text:
    A01A0864.
    RUSSAU v. THE STATE.
    (552 SE2d 890)
   Phipps, Judge.

A grand jury indicted John Henry Russau for theft by shoplifting. At trial, the court denied Russau’s motion for a directed verdict of acquittal, and he was convicted. Russau appeals, challenging the sufficiency of the evidence and the denial of his motion for a directed verdict. Because we find the evidence was sufficient, we affirm.

1. Russau contends that the trial court erred in denying his motion for a directed verdict of acquittal and that the evidence was insufficient to support the verdict.

A person commits the offense of theft by shoplifting when he . . . , with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, . . . [c] onceáis or takes possession of the goods or merchandise of any store or retail establishment.

The standard for reviewing a denial of a motion for directed verdict of acquittal or the sufficiency of the evidence is whether, under Jackson v. Virginia, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. We view the evidence in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. This Court does not weigh the evidence or determine witness credibility.

The evidence showed that on July 26, 1999, a Wal-Mart employee saw Russau pushing a shopping cart in the store. Inside the shopping cart were B. C. Powders, aspirin, and a blue plastic WalMart bag, containing more B. C. Powders and aspirin. Russau pushed the cart to the front of the store, took the bag out of the cart, then walked out of the store, without passing through a check-out aisle. As he exited, the store’s alarm sounded. The employee followed Russau through the parking lot and called to him several times, asking him to return to the store. Russau’s only response was that he “sped up” and began to “duck down” between cars. Russau then entered a car and sped away. The employee testified that he was so close to Russau that he could have “reached in the car and turned the switch off. . . .” The employee reported the incident, as well as the car’s tag number, to an assistant store manager who called the police.

At trial, the assistant store manager stated that she had seen Russau in the medicine aisle of the pharmacy department after the department had closed for the day. She testified that items purchased within the store’s various departments, including the pharmacy department, are placed in clear bags, whereas items purchased at the front registers are placed in blue bags. This is done so that Wal-Mart employees can distinguish where purchases were made. She also explained that items in the pharmacy department priced over $5 have sensor tags, which are desensitized when scanned by a cashier as payment is made.

A police detective who was assigned to the case testified that after learning the car’s tag number from the assistant manager, he obtained the address listed for that vehicle and mailed a letter there. Thereafter, Russau contacted him, claiming the car with that tag number was his own and stating that he was the primary driver of the car. He also admitted that he had been to the Wal-Mart store, although he could not remember exactly which days he was there. The detective scheduled an appointment for Russau to come to the police department to discuss the shoplifting report, but Russau did not appear. When the detective called Russau’s home, the telephone was disconnected, and subsequent letters to Russau’s home came back marked “return to sender.”

Decided July 24, 2001.

Russau relies on Calhoun v. State, where we reversed the defendant’s shoplifting conviction based on insufficiency of the evidence. However, that case is distinguishable. In Calhoun, the State relied upon hearsay evidence which has no probative value to establish the shoplifting charge. Here, the evidence implicating Russau is competent evidence with probative value.

Russau further points out that the witnesses did not see him enter the store, did not know whether he had purchased items in the store, and did not see him put any store merchandise in the bag and that no Wal-Mart merchandise was recovered from him or his residence. But a defendant may be convicted on circumstantial evidence where the proved facts are consistent with the hypothesis of guilt and exclude every other reasonable hypothesis. Here, Russau was seen in the medicine aisle of the pharmacy department after that department closed and was seen thereafter pushing a shopping cart containing B. C. Powders and aspirin from that department. Then he left the store without paying for any merchandise at the front of the store carrying B. C. Powders and aspirin in a bag that was not consistent with a purchase made within a department of the store. As he exited, the store’s alarm sounded, indicating that he was carrying store merchandise which had not been purchased. Russau did not return to the store when asked by the employee but instead attempted to elude the employee before speeding away in a car. He later admitted that the car was his, that he was the primary driver, and that he had been at the Wal-Mart store. Even though the evidence was circumstantial, viewed in the light most favorable to the verdict, it was sufficient to allow a rational trier of fact to conclude that Russau was guilty beyond a reasonable doubt of theft by shoplifting.

2. Russau’s brief fails to support his remaining claim of error with citation of authority or argument. Therefore, it is deemed abandoned.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Darrell B. Reynolds, Sr., for appellant.

Robert E. Keller, District Attorney, Adrian Britt, Assistant District Attorney, for appellee.

       OCGA § 16-8-14 (a) (1).

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

        Lewis v. State, 247 Ga. App. 808, 809 (1) (545 SE2d 381) (2001).

        Millwood v. State, 237 Ga. App. 748 (1) (516 SE2d 799) (1999).

       Id.

       213 Ga. App. 375 (444 SE2d 405) (1994).

       Id. at 376-377; see Agony v. State, 226 Ga. App. 330, 331 (2) (486 SE2d 625) (1997).

       OCGA § 24-4-6; Lewis, supra.

        Jackson, supra; Lewis, supra.

       Court of Appeals Rule 27 (c) (2).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A01A1942.
    In the Interest of J. R. T. et al., children.
    (552 SE2d 892)
   Phipps, Judge.

The indigent mother of J. R. T. and G. F. T. appeals the Fulton County Juvenile Court’s termination of her parental rights. Her court-appointed appellate counsel has filed a brief complaining of the juvenile court’s denial of the mother’s motion for a continuance and contending that the evidence is insufficient to show that she is presently unfit or that termination of her parental rights is in the best interests of the children. Appellate counsel also has filed a motion to withdraw from the case. We affirm the judgment appealed and deny the motion.

1. At the beginning of the termination hearing, the mother’s trial attorney moved for a continuance due to his client’s unexplained absence. The court denied the motion because the mother had been served with notice of the hearing and orally informed of it. The court, however, agreed to entertain a motion to set aside any adverse judgment if the mother showed good cause for her absence from the hearing. No motion to set aside was filed. We find no abuse of discretion in the court’s denial of the continuance.

2. The evidence showed that appellant is the mother of approximately a dozen children, all of whom are in the custody of the state. Custody of J. R. T. and G. F. T. was placed in the Fulton County Department of Family & Children Services (DFACS) in part because of the mother’s chronic use and abuse of illegal drugs. She failed to comply with a case plan which required her to submit to drug screens and complete a drug treatment program. Moreover, during the almost two and one-half years between DFACS’s assumption of custody of the children and the hearing on the petition for termination of parental rights, the mother failed to provide any financial support for the children, regularly contact them, or maintain stable housing. As a result of the mother’s highly uncooperative behavior, DFACS was unable to conduct a home study. J. R. T. and G. F. T. are currently in foster care with parents who want to adopt them. Contrary to arguments advanced on appeal, this evidence was sufficient to show that the mother is presently unfit and that termination of her parental rights would be in the children’s best interests.

Decided July 24, 2001.

Christopher J. McFadden, for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Philip B. Campbell, Assistant Attorneys General, for appellee.

3. In his motion to withdraw, counsel asserts that he has been placed in a dilemma by his appointment iii an appeal which is arguably frivolous, because he is subject to frivolous appeal sanctions by pursuing the appeal. In arguing that he is subject to sanctions, counsel cites In the Interest of A. W., a termination of parental rights case in which a penalty for frivolous appeal was imposed against the appellant as well as his attorney. Persuaded by counsel’s argument and citation of authority, the State has filed a motion against appellant and counsel for imposition of sanctions for frivolous appeal. Counsel, however, overlooks the fact that in A. W. the appellant and his attorney made “outrageous, unsupported factual assertions” that flew in the face of the record. Under those circumstances, we concluded that we would have been remiss in not imposing sanctions for frivolous appeal.

This case involves no such conduct. Moreover, in this case, the State’s evidence only consists of eleven and one-half pages of testimony given by the DFACS worker assigned to the case, as well as prior unappealed deprivation orders of which the court took judicial notice. Whether the evidence establishes all the statutory criteria which must be met before a termination of parental rights is authorized is a subject of legitimate inquiry. Although we have rejected appellant’s evidentiary challenge, we do not deem this appeal to be frivolous. Arguably, the State’s motion for imposition of sanctions for frivolous appeal is itself frivolous.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       See In the Interest of A. H. P., 232 Ga. App. 330, 332 (1) (500 SE2d 418) (1998).

       See In the Interest of J. M. M., 244 Ga. App. 171 (534 SE2d 892) (2000).

       See In the Interest of L. M. J., 247 Ga. App. 756 (545 SE2d 127) (2001); In the Interest of L. S., 244 Ga. App. 626, 628 (1) (536 SE2d 533) (2000).

       242 Ga. App. 26 (528 SE2d 819) (2000).

       Id. at 30.

       See In the Interest of J. M. M., supra.


author: Johnson, Presiding Judge.

text:
    A01A0080.
    DODD et al. v. CITY OF GAINESVILLE.
    (551 SE2d 62)
   Johnson, Presiding Judge.

For three years, the City of Gainesville paid retired police officer Jack Dodd $2,553 in monthly pension benefits, even though he was entitled to receive only $2,254 under the type of retirement plan he had selected. Upon discovering its error, the City notified Dodd that it would reduce his monthly benefit amount and that it expected him to repay the overpaid benefits.

Dodd and his wife sued the City for breach of contract and negligence. As to the breach of contract claim, Dodd alleged that the City informed him that he would receive $2,553 per month upon retirement, entered into a contract with him wherein the City agreed to pay him that amount and, when he retired, paid him the agreed-upon amount for three years. Dodd’s negligence claim alleged that, because of the city clerk’s misinformation, Dodd gave up his position as a police captain, a position from which he would not have otherwise retired for another five years, and that he suffered a loss of pay and benefits as a result.

Although the City moved for summary judgment on several bases, the trial court did not issue a ruling on most of them. Instead, it granted the City’s motion on two grounds. First, it held that the City could not be liable in negligence for miscalculating Dodd’s retirement benefit amount since Dodd could have calculated the correct monthly benefit amount on his own by using a retirement system handbook which contained a formula for calculating benefits but neglected to do so. Second, the trial court held that the City was not liable for breach of contract inasmuch as Dodd was an at-will employee; given Dodd’s at-will status, the City owed him no fiduciary duty. At the same time, the trial court denied the City’s counterclaim for reimbursement of overpayments, holding that genuine issues of material fact remain as to whether Dodd knew he was receiving more than the amount to which he was entitled. Dodd appeals from the grant of summary judgment to the City.

1. Dodd contends the evidence does not show as a matter of law that he had equal knowledge as to how to calculate the correct benefit amount. We agree.

As the trial court noted in its order, where parties have equal opportunities for knowing the truth, “a party grossly failing to inform himself must take the consequences of his neglect.” In this case, however, a jury could find that Dodd did not have an equal opportunity to determine the exact amount to which he was entitled.

Before he retired, Dodd was provided with an Employee’s Retirement System Handbook. The handbook includes several examples of how benefits are calculated under the various options available. Yet, the handbook states that it is intended only as “an informative guide to answer your basic questions” and a “general outline for major provisions.” It states that “[w]hile this booklet is intended to be as accurate as possible, the explanations are subject, in all respects, to the detailed provisions of the legal plan documents,” and that “[a]ll questions relating to the . . . amount of benefits payable will be determined by the Retirement Board according to Plan provisions.” The handbook does not include tables or other information needed for employees to calculate their own retirement benefits with any precision. Indeed, regarding the type of benefits Dodd selected, the handbook provides that “factors such as you [sic] and your spouse’s life expectancy are taken into consideration for the purpose of determining your benefit” and “your age and the age of your spouse will determine the exact amount of your retirement benefit.” The handbook advises employees requiring more information to consult the city clerk or a retirement board representative.

Shubert, the city clerk and pension board secretary, acknowledged that she “administers the plan as far as estimating benefits, calculating final benefits, notifying all the people in regards to paying of that benefit.” Dodd and other officers were instructed by their supervisors to obtain benefits calculations from Shubert. In order to make the calculations, Shubert had to obtain information from the payroll department and make allowances for vacation, longevity, overtime, and other pay. She had to factor into the equation Dodd’s starting date, his proposed retirement date, and his salary over the preceding five years. She also considered Dodd’s wife’s date of birth, consulted mortality tables, and reduced the benefits by a certain percentage based on mortality rates. Her calculations were then checked by another pension board member. Considering the numerous sources which had to be consulted, the various factors which had to be considered, and the level of expertise involved, and construing the evidence most favorably for Dodd as the nonmoving party, a factfinder could have found that Dodd did not have an equal opportunity to determine the exact amount of benefits he would receive. Therefore, the trial court erred in granting summary judgment to the City on this basis.

2. Dodd challenges the trial court’s ruling that his breach of contract claim must fail based on the fact that he was an at-will employee and, as such, was owed no fiduciary duty. We agree with Dodd that this theory is erroneous.

Contrary to the trial court’s order, Dodd’s breach of contract claim was not based on an oral employment contract. The claim was based on a contract to pay retirement benefits. A retirement plan may represent an enforceable contract between an employer and employee. Even an at-will employee may have certain enforceable rights pursuant to the policies of an employment handbook. And, in certain factual situations, a confidential or fiduciary relationship may exist between an employer and an at-will employee. While we cannot say as a matter of law whether such a relationship existed in this case, the trial court erred in holding that an employer has no fiduciary duty toward an at-will employee regarding the employee’s vested retirement benefits, rather than considering the evidence of the particular case.

3. On appeal, the City argues several other bases to support the trial court’s grant of summary judgment in its favor. While it is true that a trial court’s grant of summary judgment will be affirmed if it is right for any reason, this is true only if it is not apparent that the trial court relied on an erroneous legal theory. Moreover, we must also consider the general principle that the appellate courts do not consider issues not ruled on below.

In this case, the trial court based its decision to grant summary judgment on only two issues: (1) that no viable cause of action in negligence exists because Dodd had an equal opportunity for knowing the correct benefit amount; and (2) that Dodd’s breach of contract claim cannot survive because an at-will employee is not owed any fiduciary duty, even regarding vested pension benefits. Since the trial court did not rule upon any of the other grounds asserted by the City, we do not decide the merits of those arguments in this appeal.

Because the trial court based its ruling on an erroneous legal theory, because genuine issues of material fact exist, and because we will not consider grounds not ruled upon below, we must reverse the trial court’s grant of summary judgment to the City. The case is remanded for further proceedings.

Decided June 22, 2001

Reconsideration denied July 25, 2001

Jack E. Dodd, Richard C. Bellows, for appellants.

Freeman, Mathis & Gary, Benton J. Mathis, Jr., Mary A. Ackourey, for appellee.

Judgment reversed and case remanded.

Ruffin and Ellington, JJ., concur.

       (Citations and punctuation omitted.) Gignilliat v. Borg, 131 Ga. App. 182, 183 (2) (205 SE2d 479) (1974).

       See generally Corp. of Presiding Bishop &c. v. Allied Ready Mix, 201 Ga. App. 873, 875 (412 SE2d 622) (1991).

        Strickland v. City of Albany, 270 Ga. 31, 32 (504 SE2d 666) (1998).

        Fulton-DeKalb Hosp. Auth. v. Metzger, 203 Ga. App. 595, 596-597 (2) (417 SE2d 163) (1992).

       See Cochran v. Murrah, 235 Ga. 304, 307-308 (219 SE2d 421) (1975); Remediation Svcs. v. Ga.-Pacific Corp., 209 Ga. App. 427, 431 (1) (433 SE2d 631) (1993).

       See generally Capriulo v. Bankers Life Co., 178 Ga. App. 635, 638-639 (2) (344 SE2d 430) (1986).

        Carter v. Glenn, 243 Ga. App. 544, 551 (533 SE2d 109) (2000).

       Id.


author: Blackburn, Chief Judge.

text:
    A01A0247.
    PRIEBE v. THE STATE.
    (553 SE2d 5)
   Blackburn, Chief Judge.

Following a jury trial, Bradley Ernest Priebe appeals his conviction for driving under the influence of alcohol, contending that the trial court erred by denying his motion in limine. Priebe also contends that the trial court impermissibly rushed the jury into rendering a verdict. For the reasons set forth below, we reverse.

On January 2, 1999, police officers observed Priebe’s vehicle passing by a police roadblock, despite their motioning and yelling for the vehicle to stop. An officer followed the vehicle into a parking lot and confronted Priebe. The officer administered several field sobriety tests and thereafter arrested Priebe for driving under the influence of alcohol and disobeying an officer. The stop was videotaped by a camera in the officer’s vehicle.

Before the trial began, Priebe and the State agreed to redact the portion of the videotape that showed the results of Priebe’s • alcosensor test. Priebe made an oral motion in limine to also redact a portion of the videotape in which a passenger in Priebe’s vehicle stated that he had been drinking, but not as much as Priebe, along with the portion showing that the passenger blew a 0.07 on the alco-sensor.

1. Priebe contends that the trial court erred by denying his motion in limine to redact portions of the videotape regarding Priebe’s passenger. We agree.

The videotape itself was not shown to the judge during the hearing on the motion. But, both defense counsel and the prosecutor agreed that the contested portion of the tape showed the police in a conversation with the passenger about whether he was sober enough himself to drive Priebe’s car away from the scene of the arrest. Both parties further agreed that the officer asked the passenger if he had been drinking and that the passenger replied that he had, but not as much as Priebe. The officer then gave the passenger an alco-sensor test, and the tape shows that the alco-sensor recorded a 0.07 blood alcohol level. These facts were not in dispute, and the trial judge considered the motion without viewing the tape. At trial, before the relevant portion of the tape was played for the jury, defense counsel renewed his objection. Although the tape was played for the jury, the State did not admit it into evidence, and it is not a part of the record.

Based on these facts, Priebe properly objected to the contested portion of the videotape, and we are able to review this enumeration of error without having a copy of it. Priebe actually objected more than necessary under the circumstances. There is no requirement that a party object at trial in order to preserve for appeal the denial of a motion in limine. Harley-Davidson Motor Co. v. Daniel.

Second, the parties agreed on the contents of the disputed portion of the videotape, and those contents are not in issue; the only issue is whether the disputed portion of the tape should have been admitted. Accordingly, we may address the issue of whether those portions of the tape should have been admitted even though we do not have the tape itself. OCGA § 5-6-41 (f) supports this conclusion. It allows parties to stipulate to events at trial where the transcript or record does not truly or fully disclose what transpired at trial. Also, both this Court and the Supreme Court typically take parties at their word, if they agree, on the contents of documents and pleadings, where the actual contents are not in issue. See, e.g., Williams v. Williams; Plantation Pipeline Co. v. Royal Indem. Co.; Evans v. State.

Priebe’s objection to the disputed portion of the tape is, essentially, that the passenger’s alco-sensor result, along with his statement that Priebe had had more to drink, amounted to evidence of an alco-sensor test result for Priebe. And because alco-sensor results are inadmissible, so should be this evidence. See Channell v. State (alco-sensor results inadmissible without proper foundation where results used to indicate blood alcohol level). Priebe did not make a hearsay objection, and the passenger was not a witness at trial.

The statement by the passenger on the tape was clearly hearsay. The truth of his statement depended on his veracity and competency, and he was not available for cross-examination at trial. See OCGA § 24-3-1; Faircloth v. State (because the reliability of a hearsay statement depends on the veracity of the declarant, the inability to cross-examine an unavailable declarant at trial renders the statement inadmissible). And hearsay evidence has no probative value even when admitted without objection. Germany v. State. Further, no proper foundation had been laid as required by Channell for any alco-sensor results, and therefore, this evidence in addition to the hearsay was inadmissible.

Nor was the statement part of the res gestae as argued by the State. Statements made after the end of the events to which they pertain are not part of the res gestae. OCGA § 24-3-3. As explained by this Court,

What the law altogether distrusts is not after-speech but afterthought. In cases when a statement is narrative rather than exclamatory, the circumstances must be closely scrutinized, because narrative is generally the result of afterthought. If the declarations appear to spring out of the transaction — if they elucidate it — if they are voluntary and spontaneous, and if they are made at a time so near to it, as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous. However, no precise time can be fixed a priori when the res gestae ends, but each case must turn on its own circumstances, the inquiry being rather into events than to the precise time which has elapsed.

(Citations and punctuation omitted; emphasis in original.) Brantley v. State.

In this case the passenger could easily be guilty of afterthought when he made the statement that he had not had as much to drink as Priebe. He had just seen his friend arrested, and the police were asking him about his own drinking in connection with his desire to drive the car away from the scene. Any other response would not achieve the goal.

If inadmissible hearsay is introduced, the decision below must be reversed unless it is highly probable that the error did not contribute to the jury’s verdict. Blackstock v. State. The passenger’s statement combined with his alco-sensor results directly implies that Priebe had consumed a quantity of alcohol approaching or exceeding the legal limit. See OCGA § 40-6-391 (a) (5). Therefore we cannot say that the passenger’s statement and alco-sensor results did not contribute to the verdict.

2. Because of our holding in Division 1, Priebe’s remaining enumeration of error is moot.

Decided July 25, 2001.

J. Guy Sharpe, Jr., for appellant.

Carmen D. Smith, Solicitor-General, Richard N. Elliott, Sr., Jody L. Peskin, Assistant Solicitors-General, for appellee.

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

        Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285-286 (1) (260 SE2d 20) (1979).

        Williams v. Williams, 268 Ga. 126, 127, n. 1 (485 SE2d 772) (1997).

        Plantation Pipeline Co. v. Royal Indem. Co., 245 Ga. App. 23, 29, n. 3 (537 SE2d 165) (2000).

        Evans v. State, 204 Ga. App. 458 (419 SE2d 532) (1992).

        Channell v. State, 172 Ga. App. 156 (322 SE2d 356) (1984).

        Faircloth v. State, 253 Ga. 67, 69 (3) (316 SE2d 457) (1984).

        Germany v. State, 235 Ga. 836, 840 (221 SE2d 817) (1976).

        Brantley v. State, 177 Ga. App. 13, 14-15 (2) (338 SE2d 694) (1985).

        Blackstock v. State, 270 Ga. 117, 118 (3) (506 SE2d 130) (1998).


author: Ellington, Judge.

text:
    A01A0999.
    BANKS v. THE STATE.
    (552 SE2d 903)
   Ellington, Judge.

A Walton County jury convicted Randy Banks of rape, OCGA § 16-6-1; aggravated sodomy, OCGA § 16-6-2; and aggravated assault, OCGA § 16-5-21. Following the denial of his motion for new trial, Banks appeals, challenging certain evidentiary rulings by the trial court, claiming there was insufficient evidence to support his convictions, and contending he was denied the effective assistance of counsel. Finding these assertions to be without merit, we affirm.

On appeal, the defendant no longer enjoys a presumption of innocence; moreover, this Court views the evidence in the light most favorable to the verdict and does not weigh the evidence or determine witness credibility but only determines if the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). McIntosh v. State, 247 Ga. App. 640 (545 SE2d 61) (2001). Viewed in this light, the evidence showed that on July 10, 1997, Banks entered the victim’s home without her permission. The victim did not know Banks but recognized him from the neighborhood. Banks held a knife to the victim’s throat, ordered her to lie on the bed, then raped and sodomized her. As he left, Banks tried to disable her telephone and threatened to return and kill the victim, her children, and her mother if she reported the crime.

1. Banks contends the trial court erred in excluding evidence of three earlier incidents in which the victim reported being raped but which were not prosecuted. “The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Punctuation and footnote omitted.) Smith v. State, 247 Ga. App. 676, 678 (2) (545 SE2d 89) (2001). The Supreme Court of Georgia has held that Georgia’s “rape-shield law,” OCGA § 24-2-3, does not prohibit testimony of previous false allegations by the victim. Smith v. State, 259 Ga. 135, 137-138 (1) (377 SE2d 158) (1989). Before such evidence can be admitted, however, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists. Id. In this context, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citations and punctuation omitted.) Strickland v. State, 205 Ga. App. 473, 474 (422 SE2d 312) (1992).

In this case, the only basis Banks identified for concluding that the victim’s previous allegations were false was that the incidents were not prosecuted. The trial court did not abuse its discretion in concluding that Banks failed to make the threshold showing of a reasonable probability that the victim’s three previous rape reports were false. Gravitt v. State, 228 Ga. App. 760, 762 (2) (492 SE2d 739) (1997).

2. In a related enumeration, Banks contends he was denied the effective assistance of counsel in that his counsel failed to adequately investigate the victim’s earlier rape allegations.

Under the standard established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), one asserting his trial counsel’s performance was so deficient as to deny him effective assistance of counsel under the Sixth Amendment must make two affirmative showings: that counsel’s representation fell below an objective standard of reasonableness (i.e., that counsel performed deficiently); and that such deficiency prejudiced the defense. Concerning the prejudice component, the Court (in Strickland) held that the defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Furthermore, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Citation omitted.) Veal v. State, 242 Ga. App. 873, 877 (5) (531 SE2d 422) (2000). Banks contends that if his trial counsel had adequately investigated the prior rape allegations, the trial court would have found a reasonable probability that the prior rape allegations were false and admitted the evidence. But, as the trial court observed, Banks failed to support his motion for new trial with any evidence that the prior allegations were false. Cf. Benton v. State, 265 Ga. 648, 650 (5) (461 SE2d 202) (1995) (victim recanted allegations); Smith, 259 Ga. at 136 (victim had made numerous similar allegations against other men and had recanted as to several of the allegations; several of the men implicated testified and denied any wrongdoing). Because Banks failed to show that additional investigation would have yielded beneficial evidence, he failed to carry his burden of showing prejudice from his counsel’s allegedly deficient performance. Madge v. State, 245 Ga. App. 848, 851 (3) (a) (538 SE2d 907) (2000); Davenport v. State, 172 Ga. App. 848, 852-853 (2) (325 SE2d 173) (1984). The trial court’s conclusion that Banks did not receive ineffective assistance of counsel was not clearly erroneous. See Roberts v. State, 229 Ga. App. 783 (1) (494 SE2d 689) (1997).

3. Banks contends the trial court erred in admitting evidence of a similar transaction, specifically a rape in 1983 to which Banks entered an Alford plea. “The decision to admit a prior similar transaction into evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion.” (Footnote omitted.) Lowe v. State, 245 Ga. App. 659, 660 (2) (538 SE2d 552) (2000). In this case, the State gave pre-trial notice of its intent to introduce similar transaction evidence, and the trial court conducted a hearing outside the jury’s presence before deciding that the evidence was admissible under Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). The State showed the following similarities between the crimes: both rapes occurred in the same area of Walton County and near Banks’ own home; Banks was not acquainted with the victims, who had similar racial and age characteristics, but they had seen him in the neighborhood; Banks entered the victims’ homes by stealth at night; Banks held a knife or other blade to their throats and raped and sodomized the victims; and Banks threatened to harm the victims and their families.

The trial court did not abuse its discretion in finding the prior violent sexual assault sufficiently similar to the charged offense to be probative for the allowable limited purpose for which it was admitted, that is, to show Banks’ intent, motive, bent of mind, modus operandi, and course of conduct. Howard v. State, 204 Ga. App. 882, 883-884 (1) (420 SE2d 811) (1992); Williams v. State, 190 Ga. App. 646, 647-648 (1) (381 SE2d 65) (1989). Further, the 14-year interval between the offenses, standing alone, is not enough to require that evidence of the similar transaction be excluded, particularly where the accused was incarcerated for the first offense during most of the interval. Mullins v. State, 269 Ga. 157, 158 (2) (496 SE2d 252) (1998); Braddock v. State, 208 Ga. App. 843, 844 (2) (432 SE2d 264) (1993). “[T]he lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility.” (Citation and punctuation omitted.) Braddock v. State, 208 Ga. App. at 844 (2).

Decided July 25, 2001.

Charles E. Day, for appellant.

W. Kendall Wynne, Jr., District Attorney, Jeffrey L. Foster, Assistant District Attorney, for appellee.

4. In this case, Banks admitted engaging in intercourse and sodomy with the victim and challenges the sufficiency of the evidence only as to the elements that the sex acts were committed forcibly and against the victim’s will and that he threatened the victim with a knife, as alleged in the indictment. See OCGA §§ 16-5-21 (a) (2); 16-6-1; 16-6-2. The victim’s testimony, which Banks contends was compromised by contradictions and by gaps in her recollection, supplied the only evidence of her lack of consent to the sex acts and Banks’ use of the knife. The jury determines credibility and resolves conflicts in the evidence; this Court does not reweigh the evidence but only determines its legal sufficiency. Battles v. State, 205 Ga. App. 510, 511-512 (422 SE2d 672) (1992). After a careful review of the entire record, we find that the evidence is sufficient to authorize a rational trier of fact to find Banks guilty beyond a reasonable doubt of the offenses of rape, aggravated sodomy, and aggravated assault. McIntosh v. State, 247 Ga. App. at 641 (1); Battles v. State, 205 Ga. App. at 511-512.

Judgment affirmed.

Johnson, P. J, and Ruffin, J., concur.

        North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970).


author: Ruffin, Judge.

text:
    A01A1026.
    WILEY v. THE STATE.
    (552 SE2d 906)
   Ruffin, Judge.

A jury found Timothy Wiley guilty of attempted murder and theft by taking. On appeal, Wiley contends that the State failed to disprove his entrapment defense beyond a reasonable doubt. Wiley also contends that the trial court erred in charging the jury. These contentions lack merit, and we affirm Wiley’s convictions. We nonetheless remand the case to the trial court so that Wiley may pursue his claim that he received ineffective assistance of counsel.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that Wiley worked at the distribution center for Sun-glass Hut International. Sunglass Hut had experienced problems with thefts at the center, and the company retained Wells Fargo to investigate. Kenneth Lewis, an investigator for Wells Fargo, posed as an employee. As part of his investigation, Lewis befriended Wiley, who was a suspect in the thefts. According to Lewis, if an employee brought up the subject of theft, Lewis would “expand on [the subject] and say that [he] knew people that would pay for [the sunglasses].” At some point, Lewis spoke with Wiley about taking sunglasses from the facility, and Wiley indicated that he could “fill” Lewis’ orders. On July 27, 1997, Lewis gave Wiley $1,000 for a case of sunglasses, which the State alleges that Wiley stole from Sunglass Hut.

Meanwhile, on July 15, 1997, while Lewis was befriending Wiley, the two went to lunch, and Wiley showed Lewis bruises on his arms and legs, which Wiley attributed to an altercation with “his wife’s boyfriend.” According to Lewis, Wiley expressed “hatred” for the boyfriend and said that he would pay $1,000 to have him killed. Initially, Lewis did not take Wiley’s statement seriously. However, on July 20, 1997, Wiley told Lewis again that “he was still having problems with [the boyfriend] and he was still looking for . . .a hit man.” Lewis asked Wiley if “he was sure this is what he wanted,” and Wiley responded by saying he was “dead serious.” Lewis told Wiley that he “would look into it.”

On July 21,1997, Wiley asked “if [Lewis] could get someone from New York, a connection, to make the hit for him,” saying that he would pay for the airplane ticket. Lewis again told Wiley that he would look into the situation, and Wiley asked Lewis “to page him or call him directly, as soon as [Lewis] talked to the hit man to find out if the hit can be done.”

The next day, Wiley approached Lewis and told him that the hit needed to take place by the next Sunday because Wiley’s wife was moving away with the boyfriend. Wiley provided the intended victim’s name and drew Lewis a map of where the hit should take place. According to Lewis, Wiley told him “exactly how he wanted the hit done. . . . He told me that he wanted the killer to approach the victim in the parking lot and walk up to him screaming obscenities and to tell [the victim], Where’s my cocaine? I told you I would find you.’ ” Wiley further instructed Lewis that he wanted the killer to shoot the victim twice in the head.

Wiley continued to ask Lewis about arranging a hit, and Lewis relayed this information to his supervisor at Wells Fargo. The information was subsequently given to the Henry County Police Department, which began to investigate the murder for hire plot. Once the police were involved, Lewis told Wiley that the hit man was scheduled to arrive on either July 29 or July 30.

On July 30,1997, Lewis called Wiley from the police department, purportedly to arrange a meeting between Wiley and the hit man. Lewis and Willie Rosser, a police officer posing as the hit man, then drove Lewis’ car to a hotel to meet Wiley. Although Wiley did not have the $1,000 to pay for the murder, Rosser agreed to accept $300 and a case of sunglasses, which Wiley gave him. Wiley was subsequently arrested and charged with criminal attempt to commit murder and theft by taking.

During the trial, Wiley testified on his own behalf. Not surprisingly, his testimony differed substantially from that of Lewis. According to Wiley, Lewis “had came [sic] to me and two other employees and he was asking for us to help him take some sunglasses out of Sunglass Hut.” Wiley testified that, although he told Lewis that he did not know how to get sunglasses out of the facility, Lewis continued to broach the subject. Eventually, Lewis told Wiley that he, Lewis, would take the sunglasses out of the distribution center, and he asked Wiley to retrieve the box of glasses and take it to a local gas station, which Wiley finally agreed to do in exchange for $1,000.

With respect to the murder for hire plot, Wiley testified that he had been attacked by a man who “was trying to seduce [his] wife.” According to Wiley, after he told Lewis what had happened, Lewis said, “ ‘if you won’t do nothing [sic] about it, then I will. . . . [Y]ou can’t keep letting this guy run over you. If you don’t do something, he’s going to kill you, and you’d better kill him before he kills you.’ ” Lewis then volunteered that he had a friend who would “take care” of Wiley’s attacker. Wiley further testified that he was unaware he was meeting Rosser to discuss the murder for hire plot and that the only reason he gave him the money and the sunglasses — which were the ones he contended that Lewis actually removed from the warehouse — was because he did not know what Rosser “was capable of doing.”

The jury evidently disbelieved Wiley’s testimony, and he was convicted of criminal attempt to commit murder and theft by taking.

1. In his first enumeration of error, Wiley contends that his convictions must be reversed because the State failed to rebut his prima facie case of entrapment. The affirmative defense of entrapment has three elements: “(1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime.” If a defendant presents a prima facie case of entrapment, then the State must disprove entrapment beyond a reasonable doubt. Whether the State has met this burden is generally a question for the jury.

Initially, we question whether the evidence presents a prima facie case of entrapment, as Wiley’s own testimony arguably precludes him from asserting this defense. As a general rule, the defense of entrapment requires that a defendant admit the commission of the crime, but assert that the commission was the result of unlawful solicitation or inducement by a law enforcement agent. Here, Wiley testified that he “never took anything from Sunglass Hut.” Wiley also testified that he never agreed to pay Rosser to murder his assailant. Thus, Wiley’s true defense was to deny committing the crimes with which he had been charged.

Furthermore, to the extent that the evidence raised the defense of entrapment, the jury was authorized to conclude that the State rebutted this defense beyond a reasonable doubt. “Entrapment does not occur when an officer or agent merely furnishes an opportunity to a defendant who is ready to commit the offense.” Here, Lewis testified that the idea to hire a hit man originated with Wiley. Also, Lewis testified that Wiley was responsible for taking the sunglasses from Sunglass Hut. Although Wiley’s testimony contradicted Lewis’, the jury was not required to believe Wiley. Accordingly, the jury was authorized to conclude that Wiley was not entrapped.

2. In his second enumeration of error Wiley contends that the trial court erred in recharging the jury on entrapment. In response to a juror’s request, the trial court gave the entrapment charge a second time, but told jurors that this defense “would not have any application to” the theft by taking charge. However, as Wiley’s true defense was to deny committing the crimes, he was not entitled to a charge on entrapment. Moreover, Wiley failed to object to the recharge, and “[b]y failing to object or reserve his right to later make exceptions in response to the trial court’s inquiry regarding the recharge, [Wiley] waived his right to seek appellate review of the recharge.” It follows that this claim of error presents no basis for reversal.

Decided July 25, 2001.

Webb, Stuckey & Lindsey, Martin C. Jones, for appellant.

Tommy K. Floyd, District Attorney, Sandra A. Graves, Assistant District Attorney, for appellee.

3. In his third and final enumeration of error, Wiley contends that he received ineffective assistance of trial counsel. As Wiley’s trial attorney represented him during his motion for new trial, this argument has not been raised before the trial court. Accordingly, this appeal represents Wiley’s first opportunity to address this contention. “Generally, when the appeal presents the first opportunity to raise an ineffective assistance claim, we remand the case to the trial court for an evidentiary hearing on the issue.” As this is Wiley’s first opportunity to raise this argument, we remand the case to the trial court for a hearing and determination on the ineffective assistance claim.

Judgment affirmed and case remanded.

Johnson, P. J., and Ellington, J., concur.

       Although Wiley was also charged with criminal solicitation for soliciting the aid of another in committing the crime, the jury was unable to reach a verdict on this count, and the trial court declared a mistrial as to that charge.

       See Wright v. State, 232 Ga. App. 104 (1) (501 SE2d 543) (1998).

       (Punctuation omitted.) Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991). See also OCGA § 16-3-25.

       See Hill, supra.

       Id.

       See Hinton v. State, 236 Ga. App. 140, 142 (511 SE2d 547) (1999).

       Wiley admitted to talking a case of sunglasses to a gas station after Lewis allegedly removed the case from the warehouse. Thus, assuming that Lewis can be considered a government agent, Wiley arguably established a prima facie case of entrapment with respect to the theft of this case of sunglasses. We note, however, that the evidence showed that Wiley took another case of sunglasses. According to Lewis, on July 27,1997, Wiley sold him a case of sunglasses for $1,000, which Lewis then turned over to his supervisor. As Wiley denied stealing “anything” from Sunglass Hut, he denied taking this case of sunglasses. It follows that he failed to establish a prima facie case of entrapment. Id.

       See id.

       (Punctuation omitted.) Wilcox v. State, 229 Ga. App. 227, 230 (1) (493 SE2d 724) (1997).

       See Bennett v. State, 228 Ga. App. 254 (1) (491 SE2d 481) (1997) (“[t]he issue of which version of. . . events to believe was for the jury”); see also Finley v. State, 214 Ga. App. 452, 454 (1) (448 SE2d 78) (1994) (where evidence does not demand a finding of entrapment, it remains a jury issue).

        Wilcox, supra at 231.

        Hinton, supra.

        Woods v. State, 224 Ga. App. 52, 57 (9) (479 SE2d 414) (1996).

       See Holder v. State, 242 Ga. App. 479, 482-483 (6) (529 SE2d 907) (2000).

        Shorter v. State, 239 Ga. App. 625 (1) (521 SE2d 684) (1999).

       See Hampton v. State, 272 Ga. 284, 288 (9) (527 SE2d 872) (2000).


text:
    A01A1047.
    STRANGE v. THE STATE.
    (552 SE2d 899)
   Johnson, Presiding Judge.

Larry Strange challenges the sufficiency of the evidence to support his burglary conviction. He urges that the evidence showing that he was the person seen leaving the victim’s yard as the burglar alarm sounded was unreliable and that, even if he was in the yard, there was no proof that he went inside the victim’s house. We find that the evidence was sufficient and affirm the conviction.

On appeal, the appellant no longer enjoys the presumption of innocence, and we view the evidence in a light most favorable to the verdict. Viewed in that light, the evidence shows that a neighbor was standing outside his home around noon when he heard a burglar alarm sound at a home three or four houses away. Seconds later, he saw a man leaving the victim’s yard, “walking real fast and running,” and carrying a radio. The neighbor got into his car and followed the man as he walked and ran to another street. At one point, the man walked directly in front of the neighbor’s car, and the neighbor was able to see the man from the side and the front. The neighbor recognized the man as Larry Strange, whom he had known “for a while.” The neighbor knew this was the same man he had seen leaving the house, because the “clothes and everything” were the same. The neighbor momentarily lost sight of Strange when he “cut through” someone’s yard. When Strange emerged, he no longer had the radio in his hands.

The victim testified that she had a security system installed in her home that broadcasts a loud siren when the system is activated. After receiving a call that her house had been broken into, she returned home to find that a radio and a handgun were missing.

A police officer testified that he responded to the burglar alarm and determined that it had been activated when a bathroom window in the rear of the house was broken. Police found the victim’s radio and gun tucked behind some other items in a garage-type shed in a yard located across the street from the victim’s home. The neighbor who followed Strange told police that he was “absolutely 100 percent positive” that the man he saw and followed was Larry Strange.

The jury was authorized to find from the evidence that Strange entered the victim’s home through the bathroom window, took the gun and radio, left as the alarm sounded, and then hid the stolen items in the shed across the street. The evidence was sufficient to authorize the jury to find him guilty of burglary under the standard set forth in Jackson v. Virginia.

Strange’s position that reversal is required because the neighbor’s identification of him was unreliable is without merit. Strange argues that the neighbor was too far away, that his view was obstructed by trees, and that the neighbor had not seen Strange for three years at the time the burglary occurred. We note that the neighbor testified that he saw Strange at close range as he passed the neighbor’s car, and that the neighbor was absolutely positive that the man he saw was Larry Strange. Most importantly, identity is a question for the trier of fact; where a witness identifies a defendant, the credibility of the witness making that identification is not to be decided by this Court.

Decided July 25, 2001.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Minerva C. Blanchette, Ronald R. Parker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Toney v. State, 225 Ga. App. 228 (483 SE2d 627) (1997).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Pruitt v. State, 217 Ga. App. 681, 682 (1) (458 SE2d 696) (1995).

        Marshall v. State, 233 Ga. App. 573, 576-577 (2) (a) (504 SE2d 764) (1998).


text:
    A01A1455.
    FLANIGAN v. THE STATE.
    (552 SE2d 894)
   Ellington, Judge.

A Gwinnett County jury convicted Anthony Kevin Flanigan of criminal trespass, OCGA § 16-7-21 (b) (1), and aggravated battery, OCGA § 16-5-24 (a). He appeals from the denial of his motion for new trial, contending the trial court erred in admitting certain expert testimony and allowing improper closing argument by the prosecutor.

Viewed in the light most favorable to the verdict, the evidence shows that during the early morning hours of May 25, 1998, Flanigan hit John Bentley in the face with a baseball bat, shattering his jaw. The attack was the culmination of an evening of gang violence during which a gang called the “Playboys” sought retribution against Bentley’s teenaged sons, Justin and Chris, for derogatory remarks they allegedly made against a female gang member. While Bentley was out walking his dog, he heard a commotion around the corner from his home. He went to investigate and saw the gang members who had harassed him and his sons the day before. Bentley tried to warn his sons that the gang had returned. However, when Bentley got back to his house, two of the gang members, armed with baseball bats, confronted him in his driveway. Bentley was able to see both men in the light cast by his security lighting. Flanigan hit Bentley in the face with the bat, shattering his jaw. As Bentley struggled to get inside his home, he heard Flanigan say: “I want another piece of you.”

Bentley picked Flanigan’s picture from a photographic lineup. He also identified him in court.

The assault left Bentley’s upper jaw broken and misaligned and his cheekbone crushed. An oral surgeon with 20 years of maxillofacial surgical expertise treated Bentley. The surgeon testified that Bentley required extensive reconstructive surgery, including the use of steel plates to rebuild his jaw. The surgeon also testified that Bentley’s injuries were consistent with being hit with a blunt object, not a human fist.

Flanigan presented several alibi witnesses, one of whom was his long-time friend Eric Garmon. Garmon testified that he was the one who hit Bentley and that he hit him with his fist. The State argued that Garmon’s testimony was a complete fabrication since Garmon came forward with this story over a year after the assault and was unable to prove any injury to his fist. Flanigan’s grandparents, the Thompsons, testified that Flanigan went to Six Flags on the day of the assault, spent the night at their house, then spent the next day working on his girlfriend’s car. However, the State, in closing argument, attacked the Thompsons’ alibi testimony by showing that it was inconsistent with respect to date and time, with that given by other witnesses, and with inferences drawn from receipts and ticket stubs that had been admitted into evidence.

1. Flanigan argues the trial court erred in allowing Bentley’s oral surgeon to testify that the damage done to Bentley’s jaw was inconsistent with a punch from a fist because the surgeon was not qualified as an expert in forensic science. The transcript reveals, however, that the State laid a foundation sufficient to show the surgeon had practical experience treating a wide range of facial injuries, including those caused by trauma from blunt objects and from fists. “An expert is one whose habits and profession endow him or her with a [particular] skill in forming an opinion on the subject matter in inquiry.” (Punctuation omitted.) Sales v. State, 199 Ga. App. 791 (1) (406 SE2d 131) (1991). This Court has recognized that a combination of training and experience may be sufficient to qualify one as an expert witness. Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562) (1993). Because the transcript supports the court’s finding that the surgeon was qualified to give his opinion based upon appropriate experience, we find no abuse of discretion. See Vasquez v. State, 241 Ga. App. 512, 513 (2) (527 SE2d 235) (1999).

2. Flanigan contends the trial court erred in allowing the State to argue in closing that Flanigan’s alibi was not credible. Flanigan complains that the State improperly attacked Mr. Thompson’s testimony by “arguing facts not in evidence.” Flanigan failed to articulate, however, exactly what those facts were, where they could be found in the record, and how they undermined his alibi. He also failed to provide any record citation to the alleged improper closing argument. And, he failed to cite to an objection showing that he preserved any error for appeal. Consequently, we deem this unsubstantiated claim abandoned pursuant to Court of Appeals Rule 27 (c) (2). See Jackson v. State, 213 Ga. App. 420, 421 (444 SE2d 854) (1994).

Decided July 25, 2001.

James D. Key, for appellant.

Daniel J. Porter, District Attorney, Shampa Banerji, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

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


text:
    A01A1484.
    TECUMSEH PRODUCTS COMPANY, INC. v. RIGDON.
    (552 SE2d 910)
   Ellington, Judge.

Tecumseh Products Company, Inc. appeals from a jury verdict in favor of Wanda Faye Rigdon, who sued the company after she was assaulted by a Tecumseh employee. We find the jury’s verdict was supported by evidence at trial and, therefore, affirm the trial court’s judgment thereon.

In three enumerations, Tecumseh contends the trial court erred in failing to grant its motions for directed verdicts on Rigdon’s claims for negligent rehiring and retention, lost wages, and punitive damages. This contention is without merit.

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for directed verdict and new trial will not be disturbed.

(Citations and punctuation omitted.) Treglown v. K-Mart Corp., 245 Ga. App. 428, 429 (537 SE2d 173) (2000).

Viewed in favor of upholding the jury’s verdict, the evidence showed that Rigdon worked on Tecumseh’s manufacturing assembly line at a station situated next to Dickie Godwin. Rigdon and Godwin exhibited a mutual dislike for one another, exacerbated by Godwin’s tendency to take Rigdon’s personal possessions without permission. Rigdon requested that she be transferred away from Godwin, but Tecumseh took no action on the request. On April 6, 1998, Rigdon and Godwin argued, and Godwin threatened to hit Rigdon in the head with an engine cylinder block. The next day, Rigdon arrived at work to find Godwin standing at her station holding her pen. When she reached for the pen, Godwin became enraged, grabbed her right arm, and twisted it, injuring her elbow and bicep.

Godwin testified that he did not touch Rigdon’s arm, but simply grabbed a paper towel out of her hand. After a brief investigation, Tecumseh fired both Rigdon and Godwin after finding that the incident was a “mutual affray.”

Rigdon sued Tecumseh for negligently rehiring and retaining Godwin. Rigdon contended Tecumseh knew or should have known Godwin was potentially dangerous to other employees because the company fired Godwin after a January 1997 altercation with his supervisor. See Division 1, infra. Rigdon argued that Tecumseh rehired Godwin after he threatened to sue the company for racial discrimination, without conducting a thorough investigation into the previous altercation. Id.

In response, Tecumseh defended the claim by arguing that Rig-don initiated or exaggerated the assault because she was a racist with a grudge against Godwin because he was black. In rebuttal, Rig-don repeatedly denied that she was racist and presented evidence that she had black family members and commuted regularly with black co-workers. Co-workers and other witnesses, including those called by Tecumseh, testified that they had never heard Rigdon make racist comments. And even though Rigdon’s racist comments allegedly were made during work hours, Rigdon’s employment evaluations are devoid of any complaints or other indications that she had made such remarks.

After hearing the evidence, a jury found in favor of Rigdon and awarded her $306,000 in compensatory damages and $250,000 in punitive damages. Tecumseh appeals from the judgment on the award.

1. Tecumseh contends the trial court erred in denying its motion for directed verdict on Rigdon’s negligent rehiring and retention claim. Pursuant to OCGA § 34-7-20, an employer must exercise ordinary care in the selection of employees, must not retain them after “knowledge of incompetency,” and must warn other employees of dangers incident to employment that “the employer knows or ought to know but which are unknown to the employee.” In order to sustain a claim for negligent hiring and retention, a claimant must show that “the employer knew or should have known of the employee’s propensity to engage in the conduct which caused the plaintiff’s injury. Proof of such [propensity] must consist of evidence substantially related to the injury-causing conduct.” (Punctuation and footnotes omitted.) Harper v. City of East Point, 237 Ga. App. 375, 376 (2) (515 SE2d 623) (1999). Generally, the determination of whether an employer used ordinary care in hiring an employee is a jury issue. See Sparlin Chiropractic Clinic v. TOPS Personnel Svcs., 193 Ga. App. 181-182 (1) (387 SE2d 411) (1989).

In this case, Rigdon presented evidence to support a jury’s conclusion that Tecumseh rehired Godwin, even though they should have known of Godwin’s propensity to react violently when angry. The evidence showed that Tecumseh fired Godwin in January 1997 after he was involved in a confrontation with his supervisor, Dwight Stigler. Prior to the confrontation, Godwin interrupted a discussion between Stigler and a co-worker. Stigler first told Godwin to go back to work but then, seeing that Godwin was “agitated,” instructed him to go home for the evening. When Godwin refused, Stigler called security. Shortly thereafter, Godwin “clinched his fists and leaned towards [Stigler]” in a threatening way. Stigler believed Godwin intended to punch him. Another co-worker, Kelly Carr, testified that when Godwin “lunged” at Stigler, he stepped between the two and prevented any contact. Carr demonstrated Godwin’s body movements for the jury and testified that he believed Godwin was going to attack and physically assault Stigler in “some shape, form, or fashion.” Stigler notified the company’s human resources manager that he believed Godwin was going to physically assault him during the confrontation. Stigler testified that he told the manager that Godwin was a “threat to me. I felt unsafe there working with him, and I knew the safety of others would probably be at risk, too.” Stigler also told the manager that, if Godwin was not terminated, he would quit his job at Tecumseh, because “working with [Godwin is] too dangerous.” Stigler and Carr prepared and sent memoranda about the incident to their respective supervisors. Stigler’s memo stated that “I was very concerned that he might throw a punch and I felt threatened.” Tecumseh fired Godwin for refusal to follow instructions and interfering with other employees.

Randy Elrod, a Tecumseh supervisor in charge of human resources and safety, testified that, during the month before the January 1997 encounter, Godwin exhibited significant problems with job performance. Elrod sent a memorandum to company officials in February 1997 which documented these problems. Elrod also testified at trial about Godwin’s disrespect for his supervisor, Stigler; his attempts to order other employees around; and his “negative attitude,” describing Godwin as “hot headed” and “belligerent.”

Tammy Murray, Tecumseh’s current employment manager, testified that Godwin’s employment record showed two employees had threatened to quit if Godwin was placed in their department. She also admitted that Godwin’s periodic employee evaluations were not in Godwin’s personnel folder. Tecumseh could not explain why the evaluations were missing.

Shortly after being fired, Godwin contacted Tecumseh’s Director of Operations, Lawrence Dietz, a senior company official in Wisconsin, to complain about his dismissal. Godwin asked to be rehired. Godwin also complained about his dismissal to the Equal Employment Opportunity Commission (“EEOC”) and the NAACP, alleging that he was fired due to racial discrimination. Godwin testified that Dietz knew about his EEOC claim, and other evidence showed that Dietz had been told of Godwin’s racial discrimination allegations.

In his deposition, Dietz testified that he investigated the January 1997 incident by reviewing the company’s records on Godwin, the memoranda from Stigler, Carr, and Elrod, and by speaking to God-win. Dietz also repeatedly testified that he discussed the January 1997 incident and firing with Stigler and Carr. Both men testified, however, that the official never contacted them about the incident.

Dietz rehired Godwin in August 1997. Dietz repeatedly stated that he believed rehiring Godwin was “justified” and a “good decision.” After Tecumseh rehired Godwin, Godwin dropped his discrimination claim.

At trial, Stigler, Carr, and Elrod testified that they would not have rehired Godwin. Tecumseh’s former personnel manager testified that she “more than likely” would not have rehired Godwin if it had been her decision due to his threatened violence against his supervisor. She agreed with Murray that it was unusual for Dietz, working in Wisconsin, to rehire an hourly employee in Georgia without seeking her input.

This evidence demonstrates that Tecumseh had both actual and constructive knowledge of Godwin’s propensity to lose his temper and become violent. Godwin’s confrontation with his supervisor, which most likely would have resulted in an assault but for the intervention of a co-worker, was both similar and substantially related to God-win’s assault on Rigdon. See Harper v. City of East Point, 237 Ga. App. at 376 (2) (wherein a series of nonphysical sexual encounters escalated into a sexual assault); cf. Southern R. Co. v. Roberts, 206 F2d 508, 512-513 (5th Cir. 1953) (defendant’s offensive “pranks” did not evidence a propensity for violence that would put an employer on notice of the potential that defendant would intentionally assault another employee). Further, the evidence showed that, if Tecumseh had undertaken a more thorough investigation into the January 1997 encounter, it would have foreseen that Godwin might become angry and assault a co-worker on the job. The evidence was sufficient to support the jury’s verdict that Tecumseh negligently rehired God-win.

In addition, there was evidence to support a conclusion that Tecumseh negligently retained Godwin in a position where he could be dangerous to other employees. Prior to Godwin’s assault on Rig-don, the company had evidence of the January 1997 encounter; God-win’s poor work history and negative attitude; and the adversarial nature of Godwin’s relationships with supervisors and co-workers, including Rigdon. Accordingly, the trial court did not err in denying Tecumseh’s motion for a directed verdict on Rigdon’s negligent rehiring and retention claim. See Sparlin Chiropractic Clinic v. TOPS Personnel Svcs., 193 Ga. App. at 181-182 (1).

2. This same evidence supported the jury’s award of punitive damages. In order to award punitive damages, the jury must find that there is clear and convincing evidence that Tecumseh acted in a manner which showed “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to [the] consequences.” OCGA § 51-12-5.1 (b). “Conscious indifference to consequences relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights. . . . Wilful and intentional misconduct is not essential.” (Citations and punctuation omitted.) CSX Transp. v. West, 240 Ga. App. 209, 210-211 (2) (523 SE2d 63) (1999); see also Hoffman v. Wells, 260 Ga. 588, 589 (1) (397 SE2d 696) (1990). In this case, the jury could have concluded that Tecumseh wantonly ignored substantial evidence of Godwin’s propensity for aggressive or violent behavior, choosing to risk employee safety in order to avoid Godwin’s racial discrimination claim. Accordingly, Tecumseh was not entitled to a directed verdict on punitive damages.

3. Tecumseh also contends it was entitled to a directed verdict on the personal injury claim, arguing that the evidence failed to prove Godwin’s attack caused Rigdon’s injury. The evidence showed, however, that Rigdon did not exhibit any unusual symptoms in her right arm during a pre-employment check-up two months before the assault. Shortly after the assault, a co-worker described Rigdon’s arm as “twice the size it was. It had turned blue.” See Jordan v. Smoot, 191 Ga. App. 74, 75 (1) (380 SE2d 714) (1989) (causation may be demonstrated by close proximity in time between an injury and the onset of symptoms). Rigdon reported numbness in her right arm and fingers, radiating pain up her arm, and “tingling” sensations radiating up to her neck.

Decided July 25, 2001.

Jackson, Lewis, Schnitzler & Krupman, David L. Gordon, C. Todd Van Dyke, for appellant.

According to a nurse practitioner who treated Rigdon on May 7, 1998, one month after the assault, Rigdon’s arm was “bulged up” with indentations and a “large tumor-looking area.” The nurse was unsure if the injury was a muscular hematoma, a pulled muscle, or a torn tendon. The nurse testified that Rigdon hád not complained of problems with her right arm prior to the May 1998 visit. Rigdon had an abnormal MRI and another lab test that both indicated fluid in her biceps tendon. An orthopedic surgeon testified that Rigdon had an abnormal “soft-tissue mass” that could have been a lipoma (fatty tumor) or scarring, tenderness, and a little depression around her elbow. According to the surgeon, Rigdon exhibited symptoms of a partial tear of the biceps tendon, tendonitis, or chronic bursitis that could be attributable to someone pulling or twisting her elbow. He testified that these conditions are treated nonsurgically, if possible, and that patients are instructed to avoid grabbing or pulling actions and lifting heavy objects.

Although Tecumseh challenged the medical evidence at trial, the jury is the sole judge of the weight and credibility to be afforded the evidence. OCGA § 24-9-80. As there was evidence to support the jury’s conclusion that Godwin’s actions caused Rigdon’s injury, Tecumseh was not entitled to a directed verdict. Further, because the jury could have found from the evidence that this injury inhibited Rigdon’s ability to get a comparable job, the evidence supported her claim for lost wages.

4. Tecumseh asserts the trial court erred in denying its motion for summary judgment. Although the trial court offered to issue a certificate of immediate review, Tecumseh failed to pursue a petition for interlocutory appeal with this Court. “Once a case has been submitted to the jury and a judgment rendered on its verdict, the denial of a summary judgment motion is a moot issue.” (Citation omitted.) Gen. Ins. Svcs. v. Marcola, 231 Ga. App. 144, 145 (1) (497 SE2d 679) (1998).

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

Helms & Helms, Jack J. Helms, Jr., James D. Hudson, for appellee.

       As to spoliation of this evidence, the trial court instructed the jury as follows: “Where a Defendant has evidence by which the Defendant may repel a claim or charge against it and omits to produce it, a presumption arises that the charge or the claim is well founded, but this presumption may be rebutted.”

         Notably, the evidence also supported a conclusion that, at trial, Tecumseh intentionally misrepresented its motivation for rehiring Godwin; fabricated the extent of its investigation of the January 1997 encounter between Godwin and Stigler; and wrongfully labeled Rigdon as a racist out of concern about Godwin’s discrimination claim.


text:
    A01A1511.
    SNOW v. THE STATE.
    (552 SE2d 900)
   Johnson, Presiding Judge.

Following a bench trial on stipulated facts, Timothy Snow was found guilty of forgery and financial transaction card fraud. In his sole enumeration of error, Snow contends the trial court erred in denying his motion to suppress his identity, a witness’ identification of him, and physical evidence found in a police car. According to Snow, these items should have been excluded at trial because police arrested him without probable cause. We find no merit in this argument and affirm his convictions.

When reviewing a trial court’s decision on a motion to suppress, this Court’s responsibility is to ensure that there was a substantial basis for the decision. We construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility of the witnesses unless they are clearly erroneous. Furthermore, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.

Viewed in this light, the evidence shows that on October 28, 1999, a man later identified as Snow attempted to purchase over $600 worth of gift cards at a Home Depot store. When the cashier attempted to verify the American Express card the man was using, Snow became nervous and fled the scene. The cashier told a police officer working part-time at the store what had happened. She informed the officer that the man presented her with an American Express card and a New York driver’s license in the name of Tom Black. The officer saw the suspect enter the Mrs. Winner’s restaurant next door to the Home Depot and radioed a lookout giving the description of the suspect and his clothing.

A sergeant located in a parking lot almost directly across the street drove to Mrs. Winner’s and saw Snow in front of the restaurant. Snow matched the physical description of the suspect, and his clothing matched that described in the lookout. The sergeant stopped Snow, patted him down, then placed him in the back of his patrol car and drove next door to Home Depot. Snow was not able to get out of the car, and the sergeant testified that he would not have let Snow leave.

The officer working at Home Depot went out to the patrol car and asked Snow if he had the American Express card. Snow repeatedly responded that he did not have an American Express card and that he did not know what the officer was talking about. The cashier came out of the store and identified Snow with certainty as the suspect. At this point Snow was arrested, a uniformed officer was called, and this officer transported Snow to the jail. Subsequently, the sergeant looked in his patrol car and found the American Express card and the driver’s license on the floor in the backseat. American Express was called and verified that the card had been altered.

Snow contends that the police lacked probable cause to arrest him because they had no information prior to his arrest that he was engaged in any illegal activity. We disagree. Snow attempted to buy an unusually large amount of gift cards, he used a credit card for the purchase, he presented an out-of-state identification, and he left the store without a word when the cashier attempted to verify the card from American Express. These actions gave the officers, at a minimum, reasonable suspicion to stop Snow.

Under Terry v. Ohio, a police officer who lacks probable cause may momentarily detain a suspicious individual in order to determine his identity or to maintain the status quo while obtaining more information. We disagree with Snow’s argument that he was arrested when the sergeant placed him in the patrol car. The test for determining whether a suspect has been arrested is whether a reasonable person in the suspect’s position would have thought the detention would not be temporary. Here, Snow was seized, but not arrested. He was merely transported next door so the officers could obtain more information regarding the transaction at Home Depot. “Where the officer has the reasonable suspicion which will justify detaining a suspect briefly, we have approved of detention in the back seat of a patrol car for 10 to 15 minutes as being within the duration of the seizure contemplated under Terry v. Ohio” Thus, while Snow was not free to leave and was seized, we cannot conclude that, based on the circumstances, he was arrested when he was placed in the patrol car.

After Snow was brought back to Home Depot, he denied any knowledge about the credit card transaction, despite positive identifications by both the officer working at Home Depot and the cashier who attempted to verify the credit card. His arrest at this point was supported by probable cause. Probable cause exists where the facts and circumstances within the officer’s knowledge were sufficient to warrant a prudent person in believing the person suspected had committed or was committing an offense. Based on the totality of circumstances surrounding the credit card transaction, including the large amount of gift cards Snow attempted to purchase, Snow’s flight when the cashier attempted to verify the credit card, and Snow’s denial of any knowledge regarding the transaction, sufficient probable cause existed for the officers to believe Snow had committed an offense. Clearly, the American Express card and New York driver’s license subsequently found in the patrol car, as well as the officer’s subsequent discovery that the American Express card had been altered, were also admissible at trial. We find a substantial basis for the trial court’s denial of Snow’s motion to suppress.

Decided July 25, 2001.

Barry M. Hazen, for appellant.

J. Tom Morgan, District Attorney, David W. Bass, Jeanne M. Canavan, Rachelle L. Strausner, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ellington, J., concurs. Ruffin, J., concurs in judgment only.

        Huntley v. State, 244 Ga. App. 212, 213 (1) (535 SE2d 270) (2000).

       Id.

       Id.

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

        State v. Corbett, 205 Ga. App. 554, 556 (423 SE2d 38) (1992).

       Id.

        Mitchell v. State, 200 Ga. App. 146, 147 (1) (407 SE2d 115) (1991).

       Id.

       See Edwards v. State, 239 Ga. App. 44, 45-46 (1) (518 SE2d 426) (1999); Baker v. State, 202 Ga. App. 73, 75 (1) (413 SE2d 251) (1991).


text:
    A01A0043.
    SOUTH v. BANK OF AMERICA.
    (551 SE2d 55)
   Phipps, Judge.

Harry South appeals a superior court order granting judgment on the pleadings to Bank of America. We reverse the order because we find that Bank of America is not entitled to judgment as a matter of law.

On April 21, 1993, South’s mother, Louise South, purchased an 18-month certificate of deposit (“CD”) from NationsBank for $40,000. She placed the CD in her and South’s names. However, she did not inform South of the purchase. On October 29, 1994, pursuant to a telephone request by Louise South, the bank redeemed the CD for its matured value, added those funds to other funds belonging to her, and opened a second CD in her name only.

After Louise South’s death in 1999, South learned of these transactions and filed suit against Bank of America, the successor to NationsBank. South asserted that by negotiating the original CD without his knowledge or consent, the bank violated his ownership rights, converted the proceeds of the CD, and breached its contract. South also sought equitable reformation of the CD, attorney fees and expenses of litigation, and punitive damages.

After filing its answer to South’s complaint, Bank of America filed a motion for judgment on the pleadings. Bank of America contended that it was protected from liability by OCGA § 7-1-816, which provides: “Financial institutions may enter into multiple-party accounts to the same extent that they may enter into single-party accounts. Any multiple-party account may be paid, on request, to any one or more of the parties.” Within the meaning of that statute, an account includes a CD.

In his reply to the motion, South contended that Bank of America’s redemption of the CD was not protected by OCGA § 7-1-816 because Bank of America did not meet a requirement in the caption to OCGA § 7-1-816 that there be no payment on a multi-party account except on the signature of at least one party. Without the protection of OCGA § 7-1-816, South argued, the redemption constituted a breach of contract and a violation of former OCGA § 11-3-116, which was effective at the time of the transaction. Former OCGA § 11-3-116 provided:

[A negotiable] instrument payable to the order of two or more persons: (a) If in the alternative [was] payable to any one of them and [could] be negotiated, discharged, or enforced by any of them who has possession of it; (b) If not in the alternative [was] payable to all of them and [could] be negotiated, discharged, or enforced only by all of them.

South also argued that, at a minimum, judgment on the pleadings was precluded because a factual question existed regarding whether the bank had disbursed the funds on the “request” of a party to the account, which was a precondition to the protection afforded by OCGA § 7-1-816. OCGA § 7-1-810 (12) defines “request” as “a proper request for withdrawal or a check or order for payment which complies with all conditions of the account, including special requirements concerning necessary signatures and regulations of the financial institution. . .

The superior court granted the motion for judgment on the pleadings based upon the following determinations: (1) OCGA § 7-1-816 controlled over OCGA § 11-3-116; (2) there was no signature requirement in OCGA § 7-1-816 as South contended; (3) South’s complaint did not allege failure of the bank to act pursuant to a proper request except to the extent that the CD was negotiated without his knowledge and consent; and (4) OCGA § 7-1-816 justified the bank’s action in negotiating the CD with Louise South individually and without South’s knowledge and consent.

On a motion for judgment on the pleadings under OCGA § 9-11-12 (c), all well-pleaded material allegations by the nonmovant are taken as true, and all denials by the movant are taken as false. Granting the motion is proper only where there is a complete failure to state a cause of action or defense and the movant is thus entitled to judgment as a matter of law.

1. To the extent that a conflict would arise from the application of both OCGA §§ 7-1-816 and 11-3-116, OCGA § 7-1-816 would control because it is a more recent legislative pronouncement and is more specific. Moreover, contrary to South’s contention, the caption of OCGA § 7-1-816, which refers to “payment on signature of one party,” does not create a requirement that banks obtain the signature of at least one party to the account. OCGA § 1-1-7 provides, “Unless otherwise provided in this Code, the descriptive headings or catchlines immediately preceding or within the text of the individual Code sections ... do not constitute part of the law and shall in no manner limit or expand the construction of any Code section.”

The determinative question in this appeal is whether this record clearly shows that the funds were paid on a proper request, as defined by statute, to one of the parties of the multi-party account. In his brief opposing the motion for judgment on the pleadings, South asserted that “a proper request was not made here, . . . that the certificate was redeemed in violation of the rights granted to him by the bank and in violation of the law.” The record contains no information regarding the conditions of the account or the regulations of the bank. In the absence of such information, it cannot be determined whether the funds were disbursed pursuant to a proper request and thus whether OCGA § 7-1-816 is applicable.

Bank of America contends that any error by the superior court in resolving this issue was harmless because the CD proceeds indisputably were paid to Louise South rather than to a stranger to the account and because South was only a third-party beneficiary to the contract and did not change position based upon the existence of the contract. We disagree. First, despite the fact that the CD proceeds were paid to Louise South, a person who had a lawful interest in the funds, a jury could find that South suffered financial harm as a result of the funds being disbursed and ultimately passing into Louise South’s estate. Second, we do not agree that South was merely a third-party beneficiary to the contract. Bank of America concedes in its brief that for purposes of this motion, South was a joint owner of the CD account. As such, he was a party to the agreement.

Because the trial court erred in determining on the basis of this record that the bank complied with OCGA § 7-1-816, and because we do not find that the error was harmless, we hold that the trial court erred in granting judgment on the pleadings to Bank of America.

2. We address South’s second enumeration of error because it presents an issue which may arise again in this litigation. South asserts that even if OCGA § 7-1-816 applies to this case, it does not bar his claim for breach of contract. However, OCGA § 7-1-820 plainly states, “Payment made pursuant to Code Section 7-1-816 . . . discharges the financial institution from all claims for amounts so paid. . . .” Aside from the plain language of OCGA § 7-1-820, the legislative intent to bar even breach of contract claims can be seen from the fact that the General Assembly made compliance with the terms of the account agreement and bank regulations a precondition to the applicability of OCGA § 7-1-816. Thus, where OCGA § 7-1-816 applies, there is no basis for a breach of contract claim. Where OCGA § 7-1-816 does not apply, liability may attach for breach of contract.

Decided May 15, 2001

Reconsideration denied July 26, 2001.

Duffy, Feemster & Lewis, Matthew M. Bush, for appellant.

Inglesby, Falligant, Horne, Courington & Nash, Kathleen Horne, Owen C. Murphy, for appellee.

3. Because we have addressed the appropriateness of the order granting judgment on the pleadings, it is unnecessary to consider whether the trial court erred in not granting South’s motion for reconsideration of the order. In deciding this appeal, this court did not consider documents which South attached to his motion for reconsideration and which were not part of the record when the superior court ruled on the motion for judgment on the pleadings. Consideration of those documents on appeal would be inappropriate. Thus, we grant Bank of America’s motion to exclude those documents from the record on appeal and deny South’s motion to add them.

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

        Bishop v. Westminster Schools, 196 Ga. App. 891, 892 (1) (397 SE2d 143) (1990).

       OCGA § 7-1-810 (1).

       South appears to assert the violation of former OCGA § 11-3-116 as a basis for tort liability. See generally Wages v. Amisub of Ga., 235 Ga. App. 156, 159 (1) (508 SE2d 783) (1998) (violation of general duty of care imposed by law may provide basis for tort liability); see also OCGA § 51-1-1.

       See OCGA Title 11, Art. 3, editor’s notes.

       Under former OCGA § 11-3-104 (2) (c) and (3), a CD might or might not constitute a negotiable instrument. This record contains only a copy of Louise South’s customer receipt, which does not show whether the CD in this case.was negotiable. See NeSmith v. Ellerbee, 203 Ga. App. 65, 67 (1) (416 SE2d 364) (1992); but see Mashburn v. Wright, 204 Ga. App. 718, 722 (420 SE2d 379) (1992).

        Maxwell v. Cronan, 241 Ga. App. 491, 493 (1) (527 SE2d 1) (1999).

        Bishop, supra; Seaboard Coast Line R. Co. v. Dockery, 135 Ga. App. 540, 543 (218 SE2d 263) (1975).

       See Glinton v. And R, Inc., 271 Ga. 864, 866-867 (524 SE2d 481) (1999).

       OCGA § 1-1-7.

       See OCGA § 7-1-816.

       Compare Brice v. Nat. Bondholders Corp., 187 Ga. 511, 517-519 (5) (1 SE2d 426) (1939).

       See OCGA § 7-1-810 (4), (5).

       See OCGA §§ 7-1-816; 7-1-810 (12).

       Id.

       See Ralston v. Etowah Bank, 207 Ga. App. 775, 777 (2) (429 SE2d 102) (1993).

       The trial court did not enter a ruling on South’s motion for reconsideration, which was filed approximately three weeks after the court entered its order granting judgment on the pleadings to Bank of America. The motion for reconsideration did not toll the 30-day period for filing a notice of appeal. Hardrick v. Morgan, 240 Ga. App. 155 (522 SE2d 742) (1999) . When South filed his notice of appeal, the trial court could no longer alter the judgment appealed. JarAllah v. American Culinary Federation, 242 Ga. App. 595 (529 SE2d 919) (2000) .

       See Givens v. Ichauway, Inc., 268 Ga. 710, 712-713 (1) (493 SE2d 148) (1997) (appellate courts will review only evidence presented to trial court before its ruling on motion for' summary judgment); Segrest v. Intown True Value Hardware, 190 Ga. App. 588, 591 (3) (379 SE2d 615) (1989) (trial court did not abuse its discretion in refusing to consider documents tendered for the first time under the guise of supporting a motion for reconsideration).