text:
    A98A1212.
    ARRINGTON v. THE STATE.
    (505 SE2d 851)
   Andrews, Chief Judge.

Anthony Wayne Arrington, a paramedic, appeals from the trial court’s denial of his motion to be discharged from probation under the First Offender Act, OCGA §§ 42-8-60 through 42-8-65.

On July 9, 1992, Arrington pled guilty to eight counts of a nine-count indictment involving improper use of medical supplies and equipment. Count 9 of the indictment alleged unlawful possession of a dangerous drug, diphenoxylate, under OCGA § 16-13-29 (1) (D), a felony punishable by imprisonment for up to five years. The remaining counts involved misdemeanor possession charges, each punishable by imprisonment up to 12 months.

Arrington was first sentenced under the First Offender Act, without an adjudication of guilt, to five years of probation on Count 9, with the added provisions of one hundred eighty hours of community service and that he not be employed in any medically related field during that time, followed by five consecutive sentences of twelve months of probation on each of Counts 2 though 6, with an additional two twelve-month sentences on Counts 7 and 8, concurrent with the sentence on Count 9. The additional restriction on medical employment was imposed on each of the misdemeanor counts as well. This resulted in a total of ten years of probation to be served by Arrington, the first five to be served under the provisions of the First Offender Act which are applicable only to felonies. The remaining five years of probation consisted of five misdemeanor sentences, to be served consecutively.

The court found that Arrington had completed the community service and five years of probation on Count 9 without incident. The court, however, then concluded that the ten years of probation were intended to be one sentence and declined to discharge him pursuant to the First Offender Act regarding the felony sentence.

It is well established that “‘“sentences for criminal offenses ‘should be certain, definite, and free from ambiguity; and, where the contrary is the case, the benefit of the doubt should be given to the accused.’ ” ’ Dilas v. State, 159 Ga. App. 39, 40 (1) (282 SE2d 690) [(1981)]; [cits.].” Gilpatrick v. State, 226 Ga. App. 692, 696 (487 SE2d 461) (1997). See also Fulp v. State, 217 Ga. App. 603 (458 SE2d 395) (1995); Hulen v. State, 207 Ga. App. 465 (428 SE2d 405) (1993).

It is for this reason that each count of a multi-count indictment must be sentenced separately. Dilas, supra at 40 (1). It therefore follows that once the sentence imposed pursuant to the First Offender Act has been served, it should be discharged. Arrington has followed all of the requirements of that sentence, and his record should be cleared of that charge in accordance with OCGA § 42-8-62. If Arrington were to become employed in any medical field within the next five years or violate any other condition of his remaining five years of probation, probation could still be revoked for the misdemeanor sentence he was then serving.

OCGA § 42-8-62 (a) provides that “[u]pon fulfillment of the terms of probation, . . . the defendant shall be discharged without court adjudication of guilt. The discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.” (Emphasis supplied.)

For the aforementioned reasons, the case is remanded to the trial court for action in conformity with this opinion.

Judgment reversed.

Johnson, P. J., and Smith, J., concur.

Decided September 1, 1998.

Murphy, Murphy & Garner, Michael L. Murphy, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A98A1604.
    ROBERTSON v. THE STATE.
    (505 SE2d 849)
   McMurray, Presiding Judge.

Defendant Robertson appeals his conviction of theft by shoplifting and his felony sentence imposed pursuant to OCGA § 16-8-14 (b) (1) (C). Held:

1. A stockroom person employed in a household goods retail establishment observed defendant enter the store. Some time later, the stock person determined that defendant’s conduct was peculiar and positioned himself so as to better observe defendant’s actions. The employee noted that defendant had a maroon bag which he did not recall him having when he came in. Also, the employee heard a rattling or cracking sound of plastic. Defendant left the store without paying for any merchandise, and the police were notified. The police arrested defendant and transported him back to the store where the maroon bag was found to contain merchandise from the store.

No issues were raised at trial and thus preserved for appellate review concerning the stockroom person’s pretrial identification of defendant. “[A]ll evidence is admitted as a matter of course unless a valid ground of objection is timely interposed. Scott v. State, 206 Ga. App. 23, 26 (1) (424 SE2d 328).” Moore v. State, 215 Ga. App. 626, 627 (2) (451 SE2d 534). See also West v. State, 224 Ga. App. 190, 191 (2) (480 SE2d 238).

Defendant argues that his identification by the stockroom person lacks sufficient probative value to authorize his conviction. However, the identification testimony having been admitted without objection, it was for the jury to determine what probative value to assign it. Wimberly v. State, 233 Ga. 386, 387 (3) (211 SE2d 281); Bradley v. State, 178 Ga. App. 894 (1) (344 SE2d 772).

The evidence adduced at trial was sufficient to authorize a rational trier of fact to conclude that defendant was guilty beyond a reasonable doubt of the offense of theft by shoplifting. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See also Burden v. State, 226 Ga. App. 103, 105 (2) (485 SE2d 228); Winn v. State, 215 Ga. App. 120 (1) (449 SE2d 667).

2. There was no error in the imposition of the felony sentence. Three previous theft by shoplifting convictions are required to elevate a misdemeanor theft by shoplifting offense to a felony. OCGA § 16-8-14 (b) (1) (C). Two of the three prior offenses submitted for this purpose by the State were resolved by defendant’s plea of guilty on the same day. The sentences for these two offenses were to run concurrently, and defendant testified that the two pleas resulted from a common plea bargaining agreement.

Based on these circumstances, defendant contends that the two prior indictments resolved on the same day were consolidated for trial within the meaning of OCGA § 17-10-7 (d) and should be deemed to be only one conviction. However, substantially the same argument was submitted, and rejected by this Court, in Mims v. State, 225 Ga. App. 331, 332 (2) (484 SE2d 37). See also Robinson v. State, 232 Ga. App. 280 (2) (501 SE2d 536).

3. The indictment alleged that the merchandise taken by defendant consisted of a large number of specified kitchen utensils and a tote bag. Defendant contends that the trial court erred in denying his motion for directed verdict due to a fatal variance between allegata and probata in that the State failed to prove that the tote bag found in his possession was an item that the store sold. However, the factual premise of defendant’s argument is incorrect. While there was no direct evidence that the tote bag was an item carried by the store and the store employee testified that he did not know whether the store carried such tote bags, nonetheless, an inference that the tote bag was store merchandise may be drawn from the employee’s testimony that defendant did not have the tote bag with him when he entered the store. “ ‘ “Where there is some evidence descriptive of the stolen property which is substantially conformable to the description alleged in the indictment, and nowhere contradictory thereof, the identity of the stolen property is a matter addressed peculiarly and solely to the jury, and in such case there is no fatal variance between the allegata and the probata. (Cit.)” (Cits.)’ Burkett v. State, 133 Ga. App. 728, 731 (212 SE2d 870) (1975).” Dunbar v. State, 228 Ga. App. 104, 106 (1) (a) (491 SE2d 166).

4. In his remaining enumeration of error, defendant contends that the trial court erred in failing to give his requested charge on mistaken identity. Defendant requested the charge given in Burke v. State, 161 Ga. App. 407, 408 (288 SE2d 276). Instead, the trial court gave the pattern charge on identification and also instructed the jury as to the State’s burden to prove defendant’s guilt of the offense charged beyond a reasonable doubt.

“[Tjhere is no requirement of our law that a trial judge warn the jury against the possible dangers of mistaken identification of an accused as the person committing a crime. Micheli v. State, 222 Ga. 361 (149 SE2d 803).” Young v. State, 226 Ga. 553, 557 (7) (176 SE2d 52). Defendant’s argument, that this rule should be changed, does not present an issue which we are free to consider since Supreme Court decisions are binding precedent which we are required to follow. Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI. See Bell South Telecommunications v. Widner, 229 Ga. App. 634, 636 (3) (495 SE2d 52).

Decided September 1, 1998.

Millard B. Morgan, for appellant.

Robert E. Keller, District Attorney, Verda Andrews-Stroud, Assistant District Attorney, for appellee.

Additionally, we note that, with the exception of a warning as to mistaken identification, the principles stated in defendant’s request were included in the trial court’s general charge. The trial court is not required to charge the exact language requested where the same principles are covered in the general charge. Jones v. State, 225 Ga. App. 673, 676 (3) (484 SE2d 702); Elrod v. State, 195 Ga. App. 571, 573 (6) (394 SE2d 548). This enumeration of error is without merit.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Eldridge, Judge.

text:
    A98A1900.
    WILLIAMS v. THE STATE.
    (506 SE2d 237)
   Eldridge, Judge.

Jeffery Williams appeals a Richmond County jury’s verdict finding him guilty of the burglary of a J. B. White store in Augusta. We affirm.

1. Williams challenges the sufficiency of the evidence in support of his conviction. Specifically, Williams contends that the only testimony connecting him to the crime was that of his co-defendant, Sheila Mitchell, and that her testimony was not sufficiently corroborated.

“In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. The corroborating evidence may be circumstantial.” (Citation and punctuation omitted.) Givens v. State, 227 Ga. App. 861, 862 (490 SE2d 530) (1997).

Here, Williams’ indicted co-defendant Sheila Mitchell took the stand and testified that close to midnight on the incident date, she and Williams were driving in her red, four-door Chevrolet rental car. Mitchell stopped at a local Food Lion to buy cigarettes. When she went inside, Williams drove off in Mitchell’s rental car. After discovering that she had been left, Mitchell began walking. Several blocks later, Mitchell spotted the car; Williams, an African-American male, was driving. She testified that Williams “pulled up, he got out . . . [a]nd he hit the glass and went inside” the J. B. White store. Williams returned to the car and drove off. Mitchell testified that she then continued across town until she found the car on Luckie Street at the home of a mutual friend. The car had pairs of Tommy Hilfiger shorts inside. Mitchell testified that she told Williams that she saw what he had done; Williams replied that Mitchell “didn’t supposed to see that.”

By way of corroboration, the State produced evidence that the police received a burglary call to the J. B. White store at close to midnight, as testified to by Mitchell. The entry into the store was made through a front window next to the road and that the store window had been “hit” with a brick or rock, as testified to by Mitchell. At the time of the burglary, the store’s security video camera recorded the presence of a red four-door car driven by an African-American male, as testified to by Mitchell. The videotape showed that the perpetrator exited through the shattered window, as testified to by Mitchell. The store manager testified that the perpetrator removed Tommy Hilfiger shorts, which is the type of shorts Mitchell found in her car.

In addition, the security videotape showed that the burglary was perpetrated by an African-American male wearing the same type of jacket as the male who was driving the red car; police testimony showed that, at the time of his arrest, Williams was wearing the same type of jacket as the driver of the car and the perpetrator of the burglary. Also, during the course of the police investigation, Williams was given Miranda warnings and shown the videotape of the burglary; when asked if it was Williams on the tape, Williams told the officer, “You got me.”

We find that the additional evidence presented by the State sufficiently corroborates Mitchell’s testimony so as to support Williams’ conviction in this case. “The sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to a crime, even if it is circumstantial, it is legally sufficient.” (Citation omitted.) Edmond v. State, 267 Ga. 285, 287 (2) (476 SE2d 731) (1996).

2. Williams next contends that the trial court erred in denying his motion for new trial because his legal representation at trial was deficient under the law. Williams contends that his defense counsel (a) failed to request a Jackson-Denno hearing on the voluntariness of Williams’ statement to the police; (b) failed to object to an accomplice testifying under a grant of immunity and the accomplice’s subsequent denial that she testified in exchange for immunity; (c) failed to object when the trial court denied the jury’s request to review the security videotape; and (d) failed to present a defense.

“[T]he proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) [(1984)]. First, appellant must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. As to the second prong, the question is whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.” (Citations and punctuation omitted.) White v. State, 216 Ga. App. 583-584 (1) (455 SE2d 117) (1995). Keeping these principles in mind, we find no merit to Williams’ claims of ineffective assistance of counsel.

(a) Prior to the introduction of Williams’ contested statement, the defense attorney objected to its admission because “[t]here’s no showing of the Miranda warning.” Thereafter, the interviewing officer testified that he thoroughly apprised Williams of his rights under Miranda, that Williams understood those rights, and that he signed a waiver of rights form. Accordingly, Williams has failed to demonstrate attorney error with regard to the admission of his statement pursuant to the holding of Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). Hightower v. State, 227 Ga. App. 74, 79-80 (d) (487 SE2d 646) (1997).

(b) The State’s decision to seek immunity for Sheila Mitchell and the trial court’s decision to grant such immunity present no basis for objection by Williams’ trial counsel. OCGA § 24-9-28. In addition, Mitchell’s denial that she had been granted immunity in exchange for her testimony impacts on her credibility and is an issue for the jury, not a basis for objection by trial coúnsel. Williams has not demonstrated ineffective representation by his trial attorney’s failure to register meritless objections.

(c) During deliberations, the jury asked to review the security videotape; the trial court denied the request and instructed the jury that the jury would “have to just do the best you can with your memory, individual and collective memories, as to what that videotape showed.” Williams claims his defense attorney should have objected to such ruling. However, defense counsel testified at the motion for new trial that his failure to object was based upon a strategic decision; the jury saw the tape, heard the officers say that they could not identify Williams from the tape, and the defense counsel did not “know what the State would have done” if he had objected. “The fact that appellant and his present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that appellant received representation amounting to ineffective assistance of counsel. [Cit.]” Stewart v. State, 263 Ga. 843, 847 (440 SE2d 452) (1994).

(d) Williams contends that his trial counsel failed to mount a defense. The record belies this assertion. The State’s case relied heavily upon the testimony of Sheila Mitchell. Defense counsel introduced numerous documents in an attempt to impeach Mitchell. In addition, defense counsel strongly urged Williams to testify in his own behalf in order to explain his statement to the police, i.e., “You got me.” Williams refused to do so. Thus, Williams’ attorney put forth a defense. That the defense was not more complete is due to Williams himself.

Williams also contends that his counsel should have introduced the jacket he wore at the time of his arrest so that the jury could see that it was not the same as the jacket worn by the perpetrator in the videotape. However, the foundation for the introduction of such clothing would call for Williams to take the stand, which he refused to do. Further, absent a valid, independent chain of custody, the introduction by Williams of a jacket he purportedly wore at the time of his arrest would have little evidentiary value.

Accordingly, Williams’ contentions show neither error nor harm so as to demonstrate ineffective assistance of counsel. We do not find as clearly erroneous the denial of Williams’ motion for new trial based thereon. White v. State, supra at 583-584.

3. Williams next claims that the trial court erred in instructing the jury on unexplained possession of stolen property since there was no evidence to support such charge. We disagree. The jury charge about which Williams complains was a correct statement of the law. Galloway v. State, 157 Ga. App. 85 (276 SE2d 135) (1981); Hurston v. State, 202 Ga. App. 311 (414 SE2d 303) (1991). Further, the charge informed the jury that the legal principle involved is applicable only “if . . . the defendant should be found in possession of the stolen property.” (Emphasis supplied.) Thus, whether the evidence showed recent possession of stolen goods and whether the jury charge was applicable were issues for the jury to determine.

4. Williams contends that the trial court erred by denying the jury’s request to review the security videotape. However, there was no such objection raised in the court below. Accordingly, this enumeration of error presents nothing for our review. Jones v. State, 221 Ga. App. 374, 375 (2) (471 SE2d 318) (1996).

5. The trial court determined that Sheila Mitchell’s written grant of immunity should not go out with the jury during deliberations. Williams claims this as error. However, Williams neither asked that the document go out with the jury nor objected to the court’s determination. We will not consider this claim of error raised for the first time on appeal. Mobley v. State, 218 Ga. App. 739, 741 (3) (463 SE2d 166) (1995).

6. Finally, Williams contends that the trial court erred in permitting an investigator to testify that at the time of arrest, Williams was wearing a “blue windbreaker with gray stripes. The same jacket that was in the videotape.” In his brief, Williams contends that the jacket he wore at the time of arrest should have been introduced into evidence, and absent such evidence, “[t]o allow that officer to so testify when the clothing is not properly before the jury, allows opinions and conclusions to form the basis for a conviction.” However, at trial Williams challenged the officer’s description of the jacket in the videotape because “[ljooking at the tape, it’s almost impossible to determine what kind of jacket was on that guy.” “Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” (Citations and punctuation omitted.) Godfrey v. State, 227 Ga. App. 576, 577 (489 SE2d 364) (1997).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided September 1, 1998.

Sam B. Sibley, Jr., for appellant.

Jeffery Williams, pro se.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       Under this same claim of error, Williams contends that his counsel failed to object to the State’s comment during closing argument that Mitchell was a “credible” witness. However, we have reviewed the State’s close and find that, to the contrary, the State’s comments regarding Mitchell were in the vein of it-takes-a-criminal-to-catch-a-criminal, “[bjecause, unfortunately, we don’t have good citizens in most of our cases.” There were no claims of credibility to form a basis for objection by defense counsel.


text:
    A98A1929.
    CROSS v. THE STATE.
    (505 SE2d 856)
   Eldridge, Judge.

A Walker County jury found Mike Cross guilty of the 1992 burglary and first degree arson of Armuchee Elementary School in Lafayette, Walker County, Georgia, as a result of which the elementary school was almost completely consumed by fire. He appeals.

Although Cross enumerates nine errors on appeal, his one and one-half page “Argument and Citation of Authority” challenges only the sufficiency of the evidence based upon (1) the alleged false testimony of State’s witness Steve Hackney; and (2) the alleged failure of the State to prove “the incendiary nature of the fire,” thereby overcoming the “presumption” that fire is the result of accidental or providential cause. We disagree and thus affirm the judgment of the court below.

On appeal, the evidence must be viewed in a light most favorable to support the verdict, and a defendant no longer enjoys a presumption of innocence. An appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Moreover, it is for the jury to resolve any conflicts in the evidence, and this Court will not substitute its judgment for that of the jury. Green v. State, 218 Ga. App. 648, 649 (463 SE2d 133) (1995); Frazier v. State, 219 Ga. App. 768, 771 (3) (467 SE2d 338) (1996).

Here, Steve Hackney, who is Cross’ cousin and co-defendant, took the stand on behalf of the State. He testified that Cross was paid money from an unidentified source to burn Armuchee Elementary School and that Cross offered him $50 to help.

According to Hackney, on January 29, 1992, Cross, Hackney, and Tim Moses, who is the younger brother of Cross’ girlfriend, met at Cross’ apartment which is located across the street from his place of employment, Prow-Tow Wrecker service in Chattanooga, Tennessee. They got into a black, rollback wrecker that Cross took from Prow-Tow. Cross then drove the threesome to a nearby gas station to fill up a five-gallon gas can. They proceeded on Highway 136 to Lafayette in Walker County, Georgia. When they passed by Armuchee Elementary School, Cross told the others, “there’s what we’re going to do.”

Moses got scared and told Cross that he “didn’t want to have nothing to do with no fire and didn’t want to go to jail for arson.” Cross then drove to the Old General Store on Highway 136 in nearby Villanow, Georgia, where he contacted a man to give Moses a ride back to Chattanooga. They met the man at another store on Highway 136; the man was driving a gold Cadillac, and he took Moses back to Cross’ apartment.

Thereafter, Cross made another telephone call, telling the person on the other end of the conversation, “I’m fixing to do the job now.” Cross and Hackney then drove back to the elementary school where Cross told Hackney “to stand outside and if anybody come for me to yell or run.” Using a brick, Cross broke a window in the front door of the school. He entered the school through the front door carrying the five-gallon gas can and several rags. Shortly thereafter, Hackney saw fire in the hallway of the school. Cross came out carrying a VCR and a small grey box. He went back inside briefly to retrieve the gas can, threw it into the back of the wrecker, and then drove Hackney back to Hackney’s home in Rossville, Georgia. On the way, Cross gave Hackney the $50 and “told me to keep my mouth shut. . . . [I]f I said anything to anybody about us burning the school down he would kill me.”

In addition to the testimony of Hackney, Tim Moses testified that he went with Cross and Hackney in the black wrecker; that he saw Cross fill up the gas can; that he asked to go home because “I didn’t want no part of any trouble”; and that a man driving a gold Cadillac picked him up and drove him back to Cross and his sister’s apartment in Chattanooga.

The manager of the Old General Store testified that he saw a black, rollback wrecker across the street on the night the school burned.

Cross’ girlfriend gave a statement to the investigator that Cross told her he had been asked to burn the school; she testified at trial that when Cross returned home that night, “he smelled like something had been burned.” She testified that she remembered the night that her brother Tim Moses left the apartment with Cross and Hackney, but returned alone in a gold Cadillac.

Further, Johnny Hackney (no relation to Steve Hackney) testified that Cross had approached him and “[h]e was wanting to burn a school and he was wanting me to help him.” The school was in Lafayette, and Cross offered to pay him for the help. Johnny Hackney turned down the offer but met with Cross sometime later. At that time, Cross told him that “he did the school and he got paid for it.”

Decided September 1, 1998.

Prank B. Perry, for appellant.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Amt, Assistant District Attorney, for appellee.

David Hixon, who. is Cross and Steve Hackney’s uncle, testified that he saw the two men in the parking lot of a service station where Steve told him that “they had gotten some money off of burning the school.” Cross then told Steve to “shut up,” and the two men left. However, two weeks later Hixon saw Steve Hackney in the laundromat where Steve again brought up the burning; he told Hixon that “they picked up some gasoline. . . . [T]hey went down and burnt the school.”

The State also introduced expert testimony from personnel at the Georgia Bureau of Investigation which demonstrated that the fire at Armuchee Elementary School was not accidental or providential; testimony showed that the fire was intentionally set using an accelerant. A crime laboratory analysis showed the unexplained presence of accelerant in samples taken from the suspected originating points of the fire, i.e., the teacher’s lounge, the hallway outside the lounge, and a connecting classroom. An arson investigator further testified that nothing in his investigation showed that either the furnace or the electrical wiring played a part in the fire that destroyed the school. The State introduced pictures taken immediately after the fire which showed that the main electrical panel, the furnaces, and the breaker box in the furnace room were left largely unscathed by the fire.

We find the evidence more than sufficient to prove the “incendiary nature of the fire” and that the burning of Armuchee Elementary School was neither accidental or providential. Further, although Cross characterizes the testimony of Steve Hackney as false and incredible, the jury obviously decided to the contrary. We will not substitute our judgment for theirs. Under the evidence presented here, a rational trier of fact could have found Cross guilty beyond a reasonable doubt of the offenses of burglary and arson in the first degree. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Cross’ appeal is before us pursuant to the trial court’s granting of an out-of-time appeal.


author: Judge Harold R. Banke.

text:
    A98A0813.
    PAYNE et al. v. MIMMS ENTERPRISES, INC.
    (505 SE2d 520)
   Judge Harold R. Banke.

Lula Bell Payne filed suit individually and as the executrix of the estate of Jack Valentine Payne for injuries allegedly sustained in connection with her fall on premises owned by Mimms Enterprises, Inc. (“Mimms”). Just prior to the expiration of the statute of limitation, Payne filed suit in DeKalb County. The sheriff was not able to effectuate service on the corporation’s registered agent and executed a return of service which indicated that Mimms had moved. Payne then purportedly attempted to serve Mimms’ corporate secretary by certified mail under OCGA § 14-2-504 sent to the same address. The certified mailing was returned “unclaimed.” After Mimms failed to answer, Payne moved for judgment by default. In response to the trial court’s concern about a possible venue problem as to whether Mimms might actually be located in Fulton County, Payne submitted a memorandum to the court. Shortly thereafter, the trial court found that service on Mimms had not been perfected and reset the trial date so that Payne could properly serve Mimms. Following the renewal of Payne’s motion for default judgment, the trial court dismissed the action due to Payne’s failure to “exercise reasonable diligence to effect service of process upon the defendant.” Held:

Payne contends that the trial court erred in denying the motion for default and in dismissing the case for lack of service because service was perfected under OCGA § 14-2-504. We disagree.

On appeal, a trial court’s determination of whether a plaintiff has failed to exercise due diligence in perfecting service after the running of the statute of limitation will not be disturbed absent abuse. Walker v. Bord, 225 Ga. App. 242 (483 SE2d 675) (1997); Sykes v. Springer, 220 Ga. App. 388, 390 (1) (469 SE2d 472) (1996). Following the expiration of the applicable statute of limitation, a plaintiff incurs a duty to attempt service by exercising “the greatest possible diligence.” Devoe v. Callis, 212 Ga. App. 618, 620 (1) (442 SE2d 765) (1994).

Where the registered agent for a corporation cannot be served using reasonable diligence, a corporation may be served by registered or certified mail addressed to the secretary of the corporation at its principal office, return receipt requested. OCGA § 14-2-504 (b). Since the record does not indicate that Mimms received or signed for the mail, service could only have been perfected by depositing a copy of the summons and complaint “in the mail, as evidenced by the postmark, if mailed postage prepaid and correctly addressed.” OCGA § 14-2-504 (b) (3).

Even assuming for the sake of argument only that Payne exercised the requisite diligence in attempting to serve Mimms’ registered agent and was thereby entitled to employ service by mail on the corporate secretary, Payne offered no admissible evidence that this was, in fact, accomplished. Although Payne was not required to offer sworn testimony pertaining to service, she was required to offer admissible evidence. See E. H. Bricks v. Walker Showcase, 255 Ga. 122, 123 (1) (336 SE2d 37) (1985) (no specific affidavit required under business Code). See Ticor Constr. Co. v. Brown, 255 Ga. 547, 549 (3) (340 SE2d 923) (1986) (methods of service in the Civil Practice Act and the Georgia Business Corporation Code are discrete).

Decided August 6, 1998

Reconsideration denied September 2, 1998

Lynwood D. Jordan, Jr., for appellants.

Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Mary L. Hahn, for appellee.

Payne offered no testimony or transcript of any proceeding. Payne’s “evidence” of service was an unauthenticated document purporting to indicate that a law office attempted a certified mailing of some article to Robert C. Mimms at a specified address and at a cost of $2.98. On the record before us, we cannot say that Payne offered a proper foundation for the introduction of this document by tendering proof of its authenticity or genuineness. Hill Aircraft Leasing Corp. v. Cintas Corp., 169 Ga. App. 747, 748 (1) (315 SE2d 263) (1984). As such, this document did not constitute admissible evidence. Achor Center v. Holmes, 219 Ga. App. 399, 401 (1) (465 SE2d 451) (1995). Payne bore the burden of offering admissible evidence proving compliance with OCGA § 14-2-504 (b) (3). This she failed to do. In the absence of evidence to the contrary, we cannot say that the trial court abused its discretion. Devoe, 212 Ga. App. at 619 (1).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


text:
    A98A1738.
    KELSON v. CENTRAL OF GEORGIA RAILROAD COMPANY.
    (505 SE2d 803)
   Eldridge, Judge.

Plaintiff-appellant Philip Kelson appeals from the grant of summary judgment to defendant-appellee Central of Georgia Railroad Company (“Central Railroad”) on claims he pursued under the Federal Employers’ Liability Act (“FELA”) and the Federal Safety Appliance Act (“FSAA”). We affirm.

The evidence of record includes affidavits of Central Railroad employees, accompanying business records, photographs, and Kelson’s affidavit and deposition. Viewing such evidence in Kelson’s favor, it shows that, in 1995, Kelson was 55 years old and had been an employee of Central Railroad for approximately 35 years. He worked as a conductor/foreman since 1968 and was responsible for overseeing coupling and switching operations.

On March 9, 1995, the train on which Kelson was working traveled to Dougherty County to pick up three tank cars from Bob’s Candy Company. As the train maneuvered to the point where the tank cars were waiting, Kelson rode on the side ladder of the last train car, i.e., a refrigerated boxcar that was to be coupled to the tank cars. He deposed that he was not supposed to ride on the end ladder of the boxcar because “[i]t’s against the rule[s]” of Central Railroad to ride on the end ladder during a coupling (or “shove”) operation. Kelson also stated that, before the train began moving, he had turned off the boxcar’s hand brake. During the coupling operation, Kelson was unable to see the engineer operating the train and communicated with him through the use of a walkie-talkie. As the train backed up toward the tank cars, Kelson communicated the distance between the cars to the engineer.

When the cars were “extremely close to coupling,” i.e., between one and five feet apart, Kelson stated that he moved from the side ladder to the end ladder of the boxcar, placing himself directly between the coupling train cars. In the process, Kelson moved both of his feet onto the end ladder, but his right hand still was holding onto the side ladder; Kelson’s left hand held the walkie-talkie microphone. Kelson admitted that, within seconds prior to the imminent coupling operation, he let go of the side ladder with his right hand with the intention of grabbing the end ladder with the same hand. Unfortunately, he missed the ladder and began to fall backward. According to Kelson’s affidavit and deposition testimony, that caused him to jump onto the sliding center sill cushion between the trains at the very moment the trains were coupling. His left foot was caught between the trains and crushed. Kelson tried to use his walkie-talkie to tell the engineer to move the train away from the tank cars, but he mistakenly directed the engineer to move closer, thereby increasing the pressure on his foot. After Kelson dislodged his foot, he was treated at the scene and then transported by ambulance to a regional hospital.

Two employees of Central Railroad inspected the refrigerated boxcar and the adjoining tank car within hours of the incident and found no defects or missing equipment. According to their affidavits, they examined the “sliding sill. . . and found no defects,” and determined that the “brakes, ladders, grab irons, hand holds, and sill steps . . . were found to be in good condition with no foreign substance found thereon.” They also determined that the boxcar on which Kelson was riding had a high hand brake which was in good working order.

On May 11, 1995, Kelson filed suit against Central Railroad in the Superior Court of Dougherty County under FELA, 45 USC § 51 et seq., asserting that Central Railroad’s negligence caused his injuries. In addition, the complaint claimed that the Central Railroad violated the FSAA, 49 USC § 20301 et seq., by failing to ensure that the boxcar was equipped with statutorily mandated safety equipment which caused, in whole or in part, Kelson’s injuries. On June 28, 1996, Central Railroad moved for summary judgment, asserting that Kelson’s negligence in moving to the end of the boxcar immediately prior to coupling was the sole proximate cause of his injuries, thereby relieving Central Railroad of liability under both the FELA and FSAA. The trial court agreed and granted the motion on March 23, 1998. It is from the trial court’s order that Kelson appeals. Held:

1. In his first enumeration, Kelson asserts that the trial court erred in granting summary judgment to Central Railroad, alleging that a factual issue existed regarding whether the railroad was negligent in failing to provide a reasonably safe place to work, so that it was liable under FELA. Under FELA, the railroad company is liable to any employee who suffers an injury “resulting in whole or in part from the negligence of. . . such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars [or] engines. . . .” 45 USC § 51; see also 49 USC § 20301 et seq. Further, “the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to [the] employee.” 45 USC § 53. However, “[i]f a violation of the [FSAA] results in injury to a railroad employee, the negligence of the employee is not relevant and does not reduce his recovery unless his negligence can be said to be the sole cause of his injury.” (Citation omitted; emphasis supplied.) Central of Ga. R. Co. v. Mock, 231 Ga. App. 586, 588 (2) (499 SE2d 673) (1998). See also 45 USC § 53; Beimert v. Burlington Northern, 726 F2d 412, 414, n. 3 (8th Cir. 1984).

(a) “To prevail on [a] FELA [negligence] claim, a plaintiff must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation.” (Citations and punctuation omitted.) Bagley v. CSX Transp., 219 Ga. App. 544, 545 (465 SE2d 706) (1995). See also Adams v. CSX Transp., 899 F2d 536, 539 (6th Cir. 1990); Green v. River Terminal R. Co., 763 F2d 805, 808 (6th Cir. 1985). “The basis of [the employer’s] liability is [its] negligence, not the fact that injuries occur.” (Citations and punctuation omitted.) Consolidated R. Corp. v. Gottshall, 512 U. S. 532 (114 SC 2396, 129 LE2d 427) (1994). See also Southern R. Co. v. Mays, 63 SE2d 720, 724 (Va. 1951) (“negligence on the part of [the] defendant may not be presumed or inferred from mere proof of an accident”). The FELA is not a no-fault workers’ compensation statute, nor does it make the employer an insurer of its employees. Consolidated R. Corp. v. Gottshall, supra; Inman v. Baltimore &c. R. Co., 361 U. S. 138, 140 (80 SC 242, 4 LE2d 198) (1959); Jordan v. Southern R. Co., 970 F2d 1350, 1352 (4th Cir. 1992); Radford v. Seaboard &c. R. Co., 122 Ga. App. 763, 764 (178 SE2d 774) (1970).

However, “[t]he case law is clear that under an FELA action, the standards of liability for negligence are significantly broader than in ordinary common law negligence actions. [Cit.]” Duron v. Western R. Builders Corp., 856 FSupp. 1538, 1540 (D. N. M. 1994). “Slight negligence, necessary to support an FELA action, is defined as ‘a failure to exercise great care,’ and that burden of proof, obviously, is much less than the burden required to sustain recovery in ordinary negligence actions.” (Citation omitted; emphasis in original.) Boeing Co. v. Shipman, 411 F2d 365, 371 (4) (5th Cir. 1969). See also Ackley v. Chicago &c. Transp. Co., 820 F2d 263, 267 (3) (8th Cir. 1987). “The FELA is meant to provide a broad remedial framework for railroad workers and, in light of that purpose, is to be liberally construed in their favor. [Cit.]” Lisek v. Norfolk &c. R. Co., 30 F3d 823, 831 (7) (7th Cir. 1994). See also Atchison &c. R. Co. v. Buell, 480 U. S. 557, 562 (107 SC 1410, 94 LE2d 563) (1987). “In other words, ‘trial by jury is part of the remedy’ in FELA cases.” (Citations omitted.) Boeing Co. v. Shipman, supra at 371 (5). See also Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 508 (77 SC 443, 1 LE2d 493) (1957).

(b) Even so, as part of his prima facie case, Kelson was required to show not only that Central Railroad was negligent, but that such negligence was the proximate cause of his injuries. Powell v. Waters, 55 Ga. App. 307, 314 (190 SE 615) (1937); see also Brady v. Southern R. Co., 320 U. S. 476, 483-484 (64 SC 232, 88 LE 239) (1943); Green v. River Terminal R. Co., supra at 810; Wolfe v. Henwood, 162 F2d 998, 1001 (8th Cir. 1947); Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805, 806 (415 SE2d 705) (1992); Radford v. Seaboard &c. R. Co., supra at 764. “The test for minimally adequate proof of causation is ‘whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury.’ But although a plaintiff need not make a showing that the employer’s negligence was the sole cause, there must be a sufficient showing (i.e., more than a possibility) that a causal relation existed.” (Citation omitted; emphasis in original and supplied.) Moody v. Maine Central R. Co., 823 F2d 693, 695 (1st Cir. 1987). See also Rogers v. Missouri Pacific R. Co., supra at 508; Boeing Co. v. Shipman, supra at 374-375 (holding that a “mere scintilla of evidence” does not create a jury question); CSX Transp. v. Monhollen, 229 Ga. App. 516, 522 (3) (494 SE2d 202) (1997).

On a defense motion for summary judgment, if the defendant is able to demonstrate the absence of any evidence supporting an essential element of the plaintiff’s case, or if it affirmatively disproves an element, the plaintiff may not rest on mere assertions in his pleadings, but must present affirmative evidence which creates a jury issue on this element or suffer summary judgment. OCGA § 9-11-56 (c), (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see also Celotex Corp. v. Catrett, 477 U. S. 317, 322-324 (106 SC 2548, 91 LE2d 265) (1986). While “[t]he proximate cause of an injury is ordinarily a question for the jury[,] where it appears from the undisputed facts that the act or negligence complained of is not the efficient proximate cause of the injury, then the question is properly one for determination by the court.” Powell v. Waters, supra at 311. Since this is a case “where fair-minded jurors cannot honestly differ whether fault of the employer played any part in the employee’s injury[,]” summary judgment was appropriate. Rogers v. Missouri Pacific R. Co., supra at 510; Walden v. Illinois Central Gulf R., 975 F2d 361, 364 (7th Cir. 1992).

(c) In support of his FELA claim, Kelson relied upon his February 1996 deposition and his July 1996 affidavit to demonstrate that a safety hazard existed that was caused by negligence which was attributable to Central Railroad. According to Kelson, the ground around the railroad tracks near Bob’s Candy Company was covered with corn syrup which had been spilled from the tanks and which caused the ground to be slippery, so that it was dangerous for him to get off the train and walk along the tracks. Notably, Kelson did not make such assertion in his pleadings, relying instead on his claim that the boxcar on which he was working had defective or missing safety equipment. In its motion for summary judgment, Central Railroad denied the presence of syrup on the ground and presented photographs of the area taken within hours of the incident.

However, because of this alleged hazard, Kelson asserts that it was necessary for him to ride on the side ladder of the train cars during coupling and to cross over between the train cars in order to get to the loading dock after the coupling operation was completed. Kelson pointed to Central Railroad’s Safety Rule 1070, which states that “[w]hen getting on or off equipment, employees must: [s]elect a location that is free of obstructions ... or any other underfoot condition that could cause tripping or stumbling. . . . Employees must not attempt to get on or off moving equipment when ground or clearance conditions will compromise their personal safety.” Accordingly, Kelson contends that the presence of syrup on the ground created an unsafe workplace, so that the railroad company was liable under FELA for injuries he claims resulted when he fell from the train’s end ladder.

Even if Kelson’s allegations of the presence of syrup are given all favorable inferences, his argument as to what caused the incident is contradicted by his sworn affidavit, in which he made the following statement: “When the cars were extremely close to coupling, between one and five feet, I told the engineer that will do. It was at this time that I swung around from the ladder on the side of the box car to the ladder on the end of the box car. The train was traveling at less than one mile per hour. I lost my grip immediately before the cars coupled and was forced to jump onto the center sill cushion. Immediately after I landed on the center sill cushion, the cars coupled, crushing my left foot.” (Emphasis supplied.) This admission is reiterated in Kelson’s deposition, in which he stated that he let go of the side ladder with the intention of grabbing the end ladder, “fajnd I missed. And that made me jump. When I missed and went to going over, I jumped here [on the center sill cushion].” (Emphasis supplied.) Such admissions clearly show that Kelson’s injuries were the direct result of his voluntary and independent decision to move between the moving cars immediately prior to coupling and had nothing to do with the alleged presence of syrup on the ground.

In addition, during his deposition testimony, Kelson admitted that he was aware that Central Railroad’s safety rules prohibited employees from riding on the end ladder of a car during a coupling operation and that employees had to ride, on the side ladders. See Safety Rule 1080. Kelson also stated that he was aware of the possibility that placing one’s foot on the center sill during coupling could cause a crush injury. Kelson admitted that he could have waited on the side ladder until the coupling operation was completed. Further, it is clear that, had he stayed on the side ladder, Kelson’s crush injury would not have occurred.

Therefore, even if this Court accepts Kelson’s assertions that the syrup was present; that such syrup was a hazard resulting from negligence; that such negligence was imputable to the Railroad Company; and that such syrup created an unsafe workplace, the evidence disproves that such negligence was the proximate cause of Kelson’s injuries. See Lisek v. Norfolk &c. R. Co., supra at 825 (on a motion for summary judgment, all factual inferences are resolved in favor of the non-movant); Wolfe v. Henwood, supra at 999 (1). Negligence cannot be made “the basis of an action because it furnished the condition and gave rise to the occasion by which the injury was made possible, where there intervened an unrelated and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion.” (Citation and punctuation omitted; emphasis supplied.) Powell v. Waters, supra at 314. In other words, even if the presence of the syrup caused Kelson to ride on the side ladder during the coupling operation, it did not cause him to move to the end of the train, i.e., between the moving cars, prior to the completion of the coupling.

This case is strikingly similar to Duron v. Western R. Builders Corp., supra. In Duron, a railroad employee with eight months experience was injured when he placed his hand on the knuckle of a railroad car while the train was moving approximately 1.5 mph. Id. at 1542. The plaintiff admitted that he knew that stepping between railroad cars or placing any part of one’s body near the coupling device while the train was moving was dangerous and prohibited by the railroad company’s safety rules. Id. The federal court found that the plaintiff’s actions were the sole cause of his injuries and that the defendant railroad company did not contribute in whole or in part to the injury. Id. at 1540. Accordingly, the court granted the defendant railroad company’s motion for summary judgment. As in Duron, the plaintiff in this case, Kelson, knew that climbing between the cars during coupling was dangerous and prohibited by Central Railroad’s safety rules.

Further, although Kelson asserts that it was necessary for him to ride on the train in order to avoid the alleged presence of syrup on the ground, he has made no showing of necessity or emergency that forced him to make the poor choice of climbing between the cars during coupling. See Bass v. Seaboard Air Line R. Co., 205 Ga. 458, 472-473 (53 SE2d 895) (1949) (railroad employee injured his back when the railroad car’s hand brakes failed and the resultant emergency forced him to quickly dismount the car); see also New York Central R. Co. v. Brown, 63 F2d 657 (6th Cir. 1933), cert. denied, 290 U. S. 634 (54 SC 52, 78 LE 551) (1933); Black v. Ga. Southern &c. R. Co., supra at 808; Blanchard v. Posey, 81 Ga. App. 631, 632 (2) (59 SE2d 530) (1950).

Accordingly, there is no causal connection between the presence of the syrup and Kelson’s independent, inexplicable, and ill-conceived decision to cross over to the end ladder of the train while the train was still moving, when he could have waited mere seconds to perform the same maneuver after the train was coupled and stopped, thereby eliminating the possibility of a crush injury. See Southern R. Co. v. Mays, supra at 726 (16); see also Wolfe v. Henwood, supra at 1001. Therefore, any alleged negligence by the railroad company in allowing the syrup to remain on the ground was not the proximate cause of Kelson’s subsequent injury. The trial court did not err in finding, as a matter of law, that Kelson’s act in moving to the end of the boxcar while the train was still in motion and, in the process, letting go of the train with both hands, was the sole proximate cause of his injury.

2. In his next enumeration of error, Kelson claims that a “weak spring” in the sliding sill mechanism of the boxcar contributed to his injuries because “that’s what caused [the sliding sill] to catch my foot.” The sliding sill cushioning mechanism acts as a shock absorber for the trains during coupling operations and at any other time the cars make contact. Kelson asserts that Central Railroad negligently required him to work on a railroad car that was defective; he brought this claim under the negligence provisions of FELA, not the strict liability provisions of the FSAA.

(a) In making this claim, Kelson relies solely on his deposition testimony that, in his opinion, the spring was weak because it allegedly allowed the drawhead on the sliding center sill to slide farther than necessary during the coupling operation. Notably, Kelson failed to assert any such defect in the spring in his complaint, his affidavit, or his response to Central Railroad’s motion for summary judgment.

We find that Kelson’s mere conclusory allegations of negligence by Central Railroad which caused him to be assigned to a boxcar with an allegedly defective sill cushion in the coupling mechanism are insufficient to withstand Central Railroad’s motion for summary judgment. See Lau’s Corp. v. Haskins, supra. The motion was supported by two affidavits of long-standing railroad maintenance employees that evidenced an inspection two and one-half hours after the incident which found no defects in the coupling mechanism. Kelson’s conclusory allegations are “unsupported by any factual assertions suggesting that [the alleged defect] might involve negligence” by Central Railroad. Lisek v. Norfolk &c. R. Co., supra at 833-834 (11). See also Hurley v. Patapsco & Back Rivers R. Co., 888 F2d 327, 329 (4th Cir. 1989).

Further, Kelson presented no evidence that Central Railroad knowingly utilized an allegedly defective boxcar. “Without notice . . . as to possibly dangerous conditions not evident to a layperson, [Central Railroad] had no opportunity to correct these conditions and cannot be found negligent.” Hurley v. Patapsco & Back Rivers R. Co., supra at 329. Accordingly, the trial court did not err in granting summary judgment on this issue.

(b) However, even if Kelson’s assertion that Central Railroad negligently utilized a boxcar with a defective spring is true, it does not establish causation without evidence of some causal link between the spring and his injury. For example, in McCalmont v. Pennsylvania R. Co., 283 F. 736, hn. 3 (6th Cir. 1922), cert. denied, 260 U. S. 751 (43 SC 250, 67 LE 495) (1923), a railroad employee broke company rules when he failed to put up a flag to signal that he was working between railroad cars to repair a defective coupler. He was killed when the cars collided after the shunting of another car on the tracks. The court held that the proximate cause of the collision and of the injury was the employee’s failure to set out the flag, and that the defective coupler was not a cause, but only a condition of the injury, and did not establish the employer’s negligence under the FELA or FSAA. 283 F. at 741 (3).

Further, in Powell v. Waters, supra, a railroad employee died after he overexerted himself in an effort to repair a faulty air-brake system. In reversing the trial court’s denial of the defendant railroad company’s general demurrer, this Court held that “an employee can not recover under the [FELA or FSAA] if the failure to comply with [the FSAA’s] requirements is not a proximate cause of the accident which results in his injury, but merely creates an incidental condition or situation in which the accident, otherwise caused, results in such injury.” (Punctuation omitted; emphasis supplied.) Id. at 315. See also Davis v. Wolfe, 263 U. S. 239, 243 (44 SC 64, 68 LE 284) (1923); Green v. River Terminal R. Co., supra at 810 (7). Accordingly, there was no error in the trial court’s grant of summary judgment to Central Railroad on the issue of its liability for negligently utilizing an allegedly defective boxcar.

3. In his third enumeration of error, Kelson asserts that the trial court erred in granting summary judgment when factual issues existed regarding whether Central Railroad was negligent in failing to provide their employees with a boxcar which was equipped with an end platform. Kelson asserted in his deposition that the end platform was missing on the boxcar in this case, and that the presence of such end platform may have prevented the incident which resulted in his injuries. He claimed that he would “have stepped on it and would have stayed there until the coupling” and could have used it to reach the loading dock instead of crossing over in the manner that caused his injuries.

However, when Kelson was asked during the same deposition whether any equipment was “left off” the train cars or contributed in any way to his injuries, Kelson said no, with the exception of the sliding sill spring. See Division 2, supra; see also footnote 6, infra. Further, Kelson admitted that, even if the end platform had been in place, he would not have stepped onto the platform until after the train cars had coupled.

As Kelson offers no explanation for the contradictions in the deposition testimony, the statements must be construed against him. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986); see also Shiver v. Norfolk-Southern R. Co., 269 Ga. 168, 169-170 (496 SE2d 903) (1998). Accordingly, it is unnecessary to determine whether Central Railroad’s alleged failure to provide a boxcar with an end platform was negligence, as Kelson’s testimony has shown that the absence of the end platform did not contribute in any way to his injuries.

4. Kelson also asserts that, even if Central Railroad could not be found to be negligent in its individual acts, its actions taken as a whole showed a pattern of neglect for which it could be held liable. See Union Pacific R. Co. v. Hadley, 246 U. S. 330, 332 (38 SC 318, 62 LE 751) (1918). However, Kelson again misses the mark. Even if this Court agreed that Central Railroad’s cumulative actions constituted a pattern of neglect, Kelson has failed to show how this negligence caused his injuries.

To reiterate our holding in this case, Kelson’s voluntary and deliberate action in climbing between the moving train cars and, in the process, letting go of the handgrip, when he could have waited mere seconds for the coupling to be complete, was so unreasonable, unnecessary, and dangerous that the trial court was justified in finding that such action constituted the sole, proximate cause of his injuries. Therefore, Central Railroad was not liable under the negligence provisions of the FELA, and summary judgment was appropriate.

5. Finally, Kelson asserts that the trial court erred in granting summary judgment because a jury issue existed as to whether Central Railroad violated certain FSAA provisions. However, the only violation alleged by Kelson on appeal was the absence of an end platform. This Court previously determined that Kelson was unable to present any evidence that Central Railroad was negligent in failing to provide a boxcar with an end platform. See Division 3, supra. However, Kelson apparently attempts to raise the absence of an end platform as an FSAA violation, also.

The FSAA is a strict liability statute, i.e., no showing of negligence is required to establish liability. Lisek v. Norfolk &c. R. Co., supra at 825-826. However, a plaintiff must still show that a violation of the statute caused his injuries in order to recover. Rogers v. Missouri Pacific R. Co., supra at 507; Walden v. Illinois Central Gulf R., supra at 364 (1).

Further, the FSAA “creates strict liability for malfunctions in specific equipment, and no other device, however necessary for safety, falls within its reach. An employee injured by any non-specified appliance would have to prove negligence on the part of the railroad under the general FELA standard.” Jordan v. Southern R. Co., supra at 1352-1353 (4). “[WJhether a particular device is a ‘safety appliance’ [under the FSAA] is a question of law.” Id. at 1352 (3).

In this case, the trial court expressly found that the boxcar at issue in this case was subject to the safety requirements as outlined in 49 CFR Ch. II, § 231.1 (1997). The undisputed evidence shows that the boxcar was placed into service in 1965, is fifteen feet and one inch tall, and does not have roof hatches. Id.; see also 49 CFR Ch. II, §§ 231.24 (1997) (regulating boxcars over sixteen feet ten inches tall); 231.27 (i) (1) (1997) (regulating boxcars without roof hatches built on or before April 1, 1966, or placed in service before October 1, 1966). There was no error in the trial court’s application of the § 231.1 requirements. Further, as an end platform is not required under § 231.1, the trial court properly granted summary judgment to Central Railroad on the issue of its alleged FSAA violation.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided August 17, 1998

Reconsideration denied September 2, 1998.

Brimberry, Kaplan & Brimberry, Jerry W. Brimberry, Burge & Wettermark, James R. Holland II, for appellant.

Watson, Spence, Lowe & Chambless, Stephen S. Goss, for appellee.

       FELA also embraces claims of an employee based upon a violation of the FSAA. Beimert v. Burlington Northern, 726 F2d 412, 414, n. 1 (8th Cir. 1984), cert. denied, 467 U. S. 1216 (104 SC 2659, 81 LE2d 365) (1984). Such violation subjects the employer to strict liability for injuries caused by the violation. Id.; Lisek v. Norfolk &c. R. Co., 30 F3d 823, 825-826 (7th Cir. 1994), cert. denied, 513 U. S. 1112 (115 SC 904, 130 LE2d 787) (1995); Jordan v. Southern R. Co., 970 F2d 1350, 1352 (4th Cir. 1992); Green v. River Terminal R. Co., 763 F2d 805 (6th Cir. 1985). Federal regulations adopted pursuant to the FSAA, which specifically list required equipment, have the same force and effect as the law. 45 USC § 54a; Atchison &c. R. Co. v. Scarlett, 300 U. S. 471, 474 (57 SC 541, 81 LE 748) (1937); see also Central of Ga. R. Co. v. Mock, 231 Ga. App. 586 (499 SE2d 673) (1998).

       Kelson asserts that it was the custom of employees to ride the side ladder to the loading dock because of the syrup and, because Central Railroad was aware of the practice, it should be prevented from asserting the defense that such practice violated its safety rules. See Hatfield v. Thompson, 252 SW2d 534, 541 (5) (Mo. 1952); see also Moore v. St. Joseph &c. R. Co., 186 SW 1035, 1037 (3) (Mo. 1916). However, Kelson presented no evidence that this alleged custom extended to the practice of climbing between train cars during coupling, so that the rule of Hatfield v. Thompson, supra, does not apply.

       However, in so noting, we recognize that, in FELA actions, the defense of assumption of the risks of employment has been abrogated. 45 USC § 54; see also 49 USC § 20304.

       Notably, Kelson also argues that the lack of adequate clearance on the dock side of the train also forced him to ride on the side of the train. However, under the same analysis as applied to the alleged presence of syrup, Kelson failed to establish a causal link between the alleged lack of clearance and his injury.

       Although Kelson expressly notes in his appellate brief that he is not asserting that the lack of the end platform is a violation of the FSAA, this Court recognizes that the FSAA does not require an end platform on the boxcar at issue in this case. 49 CFR Ch. II, § 231.1 (1997); see also Division 5, infra.

       In his complaint, Kelson also asserted that the boxcar’s grab irons and sill steps were defective “in that they were not properly affixed to the car and in fact were non-existent.” Even though such assertions are not raised in this appeal, we note that Kelson’s admissions in his deposition affirmatively disprove any such defects, so that summary judgment was proper on these allegations. See Division 3, supra; see also Lau’s Corp. v. Haskins, supra.


author: Johnson, Presiding Judge.

text:
    A98A1475.
    WEBB v. DANFORTH.
    (505 SE2d 860)
   Johnson, Presiding Judge.

Julian Webb, individually and as next friend of his minor daughter, sued Bertie Danforth for personal injuries sustained when a dog attacked the child on property owned by Danforth and occupied by a tenant. Webb appeals from the grant of Danforth’s motion for summary judgment, contending the trial court erred in granting the motion because genuine issues of material fact exist regarding whether Danforth relinquished possession and control of the rented property and whether the injured child was an invitee. We find that no material issues of fact remain and affirm the grant of summary judgment to Danforth.

The relevant undisputed evidence shows that Danforth verbally agreed to rent a house she owned to Regina Hurley. Danforth was to maintain the structure, and Hurley agreed to maintain the yard. Hurley took possession of the premises and at some point moved a dog onto the property and chained him to a tree in the backyard. Hurley’s daughter invited Webb’s daughter to play in the yard. The dog broke its chain and attacked Webb’s daughter.

Danforth moved for summary judgment claiming the tenant was in possession and control of the premises at the time of the attack; Danforth did not own, possess or control the dog; and Danforth was unaware that the tenant owned or possessed the dog. In response, Webb pointed to evidence that Danforth knew the tenant had a dog because she visited the house when the dog was in the yard and also because Danforth’s son acted as Danforth’s agent and knew about the dog. Webb also pointed to evidence that Danforth retained the right to enter the property for maintenance purposes. Webb’s claim must fail for several reasons.

A landlord who relinquishes possession of the premises cannot be liable to third parties for damages arising from the negligence of the tenant. OCGA § 44-7-14; Colquitt v. Rowland, 265 Ga. 905, 906 (1) (463 SE2d 491) (1995). “This is so because the use of the tenements really belongs to the tenant during the lease; they are [her] property to use for the term for which they are rented; and the landlord has no right to enter upon them, except by permission of the tenant, during the term for which they are rented.” (Citations and punctuation omitted.) Id. That the landlord retains the right to enter the leased premises for landlord-related purposes does not evidence such dominion and control of the premises so as to vitiate the landlord’s limited liability imposed by OCGA § 44-7-14 and replace it with the liability imposed by OCGA § 51-3-1, the premises liability statute upon which Webb’s action is based. See Godwin v. Olshan, 161 Ga. App. 35, 36 (2) (288 SE2d 850) (1982). A landlord’s retention of the right to enter, inspect and repair is not inconsistent with a full surrender of possession to the tenant. Mills v. Bonanza Intl. Corp., 160 Ga. App. 104, 105 (286 SE2d 337) (1981). The record in this case demonstrates that the tenant moved the dog onto the premises after Danforth relinquished possession and control of the property.

Decided September 2, 1998.

Simpson, Gray & Cross, Ralph F. Simpson, William D. Nesmith III, Joseph I. Carter, for appellant.

Reinhardt, Whitley & Wilmot, Glenn Whitley, for appellee.

Moreover, even if we agreed that Danforth retained possession and control of the premises, Danforth was entitled to summary judgment because there is absolutely no evidence that she had superior knowledge of any dangerous condition. See Stanger v. Cato, 182 Ga. App. 498, 499 (356 SE2d 97) (1987). While Webb based his cause of action on the premises liability statute (OCGA § 51-3-1) rather than the dog bite liability statute (OCGA § 51-2-7), Webb was still required to produce evidence of the vicious propensity of the dog in order to show the dangerous condition of which the premises owner had superior knowledge. See Pickard v. Cook, 223 Ga. App. 595, 596 (2) (478 SE2d 432) (1996). Inasmuch as Webb failed to produce any such evidence, the trial court did not err in granting summary judgment to Danforth. The issue of whether the child was an invitee or a licensee is not material and need not be considered. A grant of summary judgment must be affirmed if it is right for any reason. Id. at 596 (4); Stegall v. Central Ga. EMC, 221 Ga. App. 187, 191 (2) (470 SE2d 782) (1996).

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Judge.

text:
    A98A1678.
    SMITH v. THE STATE.
    (505 SE2d 858)
   Blackburn, Judge.

Gary Smith appeals the trial court’s order re-sentencing him to life in prison based upon his conviction of armed robbery. Smith contends that the trial court erred by: (1) allowing a private attorney to participate in the re-sentencing hearing as the district attorney pro tern in violation of OCGA § 15-18-5 (a), and (2) sentencing him to life imprisonment instead of a determinate sentence of specified months or years.

This is the second appearance of this case before us. In Smith v. State, 193 Ga. App. 208 (387 SE2d 419) (1989), this Court affirmed Smith’s conviction for armed robbery but reversed his conviction for aggravated assault finding that the latter merged into the armed robbery conviction. Id. at 209 (1). Smith was originally sentenced as a recidivist; however, the convictions upon which the recidivist count was based were subsequently reversed. As a result, the trial court held the re-sentencing hearing which is the subject of this appeal.

1. Smith contends that the trial court erred by allowing a private attorney, David Dunn, to participate in the re-sentencing hearing, as the district attorney pro tern, despite the presence of the district attorney. At the beginning of the re-sentencing hearing, the State directed the trial court to an order entered by the Catoosa County court which appointed Dunn as a Special Assistant or District Attorney pro tern. The State requested that such order be continued for the purposes of the re-sentencing hearing. The trial court allowed Dunn to participate, noting that Dunn had represented the State during Smith’s trial.

OCGA § 15-18-5 (a) pertinently provides that “[w]hen a district attorney is absent, indisposed, or is disqualified from interest or relationship to engage in a prosecution, the presiding judge, as the emergency, in his discretion, requires, may . . . [a]ppoint a competent attorney of the circuit to act in his place.” In a previous case involving substantially the same issue we determined that “[t]he propriety of the appointment is largely in the discretion of the trial court and the appellate courts will not interfere with that discretion unless it is abused.” Mach v. State, 109 Ga. App. 154, 156 (135 SE2d 467) (1964). We held that the trial court therein did not abuse its discretion in allowing a private attorney to assist the solicitor general before the grand jury. Id. at 157-158. Therein, we reasoned that the private attorney was appointed as an assistant solicitor general merely to assist the solicitor general, not to act in the place of the solicitor general. Id. at 157. Similarly, the trial court’s action in the present case was not precluded by OCGA § 15-18-5, which refers to the appointment of a district attorney, not an assistant district attorney.

Decided September 2, 1998.

Clifton M. Patty, Jr., Christopher C. Young, for appellant.

Herbert E. Franklin, Jr., District Attorney, Melodie S. Bedford, Assistant District Attorney, for appellee.

Furthermore, the trial court did not abuse its discretion in allowing Dunn to represent the State during the re-sentencing hearing. Smith’s trial occurred over ten years prior to the re-sentencing hearing, and Dunn is the former assistant district attorney who represented the State during Smith’s trial. Dunn also represented the State during Smith’s initial appeal despite the fact that at the time of such appeal, Dunn was no longer an assistant district attorney, but was in private practice. Under these facts, we find no abuse of the trial court’s discretion in appointing Dunn to assist the State during the re-sentencing hearing.

2. In his second enumeration of error, Smith contends that the trial court erred in sentencing him to life imprisonment rather than a specific number of years or months. He argues that because he was eligible for a determinate sentence the trial court should have so sentenced him. However, OCGA § 16-8-41 (b) allows for the sentence of life imprisonment for armed robbery, even without considering the recidivist count. Smith also argues that, at the time of his conviction, OCGA § 17-10-1 (a) would have required that he be sentenced to a determinate number of years in the absence of the recidivist count. However, as Smith recognizes, this issue has been decided adversely to him in Worley v. State, 265 Ga. 251 (1) (454 SE2d 461) (1995). Furthermore, Smith fails to provide this Court with a sufficient basis upon which to distinguish Worley, supra. Therefore, we find this enumeration without merit.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A1222.
    HANEY v. THE STATE.
    (507 SE2d 18)
   Johnson, Presiding Judge.

Stanley Anderson Haney appeals his conviction of trafficking in cocaine by unlawfully and knowingly possessing twenty-eight grams or more of a mixture containing at least ten percent cocaine. OCGA § 16-13-31 (a) (1). Viewed most favorably to support the verdict, the evidence at trial shows that Candy Lynn Rodriquez had known Haney for about a year. Evidence of their relationship included testimony that Haney hired her on various occasions to clean his house; he had repaired her car; and he had picked her up when she was having car trouble. Rodriquez was arrested by undercover officers as she attempted to purchase cocaine from a police informant named Heather. Rodriquez’s boyfriend was also arrested. Rodriquez told the arresting officers that Haney had given her the money to buy the cocaine and that she was to deliver the cocaine to Haney immediately after obtaining it. The sale of cocaine to Rodriquez was a controlled buy. Rodriquez knew of Haney’s cocaine distribution business and some of the other persons involved. Previously, Rodriquez had contacted Heather and informed her that Haney had lost his cocaine supplier. Heather told Rodriquez that she could sell cocaine to her so that Rodriquez could deliver it to Haney. When informed of this, Haney asked Rodriquez to make the purchase and promised that in return he would get Rodriquez’s Christmas presents out of layaway. The drug deal was set up, and Rodriquez met Haney and obtained $1,800 from him to purchase two ounces of cocaine. Heather and Rodriquez agreed to meet in a Target store parking lot where Rodriquez bought the cocaine.

Following her arrest, Rodriquez agreed to cooperate with the arresting officers and become an informant in cases involving persons other than Haney. She also agreed to contact Haney and lure him to the parking lot. She telephoned Haney and told him that she was having car trouble and needed him to pick her up. She did not mention “cocaine” as testimony indicated this is not done in the drug trade. When Haney arrived at the parking lot, Rodriquez and a female undercover investigator walked over to Haney’s car. Both video and audio tapes were made of their ensuing conversation. Rodriquez told Haney that Heather had just left and asked if Haney had seen her. Haney stated he did not know Heather. Rodriquez handed Haney the bag of cocaine. Although she did not identify the contents of the bag, she did say, “there’s that,” as she handed the bag to Haney. Haney took the bag and “fiddled” with it for a moment. The investigator asked Haney if he would break her off just a piece of the cocaine. When the investigator said “some good stuff, isn’t it,” Haney replied, “I have no idea.” The investigator then handed Haney an open cellophane wrapper. Haney held the bag in one hand, examined it, and inserted his thumb and finger into the bag. Haney was in the process of breaking off a piece of cocaine when law enforcement officers surrounded Haney’s vehicle and arrested him. When asked what he was doing at the crime scene, Haney told the arresting officers that he was there because Rodriquez was having car problems.

1. Haney asserts that the trial court erred in denying his motion for directed verdict because there exists insufficient evidence of his knowledge or intent to possess cocaine. We disagree. The proper appellate test when sufficiency of the evidence is challenged by a motion for directed verdict of acquittal is the reasonable doubt test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889) (1991).

There exists both direct and circumstantial evidence of Haney’s guilt. Rodriquez testified that Haney asked her to purchase the cocaine for him and gave him the money for the drug purchase. Rodriquez thus was an accomplice of Haney. The record establishes that her testimony was adequately corroborated. Only slight evidence of corroboration is required to adequately corroborate the testimony of an accomplice, and the testimony of one accomplice may even be corroborated by the testimony of another. Ledbetter v. State, 262 Ga. 370, 372 (5) (418 SE2d 57) (1992).

It is immaterial that Haney was not the person who directly purchased the cocaine from Heather. Even if Haney did not directly commit the crime, he could still be indicted, tried, convicted and punished for it if he were a party to the crime within the meaning of OCGA §§ 16-2-20 and 16-2-21. The jury could infer from the evidence, including the testimony that Haney was in the process of breaking off a piece of cocaine for the undercover officer when he was apprehended, that Haney had the requisite knowledge and criminal intent and that he was a party to the drug transaction. “[T]he intention with which an act is done is peculiarly for the jury[.] [Cit.]” Haire v. State, 133 Ga. App. 12-13 (209 SE2d 681) (1974).

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990); accord Brown v. State, 229 Ga. App. 87, 91 (4) (493 SE2d 230) (1997). To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987). Under this rule, the state is not required to remove every possibility of innocence of the crime charged. Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769) (1994).

Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of trafficking in cocaine as averred in the indictment. Jackson v. Virginia, supra. Even if the existing evidence of Haney’s guilt could be classified as being entirely circumstantial, the jury rationally could have found that the evidence excluded every reasonable hypothesis except that of the defendant’s guilt as to the trafficking in cocaine offense.

2. Haney contends the trial court erred in failing to instruct the jury as to that portion of his requested pattern jury charge on impeachment that provides a witness may be impeached by “[p]roof of general bad character.” Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, Part 3, Special Charges, R. 1. b., p. 27. Haney cites no legal authority in support of this argument. He argues that because Rodriquez repeatedly admitted on cross-examination that she had used illegal drugs and had been present for or involved in the sale and purchase of illegal drugs, she admitted to a pattern of conduct that would constitute bad character sufficient to require the trial court to charge on this issue. This argument is without merit for two reasons.

First, the written request to charge was inadequate. Haney requested that the court “give the following instructions from the Georgia Pattern Jury Instruction In Criminal Cases, Vol. II. . . Part 3, Special Charges: A, B, C, D, H, K, L, N, R, S, and CC.” Implicit in this request is that the trial court charge only the appropriate language found in each of the requested pattern charges. The request to charge fails to identify which language in the requested special charges is or is not appropriate. Thus, the request to charge is both incomplete and not adequately tailored to the evidence in this case. See Harris v. State, 202 Ga. App. 618, 621 (4) (c) (414 SE2d 919) (1992); see also James v. State, 210 Ga. App. 454 (2) (a) (436 SE2d 565) (1993); compare Lindley v. State, 225 Ga. App. 338, 342 (2) (a) (484 SE2d 33) (1997). “If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.” Harris, supra.

Second, the specific portion of the pattern charge at issue was not authorized by the evidence. The procedure for impeaching a witness by presenting evidence of his general bad character is promulgated in OCGA § 24-9-84. “[Ojnly evidence of general reputation is admissible.” Williams v. State, 251 Ga. 749, 801 (13) (312 SE2d 40) (1983). “Particular acts or transactions of the witness sought to be impeached are not admissible to prove his character and cannot be shown either by cross-examination of him, or by the testimony of other witnesses.” (Footnotes omitted.) Green, Ga. Law of Evidence (4th ed.), § 138, p. 287. Personal opinions as to bad character, specific character traits, or special acts of misconduct, whether elicited on direct or cross-examination, will not, standing alone, warrant a charge by the trial court on impeachment by proof of general bad character. See Williams, supra; Andrews v. State, 196 Ga. 84, 98 (5) (26 SE2d 263) (1943); Gresham v. State, 169 Ga. App. 525, 527 (2) (314 SE2d 111) (1984); see also Shaw v. Hughes, 199 Ga. App. 212, 215 (5) (404 SE2d 309) (1991). As Haney has not shown that the requested charge was authorized by the evidence, the trial court did not err in omitting the language at issue from its impeachment charge to the jury.

Decided August 20, 1998

Reconsideration denied September 3, 1998.

Steven M. Reilly, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A0887.
    JOHNSON v. THE STATE.
    (507 SE2d 13)
   Judge Harold R. Banke.

John Albert Johnson was convicted of the misdemeanor offenses of obstruction of an officer, no proof of insurance, and failure to exhibit his driver’s license on demand. In his pro se appeal, Johnson enumerates five errors.

This case arose when officers conducting a routine roadblock stopped Johnson to check his license and insurance. Morris v. State, 228 Ga. App. 90, 91 (1) (491 SE2d 190) (1997) (the evidence on appeal is viewed in the light most favorable to the verdict). After challenging the officers’ right to check these documents and failing to produce his own, Johnson was arrested. To effectuate the arrest, the officers had to physically pry Johnson from the cab of his truck by handcuffing him and twisting the cuffs until he moved. Held:

1. Johnson claims the trial court erred in denying his motion to dismiss for failure to hold an open and public preliminary hearing in violation of his due process rights. However, at the hearing on his motion he provided no evidentiary basis for his allegations. Nor has he supported this claim of error with specific citations to the record or transcript as required by Court of Appeals Rule 27 (c) (3) (i) or submitted a transcript of the preliminary hearing. Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997) (appellant must demonstrate error affirmatively by the record). In any event, we find beyond a reasonable doubt that the error, if any, did not contribute to the verdict in this case; thus, the denial of Johnson’s motion to dismiss must be affirmed. See Little v. State, 230 Ga. App. 803, 807-808 (2) (498 SE2d 284) (1998).

2. In his second enumeration, Johnson maintains that the trial court erred by denying what apparently was a second motion to dismiss premised on the same grounds as those asserted in his first enumeration, the denial of his right to an open and public hearing. Johnson asserts that the trial court orally denied his motion as untimely during an October 20, 1996 hearing just prior to trial. He does not contest the trial court’s finding of untimeliness.

Johnson provided no citations to the record, and we have found no such motion. Court of Appeals Rule 27 (c) (3) (i). However, the record shows that on October 20, the day of trial, the trial court declined to reach a number of motions which were filed after the time for filing had expired. None of these filings was styled as a motion to dismiss. But no matter how the filing at issue was styled, the trial court acted within the ambit of Uniform Superior Court Rule 31.1, which permits trial courts to refuse to consider untimely motions. See Roberson v. State, 195 Ga. App. 379 (1) (393 SE2d 516) (1990); see also Thompson v. State, 195 Ga. App. 18, 20 (2) (392 SE2d 732) (1990).

3. The trial court did not err by denying Johnson’s motion for directed verdict of acquittal. When “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom” demands a not guilty verdict, a directed verdict of acquittal is appropriate. OCGA § 17-9-1 (a).

Here, the only evidence that Johnson presented was testimony by two of the arresting officers which supported the State’s version of the events. The State presented evidence that after the arresting officer stopped Johnson at the roadblock and asked for his driver’s license and proof of insurance, Johnson asked what he had done. The officer responded, “Nothing,” but reiterated that he needed to inspect Johnson’s documents. Johnson then stated that he had not committed a crime and asked for the officer’s name and badge number. After the officer gave Johnson this information, he informed Johnson that he needed to produce his license and proof of insurance immediately or he would be arrested. Johnson then asked for the Code section which permitted the officer to demand his license. This went on for several minutes. Then another officer came over and Johnson was informed that he was under arrest and asked to step out of his truck. At that point, Johnson did not budge, hanging onto his steering wheel until the officers forced him from the truck.

This evidence, viewed in the light most favorable to the verdict, was sufficient to permit a rational trier of fact to find that Johnson initially violated OCGA § 40-5-29 (b) by failing to display his driver’s license upon the demand of a law enforcement officer and OCGA § 40-6-10 by failing to provide proof of insurance. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The record shows that after committing these offenses in the officers’ presence, Johnson refused to comply with the officers’ command to exit his truck after his arrest. These facts were sufficient to present a jury question on the obstruction charge. Id.; OCGA § 16-10-24 (a); see Reed v. State, 205 Ga. App. 209, 212 (4) (422 SE2d 15) (1992).

Decided August 19, 1998

Reconsideration denied September 3, 1998

John A. Johnson, pro se.

Gerald N. Blaney, Jr., Solicitor, Gary S. Vey, Assistant Solicitor, for appellee.

Notwithstanding Johnson’s contention to the contrary, Coley v. State, 178 Ga. App. 668 (344 SE2d 490) (1986) is distinguishable. In Coley, the defendant committed no crime in the officer’s presence. Id. Nor did he argue with the officer. Id.

4. Johnson argues that a fatal variance occurred when he was sentenced under one set of accusations but charged and tried under another. The record refutes this contention. Johnson was assigned a different case number after the first judge handling this case declared a mistrial and recused. A single digit, which apparently represented the number ascribed to the new judge, was changed. But the accusations remained the same. The record contains nothing to substantiate Johnson’s claim of a fatal variance. See Battles v. State, 262 Ga. 415, 417 (5) (420 SE2d 303) (1992). Nor did he show that this issue was properly raised in the trial court. Colley v. State, 225 Ga. App. 198, 201 (3) (483 SE2d 355) (1997) (because this Court corrects errors made in the trial court where proper exception is taken, issues raised for the first time on appeal furnish us with nothing to review).

5. Johnson claims the trial court erred by conspiring to alter the records forwarded to this Court in an effort to sustain his conviction at any cost. The gist of his argument is that the change in case number constituted an alteration of the record. Assuming solely for the sake of argument that some sort of alteration occurred, Johnson failed to satisfy his burden of specifying how the alleged error harmed him. Herndon v. State, 229 Ga. App. 457 (3) (494 SE2d 262) (1997) (both harm and error must be affirmatively shown to authorize reversal on appeal). Consequently, this enumeration provides no ground for reversal.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

       The case number on Johnson’s case changed from Criminal Action No. 96-D-1951-4 to 96-D-1951-2 after the first judge recused.


text:
    A98A1099.
    LAXTON v. LAXTON.
    (507 SE2d 146)
   Judge Harold R. Banke.

In 1987, Kenneth Laxton executed a promissory note and deed to his father, Amos Laxton, “for the express purpose of delaying, hindering or defrauding a potential judgment creditor.” Laxton v. Laxton, 267 Ga. 591, 592 (481 SE2d 227) (1997). Eight years later, Kenneth Laxton attempted to cancel the note and deed on the ground that they lacked consideration. He also sought to enjoin his father from foreclosing on the property through a non-judicial foreclosure proceeding. At trial, the court directed a verdict in favor of Amos Laxton on the undisputed evidence that the transfer was fraudulent.

After the property was subsequently sold on the courthouse steps to Amos Laxton as the highest bidder, Kenneth Laxton filed the underlying action claiming he was entitled to all of the proceeds of the sale because the note lacked consideration. By court order, Amos Laxton was required to make an accounting of the proceeds of the sale. Kenneth Laxton appeals the dismissal of his case. Held:

In his sole enumeration of error, Kenneth Laxton claims that the trial court erred in not considering the motions for summary judgment and ordering the proceeds of the sale be paid to his father. He contends that he is entitled to all the proceeds of the sale less the necessary expenses. We disagree.

Without question, Kenneth Laxton had “unclean hands through his participation in a scheme to defraud a potential judgment creditor.” Laxton, 267 Ga. at 391. Where two parties engage in a fraudulent transfer and are in pari delicto, “equity will leave [the parties] where it finds them.” Langan v. Langan, 224 Ga. 399, 402 (2) (162 SE2d 405) (1968). OCGA § 23-1-15. Having transferred the property to his father, Kenneth Laxton has no claim to the proceeds of the sale which the evidence shows did not exceed the amount of the promissory note, interest, advertising costs, and attorney fees. Sheridan v. Sheridan, 153 Ga. 262, 269-270 (111 SE 906) (1922) (where both transferor and transferee guilty of fraud, deed is, nevertheless, binding as to them). See Williams v. Williams, 255 Ga. 264, 266 (336 SE2d 244) (1985) (equity unavailable to grantor who participates in fraudulent transfer made to delay, hinder or defraud his creditor). Nor can Kenneth Laxton re-litigate the issue of failure of consideration which has been determined adversely to him. See Dept. of Human Resources v. Fleeman, 263 Ga. 756, 757 (2) (a) (439 SE2d 474) (1994).

We find no error.

Judgment affirmed.

Johnson, R J., and Smith, J., concur.

Decided August 21, 1998

Reconsideration denied September 3, 1998.

John E. Pirkle, for appellant.

Robert B. Smith, for appellee.