text:
    A00A2162.
    STONE v. BOYNE et al.
    (539 SE2d 209)
   Eldridge, Judge.

Appellant-plaintiff George E. Stone appeals from the superior court’s order dismissing his appeal in this Court. The superior court found that appellant unreasonably and inexcusably delayed the processing of his appeal — this for failure to pay costs or file an affidavit of indigence. Consequently, the court granted the motion to dismiss the appeal filed by appellee-defendants Bob Boyne, Jack Hard-man, Gladys Lyde, Harold Pate, J. E. (Sonny) Miller, Milton Lynn, and Virginia Gunn, individually and in their official capacities as members of the Board of Commissioners of Glynn County; Lee Gilmour, individually and in his official capacity as County Administrator for Glynn County; Keith Flanagan, individually and in his official capacity as Superintendent of Public Works for Glynn County; and David Bandy, individually and in his official capacity as Personnel Director for Glynn County (“Glynn County’). On appeal, the appellant, in effect, argues the insufficiency of the evidence to support a finding that his failure to pay costs or file an affidavit of indigence was unreasonable and inexcusable under OCGA § 5-6-48 (c). We disagree and affirm. Held:

On January 11, 1999, finding that the appellant was required to contest his termination as a Glynn County employee by writ of certiorari rather than by independent action averring breach of contract, the superior court granted summary judgment to appellees. On February 8, 1999, the appellant timely filed notice of appeal thereon to this Court. Twenty days later, the clerk of court mailed appellant, through trial counsel (now appellate counsel), a statement of costs indicating that the transcript had been copied and that filing costs for his appeal were $437.50. On March 28, 1999, a second statement of costs was sent to the appellant by certified mail, again through trial counsel at a second address because the first letter had been returned as undeliverable. The return receipt of record reflects receipt of this costs statement on April 21,1999.

On September 2, 1999, Glynn County filed its motion to dismiss the appeal. The superior court twice set hearing dates on the motion; however, by order executed on January 14, 2000, the court continued the second of these, announced that the parties had agreed that the motion to dismiss appeal be decided on their written briefs as submitted, and ordered the appellant to respond to the motion within 14 days of its order. On February 7, 2000, the appellant filed his motion for a seven-day extension of the time to respond to the motion to dismiss appeal, filing in support thereof his pauper’s affidavit filed the same date. On March 30, 2000, the superior court issued its order granting Glynn County’s motion to dismiss appeal.

OCGA § 5-6-48 (c) provides that a transcript must be filed within 30 days after the filing of a notice of appeal unless an extension of time is requested as provided by OCGA § 5-6-39. The [superior] court may, after notice and hearing, order an appeal dismissed for a party’s failure to file a transcript on time only if the delay was (1) unreasonable, (2) inexcusable, and (3) caused by such a party. OCGA § 5-6-48; Sellers v. Nodvin, 262 Ga. 205 (415 SE2d 908) (1992).

Kendall v. Burke, 237 Ga. App. 742 (516 SE2d 791) (1999). “Whether or not to dismiss a notice of appeal for delay in paying costs rests in the sound discretion of the trial court when the grounds to dismiss have been met. [Cit.]” Style Craft Homes v. Chapman, 226 Ga. App. 634, 636 (487 SE2d 32) (1997). “In reviewing a finding of unreasonable and inexcusable delay in filing a transcript, this court will not disturb the lower court’s finding absent an abuse of discretion.” (Citations and punctuation omitted.) Hall v. Bussey, 200 Ga. App. 311 (408 SE2d 430) (1991).

Decided September 12, 2000.

Christopher A. Frazier, for appellant.

Whelchel, Brown, Readdick & Bumgartner, Gregory T. Carter, for appellees.

The superior court did not abuse its discretion by finding there had been an unreasonable delay in transmitting the record to this Court; that such delay was inexcusable; and that the delay was attributable to the appellant. Costs have never been paid. Appellant’s notice of appeal had been pending for a year when the parties agreed to submit the motion to dismiss appeal to the superior court for its decision on briefs, and the appellant knew from the filing of the notice of appeal that costs must be paid. Moreover, appellant’s response to Glynn County’s motion and his affidavit of indigence were untimely filed — the former having been filed approximately five months after the motion to dismiss appeal, the latter having been filed more than eight months after the second clerk’s letter had been received notifying him of the requirement to pay costs in order to perfect his appeal.

We have determined that a delay in excess of 30 days is prima facie unreasonable and inexcusable. Kendall v. Burke, supra at 743. While this presumption is subject to rebuttal, id., the appellant has not come forward with proof that his delay was not unreasonable and inexcusable. By his pauper’s affidavit, the appellant explains his delay as resulting from a deep desire to avoid seeking public assistance in paying the costs due, as well as significant personal difficulties. While we do not regard this explanation as post hoc rationalization and sympathize, it is undisputed in the record that the appellant caused the instant delay, as the superior court found, through his failure to timely pay costs or file an affidavit of indigence. Having directed the clerk to omit nothing from the record of this case on appeal, “ ‘it was his responsibility to ensure all [of the record be] prepared and filed. (Cit.)’ [Boveland v. Young Women’s Christian Assn. &c., 227 Ga. App. 241, 242 (1) (489 SE2d 35) (1997)].” Hameed v. Hall, 234 Ga. App. 890, 892 (1) (508 SE2d 680) (1998). The appellant having failed in this responsibility, the superior court did not err in granting the instant motion to dismiss appeal.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       By his brief on appeal, the appellant states that “[u]nder the peculiar and unique circumstances of this case, his failure to pay necessary court costs within the customary time was neither unreasonable nor inexcusable.”

       The appellant was dismissed from his employment as the managing supervisor of the Roads & Bridges Division of the Glynn County Department of Public Works. He was accused of theft by taking upon having approximately 3.5 yards of crushed stone, the property of the county, delivered to his son’s home for use in conjunction with the installation of a septic system.


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A00A1277.
    MacGIBBON v. AKINS.
    (538 SE2d 793)
   Barnes, Judge.

Pete MacGibbon appeals the judgment on a jury verdict awarding plaintiff Mark Akins a prescriptive easement across MacGibbon’s property along with $20,000 in damages. The jury also found MacGibbon had trespassed across Akins’ property, but that Akins was not entitled to monetary damages due to the trespass. Finally, the jury found that MacGibbon’s actions were wilful, in bad faith, or caused Akins unnecessary trouble and expense on both counts, but declined to award attorney fees.

MacGibbon argues that the trial court erred in denying his motion for a directed verdict and subsequent motion for judgment notwithstanding the verdict because: (1) no evidence showed Akins or his predecessors in title gave notice of adverse use by performing repairs on the dirt road across his property; (2) Akins failed to prove that his claimed easement did not exceed 20 feet in width; (3) the trial court erred in allowing Akins to call a rebuttal witness who testified that MacGibbon’s reputation in his workplace community was not good; and (4) the judgment did not conform to the verdict. For the reasons that follow, we affirm the trial court.

1.

The motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one-way” verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.

(Citation and punctuation omitted.) Denson v. City of Atlanta, 202 Ga. App. 325, 326 (1) (414 SE2d 312) (1991). “A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citation and punctuation omitted; emphasis in original.) MARTA v. Mehretab, 224 Ga. App. 263, 266 (2) (480 SE2d 310) (1997).

2. OCGA § 44-9-1 provides that “[t]he right of private way over another’s land may arise from . . . prescription by seven years’ uninterrupted use through improved lands or by 20 years’ use through wild lands.”

Use alone is insufficient to acquire prescriptive title under OCGA § 44-9-1. An owner’s acquiescence in the mere use of his road establishes, at most, a revocable license. To establish a prescriptive easement over the private property of another pursuant to OCGA § 44-9-1, it is necessary to show that the owner was given notice that the user intended to appropriate it as his own.

(Citations and punctuation omitted.) Eileen B. White & Assoc. v. Gunnells, 263 Ga. 360, 362 (434 SE2d 477) (1993). Making repairs to the road constitutes notice to the landowner that the repairer intends to appropriate the road as his own. Id. at 360-361; Rothberg v. Peachtree Investments, 220 Ga. 776, 780 (2) (142 SE2d 264) (1965).

To reverse the trial court’s judgment on the jury verdict, we must find no evidence that Akins or his predecessors put MacGibbon or his predecessors on notice of their intent to assert a prescriptive easement over MacGibbon’s property.

Akins owns 63 acres of unimproved land abutting a federal wildlife preserve and the Amicalola River on one side and MacGibbon’s property on the other. A dirt road ran from a public street through the property of several different owners before crossing MacGibbon’s property, then ended at Akins’ property, continuing to the river as a trail. Akins’ predecessors in title were Opal Hansard, who bought the property in 1971, then her husband Robert Hansard, who sold the land to Akins in 1991.

As a condition of sale, Hansard strung a cable across the road or trail at the edge of Akins’ property, abutting MacGibbon’s property. Akins explained that, while he expressly allowed people to walk across his land to get to the river, he did not want anyone driving through there, eroding the trail and polluting the environment. Akins testified that he first saw MacGibbon riding through his land on a four-wheel-drive recreation vehicle in early 1995. Later that year, Akins described a confrontation in which MacGibbon said, “Get off my land. You came across my land. If you ever come across my land again, I will do to you the worst thing you can imagine I could ever do.” In April 1996, Akins discovered that MacGibbon had erected a gate across the road, 20 feet east of Akins’ cable and property line. MacGibbon said he would remove the gate if Akins removed the cable, and Akins again extended permission for MacGibbon to walk across the property rather than drive. Akins testified that he heard shots fired in his direction during several visits; on one occasion, he saw MacGibbon run into Akins’ woods and emerge holding an ax. Akins subsequently revoked MacGibbon’s permission to walk across the land and testified that he was frightened of MacGibbon and rarely visited his property any more. After Akins filed suit, MacGibbon opened the gate.

MacGibbon argues that Akins presented no evidence that MacGibbon had notice of a prescriptive easement by repairs done to the road by Akins or his predecessors in title. However, Akins did present some evidence to support his claim of a prescriptive easement of which MacGibbon had notice. When Robert Hansard sold the property to Akins in 1991, he signed an affidavit in support of title in which he averred that he had “repaired the right-of-way when necessary” since his wife bought the property in 1971. Opal Hansard testified that her husband had repaired the road on MacGibbon’s property when necessary, using his power saw to remove downed trees, for example. Akins testified that he put ten tons of gravel on either side of the cable at his property line because MacGibbon would not allow him to build a drainage culvert. He also testified that he paid a neighbor $100 for MacGibbon’s use of a tractor on MacGibbon’s portion of the road.

The trial court properly submitted the prescriptive easement issue to the jury, which resolved it against MacGibbon. “The jury is the final arbiter of the facts, and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict.” Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (1) (c) (256 SE2d 916) (1979). As some evidence supported the jury verdict, and all of the evidence did not demand a verdict for MacGibbon, the trial court did not err in denying the motion for directed verdict or motion for judgment n.o.v. Id.

3. MacGibbon argues that the trial court erred in denying his motions for directed verdict and judgment n.o.v. because Akins failed to prove that the easement he sought did not exceed 20 feet and was the same 20-foot-wide area originally claimed.

“An applicant cannot establish any right whatsoever in a private way if the width of the pathway exceeds the statutory [20-foot] limit at any point when originally claimed by the applicant.” Rizer v. Harris, 182 Ga. App. 31, 34 (3) (354 SE2d 660) (1987), overruled on other grounds, Eileen B. White & Assoc. v. Gunnells, supra, 263 Ga. at 362. However, the presentation of conflicting evidence at trial regarding the width of the easement creates a factual issue for the jury to resolve. See Norfolk Southern R. Co. v. Dempsey, 267 Ga. 241, 243 (2) (476 SE2d 577) (1996).

Akins originally sued for a 30-foot-wide easement, and the description at the top of Robert Hansard’s affidavit in support of his deed of sale to Akins describes a 30-foot-wide easement, as does the warranty deed. Akins then amended his complaint to seek a 20-foot-wide easement. Evidence presented at trial included scaled plats showing a roadway 15 feet wide, 20 feet wide, and testimony that the road was between 12 and 17 feet wide. The trial court did not err in denying MacGibbon’s motions for directed verdict and judgment n.o.v. on this ground.

4. MacGibbon argues that the trial court erred in allowing Akins to present rebuttal testimony regarding MacGibbon’s bad reputation. While OCGA § 24-2-2 provides that evidence of the parties’ general character is generally irrelevant, OCGA § 24-9-84 provides that “[a] witness may be impeached by evidence as to his general bad character.” The statute further provides that, “The impeaching witness should first be questioned as to his knowledge of the general character of the witness, next as to what that character is, and lastly he may be asked if from that character he would believe him on his oath.”

The impeaching witness in this trial was asked if he knew MacGibbon’s reputation around the General Motors plant and community, what that general character was, and whether he would believe him under oath. While MacGibbon admits that a work environment can constitute a community for purposes of impeachment testimony (Bennett v. George, 105 Ga. App. 527, 533-534 (12) (125 SE2d 122) (1962)), he argues that the trial court abused its discretion in allowing this testimony because the witness had stopped working at the plant ten years before the trial took place. He further argues that the scope of the questions and answers went beyond that allowed by the statute, such as the witness’s testimony that MacGibbon was known around the plant as “Lying Pete.”

We have held that a workplace association “must be long enough both as to the witness’ relationship with the defendant in his community to lend the value judgment credence.” Bush v. State, 149 Ga. App. 448, 449 (4) (254 SE2d 453) (1979). The witness in this case testified that he had worked at the plant for 42 years and had kept in touch with the General Motors community since he retired by continuing to attend union meetings. We conclude that the trial court did not abuse its discretion in allowing the rebuttal witness to testify regarding MacGibbon’s reputation at work.

5. Finally, MacGibbon argues that the judgment materially differs from the verdict, because the judgment includes language indicating that the easement was “perpetual and non-exclusive.” However, the record shows that MacGibbon did not object to the judgment when the trial court presented it to counsel for comment, but waited until the hearing on his motion for new trial or judgment n.o.v. “One cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.” Rush v. Southern Property Mgmt., 121 Ga. App. 360, 361 (2) (a) (173 SE2d 744) (1970).

Judgment affirmed.

Blackburn, P. J, and Eldridge, J., concur.

Decided August 30, 2000

Reconsideration denied September 13, 2000.

Roger F. Huff, for appellant.

Stewart, Melvin & Frost, Frank Armstrong III, for appellee.


author: Mikell, Judge.

text:
    A00A1555.
    SOLOMON v. NORWEST MORTGAGE CORPORATION.
    (538 SE2d 783)
   Mikell, Judge.

Connie Solomon, pro se, appeals the grant of summary judgment in favor of Norwest Mortgage Corporation (“Norwest”) in this dispossessory action filed after she defaulted on her mortgage. Finding no error, we affirm.

1. In reviewing grants of summary judgment, “this [c]ourt conducts a de novo review of the law and the evidence.” To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law.

The undisputed facts entitle Norwest to judgment as a matter of law The evidence shows that Solomon executed a security deed conveying the property at issue to Unity Mortgage, and that the deed was subsequently assigned to Norwest. After Solomon defaulted under the terms of the security deed, Norwest declared the full amount of the indebtedness immediately due and payable. Norwest sent two notices of the pending foreclosure sale via regular and certified U. S. mail to Solomon; however, she failed to respond or to pay the amount owed within ten days of receiving the notices.

The evidence further shows that on June 1, 1999, Norwest sold the property at an auction on the steps of the DeKalb County courthouse. Norwest purchased the property as the highest bidder and became the record title holder. Norwest sent a demand for possession to Solomon; however, she failed to relinquish possession. Thereafter, Norwest filed a dispossessory action; Solomon filed an answer denying all of Norwest’s allegations and a counterclaim alleging wrongful foreclosure. On February 24, 2000, the trial court granted summary judgment in favor of Norwest and dismissed Solomon’s counterclaim.

It is undisputed that Solomon is a tenant at sufferance, subject to dispossession. “[W]here the grantor ... in a security deed remains in possession of the premises after lawful foreclosure of the deed, [she] is a tenant at sufferance and is subject to be summarily dispossessed by the purchaser at the foreclosure sale.” It is also undisputed that Norwest demanded possession of the property following the foreclosure sale, as required by OCGA § 44-7-50. Solomon was properly served with the dispossessory warrant and was provided adequate notice of the hearing.

Solomon has challenged the validity of the foreclosure in defense of the dispossessory proceedings against her; however, “after foreclosure sale, the former owner cannot attack dispossession without first setting aside the foreclosure and deed.”

2. Solomon challenges the constitutionality of Georgia’s dispossessory laws, OCGA § 44-7-50 et seq., and alleges that the dispossessory proceedings denied her rights to equal protection and due process of law.

Solomon failed to preserve these constitutional issues for appeal. She did not raise the arguments in her answer or counterclaim. Nor does our review of the transcript reveal any constitutional argument similar to the ones now raised for the first time on appeal. It is well settled that the constitutionality of a statutory scheme cannot be challenged for the first time on appeal. Accordingly, these enumerations present nothing for review. In any event, constitutional challenges to the laws governing dispossessory proceedings have previously been rejected on appeal.

3. Although Solomon has not enumerated this issue as error on appeal, she argues that the trial court improperly dismissed her counterclaim alleging wrongful foreclosure. We disagree. “As the superior courts have exclusive jurisdiction in cases respecting title to land, this issue could not be tried in state court.”

Moreover, the trial court did not abuse its discretion in denying Solomon’s motion to transfer the proceeding to superior court. Her reliance on Rucker v. Fuller is misplaced. As we recognized in Rowe v. Fleet Mtg. Corp.,

Decided August 28, 2000

Reconsideration denied September 13, 2000

Connie Solomon, pro se.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Scott N. Liebschutz, John G. Aldridge, Jr., Kevin T. O’Sullivan, for appellee.

former Code Ann. § 61-303 as interpreted in Rucker has been superseded by subsequent legislative enactment. As currently enacted, OCGA § 44-7-53 (b) provides “If the tenant answers, a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record. . . .” “The State Court of DeKalb County is a court of record. . . ”

Therefore, because the state court is a court of record with jurisdiction over the dispossessory action, the trial court did not err in denying the motion to transfer. Solomon was not precluded from challenging Norwest’s title, as she could have filed a separate action in superior court attacking the foreclosure.

4. Finally, Norwest argues that a $1,000 fine should be imposed on Solomon for filing a frivolous appeal, pursuant to Court of Appeals Rule 15 (b). “When the law is indisputably clear concerning the issues raised on appeal, frivolous appeal penalties may be imposed.” Solomon has demonstrated an impressive level of understanding of the applicable law; however, we cannot conclude that the law is indisputably clear such that a penalty should be imposed.

Judgment affirmed.

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

        Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

       OCGA § 9-11-56; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Citations and punctuation omitted.) Marsh v. Resolution Trust Corp., 211 Ga. App. 216, 217 (1) (439 SE2d 75) (1993).

       OCGA § 44-7-51 (a); see Van Schallern v. Stanco, 132 Ga. App. 794 (209 SE2d 243) (1974).

        Bellamy v. Fed. Deposit Ins. Corp., 236 Ga. App. 747, 750 (1) (512 SE2d 671) (1999).

        Allen v. Tucker Fed. Bank, 236 Ga. App. 245, 247 (4) (510 SE2d 546) (1998); Rowe v. Fleet Mtg. Corp., 226 Ga. App. 593, 594 (3) (487 SE2d 133) (1997).

        Soles v. Beasley, 234 Ga. 622 (216 SE2d 864) (1975).

        State v. Sanks, 225 Ga. 88, 90-91 (166 SE2d 19) (1969); Allen, supra at 247.

        Hyman v. Leathers, 168 Ga. App. 112, 113 (2) (308 SE2d 388) (1983), citing Ga. Const., Art. VI, Sec. IV, Par. I.

        Gentry v. Chateau Properties, 236 Ga. App. 371, 372 (1) (511 SE2d 892) (1999); Ranger v. First Family Mtg. Corp., 176 Ga. App. 715, 716 (5) (337 SE2d 388) (1985).

       247 Ga. 423 (276 SE2d 600) (1981).

       Supra, 226 Ga. App. 593.

       (Citations omitted.) Id. at 594 (2).

        Gentry, supra at 372.

       See Womack v. Columbus Rentals, 223 Ga. App. 501 (478 SE2d 611) (1996); Hyman, supra at 113.

        Hightower v. Kendall Co., 225 Ga. App. 71, 73 (5) (483 SE2d 294) (1997).


author: Smith, Presiding Judge.

text:
    A00A1653.
    SALAZAR v. THE STATE.
    (539 SE2d 231)
   Smith, Presiding Judge.

Juan Salazar was charged by indictment with statutory rape and child molestation, and a jury found him guilty as charged. For sentencing purposes, however, the child molestation conviction was merged with the statutory rape conviction. Salazar’s motion for new trial was denied, and he appeals, raising insufficiency of the evidence to support a conviction for statutory rape and the trial court’s denial of his motion to suppress a pretrial identification. Finding no error, we affirm.

The evidence presented at trial showed that while her mother was at work, the nine- or ten-year-old victim was home alone on a Sunday afternoon in their apartment. It was hot, and she opened the back door slightly. A man entered through that door, carried her to a chair and laid her down, placing his hand over her mouth and cautioning her to be quiet. He took off his clothes, then hers, and raped her. She got a good look at him because they were face to face. She did not scream or call the police because she was afraid. Her mother had instructed her not to stay home alone, and the victim was afraid her mother would be angry.

After her mother came home, the victim telephoned her sister, who lived with her aunt and uncle, and told her what had happened. The victim’s sister told her aunt, and the aunt told the victim’s mother. The victim did not know her attacker’s name, but she recognized him as a resident in the apartment complex. They called the police, and the victim described her attacker as a short, older Hispanic man with grey and black hair wearing a blue shirt with lettering. After the mother called the police, she and the victim went out to see if they could find the man. They encountered a group of about ten men standing outside, drinking and talking, and the victim recognized her attacker. When the police officers arrived, the victim and her mother indicated that he was in a certain apartment. The officers entered the apartment and picked up a person who, as one of the officers testified, fit the description given “to a T.” They obtained a positive identification from the victim before leaving the scene. The arresting officer testified that the victim was probably standing less than 20 feet away when she identified Salazar as her attacker and that she identified him “very clearly.”

1. Salazar contends that this showup identification was impermissibly suggestive and that the trial court erred in denying his motion to suppress the identification. We do not agree.

A two-part test is used to determine the admissibility of pre-trial identifications. First it must be determined whether the procedure used was, in fact, impermissibly suggestive. If it was, the court must consider the totality of the circumstances to determine whether a very substantial likelihood existed of irreparable misidentification. Odim v. State, 228 Ga. App. 158, 159 (2) (491 SE2d 218) (1997); Ferguson v. State, 221 Ga. App. 415, 418 (471 SE2d 528) (1996). A one-on-one showup is inherently suggestive. See id. But both state and federal courts have recognized countervailing considerations that can render one-on-one confrontations permissible, and even helpful. For instance, speedy investigation and prompt identification enhance accuracy and reliability, which expedite the release of innocent subjects. Baynes v. State, 218 Ga. App. 687, 688 (463 SE2d 144) (1995).

In this case, the showup was an on-the-scene confrontation conducted as soon as possible after the suspect’s apprehension. Given the practicalities inherent in such a situation, an immediate on-scene confrontation is helpful both to law enforcement agencies and to suspects who may be innocent. Pierce v. State, 191 Ga. App. 225 (1) (381 SE2d 532) (1989).

Contrary to Salazar’s contention, the fact that he was in a police car when he was identified by the victim does not render the identification inadmissible. Jenkins v. State, 216 Ga. App. 433 (3) (454 SE2d 543) (1995). See also Mattison v. State, 215 Ga. App. 635, 636 (2) (451 SE2d 807) (1994) (showup while suspect in back of patrol car upheld). This factor and the minor discrepancies in the victim’s description were simply subjects for cross-examination. Semple v. State, 271 Ga. 416, 419 (519 SE2d 912) (1999).

This court has thoroughly considered the dangers inherent in the practice of bringing single suspects to confront witnesses for the purposes of pre-trial identification, in particular, the danger of the substantial likelihood of irreparable misidentification. To evaluate that likelihood, we apply the test enunciated in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) [(1972)], which requires that we consider the witnesses’ opportunity to view the suspect at the time of the offense, the witnesses’ degree of attention, the accuracy of the witnesses’ prior description and their level of certainty.

(Citations and punctuation omitted.) Baynes, supra. Applying these factors here, we find that the victim had an excellent opportunity to view the suspect during the crime, as it was committed face to face, and her attention was focused on him. According to police officers, her description before the showup both of the suspect and his clothing was extremely accurate, and the victim was absolutely certain of her identification. Further, the showup here took place after the vietim and her mother had found Salazar and pointed him out to the police.

Salazar cites Banks v. State, 216 Ga. App. 326 (454 SE2d 784) (1995), in support of his argument that because the showup took place several hours after the incident, it should not have been admitted. While it is true that in Banks the showup took place “some four hours after the offense,” Banks is distinguished factually from this case because the victim’s identification in that case did not meet the requirements of the test in Neil v. Biggers, supra: The elderly victim could not see too well; the victim admitted he was not paying attention to this suspect during the crime but was focusing his attention on an accomplice; and he was mistaken about the time of day at which the showup took place. In addition, the victim’s description differed “in important respects” from the suspect’s appearance at the showup. Banks, supra at 329.

Under the totality of the circumstances presented in this case, the trial court did not err in denying Salazar’s motion to suppress the identification. Baynes, supra.

2. Salazar also maintains that the trial court erred in denying his motion for a directed verdict of acquittal and his motion for new trial. He argues both that the victim’s testimony presented insufficient evidence of penetration to support a conviction for statutory rape and that her testimony was not corroborated. We do not agree with either argument.

First, the victim testified that Salazar “raped me.” She further explicated this allegation by stating that “[h]e put his manhood inside . . . my vagina.” This is sufficient to indicate penetration.

OCGA § 16-6-3 provides that one commits statutory rape “when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.” This court has held, however, that

the quantum of corroboration needed is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration and ultimately the question of corroboration is one for the jury.

(Citations and punctuation omitted.) Collins v. State, 229 Ga. App. 658, 660 (1) (b) (495 SE2d 59) (1997).

The victim’s prior consistent statements, in the form of her outcry to others as testified to by them, may constitute sufficient corroboration in a case of statutory rape. Turner v. State, 223 Ga. App. 448, 450 (477 SE2d 847) (1996). Here, the victim’s mother, sister, and aunt testified to her outcry, stating that the victim told them Salazar raped her. This was sufficient corroboration of her testimony. Id. The evidence was sufficient to authorize Salazar’s conviction.

Decided September 13, 2000.

James W. Gibert, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


author: Johnson, Chief Judge.

text:
    A00A1762.
    SUTTON v. THE STATE.
    (539 SE2d 227)
   Johnson, Chief Judge.

A jury found Kelvin Sutton guilty of possession of cocaine with the intent to distribute. He appeals, alleging (1) the evidence was insufficient to support his conviction, (2) the trial court erred in admitting evidence of similar transactions, (3) the prosecutor impermissibly bolstered the testimony of a state witness, and (4) the trial court failed to give an adequate limiting instruction on the similar transaction evidence. Because each of these arguments lacks merit, we affirm Sutton’s conviction.

1. On appeal, the evidence is viewed in the light most favorable to support the jury’s verdict, and Sutton no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Viewed in this light, the evidence shows that police set up surveillance of 1126 Osborne Street in Fulton County. The surveillance lasted approximately 20 minutes. Officers observed Sutton and Gregory Bell in the area. Bell walked to 1139 Osborne Street and asked a woman at that location for “20 sacks.” The woman gave Bell a package, and he gave her some money. Bell then returned to 1126 Osborne Street, where he joined Sutton on the hood of a car parked in the driveway of the residence.

Officers observed two suspected drug transactions take place from the hood of the car. The second time, Sutton took the money from the suspected buyer. Later, a pedestrian approached the car, and an officer heard him warn Sutton and Bell that police were in the area. Bell then got up from the hood and placed a plastic bag containing the cocaine under a cinder block in the yard of 1126 Osborne Street. He then returned to the hood of the parked car.

A short time later, a car approached Sutton and Bell. Sutton told the individual, “go on, go on.” The driver proceeded down Osborne Street, turned around and came back to 1126 Osborne Street. Sutton got off the hood of the car and yelled, ‘You got to be told twice? We got good dope. We ain’t selling to you.”

The officers observed one additional drug transaction. A pedestrian gave Bell money, and Bell retrieved suspected cocaine from the plastic bag under the cinder block and gave it to the pedestrian. Officers then arrested both Sutton and Bell. Eleven hits of crack cocaine were discovered in the plastic bag retrieved from the cinder block. It is undisputed that officers never observed Sutton handling any drugs during these transactions.

Sutton argues that because he never actually possessed or handled the cocaine, he cannot be found guilty of possession of cocaine with intent to distribute. We disagree. “Possession may be joint or exclusive, and actual or constructive.” It is true that spatial proximity alone, or mere presence at the scene of the crime, with nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction. If the evidence of the location of the contraband were the only evidence presented, then Sutton might be correct in his analysis. However, Sutton’s proximity to the drugs was not the only evidence to support a conviction based upon parties to a crime with joint constructive possession. Sutton took the money during one of the drug transactions and told another suspected purchaser they had “good dope” but would not sell it to him. Based on the evidence in the record, the jury was authorized to find that Sutton was in constructive possession of the cocaine and was an active participant in the selling of the cocaine.

2. Sutton maintains the admission of two similar transactions was error because the incidents were insufficiently similar and were offered merely to impugn his character. As to the first incident, the arresting officer testified that approximately three years earlier he observed Sutton and another individual making a drug transaction. When Sutton and the other individual saw the officers, “they dropped a bag of cocaine which had 15 hits of crack in it.” Sutton was arrested with one hit of crack cocaine in his hand and $420 in his pocket. He was convicted of possession of cocaine with intent to distribute. A certified copy of his conviction was admitted into evidence.

As to the second similar transaction, the arresting officer testified that approximately two years earlier he and another officer were near 1126 Osborne Street investigating complaints of drug sales. He observed Sutton with a group of individuals. Sutton saw the police and started to “walk away at a very quick pace.” He was told to stop, but continued to the porch of 1126 Osborne, where he dropped a plastic bag containing ten hits of crack cocaine. Sutton was indicted for possession of cocaine with intent to distribute. A certified copy of his plea to simple possession of cocaine was admitted into evidence.

In determining whether prior transactions are sufficiently similar, courts must focus on the similarities of the occurrences rather than their differences, particularly when the purpose of the evidence is to establish intent, as opposed to identity or criminal signature. Here, the prior acts involved the same type of drug, crack cocaine; one of the acts occurred at precisely the same location as the charged offense, outside 1126 Osborne; and both prior acts involved indictments charging Sutton with possession with intent to distribute. Moreover, insofar as Sutton denied that he possessed the cocaine at issue or that he was an active participant in the drug transactions in the present case, evidence that he had engaged in similar conduct in the past was properly admitted to establish his bent of mind and course of conduct. The trial court’s finding of similarity was not clearly erroneous.

3. Sutton contends the state’s closing argument was improper because the prosecutor bolstered the officer’s testimony. However, a review of the record discloses that Sutton failed to object to any allegedly improper comments either during or after the state’s closing argument. “It is necessary to object to an alleged irregularity in an attorney’s closing argument at the time it is actually made, and failure to do so amounts to a waiver of any objection that might have been raised.” Because Sutton failed to make a timely objection, the argument is waived.

4. The trial court did not err in its limiting instruction to the jury on the similar transaction evidence. At the outset, we note that the state, and not Sutton, requested that the trial court provide a limiting instruction on the similar transaction evidence during the trial. Additionally, Sutton did not object to the limiting instruction given, either during trial or after the jury charges were read at the conclusion of the trial. And, in fact, Sutton’s requested jury charge on this issue was given.

Decided September 13, 2000.

Elaine T. McGruder, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Christopher M. Quinn, Assistant District Attorneys, for appellee.

Sutton now complains that the trial court’s limiting instruction did not instruct the jury that before it considered evidence of similar transactions for any purpose, it had to be satisfied that the defendant on trial is the same person to whom the evidence on similar transactions applies. Having failed to timely object to the limiting instruction or to inform the trial court of any further instruction he wished to be given, Sutton cannot now complain.

Furthermore, immediately following the limiting instruction the court instructed the jury as follows:

The court does not express any opinion as to whether the defendant has had any other offenses. This is a matter solely for your determination. If you believe such has been proven, however, you are strictly limited in your consideration of the evidence as to identity, intent, method of operation, course of conduct.

Taken as a whole, the instruction given adequately informed the jury about the limits on its consideration of the similar transaction evidence.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

        Young v. State, 242 Ga. App. 681 (1) (530 SE2d 758) (2000).

       (Citations omitted.) Sanders v. State, 199 Ga. App. 671, 672 (2) (405 SE2d 727) (1991).

        Shirley v. State, 166 Ga. App. 456, 457 (1) (304 SE2d 468) (1983).

       See Eason v. State, 234 Ga. App. 595, 596-597 (1) (507 SE2d 175) (1998).

        Guild v. State, 236 Ga. App. 444, 445 (2) (512 SE2d 343) (1999).

        Jones v. State, 243 Ga. App. 374, 376-377 (2) (533 SE2d 437) (2000); see Guild, supra; Sultenfuss v. State, 185 Ga. App. 47, 49 (2) (363 SE2d 337) (1987).

       See Tate v. State, 230 Ga. App. 186, 188 (2) (495 SE2d 658) (1998).

       (Citation omitted.) Williams v. State, 191 Ga. App. 217, 218 (2) (381 SE2d 399) (1989); see also Robbins v. State, 243 Ga. App. 21, 24 (4) (532 SE2d 127) (2000).

       See Parrish v. State, 237 Ga. App. 274, 281 (5) (514 SE2d 458) (1999).

       See Maldonado v. State, 240 Ga. App. 497, 498 (4) (523 SE2d 917) (1999).


text:
    A00A1802.
    ALLEN v. THE STATE.
    (539 SE2d 211)
   Mikell, Judge.

Benjamin Allen was convicted of first degree arson and theft by taking. His motion for new trial was denied. Allen appeals only his arson conviction, arguing that the evidence was insufficient to support a guilty verdict. Finding the evidence sufficient, we affirm.

On appeal, Allen no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to support the verdict. Our review is limited to determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Construed in the light most favorable to the jury’s verdict, the evidence shows that Captain Jerry Torbert of the Lamar County Sheriffs Department received a 911 emergency call at 11:18 p.m. on April 24, 1998, reporting that the residence leased to Priscilla Parsons was on fire. Investigation by the fire department determined that the fire had been deliberately set in at least three locations in the house.

The evidence also shows that Allen lived in the residence with Parsons; however, she had asked him to vacate the house three days before the fire. Parsons testified that she and Allen had a telephone conversation on the night of the fire at approximately 11:00 p.m.; she was at work, and he was at the house. During the telephone conversation, Parsons insisted that Allen move out of the house.

Terry Cook, a friend of Parsons, testified that he encountered Allen on the night of the fire, and that Allen told Cook he would “bum [the house] down” if Parsons did not resume their relationship. The evidence further shows that Allen’s uncle picked up Allen outside of the house at or around 11:00 p.m. that night and drove him to Atlanta.

We conclude that the evidence was sufficient for the jury to determine beyond a reasonable doubt that Allen was guilty of first degree arson by “knowingly damaging] ” Parsons’ residence “by means of fire.”

Allen argues that Cook was not a credible witness; however, “the credibility of witnesses was a matter for the jury; on appeal we consider the sufficiency of the evidence.”

Next, Allen argues that his presence at the scene of the fire shortly before it was discovered is not sufficient to prove that he started the fire. Allen is correct that mere presence at the scene of a crime cannot support a conviction; however, the evidence shows far more than Allen’s presence. Testimony regarding Allen’s “statements and conduct before and after the arson . . . coupled with his presence on the scene” provided sufficient evidence for the jury to conclude that Allen was guilty of first degree arson. According to Cook, Allen told him that “if [Parsons] don’t come home today, she ain’t going to have no place to come to,” and that “I’m going to burn it down.”

Allen’s threats to burn the house, considered in connection with his last-minute plea to Parsons to resume their relationship, Parsons’ insistence that he vacate the premises, his presence at the house, and his rapid departure at or around the time the fire was estimated to have started, sufficiently support the jury’s verdict.

Decided September 13, 2000.

Lynn Wilson, for appellant.

Richard G. Milam, District Attorney, Paul E. Hemmann, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998).

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

       OCGA § 16-7-60.

         (Citations and punctuation omitted.) Moak v. State, 222 Ga. App. 36, 38 (1) (473 SE2d 576) (1996); see also Elrod v. State, 213 Ga. App. 208, 210 (2) (444 SE2d 595) (1994).

        Moak, supra, 222 Ga. App. at 37.


text:
    A00A1997.
    FREE v. THE STATE.
    (539 SE2d 213)
   Mikell, Judge.

Joseph Perry Free was indicted on one count of aggravated assault and one count of criminal trespass. The jury returned a guilty verdict on the aggravated assault charge and found the defendant not guilty of criminal trespass. The trial court denied the motion for new trial, and the defendant appeals his conviction. We affirm.

1. The defendant argues that his conviction should be reversed because it was contrary to the evidence, against the weight of the evidence, and contrary to law and the principles of equity and justice. On appeal, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to support the verdict. Our review is limited to determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Viewed in the light most favorable to support the verdict, the evidence shows that in the early hours of January 17, 1999, the defendant drove his girlfriend, Linda Jane Schlick, to the home of her estranged husband, Richard Schlick, in order to pick up her four-year-old son. Both the defendant and Mrs. Schlick had consumed alcoholic beverages prior to driving to Mr. Schlick’s home.

The evidence further shows that upon their arrival, Mrs. Schlick entered Mr. Schlick’s home while the defendant remained in the car. Mr. Schlick became upset when he realized that his estranged wife was accompanied by the defendant. Mr. Schlick approached the car, shouting at the defendant to leave his property. Mr. Schlick testified that he had a cordless telephone in his hand when he started walking toward the defendant’s car.

Both Mr. Schlick and the defendant testified that when the defendant saw Mr. Schlick approaching, the defendant exited his car holding a gun and fired a shot into the air. Mr. Schlick continued moving toward the defendant, dropping the telephone in the process. Mr. Schlick shoved the defendant, who stumbled backward several steps. Mr. Schlick testified that after the defendant recovered his footing, he “stepped back, braced, and fired,” shooting Mr. Schlick in the left shoulder. After he was shot, Mr. Schlick picked up the cordless telephone and called 911.

The law enforcement officers who arrived on the scene found Mr. Schlick on the porch of his home, putting pressure on his wound, and a .380 caliber pistol in the passenger area of the defendant’s car. The defendant told the officers that he shot Mr. Schlick in self-defense. The officers determined that the defendant was intoxicated and declined to interview him until later that day.

The two essential elements of aggravated assault are (1) an assault and (2) aggravation by the use of a deadly weapon, object, device, or instrument “which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”

We conclude that the evidence, as summarized above, was sufficient for the jury to determine beyond a reasonable doubt that the defendant was guilty of aggravated assault.

2. Next, the defendant argues that the trial court erred in refusing to charge the jury on mistake of fact pursuant to OCGA § 16-3-5, which provides that “[a] person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” The defendant contends that this charge was warranted because he mistakenly believed that the cordless telephone carried by Mr. Schlick was a gun.

In Pullin v. State, the Supreme Court held that “inasmuch as the appellant’s defense was based on justification and self-defense, and inasmuch as the trial court gave a full jury charge with respect thereto, . . . the appellant was not entitled to a charge on mistake of fact.” Here, the trial court charged the jury on justification, self-defense, misfortune, and accident. Accordingly, the court did not err in refusing to give a charge on mistake of fact.

Judgment affirmed.

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

Decided September 13, 2000.

Rodney L. Mathis, for appellant.

T Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

        Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998).

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

       OCGA § 16-5-21 (a) (2); Elrod v. State, 238 Ga. App. 80, 82 (1) (517 SE2d 805) (1999).

       257 Ga. 815, 817 (3) (364 SE2d 848) (1988).


author: Ellington, Judge.

text:
    A00A1172.
    A00A1173.
    A00A1174.
    SCHLOTZSKY’S, INC. v. HYDE et al. SCHLOTZSKY’S, INC. v. CONE. SCHLOTZSKY’S, INC. v. GUNSELMAN.
    (538 SE2d 561)
   Ellington, Judge.

In these consolidated cases, the appellees allege they contracted Hepatitis A from eating tainted food at a Schlotzsky’s Deli franchise owned and operated by Tidwell Food Company, Inc. Both Schlotzsky’s, Inc. and the appellees moved for summary judgment on whether Schlotzsky’s, as franchisor, was vicariously liable under an actual agency theory for Tidwell Food Company’s alleged negligence. The trial court denied Schlotzsky’s motion and granted partial summary judgment to appellees Mary and David Hyde and Beatrice Coker in Case No. A00A1172; to Kathleen Cone in Case No. A00A1173; and to Claudia Gunselman in Case No. A00A1174. In each case, the trial court found that the franchise agreement and operations manual gave Schlotzsky’s the right to control the time, manner, method, and means of the franchisee’s work and Schlotzsky’s was, therefore, vicariously liable for any negligence by the franchisee. We disagree and reverse the decisions of the court below.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

The applicable law is well settled and has been restated by this Court often:

[I]n order to impose liability on the franchisor for the obligations of the franchisee, it must be shown that: (a) the franchisor has by some act or conduct obligated itself to pay the debts of the franchisee; or (b) the franchisee is not a franchisee in fact but a mere agent or “alter ego” of the franchisor.

(Citations and punctuation omitted.) McGuire v. Radisson Hotels Intl., 209 Ga. App. 740, 742 (1) (435 SE2d 51) (1993); Baldino’s Giant Jersey Subs v. Taylor, 216 Ga. App. 467 (454 SE2d 599) (1995). In this case, there is no issue as to whether Schlotzsky’s obligated itself to pay Tidwell Food Company’s debts. It did not. And, contrary to the findings of the trial court and the appellees’ contentions, there is no evidence that Tidwell Food Company is merely an agent or alter ego of Schlotzsky’s.

The historical test applied by Georgia courts has been whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract.

(Citation and punctuation omitted.) McMullan v. Ga. Girl Fashions, 180 Ga. App. 228, 230 (2) (348 SE2d 748) (1986); Baldino’s, 216 Ga. App. at 467. In this case, although the franchise contract and operations manual set forth very detailed standards pertaining to food preparation, hygiene, and sanitation, Schlotzsky’s did not reserve to itself the right to control the time, manner, or method in which Tidwell Food Company, through its employees, actually executed those standards.

Section 8.1 of the franchise agreement provided that Tidwell Food Company is an independent contractor and shall not be considered an agent, partner, or joint venturer of Schlotzsky’s. Further, the agreement provided that:

Except as expressly set forth in this agreement, the UDA and the MANUAL, the FRANCHISEE shall have full and complete control of the day-to-day operation of his business and the business policies and practices adopted and utilized in connection therewith, including, without limitation, the terms and conditions of employment of FRANCHISEE’S employees.

Contrary to the trial court’s conclusion, there is no language in the agreement that reserves to Schlotzsky’s any right “to control the daily activities of [Schlotzsky’s] employees.” Baldino’s, 216 Ga. App. at 467. Further, nothing in the manual gives Schlotzsky’s supervisory control over Tidwell Food Company’s day-to-day work. Although the operations manual sets out mandatory standards for food and service quality, some of which are quite specific and detailed, these standards are not intended as a means of directing or controlling “the time, manner and method of performance of the daily operations of the franchise but as a means of achieving a certain level of quality and uniformity within the [Schlotzsky’s] system.” McGuire, 209 Ga. App. at 742 (1).

As we have held, a franchisor may protect its franchise and its trade name by setting standards governing its franchisee’s operations, including how its product is manufactured, packaged, prepared, or served. See, e.g., McGuire, 209 Ga. App. at 742-743; Frey v. PepsiCo, 191 Ga. App. 585, 586-587 (1) (382 SE2d 648) (1989). Further, these standards may be quite detailed, specific, and strict. See id.; McGuire, 209 Ga. App. at 742. A franchisor’s reserving the right to inspect, monitor, or evaluate the franchisee’s compliance with its standards and to terminate the franchise for noncompliance is not the equivalent of retaining day-to-day supervisory control of the franchisee’s business operations as a matter of law. See id. at 742-743 (1); Anderson v. Turton Dev., 225 Ga. App. 270, 274-275 (2) (a) (483 SE2d 597) (1997).

Further, in this case, there is no evidence showing, as a matter of fact, that Schlotzsky’s had undertaken day-to-day supervisory control of its franchisee or had otherwise assumed control of the time and manner of executing Tidwell Food Company’s work when appellees consumed the allegedly tainted food. See Baldino’s, 216 Ga. App. at 467. Rather, the record shows that Schlotzsky’s hired an independent company, Quality Concepts, Inc., to inspect its Atlanta franchisees, including Tidwell Food Company. Quality Concepts inspected Tidwell Food Company’s restaurant twice a year. Further, although Schlotzsky’s area developers were also charged with the duty to continuously monitor franchisees for compliance with standards, there is no evidence that any of these individuals had or assumed any supervisory duties over the day-to-day work of any person employed by Tidwell Food Company. See McGuire, 209 Ga. App. at 743; Baldino’s, 216 Ga. App. at 467. Finally, the fact that Schlotzsky’s responded to Tidwell Food Company’s request for advice about how to handle the media attention generated by these incidents or the fact that Schlotzsky’s reconsidered its standards pertaining to employee hygiene after these incidents is not relevant to whether Schlotzsky’s had any supervisory control over Tidwell Food Company at the time appellees consumed the allegedly tainted food.

For these reasons, the trial court erred in granting appellees’ motion for partial summary judgment and in denying Schlotzsky’s motion for summary judgment on the issue of its vicarious liability under an actual agent or alter ego theory.

Judgments reversed.

Andrews, P. J., and Ruffin, J., concur.

Decided August 25, 2000

Reconsideration denied September 14, 2000.

Kilpatrick Stockton, Roderick C. Dennehy, Jr., Craig E. Bertschi, Audra A. Dial, Jill Warner, for appellant.

Cooper & Jones, Lance A. Cooper, Scott B. Cooper, Andrew W. Jones, for appellees.


author: Blackburn, Presiding Judge.

text:
    A00A1382.
    BONEY v. THE STATE.
    (538 SE2d 791)
   Blackburn, Presiding Judge.

Allen Boney, Jr., pro se, appeals the trial court’s dismissal of his second motion for out-of-time appeal in which Boney claimed ineffective assistance of appellate counsel. We affirm because Boney’s claim should have bejen raised by a petition for writ of habeas corpus.

Following Boney’s conviction of possession of cocaine with the intent to distribute on June 21,1993, Boney appealed. The conviction was affirmed by this Court in an unpublished opinion, Boney v. State. Four years later, Boney filed a pro se motion for out-of-time appeal, raising a claim of ineffective assistance of appellate counsel, which was dismissed by the trial court. Boney appealed the dismissal to this Court, but his appeal was dismissed due to his failure to timely file the notice of appeal. See Boney v. State. Thereafter, Boney filed the present motion for out-of-time appeal with the trial court, raising again a claim of ineffective assistance of appellate counsel, which the trial court dismissed for lack of jurisdiction.

1. In this appeal, Boney contends the trial court erred by dismissing his second motion for out-of-time appeal. We disagree. In our second opinion concerning Boney’s claims, we informed him that an out-of-time appeal is appropriate when a direct appeal was not taken, and that he had already taken a direct appeal. We also informed him that his recourse was a writ of habeas corpus. Boney v. State, 236 Ga. App. 179. The trial court did not err.

2. The State’s motion to dismiss is denied.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

Decided August 29, 2000

Reconsideration dismissed September 14, 2000

Allen Boney, Jr., pro se.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

        Boney v. State, 212 Ga. App. XXVII (1994).

       Boney contended that appellate counsel “failed to raise clearly meritorious arguments on appeal.”

        Boney v. State, 236 Ga. App. 179 (510 SE2d 892) (1999).


author: Ruffin, Judge.

text:
    A00A1065.
    BRYANT v. THE STATE.
    (539 SE2d 523)
   Ruffin, Judge.

James Lewis Bryant was charged with two counts of selling cocaine and two counts of possession of cocaine with intent to distribute. On August 31,1998, as part of a negotiated plea, Bryant pled guilty to one count of selling cocaine, and the trial court entered orders of nolle prosequi on the remaining charges. On June 28, 1999, Bryant filed a motion for an out-of-time appeal. The trial court denied the motion, and Bryant appeals. For reasons that follow, we affirm.

In limited circumstances, an out-of-time appeal is appropriate where no appeal has been taken. However, such direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea “only if the issue on appeal can be resolved by facts appearing in the record.” “The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent an abuse of such discretion.” We find no abuse of discretion here.

As the trial court correctly noted, Bryant has failed to show that the issues he seeks to raise on appeal can be resolved by reference to facts in the record. First, Bryant contends that the prosecution presented false evidence to the grand jury in obtaining his indictment. Ordinarily, an indictment is challenged by filing a motion to quash, which Bryant failed to do. Assuming, for the sake of argument, that he may still raise the issue on appeal, it presents no basis for reversal. There is a presumption that an indictment was returned on legal evidence, and Bryant bears the burden of proving otherwise. Bryant, however, points to nothing in the record to support his contention that such illegal evidence was tendered.

Second, Bryant suggests that the “private citizen,” or confidential informant, who participated in the controlled buy of drugs had an opportunity to switch the drugs that Bryant allegedly sold. Thus, Bryant seems to argue that the evidence of his guilt would have been insufficient to support his conviction. At the hearing during which Bryant pled guilty, the prosecutor set forth the factual basis as follows:

[O]n October 17th, 1997, CNT (Chatham Narcotics Team) wired ... a cooperating source’s vehicle with video. The cooperating source went out... on Habersham Street [and] made a purchase of crack cocaine from the Defendant. It’s on videotape. We showed the videotape to the Defendant and his attorney. They took the substance, they tested it, [and] it came back positive for cocaine.

After hearing this recitation of the facts, the defendant stated on the record that he was guilty and would enter a guilty plea to one count of selling cocaine, and he stated that his plea was voluntary. Given Bryant’s admission to the facts, the trial court was clearly authorized to find a factual basis for the plea.

Third, Bryant contends that his attorney, the prosecutor, and the trial court “tricked” him into pleading guilty by telling him that he would only have to serve 36 to 48 months of his life sentence before being paroled. Again, we have reviewed the record, and it provides no support for Bryant’s contention.

Fourth, Bryant contends that the trial court failed to comply with Uniform Superior Court Rules 33.7, 33.8, and 33.9 in accepting his guilty plea. Rule 33.7 requires that, prior to accepting a plea, the trial court determine that the plea is voluntary. Rule 33.8 requires that the court determine both that the defendant understands the nature of the charges against him and that the defendant understands the rights that he is waiving by pleading guilty. Rule 33.9 requires that the trial court not accept the plea without first determining that a factual basis exists for the plea. Contrary to Bryant’s contention, the record reflects that the trial court did comply with these requirements prior to accepting his guilty plea.

Fifth, Bryant argues that the trial court erred in failing to properly “define the elements of the crime including intent.” But the law does not always require that the trial court personally inform a defendant of the elements of the crime to which he is pleading guilty. This rule is particularly true here, where the elements of the crime — selling cocaine — are “self-evident from [its] nomenclature.”

Sixth, Bryant asserts that the trial court erred in denying his motion without first holding a hearing and making findings of fact and determinations of law. It is true that the trial court did not hold a hearing prior to denying Bryant’s motion. As we have already stated, however, an out-of-time appeal following a guilty plea is limited in scope to those issues that may be resolved by facts appearing on the record. Thus, no hearing was required in this case as “[i]ssues regarding the effectiveness of counsel are not reached unless the requirement that the appeal be resolved by reference to facts on the record is met.”

Seventh, Bryant asserts that his trial attorney rendered ineffective assistance by, among other things, failing to file a motion to suppress, failing to advise him of his constitutional rights, and failing to interview witnesses. We note, however, that “at his guilty plea hearing, [Bryant] indicated that he was completely satisfied with the performance of his attorney.” Moreover, the record does not demonstrate either that Bryant had grounds upon which to file a motion to suppress, or had constitutional rights that were violated, or had witnesses who could have helped his case, or that the plea process was defective in any way. For these reasons, the trial court did not err in denying Bryant’s motion for an out-of-time appeal.

Finally, Bryant attempts to add issues in his brief that are not contained in any of his enumerated errors. “In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling.” As Bryant’s additional arguments were not included in any of his enumerated errors, we are precluded from addressing them on appeal.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

Decided September 14, 2000.

James L. Bryant, pro se.

Spencer Lawton, Jr., District Attorney, IanR. Heap, Jr., Assistant District Attorney, for appellee.

        Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995).

       Id.

        Dover v. State, 237 Ga. App. 797, 798 (516 SE2d 839) (1999).

       See Jackson v. State, 208 Ga. App. 391, 392 (1) (430 SE2d 781) (1993) (“[T)he burden is on a defendant seeking to quash an indictment to overcome the presumption that it was returned on legal evidence by showing that there was no other competent evidence upon which it could lawfully have been returned”).

       Id.

       To the extent that Bryant appears to suggest that police are not permitted to use “private citizens” in a sting operation, he provides no legal authority for this novel proposition, and we are aware of no such prohibition.

         Thompson v. State, 240 Ga. App. 539 (1) (b) (524 SE2d 239) (1999).

       Id. at 540.

        Morrow, supra.

       (Punctuation omitted.) Echols v. State, 231 Ga. App. 501 (498 SE2d 66) (1998).

        Gibbs v. State, 239 Ga. App. 249, 250 (1) (a) (519 SE2d 511) (1999).

        Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).

       Id.


text:
    A00A1124, A00A1125.
    CONMAC CORPORATION v. SOUTHERN DIVERSIFIED DEVELOPMENT, INC. et al. (two cases).
    (539 SE2d 532)
   Ellington, Judge.

In Case No. A00A1124, Conmac Corporation appeals from the Fulton County Superior Court’s order vacating the modification of an arbitration award Conmac obtained against Southern Diversified Development, Inc. (“SDDI”). In Case No. A00A1125, Conmac appeals from the trial court’s denial of its emergency motion to enter judgment against intervenor Continental Casualty Company (“Continental”). Finding no error, we affirm.

In December 1996, SDDI hired Conmac to build a multi-story condominium building in northwest Atlanta. The construction contract specified that disputes would be arbitrated pursuant to the Construction Industry Arbitration Rules of the American Arbitration Association (“AAA”). When SDDI refused to pay for construction work performed by Conmac, Conmac filed a $907,553 Claim of Lien against SDDI’s property on February 4, 1998. Two days later, Con-mac sued SDDI for breach of contract, quantum meruit, lien foreclosure, tortious interference with contractual relations, fraud, business defamation, and conversion. Conmac demanded arbitration under the contract, and the trial court stayed the case pending arbitration.

SDDI filed a bond discharging the lien on April 20, 1998. See OCGA § 44-14-364. The bond named Continental as surety. Although Continental was not named in the lawsuit and did not participate in the arbitration, it was permitted to intervene on June 10, 1999.

Conmac and SDDI presented extensive evidence of their claims and counterclaims to an arbitration panel during 16 days of hearings. On February 2, 1999, the arbitrators awarded Conmac $978,185 in damages, pre-judgment interest from December 10, 1997, plus post-judgment interest. In addition, the award stated that: “All other claims of The CONMAC CORPORATION are denied”; “The claims of [SDDI] are denied”; and “This Award is in full settlement of all claims submitted to this arbitration.”

Conmac immediately filed a motion to “clarify and modify” the arbitrators’ award, pursuant to Rule 44 of the AAA’s Construction Industry Arbitration Rules. Rule 44 allows a party to request an arbitrator to correct “any clerical, typographical, technical or computational errors in the award.” It also prohibits an arbitrator from redetermining the merits of any claim already decided. According to Conmac’s motion, the award did not “specifically address one of the issues which the parties agreed to submit to the Arbitrators for a decision; specifically, whether the Claim of Lien ... is valid.” SDDI objected to any modification of the award, asserting that the award clearly denied Conmac’s entitlement to the lien. In March 1999, the arbitration panel issued a modified award which stated that Conmac “is entitled to a mechanics lien against the property of [SDDI] in the amount of [the] Award.”

On April 13, 1999, Conmac moved the trial court to confirm the arbitrators’ award, as modified, pursuant to OCGA § 9-9-12; to lift the stay on the proceedings; and to enter judgment on the award. SDDI opposed Conmac’s motion and moved to vacate the award. The trial court confirmed the original award of $978,185 plus interest, but ruled that the arbitration panel had overstepped its authority by modifying the merits of this award when none of the grounds for modification under OCGA § 9-9-11 (a) had been met. Based upon this finding, the trial court vacated the modification.

Case No. A00A1124

Conmac appeals only from that portion of the trial court’s order vacating the modification.

1. Conmac argues that the trial court failed to apply the proper standard for vacating the modification, so that SDDI was relieved of its responsibility to prove that it was prejudiced by the modification. The record demonstrates, however, that the trial court utilized the proper standard and that its decision to vacate the modification was supported by sufficient evidence.

(a) Under OCGA § 9-9-13 (b), a trial court shall vacate an arbitration panel’s award only if it finds that a party was prejudiced by one of four bases, including an “overstepping by the arbitrators of their authority.” OCGA § 9-9-13 (b) (3). See Greene v. Hundley, 266 Ga. 592, 594-595 (1) (468 SE2d 350) (1996) (holding that the four bases listed in the Arbitration Code are the exclusive grounds for vacating an arbitration award, and that the Arbitration Code must be strictly construed). In this case, the trial court vacated the modification under OCGA § 9-9-13 (b) (3) after finding that the arbitration panel had overstepped its authority by modifying, the merits of its award, when none of the statutory grounds for modification under OCGA § 9-9-11 (a) had been met. As the trial court utilized the proper statutory bases for vacating the modification, there was no error.

(b) Conmac challenges the trial court’s finding that the arbitration panel overstepped its authority. Conmac relies on language from cases which define “overstepping” narrowly as “addressing issues not properly before the arbitrator.” (Citations and punctuation omitted.) Haddon v. Shaheen & Co., 231 Ga. App. 596, 598 (1) (b) (499 SE2d 693) (1998). See also Ralston v. City of Dahlonega, 236 Ga. App. 386, 388 (3) (512 SE2d 300) (1999). Even under this limited definition of “overstepping,” however, the trial court’s decision to vacate is supported by the record.

In this case, the arbitration panel decided the merits of an issue which was not properly before them, as it had already been presented to them and rejected by them. It is undisputed that Conmac petitioned the arbitration panel to validate the existing lien against SDDI’s property and to allow its foreclosure. Under “other relief sought” in its demand for arbitration, Conmac noted that it requested foreclosure on the lien. In its pre-hearing brief, Conmac asked the arbitration panel to validate the lien. According to an affidavit signed by Conmac’s counsel, both Conmac and SDDI “made it clear” that they wanted the arbitrators to decide the issue of whether the lien was valid, and “extensive evidence on this issue was submitted by both parties at the hearings.” As the trial court specifically found in its order vacating the modification, “the timeliness of Con-mac’s lien was hotly disputed and this issue had specifically been submitted to the arbitration panel for decision.”

Even so, the arbitration panel failed to validate the lien in its original award to Conmac. After granting a monetary award to Con-mac, it denied all other claims and stated that the award was in “full settlement” of all claims that had been submitted. This closed the door to any further consideration of the merits , of the dispute by the arbitration panel. The panel’s subsequent attempt to modify the award by validating the lien, when none of the requirements for modification under OCGA § 9-9-11 (a) were present, supported the trial court’s finding that the panel had overstepped its authority under OCGA § 9-9-13 (b) (3).

(c) Conmac argues that the trial court failed to find that SDDI was prejudiced by the modification and that, absent such express finding, its order must be reversed. Conmac is correct in its assertion that a party who moves the trial court to vacate an arbitration award must show both (1) prejudice and (2) one of the four bases under OCGA § 9-9-13 (b). See Bennett v. Builders II, 237 Ga. App. 756, 757 (3) (516 SE2d 808) (1999); Gilbert v. Montlick, 232 Ga. App. 91, 93 (1) (499 SE2d 731) (1998). It specifically argued this issue to the trial court on its motion to confirm the award.

The record shows that Conmac filed a lien against SDDI’s property in the amount of $907,553 and SDDI secured a bond for that amount with Continental as surety. Since the arbitrators’ award failed to validate the lien, it relieved both SDDI and Continental from liability on the bond that had been secured to discharge the lien. In contrast, the arbitrators’ subsequent modification subjected SDDI and Continental to liability on the bond where no such liability existed under the original award. Further, the amount of liability under the modification ($978,185 plus interest) greatly exceeded the value of the lien that had been submitted to the arbitrators for their decision as to validation and foreclosure.

We find that SDDI presented sufficient evidence of prejudice to support the trial court’s order vacating the modification under OCGA § 9-9-13 (b) (3). See Hilliard v. J. C. Bradford & Co., 229 Ga. App. 336, 341 (2) (494 SE2d 38) (1997) (a trial court’s ruling on whether an arbitration award should be confirmed or vacated should not be disturbed if there is any evidence to support it). Further, even absent a specific finding that SDDI was prejudiced by the modification, a trial court’s judgment that is right for any reason must be affirmed. Martin v. Roccorp, Inc., 212 Ga. App. 177, 179 (441 SE2d 671) (1994); Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 237 (4) (335 SE2d 708) (1985).

2. Conmac contends that the arbitration panel was not bound to follow the Georgia Arbitration Code, OCGA § 9-9-1 et seq., because the parties had agreed that the arbitration would be guided by the AAA Construction Industry Arbitration Rules. In support of its contention, Conmac specifically relies on Rule 53, which states that the arbitration panel “shall interpret and apply these rules insofar as they relate to the arbitrator’s powers and duties.” (Emphasis supplied.) Therefore, Conmac argues that the arbitration panel could simply exercise its authority under the arbitration rules to “fashion a remedy” by modifying its award, even if that modification violated the arbitration rules or the Georgia Arbitration Code itself. See Greene v. Hundley, 266 Ga. at 595 (2).

Conmac’s contention lacks merit. By its very language, Rule 53 gives the arbitration panel the authority to interpret the AAA Rules, but does not empower it to circumvent or disregard express procedural requirements or limitations on its power that have been adopted by the Georgia Legislature. See, e.g., OCGA § 9-9-8 (b) (a party’s right to testify and cross-examine witnesses), (c) (a party’s right to an attorney), and (e) (the arbitrators shall maintain records of all pleadings and evidence). As stated in footnote 2, supra, the Georgia Arbitration Code specifically limits when an arbitration panel may modify an existing award to three situations and expressly prohibits a modification which affects the merits of the controversy. OCGA § 9-9-11 (a).

This Court refuses to adopt Conmac’s argument that an arbitration panel has the inherent power to decide when, and if, it will abide by specific, statutory limitations on its power.

3. There was no error in the trial court’s determination that SDDI’s objection to Conmac’s motion to modify was valid. See OCGA § 9-9-11 (b) (2).

Case No. A00A1125

4. Conmac appeals from the trial court’s denial of its emergency motion to enter judgment in the amount of $907,553 against Continental, as surety on the bond discharging the lien against SDDI’s property. During the hearing on the emergency motion, Conmac argued that the request for judgment against Continental was not based upon the modification on appeal, but instead was based upon the arbitrators’ award against SDDI, which had been confirmed and had not been appealed. Conmac contended that it was entitled to judgment against Continental under its contract as SDDI’s surety, regardless of the validity of the lien.

Conmac’s arguments lack merit. Under these circumstances, a debtor must first establish its rights as a lienholder and to the foreclosure of such lien before it is entitled to enforce a statutory bond discharging the lien. Spicewood, Inc. v. Dykes Paving &c. Co., 199 Ga. App. at 167 (2); see also Hendricks v. Blake & Pendleton, Inc., 221 Ga. App. 651, 652 (1) (472 SE2d 482) (1996). After finding in Case No. A00A1124, supra, that Conmac failed to establish its entitlement to the lien, we find that Conmac was not entitled to judgment on Continental’s bond. Therefore, we affirm the trial court’s order.

5. This Court finds the remaining enumerations to be without merit.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

Decided September 14, 2000.

Smith, Curry & Hancock, Philip E. Beck, David A. Roberts, for appellant.

Goodman & Goodman, Donald J. Goodman, Porter & Barrett, J. Alexander Porter, Magill & Atkinson, Thomas E. Magill, for appellees.

       SDDI did not appeal the confirmation of the February 2,1999 award.

       The Georgia Arbitration Code specifically limits when an arbitration panel may modify an existing award to the following situations: (1) when there is a miscalculation of figures or a mistake in a description; (2) when there is an award on a matter not submitted to the arbitrators and it can be corrected without affecting the merits of the award; and (3) when the award is imperfect in form, not affecting the merits of the controversy. OCGA § 9-9-11 (a).

       In order to enforce the bond, “the lienor must establish his rights both to [the] lien and foreclosure thereof.” (Citation and punctuation omitted.) Spicewood, Inc. v. Dykes Paving &c. Co., 199 Ga. App. 165, 167 (2) (404 SE2d 305) (1991). See also Division 4, infra.


text:
    A00A1289.
    HILEY v. THE STATE.
    (539 SE2d 530)
   Ellington, Judge.

A Muscogee County jury convicted Willie Darrell Hiley of burglary, OCGA § 16-7-1. Following the denial of his motion for new trial, Hiley appeals, asserting the general grounds and contending that the trial court erred in refusing to give his requested jury charge on the lesser included offense of criminal trespass, OCGA § 16-7-21 (b) (1). We find that the law and the evidence required that the jury be instructed on criminal trespass and, therefore, reverse.

“[A] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990). Criminal trespass is a lesser included offense of burglary. Johnson v. State, 164 Ga. App. 429-430 (1) (296 SE2d 775) (1982). To convict on a charge of burglary, the state must prove the defendant entered or remained within the premises of another without authority and “with the intent to commit a felony or theft therein.” OCGA § 16-7-1 (a). To convict on a charge of criminal trespass, the state must prove that the defendant “knowingly and without authority” entered upon the premises of another “for an unlawful purpose.” OCGA § 16-7-21 (b) (1).

We have held that the trial court must give a requested charge on criminal trespass as a lesser included offense of burglary where the testimony of the accused “if believed, would negate an element of the crime of burglary (entry with intent to commit a felony or theft).” Huffman v. State, 153 Ga. App. 203 (2) (265 SE2d 603) (1980). Specifically, where the accused admits the unauthorized entry but denies the intent to commit a felony or theft, the trial court must give a requested charge on the lesser included offense of criminal trespass. Echols v. State, 222 Ga. App. 598, 599 (2) (474 SE2d 766) (1996) (defendant claimed he was looking for a place to sleep); Hambrick v. State, 190 Ga. App. 119-120 (1) (378 SE2d 340) (1989) (defendant claimed he was looking for discarded food in a trash can); Huffman, 153 Ga. App. at 203 (defendant claimed he was looking for a person he thought was hiding in the building). Cf. Johnson, 164 Ga. App. at 429-430 (1) (a criminal trespass charge was not required where a defendant accused of burglary denied any involvement in the crime and attacked the state’s identification evidence and presented an alibi defense).

Decided September 14, 2000.

Hagler, Hyles, Adams & Hix, Clark C. Adams, Jr., for appellant.

J. Gray Conger, District Attorney, Margaret E. Bagley, Assistant District Attorney, for appellee.

In this case, Hiley presented evidence that he went into the premises, a vacant house near his residence, to help turn on the heat at the request of a homeless acquaintance who planned to sleep there. He denied any intent to commit a theft or other felony. Hiley submitted a written request to charge on the lesser included offense of criminal trespass. The trial court refused to give that charge, finding the evidence did not support a finding of an unlawful purpose. Hiley timely objected to the trial court’s failure to give the charge.

Although the jury was authorized to infer from the evidence that Hiley entered the vacant house to commit theft, it also could have inferred from the evidence that Hiley entered the house for some unlawful puqpose other than theft. For example, the jury could have found Hiley entered the house with the intent to loiter there and visit with his acquaintance. See OCGA § 16-11-36.

If so, they could have found him not guilty of burglary as charged in the indictment, but guilty of the lesser offense of criminal trespass. Accordingly, the trial court erred in denying [Huey’s] written request to charge on criminal trespass, and this error requires reversal.

(Citation omitted.) Echols v. State, 222 Ga. App. at 599 (2).

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

       See Phillips v. State, 204 Ga. App. 698, 702-703 (3) (420 SE2d 316) (1992) (intent to commit theft was shown by admission defendant “was taking and using electricity in the apartment to heat the stove burners to dry his clothing”); Howard v. State, 227 Ga. App. 5, 8 (6) (b) (488 SE2d 489) (1997) (intent to commit theft can be inferred from the presence of valuables).


text:
    A00A1351.
    PARSON v. THE STATE.
    (539 SE2d 234)
   Smith, Presiding Judge.

David Andrew Parson was indicted on charges of aggravated assault, murder, robbery, burglary, kidnapping, and theft by taking. He was convicted by a jury of kidnapping and the lesser included offense of criminal trespass. Following the denial of his motion for new trial, Parson appeals, challenging the sufficiency of the evidence with respect to the kidnapping conviction. Because we conclude that sufficient evidence was presented to support the jury’s verdict under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we affirm.

Construed in favor of the verdict, evidence was presented that the bodies of Joseph Roger Hayes (Roger Hayes) and Kathy Hayes were found inside their mobile home. Earlier that day, following a night of heavy drinking, Roger Dale Hayes (Dale Hayes), Parson, and Chet Sagner, Parson’s friend, drove to the mobile home of Roger and Kathy Hayes. Roger Hayes’s seven-year-old daughter, the kidnapping victim in this case, also lived in the residence. Sagner testified that on the way, Dale stated he was going to kill two people by cutting their throats. According to Sagner, Parson stated he did not like one of the two people and mentioned that one of them owed him money. Sagner testified that after they arrived, the three walked to the back of the mobile home, and Dale cut the telephone wire. Parson and Dale went inside the mobile home, and Sagner returned to the car.

Parson testified that on the night before the murders occurred, Dale said “he had to go hurt somebody and hurt them bad” and told Parson that if he did not go with him, Parson would “get hurt, too.” Parson acknowledged that he went to the residence of Roger Hayes but that he had nothing to do with cutting the telephone line and that he tried to keep Dale from going inside. According to Parson, Dale went inside the mobile home while he stood outside. He testified that he heard his grandfather and stepgrandmother yelling and that he saw the seven-year-old victim rim out of her room. Parson then went inside, and he testified that he told the victim to go back into her room. Parson testified that the victim

was fighting me, and she was hollering, wanting her daddy and her step-mama; and I had to talk ill to her, because she was pushing on me and trying to get around me. I hollered at her once or twice, I think, and made her go back to her room, and she went and lay down, and I shut the door, and I just stood there.

In a statement given to the police, Parson stated that after Dale entered the mobile home, Dale went “flying into grandpa’s bedroom” and asked Roger Hayes “if he wanted to be cut or shot, and before I leave tonight, you both will be dead.” Parson further stated that he “was holding [the victim] back” during the commotion in his grandfather’s bedroom. At trial, Parson testified that he held the victim for her protection, not to help Dale. When Dale came out of the bedroom, “he was bloody all over.” He instructed Parson to crank Roger Hayes’s car, and after Parson did so, Dale told him to “get [the victim], and let’s go. So I did it.” Dale, Parson, and the victim drove Roger Hayes’s car to the bottom of the hill near Roger Hayes’s home, where the car in which Sagner was waiting was parked. Dale and Sagner left the scene in Roger Hayes’s car, while Parson and the victim left in the other car. According to Parson, although he stopped at a store “to get my head straight and back together,” he took the victim “to her mama.” In his statement to the police, he said that Dale had not threatened him, but during his trial testimony, Parson repeatedly stated that he was afraid of Dale and that Dale had threatened him.

The victim testified that “[a] 11 the commotion going on” awakened her, and she heard her father telling her to call the police. She left her bedroom and heard her father praying and reading aloud from the Bible, and she heard Dale asking Kathy Hayes whether she wanted “to live, or have the same thing done to you as what was done to Roger.” Kathy Hayes answered that she wanted “to live and keep the child,” and Dale told her she “said the wrong thing.” The victim stated that Parson told her she “didn’t need to go back there,” and she returned to her room where she tried to call the police. On cross-examination, she stated that she asked if she could go back into her bedroom, and Parson said she could do so. She denied that Parson prevented her from trying to call the police. She testified that after she went into her bedroom, Parson “came in and got [her] out of the bedroom,” and she left the mobile home with him and Dale.

The victim testified that they made one stop, and Parson told her they were “going over there to meet the deputy” but that she later learned this was not true. Parson then took her to her mother’s residence. The victim testified that Parson did not take her anywhere she did not want to go, although she acknowledged that she was angry with Parson because she “thought they may have lied to me, and they did, and what they done.” In addition, contrary to her trial testimony, during a videotaped interview made before trial, the victim stated that her father told her to call the police but that Parson would not let her. She also stated that Parson “had to bring me to my bedroom.” We also note that the local victim-witness coordinator testified that after the victim left the courtroom, the victim was crying and told the witness that she had tried “to help” Parson. The victim denied trying to help anyone, however, and could not remember whether she made this statement.

Parson contends the State failed to prove that the victim was unlawfully asported or that the victim was held against her will. We disagree.

Under OCGA § 16-5-40 (a), “[a] person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” And testimony by the victim of a kidnapping “concerning whether consent was given or withheld is not essential since other evidence can be utilized to establish the victim was abducted and held against her will. [Cit.]” Strozier v. State, 156 Ga. App. 241, 242 (274 SE2d 633) (1980). While the evidence was conflicting as to whether Parson held the victim against her will, it was for the jury to resolve conflicts in the evidence. See, e.g., Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847) (1996).

Some evidence was presented that Parson made the victim move from one room to another against her will. Parson himself testified that the victim was “fighting” him and that he talked “ill” to her and made her go into her room. And the victim stated during a videotaped interview that Parson had to bring her to her bedroom. “[A]ny unlawful asportation, however slight, is sufficient to support a kidnapping conviction. [Cits.]” Chambley v. State, 163 Ga. App. 502, 504 (1) (295 SE2d 166) (1982). See also Williams v. State, 178 Ga. App. 581, 592 (12) (344 SE2d 247) (1986). We also note that in his statement, Parson stated that Dale told him they were going inside Roger Hayes’s house “to get the little girl,” and he removed the victim from the mobile home at Dale’s order. Given Parson’s own testimony and his statement, that of Sagner, and the testimony of the victim and her statements made during a videotaped interview, we conclude that a rational trier of fact was authorized under the standard of Jackson, supra, to conclude beyond a reasonable doubt that Parson unlawfully abducted the victim and held her against her will.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

Decided September 14, 2000.

William B. Barker, for appellant.

Michael H. Crawford, District Attorney, for appellee.

       Roger Hayes was the father of Dale Hayes, as well as the father of the kidnapping victim. Desiree Hayes, the mother of the kidnapping victim, was formerly the wife or girlfriend of Roger Hayes. At the time of the murders, however, she was married to Dale Hayes. Under this arrangement, Dale Hayes was both the half-brother and stepfather of the kidnapping victim. Parson was the grandson of Roger Hayes. Evidence was presented that Dale and Roger Hayes were involved in a custody dispute over the kidnapping victim.