author: McMurray, Presiding Judge.

text:
    A99A1084, A99A1085.
    WIDENER et al. v. ASHKOUTI; and vice versa.
    (521 SE2d 215)
   McMurray, Presiding Judge.

In a written agreement, plaintiff Gerald J. Ashkouti agreed to purchase certain real estate from defendants Patricia Marie Widener and Janet Widener Sims, Trustees of the Item VI Trust under the will of Marie Louise Browne Widener. When no closing took place within 45 days after the Gwinnett County Commission refused to rezone the property as plaintiff desired, defendants considered the agreement expired, returned plaintiff’s escrow money, and sold the property to a third party. Plaintiff sued for an alleged anticipatory breach of the sales agreement, and in Ashkouti v. Widener, 231 Ga. App. 539, 541 (2), (3) (500 SE2d 337), this Court reversed the grant of summary judgment to defendants, concluding that, under the undisputed facts, the sales agreement as amended was not terminated at the time defendants repudiated it, and that plaintiff was authorized to waive the failure of any condition precedent in his favor (such as rezoning). Once that condition precedent was waived, the purchase price under the amended agreement was fixed at $3,000,000. Id. at 541-542 (3). The case was remanded for further proceedings. Id. at 542 (4). Plaintiff’s motion for partial summary judgment as to defendants’ liability for breach of contract was granted, and defendants appeal. Held:

Case No. A99A1084

In two related enumerations of error, defendants contend the trial court erred in concluding that a valid, enforceable contract existed between the parties and further erred in concluding that defendants had breached that contract.

1. The existence of a valid, enforceable contract is the law of the case, based on this Court’s decision in the prior appeal, deciding all contentions raised adversely to defendants.

“The law of the case rule is abolished; but. . . any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” OCGA § 9-11-60 (h). Thus, in this civil action, the superior court, as well as this Court, would certainly be bound by the previous rulings in Ashkouti v. Widener, 231 Ga. App. at 540, supra, regardless of whether defendants contend those rulings may be erroneous. Kaplan v. Johnson, 234 Ga. App. 93, 94 (506 SE2d 391); Caring Hands v. Dept. of Human Resources, 222 Ga. App. 608, 609 (1) (475 SE2d 660).

2. Since it is undisputed that defendants refused to rescind their sales agreement with the third party after plaintiff informed them, during the existence of the contract as extended by amendment, of his waiver of the rezoning condition precedent, it follows the trial court correctly granted partial summary judgment as to liability against defendants for their unqualified anticipatory repudiation of the executory real estate sales agreement with plaintiff. Clark v. Cox, 179 Ga. App. 437-438 (1) (347 SE2d 4); Wilson v. Milam, 156 Ga. App. 328 (1) (274 SE2d 720); see also Szabo Assoc. v. Peachtree-Piedmont Assoc., 141 Ga. App. 654 (1), 656 (234 SE2d 119).

Case No. A99A1085

3. In this cross-appeal, plaintiff contends the trial court erred in denying his motion for summary judgment as to the amount of damages. He argues the subsequent sale of the property for $3,200,000 conclusively establishes the fair market value of the property, resulting in fixed damages to him of $200,000. We disagree.

“It has long been the rule that the measure of damages for breach of a contract to sell land is the difference between the contract price and the fair market value of the land at the time of the breach. [Cits.]” (Emphasis supplied.) Quigley v. Jones, 255 Ga. 33 (334 SE2d 664). “Value on the date of [the breach] is a factual question to be resolved by the trior of fact. [Cit.]” Sparti v. Joslin, 230 Ga. App. 346, 348 (3) (a) (496 SE2d 490).

We judicially know that values do fluctuate, sometimes up and sometimes down. If this were not so, proof of the market value of any item at a given time would suffice for all time to come. Real estate, as well as stocks and bonds, fluctuates in value, albeit at a less rapid pace. What it may have brought or what it may have been regarded as being worth on the market at times relatively close to the date [of the breach] may be considered as aids in arriving at market value at the time of [the breach] — which is what the [trior of facts] is charged with determining in [this action for breach of a real estate sales contract]. But at last value on the date of [the breach] is a factual question to be resolved by the trior of facts.

Thompson v. Maslia, 127 Ga. App. 758, 764 (4) (195 SE2d 238) (whole court). Consequently, even testimony of the sale of the identical parcel at a different price and time fails to establish as a matter of law the precise market value as of the date of the breach. There may be only one buyer willing to pay the price accepted by defendants. There are other variables: the availability of loans (or the need for one); interest rates; or other special requirements. Smith v. Fidelity Fed. Sav. &c. Assn., 149 Ga. App. 730, 731 (256 SE2d 43). In the case sub judice, the trial court correctly determined that proof of the actual sales price of the subject realty at a different time to a different party was not conclusive evidence of fair market value on the date of the breach. It follows that the trial court correctly declined to grant plaintiffs motion for summary judgment as to damages and prejudgment interest.

Decided July 23, 1999

Reconsideration denied August 6, 1999.

Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., for appellants.

Schreeder, Wheeler & Flint, Debbie A. Wilson, John A. Christy, for appellee.

Judgments affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A99A1206.
    BURNS v. THE STATE.
    (521 SE2d 217)
   McMurray, Presiding Judge.

At a bench trial, defendant and co-defendant, Dewayne Horton, were found guilty of armed robbery (Count 1) and the possession of a firearm during the commission of a felony (Count 2). The evidence, including defendant’s custodial statement, showed that defendant and co-defendant Horton robbed a Chatham County convenience store for quick cash by means of a handgun which defendant held to the store clerk’s head. In the case sub judice, only defendant Burns appeals from the judgment of conviction. Held:

1. Before trial, defendant moved to suppress the physical evidence seized from his pickup and “all the statements they took from the defendants later after the arrest.” After an evidentiary hearing, the trial court ruled that the stop and arrest were proper, and that ruling is enumerated as error. Defendant argues the traffic stop of his vehicle was not based on any reasonable, articulable suspicion and further argues his subsequent arrest was without probable cause. We disagree.

The State’s evidence at the suppression hearing was uncontro-verted, and no question as to the credibility of witnesses is in issue. Consequently, our review of the trial court’s ruling is de novo. Van-sant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474). Viewed in a light most favorable to the trial court’s determination, the evidence revealed the following: At about 2:00 a.m. on July 10, 1997, Officer Frank B. Rigelwood of the Chatham County Police Department received a radio dispatch advising him of an armed robbery which had just occurred at a nearby convenience store on Grove Point Road. The dispatch further advised Officer Rigelwood that two white males, both wearing ski masks, had been identified as the perpetrators; that one was dressed in a camouflage “suit” and the other in a button-up shirt and blue jeans; that one was armed with a “black” pistol; and that the suspects had fled the store on foot and were last seen crossing Grove Point Road heading toward Crown Villa Apartments.

Officer Rigelwood arrived in the vicinity approximately four minutes later, where he observed a small truck driven by a white male which appeared to be coming from Crown Villa Apartments. There was little to no traffic otherwise at that time in the area. Officer Rigelwood followed to “eliminate the possibility of this vehicle being involved.” As he followed, Officer Rigelwood positioned his vehicle in a way which allowed him to illuminate the interior of the truck’s cab. He observed a second white person “slumped down in the seat to where — so that he could not be visible from the rear.” At this point, Officer Rigelwood decided that he should stop the truck to investigate and activated his blue lights.

The truck proceeded nearly one-half mile without slowing, before stopping. Once it pulled over, co-defendant Horton, the passenger, exited the vehicle and walked “briskly” toward the rear of the truck. Horton walked with “his hands down where [Officer Rigelwood] couldn’t see them” so the officer ordered Horton to return to the truck. Officer Rigelwood ordered defendant to turn off the vehicle and had him step out of the truck. Officer Rigelwood advised defendant that he had been stopped because there had been an armed robbery in the area where defendant had initially been seen. Twice, defendant denied coming from the vicinity of the robbery, but finally admitted having come from Crown Villa Apartments.

In the meantime, Officer Ruby Huntley, also of the Chatham County Police Department, arrived at the scene. Leaving defendant in the care of Officer Huntley, Officer Rigelwood got Horton out of the truck a second time and walked him beyond the rear of the truck. As Horton cleared the truck, Officer Rigelwood noticed that Horton was wearing camouflage coveralls, the top portion of which had been pulled down around his waist and secured. Without formally being arrested, defendant and co-defendant Horton were then handcuffed and placed in separate patrol cars. Thereafter, a search of the truck revealed “two masks, a blue steel handgun, and some money inside.” Finally, while in jail, defendant made a statement, introduced in evidence by the State at trial, in which he admitted having a gun during the armed robbery.

(a) The Stop

In the case sub judice, the record shows that Officer Rigelwood arrived in the vicinity of the crime scene promptly after receiving the report that a convenience store had been robbed. He observed a truck being driven by a white male away from the area of the apartment complex to which the perpetrators had reportedly fled at a time when there otherwise was substantially no traffic. In pursuing the truck, he was able to determine that a second white person appeared to be hiding in the vehicle.

“An officer may conduct a brief investigatory stop of a vehicle if that stop is justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” (Citations and punctuation omitted.) Howard v. State, 233 Ga. App. 861 (505 SE2d 270). “ [Deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea.” (Citation and punctuation omitted.) State v. Webb, 193 Ga. App. 2, 4 (1) (386 SE2d 891). See also Brown v. State, 269 Ga. 830, 832 (2) (504 SE2d 443). In the case sub judice, we hold that the totality of the circumstances, including the late hour report of a nearly contemporaneous armed robbery and the place where the defendants were first seen (i.e., the place where the perpetrators were last seen), created a justifiable suspicion concerning defendant’s identity and warranted a limited investigative detention to determine if he roughly fit the description of the perpetrators. State v. Carter, 240 Ga. 518 (242 SE2d 28). Accord Jones v. State, 156 Ga. App. 730 (275 SE2d 778) (whole court). The trial court correctly determined that the initial investigatory stop was authorized.

(b) The Arrest

Defendant was slow in stopping his vehicle after Officer Rigelwood activated the blue lights and was evasive before conceding that he had just come from Crown Villa Apartments. Officer Rigelwood noticed that Horton wore camouflage clothing as described in the dispatch report.

‘“Whether [an] arrest [is] constitutionally valid depends . . . upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [person suspected] had committed or was committing an offense.’ (Cit.)”

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

Under the totality of the circumstances, those justifying the stop and those which developed thereafter, particularly, the fact that Officer Rigelwood saw that co-defendant Horton wore camouflage coveralls such as mentioned in the police dispatch, we conclude that Officer Rigelwood had sufficient probable cause to justify both defendant’s and Horton’s custodial arrest for suspicion of armed robbery, and the trial court properly denied the defendant’s motion to suppress. Richardson v. State, 232 Ga. App. 398, 401 (2) (501 SE2d 885) (automobile search valid as incident to a lawful custodial arrest where the defendant has been handcuffed and placed in patrol car if, as here, arrestee was a recent occupant of vehicle). Consequently, the search of defendant’s vehicle yielding the ski masks and the handgun was authorized as incidental to that lawful arrest. Gilbert v. State, 212 Ga. App. 308 (1), 309 (441 SE2d 785).

2. In his remaining enumeration of error, defendant contends that OCGA § 17-10-6.1 is unconstitutional, arguing this Code section denies those convicted of serious violent felonies consideration for first offender treatment under OCGA § 42-8-60, violating the due process, equal protection, cruel and unusual punishment and ex post facto clauses of the Georgia and United States Constitutions.

(a) Defendant raised the instant enumeration of error below only by challenging OCGA § 17-10-6.1 as an ex post facto law as applied, and this is the only basis supported on appeal by argument and citation of authority. Accordingly, we will address this enumeration of error only to the extent he argues OCGA § 17-10-6.1 is an ex post facto law. Court of Appeals Rule 27 (c) (2) (“Unsupported claim of error treated as abandoned”); see also Williams v. State, 208 Ga. App. 716, 717 (3) (431 SE2d 469) (nothing presented for decision when error raised for first time on appeal).

(b) Defendant’s sentence is not the result of an ex post facto law.

In general, a law is ex post facto if it inflicts upon the party being tried a greater punishment than the law annexed to the crime at the time it was committed or it alters the situation of the accused to his disadvantage. Todd v. State, 228 Ga. 746, 751 (187 SE2d 831) (1972).

Brantley v. State, 268 Ga. 151, 153 (2) (486 SE2d 169).

In Fleming v. State, 233 Ga. App. 483, 487 (3) (504 SE2d 542), this Court affirmed the trial court’s refusal to sentence Fleming under the First Offender Act and held that the express intent of the General Assembly in amending both the First Offender Act and the Sentence Reform Act of 1994 was to make clear that the First Offender Act does not apply to sentences for serious violent felonies under OCGA § 17-10-6.1, the Sentence Reform Act of 1994. See State v. Hamilton, 238 Ga. App. 40 (517 SE2d 583). “[Subsequent legislation declaring the intent of a legislative body in enacting an earlier statute is entitled to great weight in statutory construction.” (Citations and punctuation omitted.) Hicks v. State, 228 Ga. App. 235, 237 (1) (494 SE2d 342).

Decided July 23, 1999

Reconsideration denied August 6, 1999

Jackson & Schiavone, Michael G. Schiavone, Steven L. Sparger, for appellant.

Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellee.

The instant armed robbery, a serious violent felony under OCGA § 17-10-6.1 (a) (2), was committed on July 10, 1997 and so was punishable under the Sentence Reform Act of 1994. From its inception, the Sentence Reform Act of 1994 foreclosed first offender treatment to those sentenced thereunder. Fleming, supra. Thus, the trial court’s refusal to consider defendant for first offender treatment neither retroactively increased the punishment applicable to armed robbery at the time defendant committed the armed robbery for which he was convicted nor altered defendant’s situation to his disadvantage. Accordingly, OCGA § 17-10-6.1, as amended, was not impermissibly applied as an ex post facto law. See Todd v. State, 228 Ga. at 751, supra. This enumeration of error is without merit.

Judgment affirmed.

Andrews, P. J, concurs. Ruffin, J., concurs in the judgment only.


text:
    A99A1383.
    REID v. ROYAL CREEK APARTMENTS LIMITED PARTNERSHIP et al.
    (521 SE2d 210)
   McMurray, Presiding Judge.

Plaintiff Victoria L. Reid brought this tort action against defendants Royal Creek Apartments Limited Partnership and Royal Creek Apartments Corporation of Georgia, seeking to recover for damage to her personal property caused when a sewage line erupted, emitting raw sewage throughout plaintiff’s apartment. Defendants denied the material allegations and the case was tried before a jury which returned a general verdict for defendants. Proceeding pro se, plaintiff filed a timely notice of appeal from the judgment entered on this defense verdict. Held1.

In six enumerations of error, plaintiff complains of various evi-dentiary rulings made by the trial court. We are, however, unable to consider the merits of any of these contentions.

Decided July 23, 1999

Reconsideration denied August 6, 1999

Victoria Reid, pro se.

Lane, O’Brien & Caswell, Eugene O’Brien, Temple, Strickland & Dinges, William D. Strickland, for appellees.

The notice of appeal directs the clerk to please “omit nothing from the record/case on appeal,. . . and send forth the entire record/ case.” The certificate of the Deputy Clerk, Superior Court of Fulton County, Georgia, recites that the “entire record on appeal consists of the foregoing Notice of Appeal and Transcript of Record.” But there is no transcript of the evidence adduced at trial, nor any statutorily authorized substitute.

In order for the appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings. OCGA § 5-6-41 (c). “Thus, where the transcript is necessary [, as in the case sub judice,] and appellant omits it from the record on appeal [or fails to submit a statutorily authorized substitute], the appellate court must assume the judgment below was correct and affirm. [Cits.]” [Cit.]

Deen v. United Dominion Realty Trust, 218 Ga. App. 443 (1), 444 (462 SE2d 384). In the case sub judice, plaintiff’s six evidentiary enumerations present nothing for review, because in the absence of a transcript we are bound to conclude the trial court correctly ruled, and so affirm the judgment.

Judgment affirmed.

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


author: Blackburn, Presiding Judge.

text:
    A99A1583.
    HARRIS v. THE STATE.
    (521 SE2d 462)
   Blackburn, Presiding Judge.

Richard David Harris was convicted after a bench trial of trafficking in cocaine. He appeals from the denial of his motion for new trial arguing that the trial court erred in denying his motion to suppress the cocaine evidence seized from him during a traffic stop. We affirm.

In our review of the trial court’s order denying Harris’ motion to suppress, we construe the evidence most favorably to uphold the court’s ruling. Mao v. State, 222 Ga. App. 482, 483 (474 SE2d 679) (1996). It is the trial court’s duty to resolve conflicts in the evidence, and its findings of credibility and fact will not be disturbed on appeal unless they are clearly erroneous. Id. Viewed in this light, the record reveals the following:

In late December 1997, DeKalb County Detective C. R. Lynn received information from a confidential informant (Cl) that a black male known as “Rico” was involved in the illegal drug trade. Based on the Cl’s assistance in other cases, Detective Lynn believed the Cl to be truthful and reliable. The Cl told Detective Lynn that Rico let him ride in his car while he made deliveries of suspected cocaine. The Cl said that Rico often traveled with eight to nine ounces of cocaine on his person and that he kept a gun — either a Mach 11 or a Glock 40 — in the car. The Cl said that Rico recently bought a house, that he shopped at expensive clothing stores, that he owned a chicken wing stand called “City Wings” which was never open, and that he routinely left the house between 7:00 a.m. and 8:00 a.m. to sell drugs and that he would return home at about noon. The Cl showed Detective Lynn where Rico lived and pointed out his car, a gold Lexus. Detective Lynn determined the car was registered to Richard David Harris. Detective Lynn obtained a picture of Harris and showed it to the Cl who confirmed that Harris and Rico were the same person. After confirming many of the details of the Cl’s information, Detective Lynn and other DeKalb County detectives and police officers began surveillance of Harris.

At 8:10 a.m. on March 5, 1998, Detective Pinson was watching Harris’ home. He reported that Harris got in his gold Lexus and drove away. Detective Lynn and two other detectives, Ford and Brooks, picked up the surveillance as Harris neared Interstate 20. Detective Brooks followed Harris to a gas station in Rockdale County. She reported that Harris left the gas station, then did a U-turn and returned to it, whereupon he parked his car and got into a black Honda and left the station. Within 30 minutes, Harris returned to the gas station, got back in his car, and drove away quickly. Believing that a drug transaction had just occurred, Detective Lynn told a uniformed officer, Craddock, to stop Harris’ car.

Officer Craddock testified that before he was directed to stop Harris’ car, Detective Lynn informed him that Harris was likely armed and might have illegal drugs in the car. As Officer Craddock approached Harris, Harris slowed his car. Officer Craddock passed Harris’ car and observed that Harris was not wearing his seat belt. Officer Craddock directed Harris to pull over, and Harris complied. After giving Harris a warning citation for violating the seat belt law, Officer Craddock asked for permission to search the car. Harris consented and stepped out of the car. Because Craddock believed Harris might be armed, he patted him down for weapons. During the course of the pat-down, Officer Craddock felt a softball-sized bulge in Harris’ left sock. Officer Craddock testified the bulge felt like “a bunch of little rocks” wrapped in plastic and that he “suspected it right off to be drugs.” Craddock lifted Harris’ pant leg and removed the suspected cocaine. At the bench trial, Harris stipulated that the approximately two hundred grams of chunky substance found on him was cocaine of at least ten percent purity.

1. In his first enumeration of error, Harris contends Officer Craddock exceeded the scope of a protective weapons search authorized by Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). Harris does not challenge the propriety of a weapons search; rather, he argues that once Officer Craddock felt the powdery substance and realized it was not a weapon, his pat-down search should have ended.

Under what has been deemed the “plain feel” doctrine,

if a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

Minnesota v. Dickerson, 508 U. S. 366, 375-376 (113 SC 2130, 124 LE2d 334) (1993); Tukes v. State, 236 Ga. App. 77, 79 (2) (a) (511 SE2d 534) (1999). Contraband identified through an officer’s sense of touch during the course of a lawful Terry pat-down may be seized. Tukes v. State, supra; Howard v. State, 220 Ga. App. 579, 581-582 (469 SE2d 746) (1996).

In this case, Officer Craddock testified that, based upon his experience and the information he had been given, he knew immediately upon touching the substance that it was contraband. Under the “plain feel” doctrine, Officer Craddock was authorized to seize the substance. Tukes v. State, supra. “He was not compelled to ignore what was apparent to him upon feeling the object and to walk away instead. [Cits.]” Andrews v. State, 221 Ga. App. 492, 493 (471 SE2d 567) (1996).

2. In his second enumeration of error, Harris argues that Officer Craddock lacked reasonable articulable suspicion to stop him, and, alternatively, if Officer Craddock was authorized to make a traffic stop for a seat belt violation, he had no basis to detain Harris after issuing the warning. We disagree.

Decided August 6, 1999.

Jennifer A. Jones, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Maria Murder-Ashley, Aileen R. Page, Assistant Distrid Attorneys, for appellee.

(a) Pretermitting whether the information provided by the Cl and through the detectives’ observations of Harris’ morning activities was sufficient to authorize an investigative stop, Officer Craddock was authorized to stop Harris for committing a traffic offense, a seat belt violation, in his presence. “This rises ... to the level of probable cause to arrest.” Richardson v. State, 232 Ga. App. 398, 400 (1) (501 SE2d 885) (1998). Although Officer Craddock acknowledged that he probably would not have stopped Harris but for Detective Lynn’s orders, which provides the basis for a pretext argument, “an officer’s ulterior motive is of no consequence under the holding in Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89) [(1996)].” Cotton v. State, 237 Ga. App. 18 (513 SE2d 763) (1999).

(b) Contrary to Harris’ assertion, Officer Craddock did not detain Harris and search his car based upon the seat belt violation; rather, Harris consented to the search. Having effected a valid traffic stop, the officers were authorized to request consent to search the automobile. Gamble v. State, 223 Ga. App. 653, 656 (3) (478 SE2d 455) (1996). The stop did not exceed the bounds of a brief investigative detention, so Harris’ consent to search was not the product of an illegal detention. The evidence supports the court’s finding that his consent was freely and voluntarily given. See Taylor v. State, 230 Ga. App. 749 (498 SE2d 113) (1998).

3. In his third enumeration of error, Harris complains that Officer Craddock’s pat-down of his person was not consensual. However, as we have held:

Once a defendant has been stopped for violating a traffic law, a police officer is entitled to execute a pat-down search for weapons. Buffington v. State, 229 Ga. App. 450, 451 (494 SE2d 272) (1997). This pat-down search based on Terry v. Ohio, [supra,] does not require consent. Id.

Ginn v. State, 236 Ga. App. 448 (512 SE2d 338) (1999).

Given the facts of this case, the trial court’s denial of Harris’ motion to suppress was not clearly erroneous.

Judgment affirmed.

Barnes and Ellington, JJ, concur.


author: Johnson, Chief Judge.

text:
    A99A1667.
    JAMES v. THE STATE.
    (521 SE2d 465)
   Johnson, Chief Judge.

Robert James appeals from his convictions of armed robbery and kidnapping with bodily injury. He challenges the sufficiency of the evidence supporting each conviction. The challenges are without merit, and we therefore affirm the convictions.

The evidence shows that James and another man entered a convenience store. As they were paying for a soft drink and a pack of cigarettes, James’ accomplice shocked the cashier on his face with a “stun gun.” The victim lost consciousness, and his face was burned and scarred. The victim regained consciousness to find James and his accomplice dragging him into the store’s washroom. While being dragged, the victim saw a third man in a mask at the cash register. In the washroom, the two men forced the victim under the sink, bound him with tape and threatened to shoot him. James and his two accomplices stole approximately $2,400 from the store and the cashier and then fled.

1. James argues the stun gun injury to the victim’s face occurred prior to the kidnapping and thus there is no evidence to support his conviction of kidnapping with bodily injury. The argument is unpersuasive.

“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.” OCGA § 16-5-40 (a). The crime of kidnapping with bodily injury under OCGA § 16-5-40 (b) requires only that an injury, no matter how slight, occur during the kidnapping incident. Reynolds v. State, 234 Ga. App. 884, 885 (1) (a) (508 SE2d 674) (1998); Lamunyon v. State, 218 Ga. App. 782, 784-785 (4) (463 SE2d 365) (1995).

Thus, contrary to James’ argument, whether the bodily injury occurs at the beginning of the kidnapping incident or after the victim has been abducted is immaterial for purposes of proving the elements of the crime. For instance, we have upheld a kidnapping with bodily injury conviction when the defendant first hurt the victim by twisting her arm and then forced her to move from one room to another in her home. See Culver v. State, 230 Ga. App. 224, 232 (10) (496 SE2d 292) (1998). Likewise, we have found that the defendant’s choking of the victim before forcing her to move from her living room to her bedroom constituted the bodily injury necessary to establish the crime of kidnapping with bodily injury. Ferguson v. State, 211 Ga. App. 218, 221 (3) (438 SE2d 682) (1993).

Decided August 6, 1999.

Ninfo & Ledbetter, Paul M. Ledbetter, Jr., for appellant.

Tommy K. Floyd, District Attorney, for appellee.

In the instant case, the attack of the victim with the stun gun was the first step of the kidnapping; it immobilized the victim and allowed James and his accomplice to drag the victim into the washroom and to bind him with tape. The burning of the victim’s face with the stun gun at the outset of the kidnapping constituted the bodily harm necessary to support the conviction of kidnapping with bodily injury. See Green v. State, 193 Ga. App. 894, 896 (1) (389 SE2d 358) (1989).

2. James contends the evidence is insufficient to support his armed robbery conviction because there is no proof the stun gun was an offensive weapon. The contention is without merit.

The Supreme Court has recently ruled that a stun gun can constitute an offensive weapon authorizing an armed robbery conviction under OCGA § 16-8-41 (a). Harwell v. State, 270 Ga. 765, 767 (1) (512 SE2d 892) (1999). The General Assembly has also provided that stun guns and tasers are considered to be firearms for purposes of the criminal code section prohibiting the possession of firearms during the commission of certain crimes. OCGA § 16-11-106 (a).

In the instant case, the victim testified that he was shocked with the stun gun, that sparks came from both sides of the weapon, that his face was burned by the gun, and that he was knocked unconscious by the weapon. A sheriff’s investigator testified that the victim had described being knocked back with the stun gun, and she also identified a stun gun exhibit as being similar to the type of weapon described by the victim. A co-indictee of James further testified that there was a stun gun in the truck they had driven to the store.

The evidence in the instant case that the robbery of the victim was committed by use of a stun gun was sufficient to support the jury’s finding beyond a reasonable doubt that James is guilty of armed robbery. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Livery v. State, 233 Ga. App. 882, 883-884 (1) (506 SE2d 165) (1998).

Judgment affirmed.

McMurray, P. J, and Phipps, J., concur.


author: Miller, Judge.

text:
    A99A0975.
    STEWART v. THE STATE.
    (521 SE2d 468)
   Miller, Judge.

Troy Stewart, Jr. was convicted of rape, aggravated assault, and false imprisonment. He enumerates two errors by the trial court: admitting evidence of two prior similar transactions and not continuing the case to allow him to seek other counsel.

1. Stewart objected to the first similar transaction at the pretrial Uniform Superior Court Rule 31.3 (B) hearing, but failed to do so at trial. In fact, when asked by the court if he had any objections to the certified conviction evidencing the transaction, Stewart’s counsel affirmatively stated he had none.

Even though [defendant] objected to the introduction of the similar transaction evidence at the hearing conducted pursuant to Uniform Superior Court Rule 31.3 (B), he was required to object to the introduction of the similar transaction evidence at trial in order to preserve the issue on appeal. Smith v. State, 268 Ga. 42 (3) (485 SE2d 189) (1997).

Young v. State, 269 Ga. 478, 479 (3) (499 SE2d 60) (1998). “[T]he rule requiring a trial objection on similar transaction evidence is firm in Georgia jurisprudence, and we are bound to follow it.” (Footnote omitted.) McClarity v. State, 234 Ga. App. 348, 350 (2) (506 SE2d. 392) (1998). Stewart’s failure to object at trial waived further review of the issue.

The evidence regarding the second similar transaction was not admitted at trial, even though the court indicated at the pre-trial USCR 31.3 (B) hearing that it would admit the evidence. At trial, Stewart successfully objected to the evidence on grounds of hearsay. Stewart failed to request a curative instruction or mistrial regarding the single testimonial reference to the prior sexual assault (which reference was made just before Stewart lodged the hearsay objection), and thus waived any complaint regarding same. Garner v. State, 199 Ga. App. 468, 469 (2) (a) (405 SE2d 299) (1991). Moreover, the court sua sponte gave a curative instruction at the close of the evidence, which clearly directed the jury to disregard the reference. We discern no error.

2. On the morning of the first day of trial (before a jury was impaneled), Stewart announced he wanted to dismiss his counsel on the ground that counsel had not met with him nor adequately prepared for trial. The court inquired into the matter and determined that Stewart’s counsel, whom he had retained ten months earlier, had met several times with him, had fully reviewed the State’s file, and was prepared to try the case. Noting also the late nature of the request for new counsel, the court ordered the case to proceed with the same counsel without delay.

Decided August 9, 1999.

Billy C. Mathis, Jr., Caroline A. Cormack, for appellant.

Kenneth B. Hodges III, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.

Stewart complains on appeal that the trial court erred in not ordering a continuance of the trial to allow him to seek other counsel. He argues this forced him to trial without the benefit of counsel of his choice, in violation of his Sixth Amendment rights under the United States Constitution, and of his rights under Article I of the Georgia Constitution.

Setting aside the question of whether the issue was waived by Stewart’s failure to move for a continuance (see Watts v. State, 265 Ga. 888 (2) (463 SE2d 696) (1995)), we note that the right to obtain counsel of choice

does not mean that a defendant may retain any counsel at any time he wishes. ... A defendant’s right to counsel may not be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.

(Citations and punctuation omitted.) Lynd v. State, 262 Ga. 58, 62 (9) (a) (414 SE2d 5) (1992). A motion for continuance based on a desire to discharge counsel or a claim of inadequate preparation addresses itself to the sound discretion of the trial court, which decision we will not disturb absent a clear showing of abuse. Massalene v. State, 224 Ga. App. 321, 322 (1) (480 SE2d 616) (1997).

One factor to consider is the request’s timing. This dismissal request made on the morning of trial, particularly where the case had been on the calendar for some time, indicated that Stewart was attempting to use the discharge as a dilatory tactic, which the judge was authorized to prevent. Massalene, supra; Mallory v. State, 225 Ga. App. 418, 422 (4) (483 SE2d 907) (1997). We discern no abuse in the court’s exercise of its discretion to order the matter to proceed with the same counsel without delay.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.


author: Smith, Judge.

text:
    A99A1242.
    In the Interest of F. C. et al., children.
    (521 SE2d 470)
   Smith, Judge.

The parents of three-year-old F. C. and five-year-old D. L. C. appeal from the order of the Murray County Juvenile Court terminating their parental rights. In their sole enumeration of error, they assert that the State failed to meet the required burden of proof. We do not agree, and we affirm the termination order.

The decision to terminate parental rights is a two-step process. The juvenile court must first determine whether clear and convincing evidence exists of parental misconduct or inability, and if so, then the court determines whether termination of the parents’ rights is in the best interest of the children, after considering the physical, mental, emotional, and moral condition and needs of the children, including their need for a secure and stable home. OCGA § 15-11-81 (a). Parental misconduct is found when the children are deprived; lack of parental care or control is the cause of the deprivation; such deprivation is likely to continue or will not be remedied; and continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children. OCGA § 15-11-81 (b) (4) (A); In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996). The same factors supporting a finding of parental misconduct or inability may also support a finding that the termination of parental rights would be in the children’s best interest. In the Interest of D. T., 221 Ga. App. 328, 329 (1) (471 SE2d 281) (1996).

This court reviews the evidence in the light most favorable to the appellee. In the Interest of D. T., supra. Our standard of review is whether any rational trier of fact could have found by clear and convincing evidence that the natural parents’ rights to custody have been lost. A. M. V., supra at 532; In the Interest of M. E. C., 228 Ga. App. 9, 10 (1) (491 SE2d 107) (1997). Our review of the evidence presented to the juvenile court persuades us that this standard was more than met.

No question exists that the children were deprived, given that prior orders finding the children deprived were not appealed, and the juvenile court took judicial notice of these orders. In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997). The other criteria necessary for a finding of parental misconduct or inability were satisfied as well. Both parents had extensive criminal histories, and throughout the short lives of these children the parents were frequently incarcerated. In determining whether the cause of the deprivation was lack of proper care or parental control, the juvenile court was authorized to consider the parents’ records of multiple convictions for felonies and periods of imprisonment, which had a demonstrable negative effect on the quality of their relationships with the children. In the Interest of T. M. R., 217 Ga. App. 461, 462 (458 SE2d 148) (1995). The parents’ criminal histories demonstrate their continued engagement in criminal activities, even after the children were placed in the care of the Department of Family & Children Services (“DFACS”).

Although imprisonment alone does not lead to termination, where, as in this case, an incarcerated parent has a criminal history of repetitive incarcerations for the commission of criminal offenses or parole violations, this constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.

(Punctuation and footnote omitted.) In the Interest of A. M. N., 234 Ga. App. 365, 369 (506 SE2d 693) (1998). The harm to the children is obvious and unquestionable.

In this case, both parents also failed to comply with reunification plans developed after the children were placed in the custody of DFACS. The case plans required the parents to establish a stable home and stable employment, refrain from criminal activity, remain sober, support the children, and visit regularly. Neither parent ceased participating in criminal activity. Neither parent established a stable home, living in numerous locations when not incarcerated. Neither parent obtained stable employment or supported the children. The parents have not demonstrated their freedom from substance abuse, and the court found that both parents have problems with “chronic, unrehabilitated use of alcohol and drugs which affect[s] their abilities to parent their children adequately, and affect [s] their abilities to provide adequately for their children’s needs.” The father failed to complete a parenting skills course, and the mother refused to attend the course. Although the parents have visited the children sporadically, neither parent has visited on all scheduled occasions.

The DFACS caseworker testified that the children were doing well in their foster care placement, where they had lived for some time. The foster parents were considering adoption. Both the DFACS caseworker and the guardian ad litem appointed to represent the children recommended termination of the parents’ rights. The trial court’s acceptance of this recommendation and determination that it was in the best interest of the children was supported by the evidence.

Decided August 9, 1999.

James E. Wilbanks, for appellants.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       The parents consented to the entry of these orders.


author: Barnes, Judge.

text:
    A99A1473.
    NOBLE et al. v. NIEZNANY.
    (521 SE2d 472)
   Barnes, Judge.

James Noble and G. Carey Nelson (collectively “Noble”) sued Steve Nieznany for damages, claiming their boat was completely destroyed by fire as a result of Nieznany’s negligence in maintaining his boat. The trial court granted summary judgment to Nieznany, and Noble appeals. Because we conclude Nieznany was entitled to summary judgment as a matter of law, we affirm.

When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Further, when reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence.

(Citations and punctuation omitted.) Franklin v. Consolidated Govt. of Columbus, 236 Ga. App. 468 (512 SE2d 352) (1999).

Viewed in this light, the record shows that in September 1995, Steve Nieznany bought a 1974 houseboat. At the time of purchase, Nieznany visually inspected the boat and it appeared to be in good condition. Shortly after buying the boat, Nieznany went into the engine compartment to check the condition of the hoses, noticed a rubber fuel hose looked flat, and replaced it. According to Nieznany, the other fuel lines in the engine compartment were very clean and in good condition. A few weeks later, Nieznany went into the engine compartment twice: once to check the oil in the engine and once to check the oil in the generator.

Nieznany testified that he did not usually take the houseboat out on the lake; instead, he would use it “practically every weekend” while it remained tied to the dock. He further testified that he started the houseboat’s engine and generator only two or three times after his purchase and experienced no mechanical problems. Finally, he testified that it was his normal practice, at some point on weekends when he used the houseboat, to lift the hatch to the engine compartment and look for rainwater or anything else that might harm the engine.

On May 3, 1996, around 7:00 p.m., Nieznany arrived at his houseboat, which was docked at the Lake Allatoona Park Marina. Since he did not plan to take his houseboat on the lake that evening, Nieznany did not open the hatches, turn on the blowers, or start the engine. About 15 minutes after arriving at his houseboat, Nieznany walked into the kitchen area and turned on the air conditioner. He heard its usual start-up noise, followed by an immediate explosion. As the floor exploded upward, the refrigerator fell on top of Nieznany. A few minutes after his friends carried him off of the boat, someone discovered a fire that spread and destroyed several boats, including Noble’s. Before the explosion, Nieznany had not smelled any gas fumes.

The parties agree that the explosion was probably caused by a corrosion crack in the copper fuel line running from the gasoline tank to the boat engine. This crack lay underneath a rubber grommet and a clamp. A county fire investigator and a private fire investigator both concluded that a gasoline leak from the crack allowed gas fumes to accumulate in the boat hull, and an electrical contact or short in turn probably caused the subsequent explosion and fire. The private fire investigator also concluded that, based upon the location of the crack, it would have been impossible for an ordinary visual inspection to reveal the presence of the crack.

In this appeal, Noble claims the trial court held they could not recover unless the doctrine of res ipsa loquitur applied and that the trial court erred by failing to consider evidence that Nieznany failed to exercise ordinary care. We disagree.

1. The trial court properly determined that there was no evidence that Nieznany failed to exercise ordinary care. The undisputed evidence shows that the fuel line crack that caused the explosion could not be detected by an ordinary visual inspection. Noble’s argument that a fact issue is created by Nieznany’s failure to open the engine compartment hatch before turning on the air conditioner is without merit. Nieznany did not plan to or actually start the engine that evening, the air conditioner was not located in the engine compartment, and it did not draw power from the houseboat’s engine or generator when the houseboat was docked.

Decided August 9, 1999.

Jenkins & Nelson, Peter R. Olson, Robert W. Lamb, for appellants.

Swift, Currie, McGhee & Hiers, Michael H. Schroder, Eleanor L. Martel, for appellee.

2. We further find that the trial court properly concluded that the doctrine of res ipsa loquitur could not be used to preclude summary judgment in favor of Nieznany. The doctrine of res ipsa loquitur is a rule of evidence that

allows an inference of negligence to arise from the happening of an event causing injury to another where it is shown that the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage and the accident was a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.

(Citations and punctuation omitted.) U. S. Fidelity &c. Co. v. J. I. Case Co., 209 Ga. App. 61, 64 (432 SE2d 654) (1993).

Here, the trial court correctly concluded that the doctrine does not apply because the accident could have occurred in the absence of Nieznany’s negligence. See Walter v. Orkin Exterminating Co., 192 Ga. App. 621, 624 (2) (385 SE2d 725) (1989).

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.


author: Ruffin, Judge.

text:
    A99A1479.
    CARTER v. THE STATE.
    (521 SE2d 590)
   Ruffin, Judge.

A jury found Jon Paul Carter guilty of making terroristic threats and simple assault. On appeal, Carter contends that the trial court erred in admitting certain evidence. In addition, Carter challenges the sufficiency of the evidence. For reasons that follow, we affirm.

The evidence shows that Carter had been married to Laura Cul-pepper, but the two divorced in July 1996. After the divorce, Culpep-per began dating Vernon Chambless. On January 7,1998, Chambless was driving to lunch when he noticed that he was being followed by a man driving a pickup truck. The truck followed Chambless into a parking lot, and Carter exited the truck and approached Chambless’ car. Chambless locked his car doors, but opened his car window. Carter told Chambless, “I don’t like you oohing and aahing on the couch with my ex-wife in front of my son.” Carter told Chambless that he had “better take this serious because . . . I’ll blow your head off.” Chambless testified that Carter’s threat scared him. On either February 3 or 4, 1998, Carter called Chambless at work and, once again, threatened to blow his head off.

On February 6, 1998, Carter saw Culpepper and accused her of behaving inappropriately with Chambless in front of her son. Carter told Culpepper that she “was going to be the reason that he killed [Chambless].” Shortly thereafter, Chambless took out a warrant against Carter.

1. At trial, the State introduced a letter that Carter sent to Chambless in which Carter wrote “if I threatened to kill you, I would have killed you on that day. See you soon.” In his first enumeration of error, Carter contends the trial court erred in admitting this “confession” without first conducting a Jackson-Denno hearing. This contention lacks merit.

As an initial matter, the letter does not constitute a confession as Carter did not confess to any crime. Indeed, in the letter, Carter denied committing the crime charged. Moreover, even if the letter did constitute a confession, the trial court did not err in admitting it without conducting a hearing.

In order for a confession to be admissible, “it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50. A Jackson-Denno hearing provides a mechanism for a defendant to challenge the voluntariness of a confession. See Craver v. State, 246 Ga. 467, 468 (1) (271 SE2d 862) (1980). However, “a requirement for a hearing on the issue of voluntariness applies only if the evidence presents a fair question as to its voluntariness. No such question is presented in this case.” Id. Carter testified at trial and admitted to writing the letter to Chambless. There is not one scintilla of evidence suggesting that Carter was induced or coerced into writing the letter. Accordingly, voluntariness is not an issue, and no Jackson-Denno hearing was required.

2. Carter contends the trial court erred in admitting evidence of a similar transaction without conducting a hearing in accordance with Uniform Superior Court Rule (USCR) 31.3 (B). This rule requires that: (1) the State provide notice of its intent to introduce similar transactions evidence; and (2) the trial court conduct a hearing on the admissibility of such evidence.

Specifically, Carter complains that the trial court erred in admitting evidence of a “post-incident terroristic threat” made to Culpep-per. Culpepper testified that Carter, who appeared enraged, told her that she would be the reason that he killed Chambless. According to Culpepper, she was scared both for herself and for Chambless. Contrary to Carter’s contention, this evidence does not constitute a similar transaction as Carter did not threaten Culpepper. Although Carter essentially reiterated his prior threat to Chambless, this is not evidence of a separate transaction, but is corroborating evidence of Carter’s prior terroristic threat to Chambless. See Baker v. State, 225 Ga. App. 848, 849 (1) (485 SE2d 548) (1997) (crime of terroristic threat requires corroboration of the victim’s testimony). USCR 31.3 (E) makes clear that nothing in USCR 31.3 “is intended to prohibit the state from introducing evidence of . . . occurrences which . . . are immediately related in time and place to the charge being tried, as part of a single, continuous transaction.” As the testimony at issue was related to the charge being tried, the trial court did not err in admitting the evidence without conducting a hearing pursuant to USCR 31.3.

3. In his third enumeration of error, Carter argues that the trial court erred in admitting a statement taken by an agent for the Georgia Bureau of Investigation (GBI) in violation of Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). While being questioned by the GBI agent on another matter, Carter admitted that he had confronted Chambless and stated that he had not killed Cham-bless because he, Carter, was a Christian. At trial, Carter did not object to the admission of his statement on the basis that it was taken in violation of Miranda. Thus, he has failed to preserve the issue for appellate review. Carter v. State, 235 Ga. App. 260, 261 (2) (510 SE2d 539) (1998).

4. In his final enumeration of error, Carter challenges the sufficiency of the evidence on the terroristic threat conviction. Pursuant to OCGA § 16-11-37 (a), “[a] person commits the offense of a terroristic threat when he threatens to commit any crime of violence. . . . No person shall be convicted "under this subsection on the uncorroborated testimony of the party to whom the threat is communicated.” Carter maintains that the evidence was insufficient to sustain his conviction because the corroborating evidence — his letter to Cham-bless, his statement to Culpepper and his statement to the GBI agent — was inadmissible. Carter contends that the absence of corroborating evidence requires reversal. For reasons stated in Divisions 1, 2 and 3, however, the corroborating evidence was admissible. In order to sustain a conviction, the corroborating evidence does not need to be sufficient to convict. Baker, supra. “It need only be that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient and the question of corroboration is oné solely for the jury.” (Citations and punctuation omitted.) Id. Here, there was sufficient evidence for a rational trier of fact to find Carter guilty beyond a reasonable doubt of making a terroristic threat. See Wilburn v. State, 223 Ga. App. 476, 477 (1) (477 SE2d 909) (1996).

Decided August 9, 1999.

Edward E Smith, for appellant.

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

       Carter alleged that his ex-wife and Chambless had engaged in sexual intercourse in front of Carter’s young son. Both Culpepper and Chambless denied the allegations.


text:
    A99A1513.
    MOORE v. THE STATE.
    (521 SE2d 467)
   Barnes, Judge.

Following a jury trial, Aaron Moore was convicted of armed robbery and sentenced to 15 years in prison. Moore appeals, contending the trial court erred in refiising to remove a juror who indicated mid-trial that she knew one of the State’s witnesses. We disagree and affirm.

The record shows that one night, around midnight, an armed robbery occurred at a Winn-Dixie store. Moore and two co-defendants, who later pled guilty and testified against Moore, were arrested for the robbery following a lineup at which they were positively identified by the store cashier.

Two witnesses testified that Moore could not have participated in the robbery because he did not return home from a fair in time to commit the midnight robbery. The State called a rebuttal witness who testified that he had seen Moore on the train returning from the fair sometime between 10:30 and 11:00. On cross-examination, the witness’s recollection was challenged, and he admitted he was “not sure” of the times he had been on the train.

Immediately after the rebuttal witness testified, a juror informed the court that she knew the witness from high school. The juror said she told the other jurors only that she knew the witness and had attended high school with him years before. She stated that she liked the witness and knew nothing unfavorable about him. When questioned, the juror said she considered the witness an acquaintance with whom she socialized only in school. When asked her perception of the witness’s honesty, she responded: “I don’t know. We didn’t really have that much in that relationship to explore his moral stability or whatever.”

Decided August 9, 1999.

Harold S. Gulliver, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Gregory K. Schwarz, Assistant District Attorneys, for appellee.

The court asked the juror if she would place more emphasis on the witness’s testimony because she knew him, and she replied, ‘Yeah, I would probably be unbiased towards him.” The State asked her if she could judge the testimony fairly and reach a verdict without bias, and the juror answered, “Yes.”

Moore contends the trial judge erred by not removing the juror. Specifically, Moore contends the State did not meet its burden of proving beyond a reasonable doubt that no harm occurred in leaving the juror on the jury. See Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986). For the following reasons, we disagree.

Moore argues he was not afforded an impartial jury because the juror stated she would be more influenced by the testimony of the State’s rebuttal witness. However, the juror plainly stated that she would be unbiased towards the witness. “To establish the denial of his right to an impartial jury, [a defendant] must show either (a) actual juror partiality or (b) circumstances inherently prejudicial to that right.” (Citations, punctuation and emphasis omitted.) Jones v. State, 157 Ga. App. 163, 164 (2) (276 SE2d 674) (1981). Here, the juror unequivocally told the court that her relationship with the witness would not influence her decision-making process.

Further, we have held that a juror need not be dismissed even if she knew the victim, as long as she shows she can be “fair and impartial and decide the case on the basis of the evidence presented.” Davis v. State, 229 Ga. App. 787, 788 (1) (a) (494 SE2d 702) (1997). Here, the juror voluntarily informed the court of her familiarity with the rebuttal witness and also stated that she could be impartial in reaching a decision. Further, the trial court described the rebuttal witness’s testimony as “wishy-washy.”

The decision whether to discharge the prospective juror is within the discretion of the trial court, and considering the factors outlined above, we conclude the trial court did not abuse its discretion in declining to remove the juror in the middle of the trial. Sapp v. State, 222 Ga. App. 415, 418 (3) (474 SE2d 233) (1996).

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.


author: Eldridge, Judge.

text:
    A99A0907.
    WITTY et al. v. McNEAL AGENCY, INC. et al.
    (521 SE2d 619)
   Eldridge, Judge.

In 1988, Jack Witty, plaintiff-appellant (“Witty”), went to work for defendant-appellee McNeal-Jansson Financial Services, Inc. (“JFSI”). Eric Jansson, defendant-appellee (“Jansson”), was one of the stockholders and manager.

Upon being employed as a stockbroker, Witty signed an employment contract that was terminable at will by either party by delivering written notice of termination two weeks prior to the termination date. The purpose was to give JFSI two weeks within which to contact its clients prior to the employee beginning to work for a competitor brokerage house and soliciting the clients that he had handled. The contract also contained a non-disclosure provision and a liquidated damages provision.

Witty’s compensation with JFSI was 40 percent of gross commissions generated by the brokerage house’s clients’ accounts. The remainder of the commissions were divided, with 40 percent to JFSI and 20 percent to IM&R and Raymond James, its parent companies. JFSI paid all office expenses.

In 1994, Witty decided to leave JFSI. Witty sought employment with a competitor Interstate Johnson Lane (“IJL”), plaintiff-appellant. On October 28, 1994, Witty gave JFSI written notice of his resignation, effective immediately, and accepted immediate employment with IJL.

On October 28, after receiving Witty’s resignation, JFSI’s personnel director wrote and called all clients that Witty worked with in an attempt to keep their accounts with JFSI; the staff worked through the weekend contacting clients. Of the 334 clients that Witty had serviced, JFSI retained 202 and 132 were lost to either IJL or another brokerage house.

On October 31, 1994, Jansson and JFSI, in written communication to Witty and IJL, threatened to sue Witty for breach of contract.

Witty brought a declaratory judgment action against Jansson and JFSI to declare the validity of the employment contract and his duties under it. Defendants answered, counterclaimed, and sought a TRO. Jansson and JFSI added IJL as an additional defendant in the counterclaim.

On July 25, 1997, a jury returned a verdict against all of Witty’s claims and for the defendants on their counterclaims against Witty and IJL. On the contract claim, the jury found that there had been a breach of contract for violation of the notice provision and nondisclosure provision with no damages owed by Witty and $82,690 in damages owed by IJL. The jury found slander by Witty and IJL with damages by each of $2,409. No punitive damages were awarded. The jury found that the defendants were entitled to attorney fees of $45,781 payable by Witty and $91,562 payable by IJL. Plaintiffs immediately made an oral motion for j.n.o.v., which was denied.

On August 4,1997, judgment was entered as follows: $82,690 for breach of contract by IJL; $2,409 each against Witty and IJL for slander; attorney fees of $45,781 against Witty and attorney fees of $91,562 against IJL.

On September 2, 1997, plaintiffs moved for a new trial, and on November 7, 1997, the motion was denied. On December 4, 1997, the notice of appeal was filed. On January 5, 1999, the appeal was docketed in this Court.

1. Plaintiffs contend that the trial court erred in: (a) excluding evidence of defendants’ stubborn litigiousness, (b) awarding of attorney fees which were not authorized by the evidence and were grossly excessive, and (c) giving a charge under OCGA § 13-6-11, which was erroneous. We do not agree. While the court for convenience and clarity has combined three enumerations of error by subject matter, enumeration of error two raised multiple enumerations, which was improper. See West u. Nodvin, 196 Ga. App. 825 (397 SE2d 567) (1990).

(a) Plaintiffs contend that the trial court erred in excluding evidence that plaintiffs had asked defendants to submit to expedited arbitration. According to the plaintiffs, defendants’ alleged refusal constituted evidence of stubborn litigiousness pn plaintiffs’ claim and was also evidence of plaintiffs’ defense to defendants’ counterclaim for attorney fees. Since plaintiffs did not recover on their claims, then OCGA § 13-6-11 attorney fees were not recoverable, and there was no harm done to the plaintiffs by such admission, even if it were error to exclude such evidence. See CSX Transp. v. Barnett, 199 Ga. App. 611, 612 (1) (405 SE2d 506) (1991).

Absent a mandatory arbitration clause in a contract, refusal to arbitrate is not, in itself, stubborn litigiousness, because arbitration is only one of the alternative dispute resolution procedures to avoid trial and to resolve a controversy. Unless made mandatory by state or federal law, arbitration is voluntary by agreement of all parties. See OCGA §§ 9-9-2; 9-9-6; 9-9-32; 9-9-61. If refusal to do an act that is a voluntary exercise of rights constitutes stubborn litigiousness, then arbitration no longer would be voluntary. Thus, stubborn litigiousness is not the failure to follow a procedure or the following of a particular procedure in seeking to resolve a legal dispute.

Within OCGA § 13-6-11, stubborn litigiousness means forcing the opposite party to litigate when there exists no bona fide controversy. Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 857 (1) (501 SE2d 30) (1998); Typo-Repro Sues. v. Bishop, 188 Ga. App. 576, 580 (2) (373 SE2d 758) (1988). Since the jury found for the defendants, then the defendants had a bona fide controversy. Thus, the trial court did not abuse its discretion in denying admission of such irrelevant and immaterial evidence.

(b) The jury awarded damages for slander and for contract interference. Both are intentional torts, which indicates bad faith and would authorize such damages. See Professional Consulting Svcs. v. Ibrahim, 206 Ga. App. 663, 665-666 (3) (426 SE2d 376) (1992). It is for the jury to decide if attorney fees are appropriate under the circumstances for bad faith, and a verdict will be upheld if there is any evidence to support its verdict. OCGA § 13-6-11; Professional Consulting Svcs. v. Ibrahim, supra at 665-666; Arford v. Blalock, 199 Ga. App. 434, 439 (9) (405 SE2d 698) (1991).

Plaintiffs agreed with the defense that each side would state in their place the amount of attorney fees that each contended was recoverable without testimony, documentary evidence, or cross-examination. When they had an opportunity to do so, plaintiffs made no objection to defendants’ statement of the amount of attorney fees contended and the method that defendants used to arrive at the alleged damages. Thus, they cannot raise the issue for the first time on appeal. See Standard Guar. Ins. Co. v. Bundrage, 264 Ga. 632, 633 (452 SE2d 474) (1994); Allen v. Peachtree Airport Park Joint Venture, 231 Ga. App. 549, 550 (2) (499 SE2d 690) (1998). To do so would be induced error by their agreement with such procedure. Outdoor Systems v. Woodson, 221 Ga. App. 901 (473 SE2d 204) (1996). In addition plaintiffs waived any objection by failing to contemporaneously make it. MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1) (a) (275 SE2d 142) (1980).

Further, without making an exception, plaintiffs allowed the trial court to charge the jury on such proffer of proof by the defendants regarding what plaintiffs now contend was substantial error of law under the circumstances. Accordingly, the plaintiffs waived all such exceptions. OCGA § 5-5-24 (c); Irvin v. Oliver, 223 Ga. 193, 195-196 (2) (154 SE2d 217) (1967); see also Orr v. CSX Transp., 233 Ga. App. 530, 531 (2) (505 SE2d 45) (1998).

Further, IJL did not object to the jury verdict form either before it was sent out to the jury or after the verdict was returned, which verdict form contained provision for the award of attorney fees against IJL. In fact, plaintiffs’ counsel announced to the trial court: “I have no quarrel with this form. ... I have no objection to this form, this verdict form.”

(c) Although the amended counterclaim adding IJL may not have asserted a claim for attorney fees against IJL under OCGA § 13-6-11 by citation, it asked for the award of attorney fees in its prayer in (k) (iii) as to Count 12 for tortious interference with contract, which is an implicit prayer under OCGA § 13-6-11 for litigation expenses. Further, the evidence, defendants’ argument, and the jury verdict form made plain that such damages under OCGA § 13-6-11 were sought from IJL, and IJL made no objection. Under OCGA § 9-11-15 (b), pleadings are conformed to the evidence. See Rockdale Body Shop v. Thompson, 222 Ga. App. 821, 823 (2) (476 SE2d 22) (1996). The award of attorney fees must be affirmed, because there is some evidence to support such award on either bad faith or stubborn litigiousness grounds. Morris v. Savannah Valley Realty, 233 Ga. App. 762, 764-765 (3) (505 SE2d 259) (1998).

2. Plaintiffs contend that the trial court erred in admitting over objection evidence as to the non-disclosure clause in the employment contract and in not directing a verdict on such issue. We do not agree.

(a) The non-disclosure of information provision of the employment contract was relevant and material to the issues in litigation and was admissible.

Defendants introduced evidence that Witty solicited existing business away from the defendants prior to his termination of employment. At the time of his leaving, Witty took customer lists and immediately began to use the lists to solicit defendants’ clients. Thus, Witty violated his fiduciary duty of employment, because “[u]pon terminating employment, an employee has the right to take with him all the knowledge he obtained so long as no property of the employer is taken.” Wolff v. Protégé Systems, 234 Ga. App. 251, 252 (506 SE2d 429) (1998). Therefore, the nondisclosure provision was relevant even if portions were unenforceable. Since the motion in limine was overly broad and not tailored to a legitimate objection, then it was proper to deny such motion. See Jones v. Blackburn, 75 Ga. App. 791, 794 (44 SE2d 555) (1947).

The term “any other information” at first glance appears vague, overly broad, and ambiguous. However, when read in context with the other designated categories of items, it clearly refers only to information that a competitor would want to use in obtaining an unfair competitive edge regarding securities, insurance policies, investments, policyholder lists, customer lists, and services provided to such clients. It has long been a rule of construction, i.e., rule ejus-dem generis, that a general term following specific terms is confined to the same kind or category of thing. See OCGA §§ 13-2-1; 13-2-2 (4); Gore v. State, 79 Ga. App. 696 (54 SE2d 669) (1949).

The employment contract non-disclosure provision differentiates “other information” from “property” when the entire provision is examined, because “any use of this information or property by persons not in the employment of the Company would provide said persons an unfair competitive advantage,” which indicates that “property” and “information” about the “property” are separate things within the non-disclosure provision. Further, the limitation on disclosure of “information” or “information” about the “property” does not extend beyond the “term of the contract,” i.e., “[t]he Employee agrees that during the term of this contract, he will not allow any person not employed by the Company access to said files or property”; however, “after the termination of his employment, he will not directly or indirectly, use, take, copy or appropriate any of the aforesaid property of the company.”

The non-disclosure provision in no way affects
a man’s aptitude, his skill, his dexterity, his manual and mental ability, and such other subjective knowledge as he obtains while in the course of his employment, [which] are not the property of his employer, and the right to use and expand these powers remains his property unless curtailed through some restrictive covenant entered into with the employer.

(Citations and punctuation omitted.) Thomas v. Best Mfg. Corp., 234 Ga. 787, 788-789 (2) (218 SE2d 68) (1975) {“Thomas”). Such factors are excluded from this nondisclosure provision. The limitation on nondisclosure of “other information” is limited to that period between notice of the termination date, i.e., two weeks and actual termination. The clear purpose of a two week head-start over the employee is so that the Company can protect its client base by contacting clients before the ex-employee can contact them. Such head-start enables the defendants to protect their investment in time, effort, and cost in acquiring the clients. This is a reasonable and restricted interest.

(b) Defendants and Witty agreed by written contract that defendants’ customer lists and related documents were the property of the defendants and were to be used only at their place of employment during the term of his employment with them and by no third person. Witty was further prohibited from using this proprietary property after his termination for any purpose.

Clearly, this provision has a limit as to “time ... or activity,” because the provision is limited to “the term of this contract” as to the property and to two weeks as to “other information.” However, similar clauses have “been upheld as a valid means of protecting documented confidential information of an employer even though the language used reflects no limits as to ‘time, territory or activity.’ [Cit.]” Equifax Svcs. v. Examination Mgmt. Svcs., 216 Ga. App. 35, 38 (1) (b) (453 SE2d 488) (1994); accord Nunn v. Orkin Exterm. Co., 256 Ga. 558, 560 (2) (350 SE2d 425) (1986). Thus, the non-disclosure provision was enforceable despite the breadth, because it does not affect the Thomas factors, including subjective knowledge acquired during the course of employment or ability to compete in any territory with the former employer. See Nunn v. Orkin Exterm. Co., supra at 560; Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 187-188 (4) (236 SE2d 265) (1977); Thomas v. Best Mfg. Corp., supra at 788 (1).

The reasonableness of the non-disclosure provision turns on the factors of time and the nature of the business interest sought to be protected. Durham v. Stand-By Labor of Ga., 230 Ga. 558, 563-564 (2) (198 SE2d 145) (1973). Here, the contract sought to keep the identities of clients secret as well as what product, security, insurance, or service was provided to each of them. Id. at 564. The restraint was reasonably tailored to the protection of such information. By the very volatility of the stock and commodity markets and the nature of renewal premiums on insurance, such information has a short period of value once the employee leaves. Thus, the evidence showed that the defendants only sought a two week head-start on Witty in contacting their clients in order to protect their information and customer lists. From the evidence, a weekend was enough to salvage approximately two thirds of the clients for the defendants. Documents, records, and other papers as property were to be protected indefinitely.

(c) Contrary to the contentions of the plaintiffs, the non-disclosure provision of the contract was not invalid, and plaintiffs were not entitled as a matter of law to either a directed verdict or to a judgment notwithstanding the verdict. Nunn v. Orkin Exterm. Co., supra at 560. Where there is any evidence to support the jury verdict, it is proper to affirm the denial of the motions, unless it is demanded as a matter of law, because the jury is the sole and exclusive judge of the weight and credit to give to the evidence. General Ins. Svcs. v. Marcóla, 231 Ga. App. 144, 145 (2) (497 SE2d 679) (1998).

3. Plaintiffs contend that the trial court erred in submitting to the jury an erroneous and ambiguous special verdict form regarding defendants’ breach of contract claim against IJL, in accepting the verdict on such form, and in entering judgment on such verdict form. We do not agree.

Neither the pleadings nor the evidence raised the issue that defendants sued IJL for breach of contract. Instead, defendants tried a tortious interference with contract claim. The only reason that the jury can be thought to have returned a verdict against IJL on the breach of contract count was because the jury verdict form that plaintiffs expressly agreed to submit to the jury provided only for breach of contract, instead of for tortious interference with contract. This was error.

However, IJL made no timely objection about such jury verdict form, but expressly agreed to it. After the verdict was returned, IJL did not object to the verdict or form and could have had the jury polled as to their intent and understanding regarding the verdict returned against IJL for breach of contract. However, IJL failed to do so. Neither in its motions for j.n.o.v. nor for new trial was such objection made.

(a) If the verdict was illegal and the trial court erroneously accepted the verdict, then plaintiffs were under a duty to timely object to the irregularity before the jury was excused. Plaintiffs’ failure to do so waived any defects. A timely objection permits the trial court to reform or remodel the verdict in the presence of the jury before they are excused and saves precious judicial time and resources. West Ga. Pulpwood &c. Co. v. Stephens, 128 Ga. App. 864, 870 (3) (198 SE2d 420) (1973); see Folds v. Reese, 140 Ga. App. 291, 292 (2) (231 SE2d 808) (1976). “Upon hearing an improper verdict rendered, a litigant should not sit silently by, hoping to gain a retrial by failing to object.” (Citation omitted.) Clifton v. Clifton, 249 Ga. 831, 832 (294 SE2d 518) (1982); accord LaBanz v. Bank South, Macon, 198 Ga. App. 79, 82 (1) (400 SE2d 357) (1990); Folds v. Reese, supra at 292 (1).

(b) On plaintiffs’ motion for new trial and j.n.o.v., they failed to raise the issue that the judgment was entered against IJL on a theory of breach of contract instead of tortious interference with contract. Since this is not a case of either double recovery, change of the award by the trial court after dispersal of the jury, or the award of punitive damages without actual damages so that the “award was improper as a matter of law,” then the objection to the judgment must have been raised in the trial court in plaintiffs’ motion for directed verdict, j.n.o.v., or new trial. Otherwise, it is waived. Ford Motor Co. v. Tippins, 225 Ga. App. 128, 132-133 (4) (483 SE2d 121) (1997); Long v. Marion, 182 Ga. App. 361, 365 (3) (355 SE2d 711) (1987); see also Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 188 (5) (450 SE2d 452) (1994).

If the judgment from an illegal verdict based upon “improper damages” is objected to for the first time either on motions for new trial or j.n.o.v. or on direct appeal without post trial motions, then such is the first opportunity that the issue could be raised and such is preserved for appellate review. See Ford Motor Co. v. Tippins, supra at 132 (5); Long v. Marion, supra at 365-366 (5); Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 276-277 (10) (329 SE2d 900) (1985). However, this is not such a case. Plaintiffs raised the issue for the first time on appeal and not in their motions for directed verdict, j.n.o.v., or new trial. Therefore, IJL’s failure to timely object at the first opportunity as to the form of the judgment results in a waiver of such alleged error. See First Union Nat. Bank v. Boykin, 216 Ga. App. 732, 735 (1) (455 SE2d 406) (1995); see also Ford Motor Co. v. Tip-pins, supra at 133.

4. Plaintiffs contend that the trial court erred in denying IJL’s motion for directed verdict on the defendants’ counterclaim for tor-tious interference with Witty’s employment contract. We do not agree.

“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.” (Citations omitted.) Taylor v. Ga. Power Co., 136 Ga. App. 412, 413 (1) (221 SE2d 222) (1975); accord General Ins. Svcs. v. Marcola, supra at 145.

IJL was a stranger to the employment contract between Witty and the defendants and acted without privilege. While IJL could hire Witty away from the defendants, it had no privilege to induce Witty to terminate his employment with the defendants without giving the defendants two weeks notice as required in the contract. IJL lacked a legitimate economic interest in inducing Witty to terminate the contract early and bring his customer lists with him. Disaster Svcs. v. ERC Partnership, 228 Ga. App. 739, 740-741 (492 SE2d 526) (1997). In fact, IJL had a wrongful motive in having Witty make the termination immediate without the required notice period; such action gave Witty time to solicit the defendants’ clients so soon after the termination that the defendants would not have time to contact their clients first. Witty sought to acquire the clients for IJL to the detriment of the defendants during the two weeks. Equifax Svcs. v. Examination Mgmt. Svcs., supra at 37. Further, IJL expected Witty to bring some or all of the customer lists, even if he had to hand write them (as he did), so that he could solicit them to move their accounts during the two week period.

Witty breached the notice provision and the nondisclosure provision of the employment contract with the aiding, abetting, and urging of IJL. The defendants lost approximately one third of the clients as a result, either to IJL or others, because the defendants did not have adequate time to properly contact them due to lack of notice.

The elements of tortious interference with contractual relations, business relations, or potential business relations are: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff. See Disaster Svcs. v. ERC Partnership, supra at 740; Ren-den, Inc. v. Liberty Real Estate &c., 213 Ga. App. 333, 334-335 (2) (444 SE2d 814) (1994). In this case IJL intermeddled with Witty’s employment contract to persuade him to come to work for it without giving the required two weeks notice.

The any evidence standard of review for the denial of the motion for directed verdict requires the affirmance of the trial court. McCan-non v. McCannon, 231 Ga. App. 601 (1) (499 SE2d 684) (1998); Doubletree, Inc. v. Schanley, 226 Ga. App. 776 (487 SE2d 506) (1997).

5. Plaintiffs contend that the trial court erred in admitting speculative and incompetent evidence of defendants’ damages and lost profits. We do not agree.

Where a party sues for specific damages, he has the burden of showing the amount of the loss, and of showing it in such a way that the jury may calculate the amount from the figures furnished, and will not be placed in the position where their allowance of any sum would be mere guesswork.

National Ref. &c. Co. v. Parmalee, 9 Ga. App. 725, 726 (1) (72 SE 191) (1911). “However, the party does not lose his right of action for the damages because he can not furnish exact figures.” Id. at 726. “The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages.” (Citations and punctuation omitted.) Molly Pitcher Canning Co. v. Central of Ga. R. Co., 149 Ga. App. 5, 11 (4) (253 SE2d 392) (1979); see also Second Continental v. Atlanta E-Z Builders, 237 Ga. App. 304 (514 SE2d 846) (1999). The losses must be directly traceable to the acts of the other party. Grossberg v. Judson Gilmore Assoc., 196 Ga. App. 107, 109 (2) (395 SE2d 592) (1990). Such was done in this case.

“It is the general rule in this state, when the owner of a business seeks to recover lost profits, that recovery can be had only if the business has a proven ‘track record’ of profitability.” Stern’s Gallery of Gifts v. Corp. Property Investors, 176 Ga. App. 586, 592 (3) (337 SE2d 29) (1985). Here, this was a going concern with a history of profits; therefore, lost profits can be shown by the evidence of past earnings, expenses, and profits with reasonable certainty to enable the jury to calculate the damages. Radio of Ga. v. Little, 129 Ga. App. 530, 534 (2) (199 SE2d 835) (1973); accord Topvalco, Inc. v. Garner, 210 Ga. App. 358, 361 (3) (436 SE2d 25) (1993).

While plaintiffs repeatedly objected to the defendants’ evidence of damages, plaintiffs never made the specific objection urged before this Court for the first time that expenses must be deducted from earnings to establish lost profits. Plaintiffs waived its objection to the admission of evidence of loss profits without proof of expenses for failure to assert such reason before the trial court, because the objection at trial must be on the specific ground enumerated as error on appeal and not as a new ground raised for the first time on appeal. See Williams v. State, 191 Ga. App. 217, 218 (2) (381 SE2d 399) (1989); Bryant v. State, 182 Ga. App. 609, 610 (1) (356 SE2d 698) (1987); see also Yelverton v. State, 199 Ga. App. 41, 43-44 (2) (403 SE2d 816) (1991).

Decided August 10, 1999.

Jones, Cork & Miller, Hubert C. Lovein, Jr., Sutherland, Asbill & Brennan, Louise B. Duffy, for appellants.

Gambrell & Stolz, Irwin W. Stolz, Jr., Robert G. Brazier, Ronald C. Melcher, Seaton D. Purdom, for appellees.

In this case, the defendants had an established business with a record of profits after deduction of expenses. Therefore, the trial court did not abuse its discretion in admitting such evidence.

6. Finally, plaintiffs contend that the award of $82,690 against IJL was not authorized by the evidence and was grossly excessive. We do not agree.

The testimony of Jansson, J. C. Armstrong, and Karen Suggs showed that Witty’s leaving without two weeks prior notice cost the defendants $165,379.99 over three years in lost commissions from clients that they lost to Witty or others and that there were no expenses attached to such commissions, because the overhead was fixed. Such evidence was sufficient to create a jury question as to damages, which can be determined with reasonable accuracy, and to support the verdict for lost profits. Gipson v. Phillips, 232 Ga. App. 235, 236 (501 SE2d 570) (1998); R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 584-585 (4) (451 SE2d 812) (1994) (physical precedent only); Crosby v. Spencer, 207 Ga. App. 487, 488 (1) (428 SE2d 607) (1993); Bowdish v. Johns Creek Assoc:, 200 Ga. App. 93, 96 (4) (406 SE2d 502) (1991).

The award of $82,690 was within the range of the evidence before the jury. Absent a showing that the jury verdict was so flagrantly excessive as to shock the conscience, creating a clear implication of bias, prejudice, or gross mistake on the part of the jurors so as to warrant a new trial, the appellate court will not disturb a verdict approved by the trial court. Morris v. Savannah Valley Realty, supra at 765 (4); Wells v. Roberts, 225 Ga. App. 112, 113 (1) (483 SE2d 339) (1997).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       However, the testimony in the transcript was that there were no additional costs related to the commissions lost, because the overhead was fixed.


text:
    A99A0970.
    McIVER v. THE STATE.
    (521 SE2d 609)
    Decided August 10, 1999.

      Samuel G. Oliver, for appellant.

      J. Thomas Durden, Jr., District Attorney, Timothy B. Lumpkin, Assistant District Attorney, for appellee.
   Miller, Judge.

Citing insufficiency of the evidence, Anthony Mclver, Sr. appeals his conviction for theft by receiving stolen property. The applicable standard of review is whether any rational trier of fact could have found him guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We consider the evidence in the light most favorable to the verdict and do not weigh the evidence or determine witness credibility. Hash v. State, 226 Ga. App. 643 (487 SE2d 452) (1997). Some competent evidence of each element of the crime will sustain the conviction.

OCGA § 16-8-7 (a) provides:

A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.

Mclver testified that he received the 1997 Ford Explorer from two unknown men and that he put tags from another car on the Explorer. He told police that the men informed him the Explorer was stolen. Witnesses testified the Explorer had been recently stolen from a car dealership and not returned. Mclver made no attempt to return the vehicle to its rightful owner, but simply drove it some 3,000 miles for his personal use until arrested by police.

This evidence sufficed to sustain the conviction. See Wilson v. State, 227 Ga. App. 59, 60 (1) (488 SE2d 121) (1997); Hash, supra, 226 Ga. App. at 644.

Judgment affirmed.

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