicion that [appellant] might be engaged in criminal activity matured into probable cause for an arrest. . . .” State v. Deshon, 194 Ga. App. 425 (390 SE2d 651) (1990). Accordingly, the cocaine was not discovered as the result of an unauthorized seizure of appellant’s person. Compare State v. Brown, 201 Ga. App. 771 (412 SE2d 583) (1991) (wherein an unlawful arrest preceded the discovery of the contraband). The cocaine was discovered as the result of an authorized investigatory stop and that lawful discovery then authorized appellant’s arrest. It follows that the trial court correctly denied appellant’s motion to suppress.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A1817.
    CHOI v. WAN.
    (427 SE2d 64)
   Carley, Presiding Judge.

Appellant-plaintiff brought suit, seeking to recover for services performed in the resetting of pieces of appellee-defendant’s jewelry. Appellee counterclaimed, alleging that appellant had converted the gems presented for resetting and had substituted gems of inferior quality. The case was tried before a jury and a verdict in appellee’s favor was returned as to both the main claim and the counterclaim. Appellant appeals from the judgments entered by the trial court on the jury’s verdicts.

1. Appellant’s complaint contained an allegation that appellee had “made promises and statements to [appellant] as to the quality of [appellee’s] jewelry and promises to pay [appellant] for work performed by [appellant]” and that “at the time the statements were made by [appellee, appellee] knew the statements were false.” The trial court granted a directed verdict in favor of appellee as to these allegations of “fraud” and appellant enumerates this ruling as error.

Appellant was not buying appellee’s gems, merely resetting them. Accordingly, any misrepresentation as to the quality of appellee’s jewelry would not be an actionable fraud. Likewise, appellee’s broken promise to pay for appellant’s services would support only a claim for breach of contract and not for actionable fraud. See Tallent v. Scarratt, 51 Ga. App. 577, 578 (181 SE 141) (1935). Appellant urges that she was being defrauded because appellee was falsely claiming that the gems which had been returned were not those which had been delivered for resetting. If appellee were falsely claiming that her gems had been converted by appellant, that would certainly provide appellant with a defense to appellee’s counterclaim for conversion, but would not afford appellant a basis for recovery in fraud against appellee. Since the evidence clearly failed to authorize a finding that appellant had an independent claim for any actionable fraud, the trial court correctly granted the motion for a directed verdict.

2. Appellant enumerates as error the exclusion of several photographs. However, the excluded photographs were not included in the record on appeal. Accordingly, this enumeration presents nothing for review. Cofer v. Turman, 151 Ga. App. 72 (258 SE2d 922) (1979).

3. Appellant enumerates as error the admission of a photograph of another piece of appellee’s jewelry which was not related to the case. The record demonstrates, however, that the trial court refused to admit the photograph and that the only photographs which were admitted were those which depicted the pieces of appellee’s jewelry which were related to the case. Thus, this enumeration clearly has no merit.

4. Appellant enumerates as error the admission of testimony of appellee’s expert witness. However, the objection to the admission of the testimony that is urged on appeal was not raised below. The objection that was raised below is not urged on appeal. Accordingly, this enumeration has no merit.

5. In her motion for new trial, appellant urged that the verdict was excessive. The trial court’s failure to grant a new trial on this ground is enumerated as error. However, “ ‘[w]here[, as here,] the judgment of the trial court awards damages within the range of the conflicting testimony, this court will not reverse the judgment of the trial court on the ground the judgment was excessive. [Cit.]’ [Cits.]” Carlson v. Carlson, 154 Ga. App. 839 (270 SE2d 65) (1980).

6. Appellant’s remaining enumerations of error have been considered and found to be without merit.

Decided January 12, 1993.

Clifford H. Hardwick, for appellant.

Hiles, Rowen & Klonoski, Sharon L. Rowen, for appellee.

Judgments affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A1839.
    SMITH v. AIR AMBULANCE NETWORK, INC.
    (427 SE2d 305)
   Carley, Presiding Judge.

While in Germany, appellant-plaintiff, a Georgia resident, contracted with appellee-defendant, a Florida corporation, to provide air ambulance service to Atlanta. When those services were not performed, appellant filed suit for breach of contract and fraud. Appellee moved to dismiss for lack of personal jurisdiction. The trial court granted appellee’s motion and appellant appeals.

“Georgia’s Long Arm Statute states that the courts of this State may exercise personal jurisdiction over any nonresident as if he were a resident of the State, if in person or through an agent he: ‘(1) Transacts any business within this State. . . .’ This has been interpreted to mean that ‘purposeful acts’ must have been performed by the defendant to tie it to the State, and ‘(m)ere telephone or mail contact with an out-of-state defendant, or even the defendant’s visits to this state, is insufficient to establish the purposeful activity with Georgia required by the “Long Arm” statute. (Cit.)’ [Cits.]” Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, 893 (1) (380 SE2d 303) (1989). Likewise, appellee’s mere placement of advertisements in Georgia would be insufficient to authorize the exercise of personal jurisdiction. See Flint v. Gust, 180 Ga. App. 904, 905 (1) (351 SE2d 95) (1986), reversed on other grounds, Gust v. Flint, 257 Ga. 129 (356 SE2d 513) (1987).

“Basically, all that existed [in the instant case] were the out-of-state negotiations that led to the signing of the contract and the contract itself, which the Supreme Court [of the United States] . . . indicated was not [itself] sufficient to meet the minimum contacts requirement. There was no subsequent course of dealing established between the parties as a result of the contract, nor did the future consequences of the contract come to fruition. [Appellee] did nothing beyond entering into the contract that constituted a purposeful engagement of activities within the forum.” Mayacamas Corp. v. Gulfstream Aerospace Corp., supra at 894 (1). That appellee provided ambulance service into and out of Georgia on previous occasions is irrelevant. The Long Arm Statute requires that the cause of action arise from the act of transacting business in Georgia. Castleberry v. Gold Agency, 124 Ga. App. 694, 697 (2) (185 SE2d 557) (1971). In the instant case, appellee’s cause of action arose entirely as the result of transactions occurring outside Georgia. Accordingly, the trial court correctly held that it lacked personal jurisdiction over appellee as to appellant’s breach of contract claim. See Behar v. Aero Med Intl., 185 Ga. App. 845 (2) (366 SE2d 223) (1988).

Decided January 12, 1993.

Cofer, Beauchamp & Butler, Bryant K. Smith, for appellant.

Greenfield, Bost & Kliros, Thad C. Gould, for appellee.

Likewise, the trial court correctly held that it lacked personal jurisdiction over appellee as to appellant’s tort claim. Both the allegedly tortious act and the resulting injury occurred outside Georgia. Under these circumstances, OCGA § 9-10-91 (2), (3), the subsections of the Long Arm Statute dealing with tort claims, would not be applicable. Whitaker v. Krestmark of Ala., 157 Ga. App. 536, 537 (1) (278 SE2d 116) (1981). “The damage from the allegedly tortious act was not sustained in Georgia simply because the plaintiff ... is a resident of Georgia.” Atlanta Propeller Svc. v. Hoffman GMBH &c., 191 Ga. App. 529, 530 (1) (382 SE2d 109) (1989).

Judgment affirmed. Pope, C. J., and Johnson, J., concur.