author: Smith, Presiding Judge.

text:
    A02A0418.
    FERRELL v. THE STATE.
    (569 SE2d 899)
   Smith, Presiding Judge.

James Matthew Ferrell was indicted on three counts of child molestation and one count of aggravated sexual battery. He was tried by a jury, which found him guilty on two counts of child molestation. The jury could not reach a verdict on the remaining counts, and a mistrial was declared as to those counts. Ferrell’s motion for new trial, as amended, was denied, and he appeals. Ferrell raises the general grounds, challenges the admission of certain evidence, and asserts that his trial counsel was ineffective. We find no merit in these contentions, and we affirm his convictions.

Construed to support the jury’s verdict, the evidence presented at trial showed that the victim’s parents divorced when she was very young, and her mother married Ferrell when the victim was four years old. The victim lived with her mother and Ferrell for approximately a year, when her father obtained custody. After that, the victim visited her mother often, spending at least every other weekend at Ferrell’s residence.

The victim last visited Ferrell’s residence the weekend of her ninth birthday, in 2000. The following week, she attended a presentation at her school, which was sponsored by the Department of Family and Children Services (DFACS). The presentation was a puppet show, and its purpose was to encourage children to report abuse. Although the victim was an honor roll student, her teacher had referred her to a counseling session for children whose parents were divorced or separated. At that session, which took place after the puppet show, the victim started to say something very personal, and the counselor stopped her and told her she needed to come and talk to him privately. When she did, that same day, she disclosed that her stepfather had been touching her repeatedly in her “private part” since she was about seven years old. She stated that this happened almost every visit to his home. She also told the counselor that she had heard her stepfather making telephone calls to “other girlfriends” and wanted her to be his girlfriend. The counselor noted that the victim did not know whether the “girlfriends” were children, like her, or women. Ferrell later testified that the call in issue was to an “adult entertainment line.” The victim told her mother, but her mother did not believe her. She also revealed that she was “scared that she would not be able to see her mother.” The victim testified that she had told the counselor about the molestation because she was “tired of holding it in” and she trusted the counselor and believed he could help.

The counselor reported this outcry to DFACS, which instituted an investigation. The victim then also confided in her father and stepmother, informing them that Ferrell had touched her chest area several times, had placed a finger in her vagina, and had asked her to touch his penis. She also told them she had heard Ferrell talking on the telephone and asking if the person on the other end “had panties on” and that he had asked her once to be his girlfriend.

DFACS and police officers interviewed the victim. The interview was recorded on videotape and played for the jury. The victim confirmed the sexual abuse, which she said occurred almost every time she visited her mother’s home. She confirmed this abuse at trial, including the telephone sex, and she also described an incident that occurred at Ferrell’s grandmother’s home. The victim’s mother acknowledged knowing that Ferrell engaged in telephone sex, and she testified that Ferrell admitted that he had occasionally masturbated while doing so.

A sex crimes detective testified that in an interview with the detective, Ferrell was confronted with the victim’s allegation that he had touched her breast, and he admitted “that’s absolutely possible.” He later admitted that it was “very possible” that while lying on top of the victim he had an erection, that he had masturbated while the children were in the house, and that the children “may have seen him masturbating.” He stated that it was “probably the truth” that he did so in the little girl’s bedroom. He stated that he had “been fighting and battling what I do, where to go with it,” but that he was a different person when he did those things. He stated that when his stepdaughter asked him why he was lying to everyone about having done them, he finally came to the realization that he was hurting her. He supposed he was “in self-denial” and could not believe he would ever do such things. But he conceded that “the truth is, I did it.”

Ferrell testified at trial and denied saying that he ever molested the victim. He attributed the touching to incidental contact during horseplay. He explained his apparent admissions by saying that he meant to say that he did hurt his stepdaughter in some way, although he still did not realize how he had hurt her. He did admit that he sometimes masturbated while the children were in the house and awake and that he had sometimes done so while talking on the telephone.

1. Ferrell contends that the evidence was insufficient to prove his guilt beyond a reasonable doubt. We do not agree.

On appeal, we must view the evidence in the light most favorable to the jury’s verdict, and Ferrell no longer enjoys a presumption of innocence. Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998) . The victim testified in this case, and the evidence of the victim alone was sufficient to authorize the jury to find Ferrell guilty of two counts of child molestation. No requirement exists that this testimony be corroborated. Sewell v. State, 244 Ga. App. 449, 451 (1) (c) (536 SE2d 173) (2000). The jury obviously believed the victim’s testimony as to the two counts on which Ferrell was found guilty. Determining the credibility of witnesses is entirely within the province of the jury. Roundtree v. State, 237 Ga. App. 669 (516 SE2d 533) (1999).

2. Ferrell maintains the trial court erred in permitting the State to show, over objection, that he made calls to telephone sex lines and that he masturbated. We do not agree.

Ferrell relies upon Simpson v. State, 271 Ga. 772 (523 SE2d 320) (1999) , in which our Supreme Court took the

opportunity to put forth a clear and cogent rule: In a prosecution for a sexual offense, evidence of sexual paraphernalia found in defendant’s possession is inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity. Under this rule, sexually explicit material cannot be introduced merely to show a defendant’s interest in sexual activity. It can only be admitted if it can be linked to the crime charged.

Id. at 774 (1). Ferrell argues that the admission of evidence that he telephoned adult sex lines or that he masturbated violates the rule set forth in Simpson.

But Simpson specifically prohibits the introduction of physical evidence of sexual paraphernalia unless it is linked to the crime charged. We need not decide here whether Simpson also applies to evidence of a defendant’s sexual conduct as well, because the trial court, well aware of the holding in Simpson, properly ruled that it would exclude evidence of the calls to an adult sex line unless they were made in the child’s presence or the calls themselves involved children as substance matter. Ferrell admitted that one such telephone conversation took place in the victim’s presence.

Decided July 11, 2002

Reconsideration denied July 25, 2002.

Thomas J. Gustinella, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

Similarly, the court permitted the evidence of masturbation because it took place in the presence of children. Although the evidence was in some conflict regarding exactly where the victim was, it was shown that Ferrell masturbated in the room she slept in while visiting, that his two sons were playing nearby, and that Ferrell told a detective that this was “probably the truth.” Under these circumstances, the trial court did not err in admitting this evidence.

3. Ferrell asserts that his trial counsel was ineffective because he failed to object to certain questioning of the victim, which he maintains improperly bolstered her testimony. Ferrell is mistaken.

The testimony pointed to by Ferrell was not objectionable. The victim was questioned routinely before her substantive testimony to establish that she was competent by showing that she knew the difference between the truth and a lie and that she was aware that lying was wrong and had consequences. Eliciting such testimony from the child is necessary because “ultimately the jury . . . must decide what credit to place on that testimony. [Cits.]” State v. Oliver, 188 Ga. App. 47, 50 (2) (372 SE2d 256) (1988). To this end, “evidence concerning the child’s understanding of the oath, intellectual maturity or any other factor affecting her capacity to testify is to be developed from the examination of the child herself. [Cits.]” Id. The stepmother did not testify to her child’s truthfulness, but only to the instructions the child was given. Her testimony showed only that the victim was told to tell the truth. Since we find no error in this testimony, trial counsel was not ineffective in failing to object. “Failure to make a meritless objection cannot be evidence of ineffective assistance.” Hayes v. State, 262 Ga. 881, 884-885 (3) (c) (426 SE2d 886) (1993).

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

       We note that some recent cases appear to have extended the Simpson prohibition to testimony regarding sexual paraphernalia and to sexual acts - even to unfulfilled sexual requests - by the defendant. See, e.g., Frazier v. State, 241 Ga. App. 125-126 (1) (524 SE2d 768) (1999). But see Eggleston v. State, 247 Ga. App. 540, 541-542 (1) (544 SE2d 722) (2001) (sexual act, not sexually explicit material, at issue, so Simpson does not apply). In some cases, as here, it has not been necessary to reach this issue, because the evidence was otherwise linked to the offense. See, e.g., Burk v. State, 253 Ga. App. 272, 273 (1) (558 SE2d 726) (2001).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A1219.
    EADY v. THE STATE.
    (569 SE2d 603)
   Blackburn, Chief Judge.

Following a jury trial, Johnny B. Eady appeals, contending that there was insufficient evidence to convict him of aggravated assault and burglary. For the following reasons, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [Eady] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

Cockrell v. State. See Jackson v. Virginia.

So viewing the evidence, the record shows that, on September 1, 1996, John L. Brown and Josephine Newberry lay down to sleep in the bedroom just inside the front door of their residence at approximately 10:00 p.m. Earlier that evening, Brown’s stepson held a party in the yard of the home, but the guests had left. About midnight, Brown awoke and saw Eady standing inside and behind his front door. Brown grabbed Eady’s shirt and tried to push him outside the door. When they got to the door, Eady spun around and cut Brown on the chest with a knife. Brown picked up a stick broken from the back of a chair and hit Eady. As the two wrestled, Brown pushed Eady onto the front porch, and then they continued to struggle in the yard. Brown kept hitting Eady with the stick, and Eady stabbed Brown with the knife two more times. Eady lived two doors from Brown and had dated Newberry about three years earlier.

1. Eady challenges the sufficiency of the evidence, arguing that the State did not present sufficient evidence to overcome Eady’s evidence of self-defense to the aggravated assault charge. Eady did not testify at the trial, but his statement to the police patrolman after his arrest was read into the evidence. He stated that he had been drinking with Brown, Newberry, and others at Brown’s residence. Brown fell asleep. When he woke up, he asked Newberry who Eady was and demanded he leave. Eady claimed that Brown struck him with a long stick as he was attempting to leave and struck him again as he stepped onto the porch. He further claimed that he did not pull out his knife and cut Brown until after Brown hit him with the stick. He also stated that Brown threatened to kill him.

In contrast, both Brown and Newberry testified at trial that Eady had not been at the party or at their residence before he was discovered behind the door of the bedroom at midnight. Further, both stated that Brown was cut by Eady’s knife before Brown picked up the chair round and struck Eady. Newberry also testified that while Brown and Eady were struggling in the yard, Eady threatened to kill Brown.

The weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness for it is the function of the triers of fact to determine to what evidence it gives credence.

(Punctuation omitted.) Norris v. State. “[T]he question whether the circumstances of the confrontation between appellant and the victim ‘were such as to excite the fears of a reasonable person that he had to use deadly force in order to prevent the use of deadly force against him’ ” is also a matter to be determined by the jury. Akins v. State. Thus, “[w]e find the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that [Eady] did not act in self-defense when he stabbed the victim and that he was guilty of [aggravated assault].” Id.

2. Eady also contends that the evidence was insufficient to convict him of burglary because the State failed to prove that Eady had the intent to commit a theft or a felony within Brown’s residence. “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another.” OCGA § 16-7-1. The element of entry is uncontroverted; Eady does not dispute that he was present within the residence of Brown and Newberry on September 1, 1996. Instead, he argues that the weight of the evidence shows that the felony upon which the State bases the burglary charge was not committed inside the residence, and there was no other evidence of an intent to steal or commit a felony. Eady points out that New-berry testified that when she saw Eady standing by the door, he was not saying anything and his hands were by his side. She also stated that Brown was first stabbed on the porch rather than inside the residence.

Although Brown’s testimony was in agreement with Newberry’s that Eady did not say anything when discovered inside the house, he stated it was about midnight when he discovered Eady in the house, Eady was behind the door when sighted, looked intoxicated, would not answer him when he told him to leave, refused to go when Brown tried to push him out, and cut him with a knife three times. Further, Brown testified that Eady first struck him when he was inside the residence.

Decided July 25, 2002.

Brimberry, Kaplan & Brimberry, A. Lee Hayes, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

As stated in Division 1, “[i]t is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. Rather, on appeal, we indulge every contingency in favor of the verdict.” (Citation and punctuation omitted.) Norris v. State, supra. “The requisite intent necessary for commission of burglary, pursuant to OCGA § 16-7-1 (a), need not be formed at the precise moment of entry, but can be formed thereafter while the perpetrator is remaining on the premises.” Hewatt v. State Intent may be inferred from circumstantial evidence. Although the circumstantial evidence of intent was not particularly strong in this case, we defer to the jury’s verdict since “[w]hether the circumstantial evidence . . . was sufficient to prove the requisite intent necessary for . . . burglary was a question of fact for the factfinder.” Id. at 552 (2). Further, “as long as there is some evidence, even though contradicted, to support each fact necessary for the state’s case, the verdict will be upheld.” Martin v. State

Judgment affirmed.

Johnson, P. J, and Miller, J., concur.

        Cockrell v. State, 248 Ga. App. 359 (1) (545 SE2d 600) (2001).

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

        Norris v. State, 220 Ga. App. 87, 88 (1) (469 SE2d 214) (1996).

        Akins v. State, 269 Ga. 838, 839 (1) (504 SE2d 196) (1998).

        Hewatt v. State, 216 Ga. App. 550, 551 (2) (455 SE2d 104) (1995).

        Martin v. State, 246 Ga. App. 708, 709 (1) (541 SE2d 692) (2000).


text:
    A02A1243.
    THE STATE v. PRITCHETT.
    (569 SE2d 616)
   Blackburn, Chief Judge.

The State appeals the trial court’s grant of William Nelson Pritchett’s motion to suppress evidence related to one count of violation of the Georgia Controlled Substances Act. The trial court based its ruling upon a finding that there was no evidentiary basis of record for the pat-down search or the search that followed. The trial court held, inter alia, that:

Here, the record is devoid of the nature of the search conducted of the Defendant. There is no mention of the pat-down search being a result of the officer’s apprehension for his safety. Additionally, the officer testified that he was unaware of the nature of the packet, until he removed the packet from the Defendant’s pocket. This testimony tends to show that the contents of the packet were not immediately known to be contraband. Further, the officer testified that the defendant was not “arrested” until the officer discovered that the small packet [contained] the two pills. This testimony leads this Court to conclude that the search of the contents of Defendant’s pocket did not occur as a result of a lawful arrest. Accordingly, this Court finds that the officer exceeded the scope of a pat-down search under the Buffing-ton and Howard decisions.
When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Punctuation omitted.) Barnes v. State. Moreover, “[t]he burden of proving a search was lawful is on the state. OCGA § 17-5-30 (b).” Id.

Testimony at the hearing on the motion to suppress shows that on July 31, 2000, Officer Carlton Speed of the Banks County Sheriff’s Office was traveling north when he passed Pritchett, who was traveling south on his motorcycle at a speed which appeared to be in excess of the 55-mph limit. When his radar indicated that Pritchett was traveling at 70 mph, Speed turned around, pursued Pritchett, and brought him to a stop.

Speed asked Pritchett for his driver’s license and proof of insurance, both of which Pritchett produced. A check on Pritchett’s license revealed that it was not of the proper class for operation of a motorcycle. Speed cited Pritchett for driving with the wrong class of license and with speeding. The State concedes that Pritchett was not arrested for the license violation. Pritchett was not arrested for the speeding violation but was given a ticket. This occurred before the search.

At some point, Speed noticed the tip end of a spoon protruding from Pritchett’s clothing, which he immediately recognized as a spoon. It is disputed whether the spoon was in the back or front pocket of his pants. Speed asked Pritchett what he had in his pocket, and it is disputed what Pritchett replied. At this point, Speed patted down all of Pritchett’s pockets and removed the contents thereof, a spoon, a syringe, and a clear piece of plastic with two pills in it. Speed then arrested Pritchett.

1. In its first enumeration of error, the State argues that Speed’s seizure of the contraband in Pritchett’s pocket was authorized under the “plain feel” doctrine as set forth in Minnesota v. Dickerson. This argument, however, presupposes that the initial pat-down search of Pritchett was lawful, which the trial court concluded it was not. It further is dependent on the officer’s recognition of contraband on the pat-down, which the trial court concluded he did not, based upon his testimony as addressed in the court’s order.

A pat-down search of the outer clothing of an individual is authorized under Terry v. Ohio in certain limited circumstances. Terry held that “[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officers or others,” he has “the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” Terry, supra at 24. “Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ or, indeed, any search whatever for anything but weapons.” Ybarra v. Illinois.

Because “[a] Terry pat-down, unlike a full search, is conducted for the purpose of insuring the safety of the officer and of others nearby, not to obtain evidence for use at trial,” Howard, supra at 160, the search will not be found constitutionally permissible if it is not supported by a reasonable suspicion that the suspect was armed and presently dangerous. In Ybarra v. Illinois, the State argued that, despite the absence of probable cause, its pat-down search of a suspect was a reasonable frisk for weapons under Terry. The Court rejected the argument, finding that “[t]he initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons.” Ybarra, supra at 92-93. The Court noted that when the police first encountered Ybarra,

they neither recognized him as a person with a criminal history nor had any particular reason to believe that he might be inclined to assault them. Moreover, as Police Agent Johnson later testified, Ybarra, whose hands were empty, gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening.

Id. at 93. The Court also noted that there was nothing unusual about Ybarra’s clothing. In light of these facts, the Court concluded that the State was “unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous.” Id.

“As in Ybarra, the [S]tate is unable to articulate any specific fact that justified [Officer Speed] in suspecting that [Pritchett] was armed and dangerous.” Clark v. State. On the contrary, Speed testified that when he initiated the traffic stop, Pritchett pulled over immediately, gave him no trouble, and “was very cooperative.” When asked if he had felt at any time that Pritchett was armed or had a gun, he replied in the negative. Before leaving the stand, Speed again stated that Pritchett had been very cooperative and even agreed that Pritchett appeared to be a “very nice fellow.” Under these circumstances, we agree with the trial court’s ruling, as the State has not articulated any cogent basis for conducting the pat-down search of Pritchett and thus “has not met its burden of establishing that the search was lawful.” Barnes v. State, supra at 46.

We point out that even if the initial pat-down in this case had been lawful, the officer was not authorized to pull the syringe and pills from Pritchett’s pocket. A police officer “may intrude beneath the surface [of a suspect’s clothing] in only two instances: (1) if he comes upon something that feels like a weapon, or (2) if he feels an object whose contour or mass makes its identity as contraband immediately apparent, i.e., the ‘plain feel’ doctrine.” (Footnotes omitted.) Howard, supra at 160.

On cross-examination at the hearing on the motion to suppress, Speed testified as follows:

Q: Then what happened?
A: At that time, I patted him down and pulled the spoon out of his pocket.
Q: You patted both pockets down or just the one you saw the spoon in?
A: I patted all pockets down.
Q: And you didn’t see — the only thing you felt was the spoon?
A: Uh-huh (affirmative).
Q: So you pulled —.
A: I felt a little syringe.
Q: Well, you felt a syringe in the same pocket?
A: Uh-huh (affirmative).
Q: You knew it was a syringe when you patted him down?
A: When I felt it — after I done it like that right there (indicating), I pushed it up and saw the orange top come up.
Q: So you pulled — you pulled — you got them out?
A: Uh-huh (affirmative).
Q: He didn’t consent for you to do that. You just took them out?
A: At that time, when I saw it in plain sight, when I asked him what he had in his pocket, he said, “Nothing.” I patted him down, pulled the spoon out. From my experience and training, I knew that may — it was possible something else was there.
Q: But that’s the only indication you had that there might be contraband was the spoon?
A: Yes, sir.
Q: So you found the syringe in the same pocket?
A: Yes, sir.
Q: And you found, you said, aluminum foil with something in it?
A: No, it was clear.
Q: Clear?
A: Clear Saranwrap.
Q: Saranwrap?
A: Not Saranwrap. Just a small clear piece of plastic that had two pills in it.

This testimony indicates that, during the pat-down, Speed did not come upon something that felt like a weapon, nor did he feel objects whose contour or mass made their identity as contraband immediately apparent, as is required by the “plain feel” doctrine. On the contrary, the testimony indicates that Speed did not know that one object he felt in the pocket was a syringe until after he had manipulated it in such a way so as to push the orange end of the syringe out of the pocket and into plain view, and that he could not identify the other object as a clear plastic packet of pills until he had pulled it out of the pocket and looked at it. Clearly, Speed’s search of Pritchett’s pockets exceeded the bounds of a Terry pat-down, in any event. See Howard, supra; Minnesota v. Dickerson, supra. We can find no error in the trial court’s ruling on this issue.

Decided July 25, 2002.

Timothy G. Madison, District Attorney, Brian M. Rickman, Assistant District Attorney, for appellant.

David C. Jones, Jr., for appellee.

2. The State also contends that while the trial court’s ruling denies the State’s contentions, it erred in failing to address the argument of inevitable discovery. There is no merit to this argument.

We have held that “[w]hen the evidence in question would inevitably (or ultimately) have been discovered without reference to the police error or misconduct, the evidence is admissible.” (Punctuation omitted.) Gearin v. State of Ga. In this case, Speed issued tickets for speeding and driving with an improper class of license to Pritchett. Pritchett was not arrested for these offenses; Speed arrested him only after he searched his pockets and found the contraband. Discovery of the contraband was thus not inevitable, and the inevitable discovery rule does not apply to the facts of this case.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Buffington v. State, 229 Ga. App. 450 (494 SE2d 272) (1997).

        Howard v. State, 253 Ga. App. 158 (558 SE2d 745) (2002).

        Barnes v. State, 228 Ga. App. 44 (491 SE2d 116) (1997).

        Minnesota v. Dickerson, 508 U. S. 366 (113 SC 2130, 124 LE2d 334) (1993).

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

        Ybarra v. Illinois, 444 U. S. 85, 93-94 (100 SC 338, 62 LE2d 238) (1979).

        Clark v. State, 235 Ga. App. 569, 572 (2) (510 SE2d 319) (1998).

         Gearin v. State of Ga., 218 Ga. App. 390, 391 (1) (461 SE2d 562) (1995).


text:
    A02A1280, A02A1281.
    SUMITOMO CORPORATION OF AMERICA et al. v. DEAL et al.; and vice versa. SUMITOMO CORPORATION OF AMERICA et al. v. MONTGOMERY et al.
    A02A1464.
    (569 SE2d 608)
   Blackburn, Chief Judge.

These cases, which involve common parties and many of the same facts, have been consolidated on appeal. In Case No. A02A1280, appellants, Sumitomo Corporation of America, SMG Development Associates, L.P., and its successors in interest, Atlantic Hills Corporation and A. Hills Corporation (hereinafter collectively “SMG”), were found liable in a continuing trespass and nuisance surface water invasion case for damage to the land of appellees Gary and Anita Deal. In Case No. A02A1464, appellants SMG Development Associates, L.P., Atlantic Hills Corporation and A. Hills Corporation were found liable in a continuing trespass and nuisance surface water invasion case for damage to the land of appellees Kent and Glenda Montgomery. In both cases, SMG asserts that the trial court erred in: refusing to allow the jury to apply a doctrine of “reasonable use” to the facts of these cases; failing to grant a directed verdict in favor of all defendants on the nuisance and trespass theories of liability; allowing the attorney fees claims of both the Deals and the Montgomerys to go to the jury; and giving, or not giving, various charges to the jury. Finding these, and other, enumerations of error without merit, we affirm. In Case No. A02A1281, the Deals appeal the reduction of the award of punitive damages by the trial court. Because we find that the award of punitive damages was not excessive, we reverse and remand that case so that the trial court may reinstate the amount of punitive damages awarded by the jury.

Hamilton Mill is a 1,300-acre residential development constructed by SMG in Gwinnett County. As part of the development of Phase IV of Hamilton Mill, in the summer of 1996, SMG built a detention pond with an outlet pipe adjacent to the Deals’ property. Because of the discharge of water from the detention pond, the Deals and the Montgomerys, their downstream neighbors, experienced siltation, erosion, and flooding on their property.

On September 5, 1996, Gary Deal, Kent Montgomery, and other downstream neighbors met with representatives of SMG and informed them about the damage to their property caused by the increased flow of water and sediment from the detention pond. Though corrective measures could have been taken at this early point in the development of Phase IV, SMG did nothing to lessen the impact of the water being discharged onto the Deals’ and Montgomerys’ land. Since the construction of the detention pond, water exiting the detention pond has continued to scour, erode, and flood the downstream properties every time it rains.

In February 1999, both the Deals and the Montgomerys filed suits against SMG. In August 2001, a jury awarded the Deals $175,738.98 in compensatory damages, $42,438.50 in attorney fees, and $275,000 in punitive damages. In November 2001, a jury awarded the Montgomerys $73,000 in compensatory damages and $54,000 in attorney fees.

Case No. A02A1280

1. In its first enumeration of error, SMG argues that the trial court erred in refusing to allow the jury to apply the doctrine of reasonable use to the facts of this case. This argument is meritless.

First, the trial court correctly instructed the jury as follows:

One landed proprietor has no right to concentrate and collect water and thus cause it to be discharged upon the land of a lower proprietor in greater quantities at a particular locality or in a manner different from that in which the water would be received by the lower property if it simply ran down upon it from the upper property by the law of gravitation.

This is an accurate statement of Georgia law as set forth by our Supreme Court, see Gill v. First Christian Church &c. and cases cited therein, and has been followed by this Court. See, e.g., Baumann v. Snider,

The essence of SMG’s argument is its belief that Georgia law governing surface water invasion cases is an “arcane rule of law” which “stifles potential development and subjects project developers to liability for converting raw, rural land to modern urbanized development.” SMG would have us discard this rule and adopt, as have some states, a more enlightened “reasonable use” rule which allows “the benefits and burdens of development to be shared by the community.” Pointing out that such a principle of reasonable use is found both in rules of law adopted by other states, such as Missouri, and also in OCGA § 51-9-7, SMG asserts that the trial court erred in not charging, as it requested, Missouri’s rule of law on reasonable use and OCGA § 51-9-7.

Even if we were convinced that a more enlightened rule should replace the current ancient law, “this court has no authority to overrule or modify a decision of the Supreme Court of Georgia as the decisions of the Supreme Court of Georgia shall bind all other courts as precedents.” (Punctuation omitted.) Etkind v. Suarez. Further, it appears patently clear that the trial court did not err in failing to charge a Georgia jury on Missouri law. That other jurisdictions have adopted a different rule governing surface water invasion cases is “wholly irrelevant in the face of a Supreme Court of Georgia decision directly on point.” Id.

As to the rule found in OCGA § 51-9-7, it does not apply to the facts of this case. OCGA § 51-9-7 states:

The owner of land through which nonnavigable watercourses flow is entitled to have the water in such streams come to his land in its natural and usual flow, subject only to such detention or diminution as may be caused by a reasonable use of it by other riparian proprietors. The diverting of the stream in whole or in part from its natural and usual flow, or the obstructing thereof so as to impede its course or cause it to overflow or injure the land through which it flows or any right appurtenant thereto, or the polluting thereof so as to lessen its value to the owner of such land shall constitute a trespass upon the property.

This statutory rule applies in suits where one riparian proprietor continuously diminishes or detains the water in the stream unreasonably with reference to the rights of another riparian proprietor, who is damaged thereby. See Price v. High Shoals Mfg. Co. In this case, the Deals are not contending that SMG’s unreasonable use of water has diminished the supply of water to which they are entitled; on the contrary, this suit stems from property damage caused by the increased flow of water onto their land.

SMG informs us that “[c]ourts which have adopted the modern view of reasonable use recognize the balancing of rights and responsibilities when land is improved.” Under Georgia law, “[p]rivate property cannot be physically harmed or its value impaired in this way, however socially desirable the conduct, without payment being made for the harm done, if the interference that is the consequence of the activity is substantial and considered to be unreasonable.” Fielder v. Rice Constr. Co. We believe that the jury, in awarding the Deals compensatory damages, attorney fees, and punitive damages for the harm to their land caused by the runoff from SMG’s detention pond, properly balanced the rights and responsibilities of the parties to this case.

2. In its second enumeration of error, SMG contends that because Sumitomo Corporation was nothing more than a shareholder in corporate investors of the developer of Hamilton Mill, the trial court erred in failing to direct a verdict, or enter judgment notwithstanding the verdict (“j.n.o.v.”), in Sumitomo’s favor. We disagree.

We may deal jointly with the trial court’s denial of both SMG’s motion for directed verdict and also its motion for j.n.o.v. since both

arise from the same issues of law and fact and are governed by the same standards of appellate review. “A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced with all reasonable inferences therefrom demands a particular verdict. On appeal, the standard of review of a trial court’s denial of a motion for directed verdict is the ‘any evidence’ standard.”

(Citations omitted.) Kroger Co. v. Brooks.

Under Georgia law, in order to be held liable for nuisance, “[o]wnership of land by the tortfeasor is not an element, but control is; the essential element of nuisance is control over the cause of the harm. The tortfeasor must be either the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance.” (Citations omitted.) Fielder, supra at 366. Thus, under the standard set forth above, the trial court did not err if there is any evidence that Sumitomo created, continued, or maintained the detention pond.

Testimony at trial showed that Sumitomo has an eighty percent ownership in Atlantic Hills, one of the two partners in the SMG partnership and the successor in interest to SMG. Joseph Zagranski, the director of real estate for Sumitomo, became a vice president of Atlantic Hills shortly after he joined Sumitomo. Zagranski testified that he became asset manager of Hamilton Mill in the fall of 1997 and continued the development of Phase IV. He also testified that he was aware of the lawsuit filed by the Deals and their neighbors, that he had engineers analyze the construction of the detention pond, and that a decision was made to maintain rather than make modifications to the detention pond. Given these facts, we believe, under the “any evidence” standard, that Zagranski’s testimony allowed the jury to find that Sumitomo exercised enough control in the decision to maintain the detention pond without modifications to hold it liable for the damage to the Deals’ land.

3. SMG next contends that the trial court erred in failing to grant either a directed verdict or j.n.o.v. in favor of all the defendants on the Deals’ nuisance theory of liability. Beginning with the proposition that “ ‘[t]hat which the law authorizes to be done, if done as the law authorizes, cannot be a nuisance,’ ” City of Douglasville v. Queen, SMG argues that the development of Hamilton Mill was a lawful and permissible use of its property, and that no part of the project was done unlawfully or contrary to what the appropriate governing authorities permitted. In other words, “[t]he project was authorized and executed in accordance with law and cannot, therefore, be a nuisance.” Again, we disagree.

OCGA § 41-1-1 provides: “A nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance.” (Emphasis supplied.) The italicized language contradicts SMG’s argument and makes clear that an act, though lawful in itself, becomes a nuisance when conducted in an illegal manner to the hurt, inconvenience, or damage of another. Mayor &c. of Savannah v. Palmerio. See also Baumann v. Snider, supra at 527, n. 4 (in a case of nuisance “the infringement is the result of an act which is not wrongful in itself, but only in the consequences which may flow from it”). “A condition may be illegal when it is objectionable only on grounds of causing ‘hurt or inconvenience,’ i.e., when it is a nuisance.” Banks v. City of Brunswick. In the present case, though SMG’s construction of the detention pond was arguably done in a lawful manner, that fact did not prevent the pond from becoming a nuisance when the increased water flow caused hurt and inconvenience to the Deals and their neighbors. Finally, we repeat the principle noted above that “[p]rivate property cannot be physically harmed or its value impaired in this way, however socially desirable the conduct, without payment being made for the harm done, if the interference that is the consequence of the activity is substantial and considered to be unreasonable.” (Emphasis supplied.) Fielder, supra at 365-366.

4. In its fourth enumeration of error, SMG contends that the trial court erred in permitting the Deals’ trespass theory to go to the jury because trespass requires proof of the property’s value before and after the trespass, and the Deals failed to provide evidence of property value. A similar argument was rejected by this Court in Kiel v. Johnson. In that case we stated that “the cost of repair often has been held to be an appropriate measure of damages in cases involving a continuing nuisance or trespass.” Id. at 45. See also Raymar, Inc. v. Peachtree Golf Club; Payne v. Whiting; and Southern Mut. Investment Corp. v. Langston. The Deals presented extensive testimony regarding the costs of repairing the damage done to their land by the water flowing from SMG’s detention pond. The trial court did not err.

5. We have reviewed SMG’s remaining enumerations of error and find that they either have been disposed of in the preceding Divisions of this opinion or are patently without merit.

Case No. A02A1464

In this case, SMG was found liable for damage to the Montgomerys’ land because of surface water runoff from the Phase IV detention pond. Because in this case the facts, as well as the errors enumerated by SMG, are virtually identical to those in Case No. A02A1280, we find no basis for reversing and affirm.

Case No. A02A1281

The jury awarded the Deals $275,000 in punitive damages. This amount was reduced to $250,000 pursuant to OCGA § 51-12-5.1 (g). The trial court found the punitive damages award of $250,000 to be unconstitutionally excessive and granted remittitur, reducing the award to $100,000. The Deals appeal the reduction of the award of punitive damages on various grounds.

In passing on the trial court’s determination of the constitutionality of the award of punitive damages, wé apply a de novo standard of review. Cooper Indus, v. Leatherman Tool Group; Time Warner Entertainment Co. v. Six Flags Over Ga. In deciding whether an award of punitive damages is consistent with due process, we focus on three criteria set forth in BMW of North America v. Gore; these criteria are: “(1) the degree or reprehensibility of the defendant’s misconduct, (2) the disparity between the harm (or potential harm) suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” Leatherman, supra at 440.

As to the first Gore factor, the evidence established that SMG was advised of the damages done by the water leaving its detention pond on September 5, 1996, but decided to do nothing to abate the flow of water. Testimony showed that in the five years between notice to SMG and trial of the case, there were, among other things, widespread flooding of the Deals’ land below the detention pond outlet, the width of the flooding reaching seventy-five feet at the lower end of the property; steady erosion of the streambed uphill toward the detention pond outlet; undercutting of the streambed, the streambed in places going from an original depth of one or two feet to a depth of six to ten feet; continuing undermining and exposure of tree roots; and cascading torrents of water scouring the land and causing washouts. In the face of these conditions, SMG did nothing, maintaining all along that the detention pond had been built in accordance with county regulations. We conclude that the jury could have found the reprehensibility of SMG’s conduct sufficient to support the award of punitive damages.

The next Gore factor concerns the ratio between the size of the punitive damages and the harm caused by SMG’s tortious conduct. Leatherman, supra at 441. The Deals were awarded $175,738.98 in compensatory damages and $250,000 in punitive damages, resulting in a ratio of compensatory to punitive damages of approximately 1 to 1.42. The U. S. Supreme Court held in Pacific Mut. Life Ins. Co. v. Haslip that a punitive damages award of “more than 4 times the amount of compensatory damages” did not “cross the line into the area of constitutional impropriety,” and, in TXO Production Corp. v. Alliance Resources Corp., suggested that a punitive to compensatory damages ratio of 10 to 1 might be appropriate in some cases. In light of these holdings, it is clear that there is a reasonable relationship between the amount of punitive damages awarded and the harm caused by SMG to the Deals’ land.

“Comparing the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct provides a third indicium of excessiveness.” Gore, supra at 583. We look then to any state or county statutes which set forth civil penalties for activities which result in damage to others because of surface water runoff.

Georgia’s Erosion and Sedimentation Act, OCGA § 12-7-1 et seq., regulates “land-disturbing activities.” A “land-disturbing activity” is defined as “any activity which may result in soil erosion from water or wind and the movement of sediments into state water or onto lands within the state, including, but not limited to, clearing, dredging, grading, excavating, transporting, and filling of land.” OCGA § 12-7-3 (10). Under the Erosion and Sedimentation Act, violations can result in a civil penalty not to exceed $2,500 per day, or per violation. OCGA § 12-7-15 (a) (1). Gwinnett County’s Soil Erosion and Sediment Control Ordinance provides for penalties of between $500 and $2,500 per violation.

Where a nuisance is not permanent in its character but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie. Further, where one creates a nuisance and permits it to remain, it is treated as a continuing wrong and giving rise, over and over again, to causes of action.

(Citations and punctuation omitted.) Southfund Partners v. City of Atlanta. There was testimony that the Deals’ land was subject to flooding and erosion every time it rained; it is also the fact that this flooding and erosion went on for years. Thus, the jury could have concluded that there were numerous, even hundreds, of instances of damage to the Deals’ property. The amount of punitive damages awarded by the jury is, therefore, consistent with the imposition of civil penalties for numerous violations of either the state or county regulations regarding control of erosion.

This third Gore factor was the factor which the trial court appeared to rely on exclusively in reducing the award of punitive damages. The trial court noted in its order that in the two other cases in which the Deals’ neighbors had sued SMG, no punitive damages were awarded; it also based its decision to reduce the award on a comparison of punitive damages awarded in other surface water drainage cases. These were improper comparisons. As Leatherman instructs, the proper comparison is not between the punitive damages awarded by the jury and punitive damages in similar cases, but “between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” Leatherman, supra at 440. We remand this case to the trial court for reinstatement of the punitive damages awarded by the jury, reduced to $250,000 pursuant to OCGA § 51-12-5.1 (g). We note that the Deals had agreed to the reduction of the punitive damages award to $250,000 in the trial court.

Judgment affirmed in Case Nos. A02A1280 and A02A1464. Judgment reversed and remanded in Case No. A02A1281.

Johnson, P. J., and Miller, J, concur.

Decided July 25, 2002

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Christopher D. Batch, for appellants.

Schreeder, Wheeler & Flint, Lynn C. Stewart, Jason W. Graham, for appellees.

        Gill v. First Christian Church &c., 216 Ga. 454 (1) (117 SE2d 164) (1960).

        Baumann v. Snider, 243 Ga. App. 526, 527, n. 3 (532 SE2d 468) (2000).

        Etkind v. Suarez, 234 Ga. App. 108, 109 (505 SE2d 831) (1998).

        Price v. High Shoals Mfg. Co., 132 Ga. 246 (64 SE 87) (1909).

        Fielder v. Rice Constr. Co., 239 Ga. App. 362, 365-366 (522 SE2d 13) (1999).

         Kroger Co. v. Brooks, 231 Ga. App. 650, 651 (500 SE2d 391) (1998).

        City of Douglasville v. Queen, 270 Ga. 770, 773 (4) (514 SE2d 195) (1999).

        Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 425 (249 SE2d 224) (1978).

        Banks v. City of Brunswick, 529 FSupp. 695, 698 (S.D. Ga: 1981), aff’d, 667 F2d 97 (11th Cir. 1982).

        Kiel v. Johnson, 179 Ga. App. 43 (345 SE2d 131) (1986).

        Raymar, Inc. v. Peachtree Golf Club, 161 Ga. App. 336, 337 (2) (B) (287 SE2d 768) (1982).

        Payne v. Whiting, 140 Ga. App. 390, 391 (2) (231 SE2d 796) (1976).

        Southern Mut. Investment Corp. v. Langston, 128 Ga. App. 671, 675 (6) (197 SE2d 775) (1973).

       We note, in connection with our disposition of Case No. A02A1464, that the Montgomerys also submitted detailed testimony concerning the costs of repairing the damage done to their land by the invading surface waters.

        Cooper Indus, v. Leatherman Tool Group, 532 U. S. 424, 436 (121 SC 1678, 149 LE2d 674) (2001).

        Time Warner Entertainment Co. v. Six Flags Over Ga., 254 Ga. App. 598 (563 SE2d 178) (2002).

        BMW of North America v. Gore, 517 U. S. 559, 574-575 (116 SC 1589, 134 LE2d 809) (1996).

        Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 23-24 (111 SC 1032, 113 LE2d 1) (1991).

        TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 462 (113 SC 2711, 125 LE2d 366) (1993).

        Southfund Partners v. City of Atlanta, 221 Ga. App. 666, 668-669 (3) (472 SE2d 499) (1996).


text:
    A02A1482.
    THOMAS v. THE STATE.
    (569 SE2d 620)
   Blackburn, Chief Judge.

Willie James Thomas appeals his conviction by a jury of armed robbery. He argues that the trial court erred in allowing (1) a police officer to testify that he had checked Thomas’s criminal history and (2) the State to ask Thomas whether other witnesses were lying, and he also contends (3) that the evidence was insufficient to support his conviction. Finding no error, we affirm.

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

Ryals v. State.

Viewed in the light most favorable to the jury’s verdict, the record shows that on November 12, 1998, David Waithe went to an ACE check cashing store in Forest Park. He cashed his check and purchased two money orders, one for $428.59 and the other for $50. As he walked to his car, he was approached by Thomas, who engaged him in conversation and persistently asked him for any change he might have. Just before Waithe reached his car, another man came up behind him, pushed him into the car, and shoved a gun into his back. The man took cash and the money orders from Waithe’s pocket and ran away. Immediately after the robbery, Thomas was nowhere in sight.

Waithe drove to his wife’s place of employment, picked her up, and returned to the check cashing store. Waithe told the clerk, Katrina Gibson, that the money orders he had purchased from her had been stolen and asked if she could stop payment on them. While Gibson was acting to stop payment on the money orders, she received a telephone call from Janella Harris, a clerk at an ACE check cashing store in Atlanta. Harris informed Gibson that a man had just entered her store and was trying to cash a money order, and that she was suspicious because the money order had been purchased only hours earlier at Gibson’s store. Gibson verified that the money order was one of those stolen from Waithe and asked Harris to stall Thomas until the police arrived. She then called both the Atlanta police and the Forest Park police. Harris asked Thomas for identification, and Thomas produced a Georgia driver’s license. Harris also asked Thomas to fill out a customer card; Thomas wrote down his name, phone number, and Social Security number and then signed the card. Harris secretly activated the magnetic lock on the store’s door.

After about 15 minutes, Thomas discovered that Harris had locked the door. He cursed Harris and demanded that she unlock the door. When she ignored him, he kicked the door open and left, driving away in a car driven by another male. Thomas left his driver’s license, the stolen money order, and the customer card on the counter. Using the information Thomas left at the store, the police located and arrested Thomas.

Thomas was charged with armed robbery, tried, and convicted, and this appeal followed. At trial Thomas testified that he and a friend had won the money order in a card game with the victim. Waithe identified Thomas as the individual who confronted him for change and drew his attention while the other individual attacked and robbed him. This dispute in the evidence presented an issue of credibility which the jury resolved adversely to Thomas’s interest.

1. We first address Thomas’s contention that the evidence was insufficient to support the verdict. We note that recent unexplained possession of stolen property will support a conviction for armed robbery. The identification of Thomas by Waithe and the store clerk, as well as the documents Thomas left in the store as he escaped, clearly supports a finding that he was in recent possession of the property stolen at gunpoint. The conviction establishes that the jury rejected Thomas’s explanation of his possession of the subject property. This Court has previously held:

Once it is shown that goods were stolen in a robbery, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for robbery based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation. What constitutes recent possession is in all cases a jury question, to be determined very largely from the character and nature of the stolen property.

(Punctuation omitted.) Smith v. State.

OCGA § 16-2-20 (a) provides that “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” A person is concerned in the commission of a crime if he “[intentionally aids or abets in the commission of the crime.” OCGA § 16-2-20 (b) (3). Here, the evidence was sufficient to support the conviction of Thomas for armed robbery.

2. In his second enumeration of error, Thomas maintains that the trial court erred by allowing a police officer to testify that he had learned Thomas’s Social Security number by checking his criminal history, thereby putting Thomas’s character in issue. In his third enumeration of error, Thomas argues that the trial court erred when it allowed the State to ask him if he thought other witnesses were lying. We will address these contentions jointly.

First, our examination of the record reveals that Thomas failed to object at trial to either the testimony of the police officer or the questions posed to him by the State as to the veracity of other witnesses. “A ground not raised by objection at trial cannot be raised for the first time on appeal.” (Punctuation omitted.) McGarity v. State. As Thomas did not raise this objection before the trial court, he has waived his right to have this Court consider it on appeal, unless the conduct constitutes plain error.

Thomas argues that even though he did not raise objections at trial, these enumerations should nevertheless be considered under the “plain error” doctrine. “Under the ‘plain error’ doctrine, we will consider issues not properly raised and ruled upon in the trial court when the alleged error ‘is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.’ ” Morrison v. State.

In evaluating Thomas’s argument, we are guided by the decisions of our Supreme Court. In Lewis v. State, our Supreme Court held that the detective’s testimony that the police had identified appellant’s fingerprint by comparing it to a print already in the police file did not inject the appellant’s character into evidence. In Whatley v. State, our Supreme Court held that the State’s questions about whether other witnesses were lying were properly allowed. These cases address the issues raised by Thomas and do not authorize the application of the “plain error” doctrine in this case. Thomas’s arguments are without merit, and we affirm.

Decided July 25, 2002.

Ronald E. Smith, for appellant.

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

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Ryals v. State, 238 Ga. App. 578 (519 SE2d 505) (1999).

        Smith v. State, 234 Ga. App. 586, 593 (7) (a) (506 SE2d 406) (1998).

        McGarity v. State, 190 Ga. App. 139 (1) (378 SE2d 179) (1989).

        Morrison v. State, 248 Ga. App. 785, 787 (1) (546 SE2d 312) (2001).

        Lewis v. State, 255 Ga. 681, 682 (2) (341 SE2d 434) (1986).

        Whatley v. State, 270 Ga. 296, 301 (13) (509 SE2d 45) (1998).


text:
    A02A1525.
    CAGE v. THE STATE.
    (569 SE2d 623)
   Blackburn, Chief Judge.

Following a jury trial, Ashante R. Cage appeals his conviction of two counts of cruelty to children in the second degree. Cage’s sole enumeration of error is that his convictions cannot stand because he was not convicted of Count 1: cruelty to children in the first degree, which was based on the same incident as the second degree cruelty counts. Finding no error, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.

(Punctuation omitted.) Bethel v. State.

So viewed, the evidence shows that on January 27, 2001, B. L., an eight-year-old boy, went to Clayton Springs Farms with his mother to ride horses and play with his friend. B. L.’s mother boarded horses at the farm. B. L. did not ride the horses, but spent most of the day playing with his friend. During the afternoon, B. L. needed to use the restroom, so he went into the home located on the property The bathrooms in the house were open for use by anyone who boarded their horses there. B. L. found the door to the restroom was locked, and his sister and two girlfriends were playing inside. He knocked on the door a couple of times. The girls opened the door and screamed. Cage came out of a nearby bedroom and yelled at the children to get out of the house, using a curse word. Then, he grabbed B. L. by the shoulder and threw him against the wall. B. L. fell to the floor, knocked unconscious or dizzy, and was helped out of the house by one of the other children.

Cage’s contention is nothing more than an assertion that his acquittal of the cruelty to children in the first degree is fatally inconsistent with his conviction for cruelty to children in the second degree. In Milam v. State, our Supreme Court abolished the inconsistent verdict rule, and an enumeration of error predicated upon this abolished rule is without merit. “The abolishment of this rule is consistent with the principle that it is not generally within the trial court’s power to make inquiries into the jury’s deliberations or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts.” Davis v. State.

Here, “in light of the abolition of the inconsistent verdict rule in criminal cases in Georgia, the sole issue is whether the evidence was sufficient to authorize a rational trier of fact to find [Cage] guilty of cruelty to children [in the second degree] beyond a reasonable doubt.” Chastain v. State. See also Ardeneaux v. State, in which this Court upheld the jury verdict finding the defendant guilty of cruelty to children although not guilty of aggravated assault when both charges were based on the same incident. B. L. testified that Cage was angry, yelled at the children, cursed, and grabbed him by the arm and threw him against a wall. He further testified that he was unconscious from 15 to 20 seconds, was dizzy running out, and was in pain. N. S., one of the girls, testified that, while she was standing in the restroom doorway, she heard Cage cursing and yelling that the children should get out. She testified that she saw Cage grab B. L. by the shoulder, pick him up by the pants, and throw him down. Further, she testified that when B. L. was on the floor, he looked dizzy and his eyes were closed; he needed assistance to leave the house. L. J., another of the girls, testified that she heard the curse words and saw Cage shove B. L. The detective, who took the statements of the two girls about ten days after the incident, testified that L. J. stated that Cage had thrown B. L. about twenty steps. Based on this testimony, there was sufficient evidence for the jury to determine that Cage had committed battery against B. L. and that N. S. and L. J. witnessed the battery, the acts alleged in the indictment. “Accordingly, we conclude that a rational trier of fact could find from the evidence adduced at trial proof of [Cage’s] guilt beyond a reasonable doubt.” Day v. State

Decided July 25, 2002.

James W. Bradley, for appellant.

Ashante R. Cage, pro se.

Robert E. Keller, District Attorney, Lalaine A. Briones, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

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

        Bethel v. State, 232 Ga. App. 82, 83 (1) (500 SE2d 595) (1998).

        Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986).

        Davis v. State, 245 Ga. App. 402, 404 (1) (538 SE2d 67) (2000).

        Chastain v. State, 239 Ga. App. 602, 605 (1) (b) (521 SE2d 657) (1999).

        Ardeneaux v. State, 197 Ga. App. 640 (1) (399 SE2d 258) (1990).

        Day v. State, 242 Ga. App. 781, 782 (1) (531 SE2d 357) (2000).


text:
    A02A1583.
    HELMER v. THE STATE.
    (569 SE2d 606)
   Blackburn, Chief Judge.

Following a bench trial, Rachael Helmer appeals her conviction for speeding, contending that the record fails to show whether she knowingly elected to proceed pro se and that she did not knowingly and voluntarily waive her right to a jury trial. For the reasons set forth below, we are constrained to reverse Helmer’s conviction.

The record in this case contains little more than the notice of appeal and the uniform traffic citations issued to Helmer. No transcript of the proceedings was prepared. In general, such an omission would prevent this Court from considering an appellant’s assertions.

Nonetheless, an exception to the general rule has developed based on Jones v. Wharton, wherein the Supreme Court has held that in any case where an accused is placed on trial and faces imprisonment, a constitutional guarantee of right of counsel attaches, the waiver of which may not be presumed from a silent record. The procedure required under Clarke v. Zant was made applicable to misdemeanor cases, and the Supreme Court further held that where an accused is proceeding pro se, “a valid waiver of right to trial by jury cannot be found on the sole ground that defendant failed to request one.”

Copeland v. State. Accordingly, even though Helmer has not provided this Court with a transcript, we may still address her enumerations.

The trial court in the instant case may well have had a lengthy and constitutionally adequate conversation with [Helmer] about the risks of self-representation. And [Helmer] may well have decided to represent [herself] despite the risks, rather than pay the money to hire an attorney. Moreover, if this prior conversation did indeed occur, it was not required to be on the record, although such would be helpful in the appellate process. But when the precise substance of any such prior conversation is not before us, the record that is sent up for our consideration must reflect that a prior discussion encompassing the risks of self-representation did in fact occur, and that, despite the warnings given, the defendant knowingly decided to proceed pro se: the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of [her] right to counsel and the dangers of proceeding without counsel.

(Punctuation and footnote omitted.) Hightower v. State.

As the appellate record now stands before us, we cannot say that Helmer was adequately warned of the dangers of proceeding pro se. “When the record is silent, waiver is never presumed [,] and the burden is on the [S]tate to present evidence of a valid waiver.” Jones, supra at 83. The State failed to meet its burden in this case.

Although the State appended an affidavit from the trial judge to its brief averring that Helmer was fully informed of the dangers of proceeding pro se, the outcome here does not change because affidavits or exhibits attached to briefs are not evidence or considered part of the record. This Court could consider the subject affidavit only if it were a part of the record forwarded by the clerk of the trial court. See generally Hixson v. Hickson.

Because the State failed to satisfy its burden in this case, the judgment of the trial court is reversed, and the case is remanded to the trial court for further proceedings consistent with this holding.

Decided July 25, 2002.

Patterson & Patterson, Jackie G. Patterson, for appellant.

L. Jack Kirby, Solicitor-General, Julianne W. Holliday, Assistant Solicitor-General, for appellee.

Judgment reversed and case remanded for new trial.

Johnson, P. J., and Miller, J., concur.

        Jones v. Wharton, 253 Ga. 82 (316 SE2d 749) (1984).

        Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) (1981).

        Copeland v. State, 224 Ga. App. 402 (480 SE2d 623) (1997).

        Hightower v. State, 252 Ga. App. 811, 812-813 (557 SE2d 434) (2001).

        Hixson v. Hickson, 236 Ga. App. 894, 896 (3) (512 SE2d 648) (1999).


author: Johnson, Presiding Judge.

text:
    A02A0092.
    COOPERATIVE RESOURCE CENTER, INC. v. SOUTHEAST RURAL COMMUNITY ASSISTANCE PROJECT, INC.
    (569 SE2d 545)
   Johnson, Presiding Judge.

Cooperative Resource Center, Inc. (“CRC”) appeals from the trial court’s grant of summary judgment to Southeast Rural Community Assistance Project, Inc. (“SERCAP”) on SERCAP’s claim for breach of a guaranty executed by CRC. CRC admits that it executed the guaranty and that it has failed to pay SERCAP as required by the terms of the guaranty. CRC’s sole argument on appeal is that the trial court erred in finding that SERCAP was entitled to judgment as a matter of law on its claim, despite CRC’s defense that it executed the guaranty under duress. We agree with the trial court and affirm its judgment.

The following facts are undisputed. SERCAP is a nonprofit corporation which offers a variety of services to rural communities, including making low interest loans to nonprofit organizations to be used in connection with housing developments and other projects. In 1997, SERCAP loaned $100,000 to Affirmative Position on Parent Leadership Education, Inc. (“APPLE”). APPLE was to use the money to pay pre-development costs in connection with a housing project known as Genesis Gardens. APPLE executed a promissory note in favor of SERCAP for $100,000, along with a security deed.

At the time the loan was made, APPLE and CRC were co-general partners of Genesis Gardens, L.P., the partnership formed to develop the housing project. A short time later, CRC’s executive director, William Taylor, called SERCAP to discuss concerns that he had about APPLE, namely that APPLE did not appear to be using the loan proceeds for the Genesis Gardens project. Investigations by CRC and SERCAP revealed numerous improprieties relating to the project, and it became apparent that APPLE was not likely to repay the loan.

When the problems with APPLE came to light, several of the project’s lenders became concerned about moving forward with the project. CRC, APPLE’S partner in the project, wanted the project to go forward. CRC had invested money in the project, and it would receive a developer’s fee of several hundred thousand dollars if the project was completed. CRC then began talking to the lenders to determine what would be required to allow the project to continue.

The lenders requested certain assurances from CRC in exchange for their continued involvement in the project. They sought the withdrawal of APPLE from the partnership, and APPLE withdrew, transferring its interest to CRC. The lenders also requested that CRC obtain releases from entities which might assert claims against the housing projects; CRC obtained the releases.

In late 1997 or early 1998, CRC contacted SERCAP and indicated that it was interested in continuing the project and repaying the amount loaned to APPLE. Diane Calloway, an attorney representing Genesis Gardens, L.P., acting on behalf, of CRC, contacted SERCAP’s attorney, Charles Fox. Calloway proposed that CRC repay SERCAP the principal amount of the loan and that SERCAP agree not to pursue any claim against the property or the Genesis Gardens partnership. Calloway drafted and sent to Fox two documents. One was an estoppel certifícate to be signed by SERCAP providing that SERCAP would not pursue any claim against the Genesis Gardens property or the Genesis Gardens partnership in connection with the loan. The other was a guaranty agreement to be signed by CRC, providing that CRC would repay SERCAP the principal amount of the loan. After discussion and negotiations, the parties executed the documents.

APPLE never made any payments to SERCAP on the loan. And when CRC’s obligation on the guaranty came due, CRC made no payments. SERCAP sued CRC on the guaranty and moved for summary judgment. CRC urged that it signed the guaranty under duress, because its very survival and the project’s survival depended on the construction loan closing before imminent federal and state deadlines passed. According to CRC, SERCAP took undue advantage of CRC’s economic distress, which SERCAP caused by threatening to assert a claim against the property (when SERCAP actually had no valid interest in the property), and negligently loaning the money to APPLE. The trial court properly granted SERCAP’s motion for summary judgment.

Under Georgia law, duress consists of “imprisonment, threats, or other acts, by which the free will of the party is restrained and his consent induced.” “Business compulsion” or “economic duress” involves the taking of undue or unjust advantage of a person’s economic necessity or distress to coerce him into making a contract and is recognized as a contractual defense. A duress claim must be based on acts or conduct of the opposing party which are wrongful or unlawful. Georgia courts are reluctant to void contracts, and we have found no Georgia decision voiding a contract on the theory of economic duress. And, in any event, when the signer of an agreement is sophisticated in business matters and has access to and in fact obtains advice of counsel, the defense of duress is not available to void the contract.

In this case, CRC is a business entity that regularly enters into complex, multi-million dollar projects. In Taylor’s words, CRC is one of the most experienced entities in Georgia in arranging financing for and developing the type of project at issue here. CRC consulted with legal counsel before signing the guaranty and executed the guaranty with the advice of counsel. In fact, an attorney acting on behalf of CRC drafted the guaranty and the estoppel certificate given in exchange for CRC’s guaranty. As a matter of law, CRC cannot rely upon the defense of duress to void the guaranty that its own counsel drafted, negotiated, and advised it to sign.

Furthermore, even if the defense of duress was available to CRC, there is no evidence that CRC was deprived of its free will by SER-CAP. The evidence shows that CRC voluntarily executed the guaranty because it would benefit from it. CRC stood to receive several hundred thousand dollars in developer’s fees for the project if completed and in fact had received about $175,000 of the fees at the time of Taylor’s deposition. Taylor testified that he told Calloway “to do whatever it took to get this deal closed.” He testified that he would have been the person who authorized Calloway to make the proposal, though he could not specifically recall authorizing her to propose the guaranty to SERCAP.

Although CRC complains that SERCAP’s attorney “played hardball” by demanding a guaranty in exchange for the estoppel certificate, hard bargaining, by itself, cannot support a duress defense. One may not void a contract on the grounds of duress merely because he entered into it with reluctance, the contract was very disadvantageous to him, the bargaining power of the parties was unequal, or there was some unfairness in the negotiations preceding the agreement. The record does not show that SERCAP’s conduct was such to induce CRC to act contrary to its free will, or to coerce CRC into pursuing a different course from that which its own judgment at that time dictated as the best for its own interests.

Decided June 13, 2002

Reconsideration denied July 26, 2002

Benjamin P. Erlitz, David A. Webster, for appellant.

Troutman Sanders, Thomas E. Reilly, William M. Droze, for appellee.

Even giving CRC the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, it is clear that CRC cannot establish its affirmative defense of duress as a matter of law. Therefore, the trial court properly found that no genuine issue of material fact remains and that SERCAP is entitled to summary judgment on its breach of guaranty claim.

Judgment affirmed.

Phipps and Mikell, JJ, concur.

       OCGA § 13-5-6.

        Frame v. Booth, Wade & Campbell, 238 Ga. App. 428, 429 (2) (519 SE2d 237) (1999).

       Id.

       Id. at 429-430 (2), 430, n. 1; Ackerman v. First Nat. Bank &c., 239 Ga. App. 304, 305 (2) (521 SE2d 221) (1999); Morey v. Brown Milling Co., 220 Ga. App. 256, 257 (2) (469 SE2d 387) (1996).

        Frame, supra at 430 (2).

       See id.

       See generally Miller, Stevenson & Steinichen v. Fayette County, 190 Ga. App. 777, 778 (1) (380 SE2d 73) (1989).

        Tidwell v. Critz, 248 Ga. 201, 204 (1) (282 SE2d 104) (1981).

       Id.

       See id.


author: Phipps, Judge.

text:
    A02A0436.
    FLOURNOY v. GOBLE et al. GOBLE v. FLOURNOY.
    A02A0437.
    (569 SE2d 861)
   Phipps, Judge.

Tabatha Goble sued Dr. Henry Flournoy for medical negligence, claiming that she suffered severe injuries because he perforated her small bowel during a diagnostic laparoscopic surgical procedure and failed or refused to acknowledge that the problems she experienced after surgery could have been caused by a bowel injury. Her husband, Claude Goble, sued Flournoy for loss of consortium. The jury awarded Tabatha Goble $150,000 for her injuries, but awarded Claude Goble nothing. Flournoy appeals in Case No. A02A0436, claiming that the trial court abused its discretion by excluding from evidence the consent form Tabatha Goble signed prior to the surgery and by failing to give several jury charges he requested. We find no merit in Flournoy’s claims and affirm the judgment against him. Claude Goble appeals in Case No. A02A0437, claiming that the trial court erred by entering a judgment awarding no loss of consortium damages despite the jury’s award of personal injury damages to his wife. We agree and reverse and remand for a new trial on the issue of damages only.

On February 8, 1994, Flournoy performed a diagnostic laparoscopy on Tabatha Goble to determine the cause of pelvic pain. She was discharged that day and was told that she should be able to return to work in two or three days. Flournoy did not realize that during the procedure, he had perforated or injured Goble’s bowel with an instrument called a trocar, which he had inserted into her abdomen.

Over the next ten days, Goble suffered from nausea, vomiting, and pain. She was unable to get out of bed during that period without assistance and left her bed only to go to the bathroom. Goble’s mother stayed with her during the days after the surgery and called Flournoy’s office several times to inform him of her daughter’s nausea and vomiting. Flournoy’s office staff called in two different prescriptions for nausea medication. When neither medication worked, a nurse came to Goble’s home and gave her an injection. It did not help either. Claude Goble informed another doctor in Flournoy’s office over the weekend of his wife’s continued nausea and vomiting and told him that her only previous stomach problem had been an ulcer several years earlier. That doctor thought that Tabatha Goble’s symptoms were consistent with an ulcer and authorized her to take Zantac and Maalox. When his wife did not improve, Claude Goble called Flournoy’s office again on February 18 and left a message with the answering service. When Flournoy returned the call, Tabatha Goble answered and informed him that they were going to the emergency room.

Shortly after she arrived at the hospital, Tabatha Goble underwent emergency exploratory surgery. The surgeon testified that her bowel had two small holes in it, which must have resulted from the first surgery, and that her condition upon arrival at the emergency room was life-threatening. After the emergency surgery, Tabatha Goble was hospitalized for almost a month. When she was discharged, she recuperated at her mother’s house for almost two months. During that time, she was very depressed and could not do anything with her husband except sit in the same room with him.

The emergency surgery left Tabatha Goble with a large visible scar on her abdomen. She no longer has a navel. She later had additional surgery to repair a hernia likely caused by the emergency surgery and to help reduce her scar. After her hospitalization for that surgery, she again recuperated at her mother’s house for some period of time.

Case No. A02A0436

1. Flournoy claims that the trial court erred by granting the Gobles’ motion in limine to exclude evidence of the consent form signed by Tabatha Goble before the laparoscopic surgery because the consent form was relevant and admissible.

The consent form listed “possible injury to bowel” as one of the possible risks of the laparoscopic procedure. At trial, Flournoy argued that he wanted to introduce the form to show that an injury to the bowel was a known risk of the procedure and that Tabatha Goble was made aware of the risk and nevertheless agreed to undergo the procedure. He also argued that the form was relevant to his defense that an injury to the bowel is a known and accepted complication that can and does occur in the absence of negligence.

There was no issue of whether Tabatha Goble consented to the procedure or whether she was properly informed of its risks. Thus, the consent form would not be relevant for those purposes. But the consent form would be relevant to whether an injury to the bowel was a known risk of the procedure. The answer to that question, however, was made clear by other evidence admitted without objection. Two of Flournoy’s expert witnesses and the Gobles’ expert all testified that an injury to the bowel is a known risk of laparoscopic surgery. The Gobles’ expert and one of Flournoy’s experts also testified that a bowel injury can occur even without a violation of the standard of care.

The admissibility of evidence rests in the sound discretion of the trial court. We find no abuse of discretion here, given the cumulative undisputed evidence that an injury to the bowel was a known risk of the procedure Flournoy performed, and that a bowel injury could occur without negligence.

2. Flournoy claims that the trial court abused its discretion by failing to charge the jury on the duty to lessen damages, avoidance of consequences, equal negligence, and comparative negligence. He argues that evidence was presented that the Gobles failed to convey accurate or complete information to his office and that they failed to advise his office of changes in Tabatha Goble’s condition.

All of the charges Flournoy requested required evidence of some degree of negligence by Tabatha Goble. Flournoy argues that the charges were justified because Tabatha Goble did not speak or attempt to speak to Flournoy herself until ten days after her surgery and that although she had abdominal pain beginning at 4:00 a.m. on February 18, she did not go to the hospital until after 9:00 p.m. But the evidence also showed that during the ten days following her surgery, Tabatha Goble suffered from nausea and vomiting, was unable to get out of bed without help, and followed whatever medical advice was given when her mother and husband called Flournoy’s office several different times. Flournoy has cited no evidence that Tabatha Goble’s damages would have been different if she had gone to the hospital earlier on February 18. Because the evidence cited by Flournoy is insufficient to raise an inference of negligence by Tabatha Goble, the trial court properly refused to give the requested charges.

Case No. A02A0437

3. Claude Goble claims that the trial court erred by entering judgment awarding no loss of consortium damages despite the jury’s award of damages to his wife. He argues that the verdicts are inconsistent.

“[W]here [an] injured person and [her] spouse combine their separate claims in one lawsuit [,] the loss of consortium claim is derivative, and where one jury has heard evidence on the same issue it cannot render inconsistent verdicts.” Whether the verdicts rendered are inconsistent depends on the facts of the particular case.

Tabatha Goble was hospitalized for almost a month after her emergency surgery. Claude Goble testified that for two months after his wife’s discharge, he could not sleep in the same bed with her and they could not do anything together except sit in the same room. She later underwent additional surgery, which also required hospitalization and a period of recovery. This evidence was undisputed.

Flournoy argues that the following exchange supports the jury’s award of no damages to Claude Goble:

FLOURNOY’S ATTORNEY: And I know your wife had a tough time and been through a rough — and both of you have. A rough go of it in the hospital there, but this has not affected your relationship in any way with your wife, has it? CLAUDE GOBLE: No.

We disagree with Flournoy. This testimony does not contradict evidence of difficulties the couple experienced as a result of surgery performed by Flournoy. Moreover, Claude Goble’s ability to maintain a good relationship with his wife despite hardship should not foreclose his claim for loss of his wife’s “society, companionship, love, affection, aid, services, cooperation, sexual relations and comfort” during her hospitalization and recovery.

Decided June 24, 2002

Reconsideration denied July 26, 2002.

Oliver, Maner & Gray, William P. Franklin, Jr., Terri M. Yates, for appellant.

Ronald W. Hallman, Berrien L. Sutton, for appellees.

We find the evidence supporting Claude Goble’s loss of consortium claim is uncontradicted and reverse that portion of the trial court’s judgment. Claude Goble is entitled to a new trial on the issue of damages.

Judgment affirmed in Case No. A02A0436. Judgment reversed and case remanded in Case No. A02A0437.

Mikell, J., concurs. Andrews, P. J., concurs in Case No. A02A0437 and concurs in judgment only in Case No. A02A0436.

        Deese v. Carroll City County Hosp., 203 Ga. App. 148, 150 (2) (416 SE2d 127) (1992).

       See Whitley v. Gwinnett County, 221 Ga. App. 18, 20 (3) (470 SE2d 724) (1996); Menendez v. Jewett, 196 Ga. App. 565, 566-567 (2) (396 SE2d 294) (1990) (physical precedent); see also Allen v. State, 247 Ga. App. 10, 14 (2) (543 SE2d 45) (2000).

       See Ga. Kraft Co. v. Faust, 200 Ga. App. 686, 688 (1) (409 SE2d 247) (1991); Lovell v. Howard, 182 Ga. App. 891 (2) (357 SE2d 600) (1987).

        Groover v. Dickey, 173 Ga. App. 73, 74 (1) (325 SE2d 617) (1984).

       See Gurly v. Hinson, 194 Ga. App. 673, 675 (9) (391 SE2d 483) (1990).

       See W. J. Bremer Co. v. Graham, 169 Ga. App. 115, 116 (312 SE2d 806) (1983) (definition of consortium).

        Groover, supra; Nelson & Budd, Inc. v. Brunson, 173 Ga. App. 856, 859 (6) (328 SE2d 746) (1985); compare Treglown v. K-Mart Corp., 245 Ga. App. 428, 431 (537 SE2d 173) (2000) (conflicting evidence was presented regarding whether the symptoms supporting the loss of consortium claim were caused by the defendant’s negligence or were due to a pre-existing condition).

        Groover, supra; Nelson & Budd, supra.


text:
    A02A0635.
    LADOW v. THE STATE.
    (569 SE2d 572)
   Phipps, Judge.

Terri Ladow appeals her conviction for driving under the influence (DUI) to the extent it was less safe for her to drive, contending that the trial court erred in admitting the results of her State-administered blood test because her request for an additional, independent blood test was not accommodated. The trial court’s decision to allow the evidence was based on its determination that Ladow did not request such a test. That determination was error. We therefore reverse Ladow’s DUI conviction.

The facts are undisputed. At approximately 2:15 a.m. on February 3, 2001, a law enforcement officer saw the truck that Ladow was driving weave across the centerline and stopped it. Based on his subsequent observations, including Ladow’s bloodshot eyes, the odor of alcohol coming from her person, the results of her alco-sensor test, and her performance on several field sobriety tests, he arrested Ladow for DUI.

The officer then began to read to Ladow the implied consent notice, stating, “It’s your Georgia Implied Consent Notice for suspects over the age of twenty-one. Okay. Which you are.” Ladow told the officer, “I’ve already heard all that.” The officer said to Ladow, “Okay. Well, I’ve got to still read you your Georgia Implied Consent Notice whether you’ve heard it. Yes, I do. I do.” Ladow stated, “I know you do.” The officer proceeded, “Georgia law requires you to submit to a state administered chemical test of your blood, breath, urine or other bodily substances for the purpose of determining if you’re under the influence of alcohol or drugs.” Ladow interrupted, “I want a blood test.” The officer then stated, “Hold on, please.” Ladow responded, “Okay.” The officer then read the remainder of the notice,

If you refuse this test, your Georgia driver’s license or privilege to drive on the highways of this State will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of zero point one zero grams or more, your Georgia driver’s license or privilege to drive on the highways of this State may be suspended for a minimum period of one year. After first submitting to the required State tests, you are entitled to additional chemical tests of your blood, breath, urine or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the State administered chemical test of your blood under the Implied Consent Law? Yes or no? Yes or no?

Ladow responded, ‘Yes.” A State-administered chemical test of her blood revealed an alcohol concentration of 0.10 grams. At no point was there an additional, independent test of Ladow’s blood.

Ladow moved in limine to exclude the results of the State’s blood test on the grounds that her request, “I want a blood test,” was for an additional, independent blood test and that it had not been accommodated. At the motion hearing, the officer testified that he believed that when Ladow said she wanted a blood test, she was referring to the State-administered chemical test because he had “just got done reading what the State required of her.” The trial court determined that given the totality of the circumstances, the officer reasonably believed that Ladow’s request was related only to State-administered tests and denied the motion. At a bench trial, the results of the State-administered blood test and the officer’s observations that led to Ladow’s arrest were admitted. Ladow was found guilty of DUI to the extent she was a less safe driver.

On appeal, Ladow contests the denial of her motion in limine, arguing that the trial court erroneously ruled that her statement, “I want a blood test,” did not constitute a request for an additional, independent blood test. A trial court’s application of the law to undisputed facts is subject to de novo appellate review.

OCGA § 40-6-392 (a) (3) provides that a person who is accused of DUI and who undergoes a chemical test at the request of a law enforcement officer has the right to have a qualified person of her own choosing administer an additional test. Law enforcement officers have a corresponding duty not to refuse or fail to allow an accused to exercise that right. “If an individual requests an independent test but is unable to obtain it, the results of the State-administered test cannot be used by the State as evidence against [her] unless the failure to obtain the test is justified.”

An accused’s right to have an additional, independent chemical test or tests administered is invoked by some statement that reasonably could be construed, in light of the circumstances, to be an expression of a desire for such test. The State argues that because Ladow made her request for a blood test immediately after the officer had read a portion of the implied consent notice regarding State-administered tests, “it was reasonable to expect that [Ladow’s] comments were in response to the information she had just been presented and not to material that had yet to be read to her.” The State also points out that Ladow did not again ask for a blood test.

OCGA § 40-5-67.1 places upon an arresting officer the duty to read to the accused the applicable implied consent notice as set forth therein. We note that each such notice ends with the question, “Will you submit to the state administered chemical tests of your ([officer] designate [s] which tests) under the implied consent law?” None, however, asks the accused whether she wants an additional, independent chemical test. And none specifies to the accused any requirements for requesting that test — linguistically, temporally, or otherwise. We do not believe that the legislature intended the notices to set up pitfalls for an accused who desires to have an additional, independent chemical test administered. We therefore cannot place upon an accused the burden of uttering words unspecified, yet more particularized than those uttered here: “I want a blood test.”

Furthermore, we cannot accept the State’s position that the officer reasonably construed Ladow’s statement as referring to a certain type of State-administered test. The only type of test Ladow had a right to designate was an additional, independent test. And contrary to the State’s position, the officer himself conceded understanding that the selection of the type of State-administered test rested with him.

We find of no consequence the fact that the officer had not yet read that portion of the notice concerning an additional test or the fact that Ladow did not again request a blood test. We have already held that “an accused’s right to have an independent test performed does not attach until the State performs its test, but. . . the right to request an independent test may be exercised when the accused is read [her] informed consent rights.” We see no reason why that rule should not apply here. The record shows that the officer was on notice that Ladow presumably knew of her right to an additional test because she told him at the outset of the notice that she had “already heard all that” and wanted a blood test.

We conclude that Ladow’s statement, “I want a blood test,” sufficiently articulated her desire to have an additional, independent test such that a law enforcement officer reasonably would have understood her statement to be a request for one. The officer thus had a duty to comply with Ladow’s request unless justified in not doing so. But the record reveals that the officer did not do so only because he did not consider Ladow’s statement to be such a request. He therefore made no effort to accommodate it. The State has failed to show an appropriate justification for its failure to accommodate Ladow’s request.

Decided July 11, 2002

Reconsideration denied July 26, 2002

Whitmer & Law, George H. Law III, for appellant.

Leslie C. Abernathy, Solicitor-General, Jason R. Samuels, Michael T. Saul, Assistant Solicitors-General, for appellee.

Because the State, without appropriate justification, failed to accommodate Ladow’s request, the trial court erred in denying her motion to exclude the results of the State-administered test. It is highly probable that the evidence that Ladow’s blood alcohol level exceeded the legal limit contributed to the trial court’s determination that she was less safe to drive. Thus, we cannot find the error harmless.

Judgment reversed.

Andrews, P. J., and Mikell, J., concur.

       Ladow does not appeal her conviction for failure to maintain lane.

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

        Smith, v. State, 250 Ga. App. 583, 584 (1) (552 SE2d 528) (2001).

       Id.

        State v. Button, 206 Ga. App. 673, 674 (426 SE2d 194) (1992).

       See Church v. State, 210 Ga. App. 670, 671 (1) (436 SE2d 809) (1993).

       OCGA § 40-5-67.1 (b) (1), (2), (3).

       See State v. Leviner, 213 Ga. App. 99, 101 (3) (a) (443 SE2d 688) (1994) (in enacting that statute, the legislature intended to impose additional implied consent notice requirements at the time the law enforcement officer requested the person to submit to a chemical test).

       OCGA §§ 40-5-55 (a); 40-5-67.1 (a).

       (Emphasis in original.) Norfleet v. State, 196 Ga. App. 548, 550 (396 SE2d 237) (1990); see also State v. White, 188 Ga. App. 658, 659 (373 SE2d 840) (1988); Duckett v. State, 206 Ga. App. 651 (426 SE2d 271) (1992); Ballew v. State, 206 Ga. App. 631, 633 (426 SE2d 254) (1992).

       Compare Church, supra (stopped driver’s question to law enforcement officer, “If you were going to arrest me would you take like a blood test; still you would put me in jail and I would still go to jail for DUI, right?” which was asked during field sobriety tests did not constitute adequate request for an additional, independent blood test).

       See Smith, supra at 585.

       S.ee id. at 585-586.

       See id.