text:
    A00A1007.
    LATHAM HOMES SANITATION, INC. v. CSX TRANSPORTATION, INC. et al.
    (538 SE2d 107)
   Eldridge, Judge.

On August 23, 1996, Latham Homes Sanitation, Inc. and Mattie B. Acey brought a petition for the removal of obstructions from a private way in the Probate Court of Fulton County against CSX Transportation, Inc., because on July 30, 1996, CSX removed the railroad crossing and placed broken asphalt, railroad ties, and other debris, thereby blocking the crossing that they had previously used. They sought emergency removal of the obstruction under OCGA § 44-9-59, but also sought damages for interfering with their use of the private way. On October 23, 1996, a hearing was held, and the matter was taken under advisement; a final order was rendered on July 15,1997. The final order found that jurisdiction as to damage issues lay in Fulton Superior Court and transferred such claims. The probate court ruled that, as to Acey, CSX must remove the obstructions; however, as to Latham, the trial court ruled in favor of CSX. Latham appealed, and CSX cross-appealed.

Latham and CSX both contend that the trial court erred. We affirm the probate court, but we find that the probate court lacked subject matter jurisdiction to determine title and vacate the judgment with directions.

D. D. Mims was the remote grantor in title of both Latham and Acey who owned adjoining land, which is separated from U. S. Highway 29 by the railroad right-of-way of CSX, and was the grantor of the railroad right-of-way.

On August 15, 1849, and again on March 16, 1853, Mims conveyed a 200-foot “right-of-way” across his land to Atlanta & LaGrange Railroad, predecessor to CSX, for $5 for the stated purpose of locating railroad tracks across it. Mims retained the right to cultivate to within ten feet of the tracks and a reversion of the right-of-way, if the railroad was not established; he granted the railroad the right to cut and remove trees and other growth along the right-of-way. The location of the right-of-way was not described but was left to the discretion of the railroad in the first, but not the second, conveyance. The conveyances had no provision for a private way across the railroad right-of-way.

[T]he crucial test in determining whether a conveyance grants an easement in, or conveys title to, land, is the intention of the parties, but in arriving at the intention many elements enter into the question. The whole deed or instrument must be looked to, and not merely disjointed parts of it. The recitals in the deed, the contract, the subject-matter, the object, purposes, and nature of the restrictions or limitations, if any, or the absence of such, and the attendant facts and circumstances of the parties at the time of the making of the conveyance are all to be considered. [OCGA § 44-5-34.]

Jackson v. Rogers, 205 Ga. 581, 586-587 (54 SE2d 132) (1949).

It appears that the conveyance of Mims did not intend to convey anything more to the railroad than an easement for the right-of-way, because the initial conveyance specified only a quantity of land affected, 100 feet on either side of the tracks, and the direction; it left the location of the right-of-way to be later determined by the railroad and retained the use of the land for agricultural purposes up to ten feet from the tracks. Ga. Power Co. v. Leonard, 187 Ga. 608, 610-611 (2) (1 SE2d 579) (1939). This discretion to pick the land conveyed after the execution of the deed would be inconsistent with conveyance of title, but would not be inconsistent with an easement that is only an encumbrance on the land. Also, Mims gave the express right to the railroad to cut timber and clear undergrowth from the right-of-way, which is inconsistent with the conveyance of title, where the owner has full dominion and control, but not in an easement. See Askew v. Spence, 210 Ga. 279 (79 SE2d 531) (1954).

Further, Mims retained a reversionary interest over the right-of-way in the event that the railroad was never formed, which is inconsistent with a conveyance of title. See Tompkins v. Atlantic Coast Line R. Co., 213 Ga. 48 (96 SE2d 603) (1957). While a railroad right-of-way may be more than a mere easement and is, in substance, an interest in land “special and exclusive in its nature,” such does not constitute a fee simple title to the land adverse to the grantor, who intends to retain all other rights within the right-of-way that do not conflict with the railroad’s use, now or in the future. Jackson v. Sorrells, 212 Ga. 333, 334-335 (92 SE2d 513) (1956); cf. Barber v. Southern R. Co., 247 Ga. 84 (274 SE2d 336) (1981). However, the deed form language of “successors and assigns,” “forever in fee simple,” and “will warrant and defend the title thereof, against the claim of all persons” has the attributes of a deed of title in fee simple by warranty deed. Jackson v. Rogers, supra at 586-587; Safeco Title Ins. Co. v. C & S Nat. Bank, 190 Ga. App. 809, 810 (1) (380 SE2d 477) (1989). Thus, there exists a conflict in the terms of the deed as to the grantor’s intent that a court with proper subject matter jurisdiction over title to land must construe.

Clearly, Atlanta & West Point Railroad, successor in title to Atlanta & LaGrange Railroad and predecessor of CSX, recognized some legal property interest in a private road in Mims’ grantees because of constructive notice from recorded deed records and actual notice of the existence of the private crossing over the tracks. The railroad never took any adverse position or action against the use of the crossing until 1973 when it entered into a crossing license to help clear the railroad title.

On April 23, 1898, Mims’ ádministrator conveyed all of the subject property, including the right-of-way to Oscar Mims and S. S. Hathcock. On April 28, 1939, Chap Cooper received a deed to the same land, including the right-of-way. By deed dated June 8, 1948, Cooper conveyed this land to Mamie Duncan Clarke, which included “the right to use the unnamed settlement road now extending northerly from the property above described across other property now owned by Chap Cooper, crossing the Right-of-Way of the A. & W. P. Railroad and entering Roosevelt Highway.” On May 29, 1969, Cooper’s wife, Ruth S. Cooper, conveyed the Latham property to J. F. Conway. On October 18, 1972, Conway conveyed part of Mims’ land to Ply-Marts, Inc., containing a perpetual easement to Highway 29. On March 23, 1994, Ply-Marts conveyed its interest to Latham Homes Sanitation Company, Inc. with a specific grant of use to the “settlement road.” On June 13,1984, Clarke deeded her part of Mims’ land to Randolph Mahaffey and J. Richard Mahaffey, including use of the “settlement road.”

On April 2, 1973, Ply-Marts and Atlanta & West Point Railroad Company entered into an agreement in which Ply-Marts’ claim to the “settlement road” was abandoned for the right to install and maintain at Ply-Marts’ expense a new paved road or driveway and crossing, which it called a private road crossing, across the right-of-way to Highway 29. The “settlement road” was permanently abandoned by Ply-Marts in this agreement, and Ply-Marts agreed to close this crossing and the “settlement road.” Also, Ply-Marts agreed to prohibit use by anyone else of the new private road and crossing; thus, it had to prohibit the Clarkes’ use of the new road and crossing to reach their home.

After completing the new road, Ply-Marts closed the “settlement road” and crossing under the crossing license; when they tried to stop the Clarkes’ use of the new road, Ply-Marts discovered the Clarkes’ legal interest in the “settlement road” and the old crossing, now closed.

On May 7, 1973, Mrs. Clarke was 75 years old. Therefore, on May 7,1973, the railroad, Ply-Marts, Kenneth T. Clarke, and Mamie Duncan Clarke, his wife, had to execute a supplemental agreement that incorporated the April 2, 1973 agreement by reference and included a 30-day termination provision to allow the Clarkes to use the new crossing and paved road, because the old “settlement road” and crossing had been removed. The supplemental agreement made no statement that the Clarkes were abandoning any and all interest in the “settlement road” and crossing, although the earlier crossing agreement of April 2 did spell out the abandonment of the “settlement road” crossing, which was incorporated by reference into the May 7 supplemental crossing license. Both license agreements gave either party to the agreement a right to terminate the crossing with 30 days written notice, which goes to the inadequacy of consideration of the license when compared to a prescriptive easement. Had the supplemental crossing license not been executed, the Clarkes would have been compelled by necessity to go to court to gain access to their landlocked home, and their prescriptive rights in the “settlement road” would have been preserved by court action. The age, disparity of mental ability, and the inadequacy of consideration might justify setting aside Mrs. Clarke’s crossing agreement in equity in the superior court; however, for purposes of this case, such factors play a part in reasonable reliance by Mrs. Clarke to her detriment for purposes of promissory estoppel. See generally as to disparity of mental ability OCGA § 23-2-2; Southern R. Co. v. Lawson, 256 Ga. 798, 800 (1) (a) (353 SE2d 491) (1987); Bailey v. Williams, 215 Ga. 395, 397 (1) (110 SE2d 673) (1959).

When CSX took over on May 5, 1994, it entered into a new private road grade crossing agreement with Latham, to which Acey was not a party or signatory. In this agreement, either party had the right to terminate the crossing license with 30 days written notice. On September 24,1994, Ply-Marts executed a quitclaim deed to Latham giving it a perpetual easement. CSX contended that Latham terminated the crossing agreement on May 13, 1996, in writing and that CSX accepted the termination, closing the crossing on July 30, 1996. After Latham gave the termination notice, it learned that Acey had an interest in the private road and crossing and would be landlocked; Latham tried to rescind its termination, but CSX refused the withdrawal.

Since the Probate Court of Fulton County lacked subject matter jurisdiction to decide title to land, see generally In re Estate of Adamson, 215 Ga. App. 613 (451 SE2d 501) (1994), then it could not decide title, even as an ancillary matter, and we cannot determine such issue either. Thus, this opinion does not decide the title to the right-of-way as to CSX, Latham, or Acey.

For purposes of this case, from 1898 until 1973, the grantor of both Latham and Acey had, used, and maintained the “settlement road” across the Atlanta & West Point tracks within the meaning of OCGA § 44-9-59 (a), which constituted a prescriptive interest adverse to the railroad’s interest. See OCGA §§ 44-9-1; 44-9-40; Belcher v. Kelly, 143 Ga. 525 (4) (85 SE 696) (1915); Holloway v. Birdsong, 139 Ga. 316, 317 (77 SE 146) (1913); Ga. Pacific Corp. v. Johns, 204 Ga. App. 594 (420 SE2d 39) (1992); Trednick v. Kramer, 190 Ga. App. 684, 685 (379 SE2d 633) (1989). Plaintiffs showed that they had constant and uninterrupted use for seven years prior to 1973 on the “settlement road,” and from 1973 until 1996 across the new paved road which was maintained for both their benefits by Ply-Marts and Latham by consent of the railroad. Eileen B. White & Assoc. v. Gunnells, 263 Ga. 360 (434 SE2d 477) (1993); Goodwin v. Bickers, 22 Ga. App. 13, 14 (95 SE 311) (1918).

Atlanta & West Point Railroad granted Latham’s and Acey’s grantors a crossing license in return for abandoning their interest in the “settlement road” crossing. CSX contended in the probate court that the private road, which it allowed to be built and maintained across its right-of-way, exceeded the permissible private road by two to three feet so that Latham and Acey forfeited all rights in the private road as a prescriptive private road, i.e., 21 feet 6 inches to 23 feet 3 inches. However, Latham substantially complied with the statute, i.e., OCGA § 44-9-59, so that any forfeiture would apply only to such two to three feet that the private road may have exceeded twenty feet and not to the remaining twenty feet of private road. See OCGA § 1-3-1 (c); see generally O’Neal v. Spencer, 203 Ga. 588 (47 SE2d 646) (1948) (substantial compliance with a statute). Further, such road width in excess of 20 feet contravened the crossing license agreements for 23 years as adverse possession. Also, CSX’s evidence showed the width of the new private road 29 feet south of the CSX line on the right-of-way, but no evidence was given as to the width of the private road at the crossing or north of the tracks on the right-of-way.

It has been held, however, that where the general width of a private way does not exceed [20] feet, the mere existence of a few wider places will not defeat the right of the users. Accordingly, the increased width of the private road as it formerly turned out in either direction into a public road can not be said, as a matter of law, to have caused a forfeiture of the petitioner’s rights.

Barnett v. Davis, 38 Ga. App. 494, 495 (144 SE 330) (1928); cf. Church v. York, 212 Ga. 135, 136 (91 SE2d 9) (1956).

Latham’s rights in the crossing license were terminated under the contractual terms of the three license agreements, which it freely and voluntarily entered into. Latham gave the 30-day notice of termination, and CSX accepted. Latham’s attempt to rescind the termination notice was ineffective. CSX’s written notice of acceptance of Latham’s termination in itself, alone, was sufficient to constitute a termination under the agreement by CSX. Thus, the probate court correctly denied Latham relief, because Latham had no prescriptive easement any longer, only a crossing license that appeared to be terminated. The probate court lacked subject matter jurisdiction to determine if the license agreement had been properly terminated and only had jurisdiction to determine if Latham had a prescriptive easement for a private way. Since in 1973 it surrendered all prescriptive rights in the “settlement road” freely and voluntarily for the crossing licenses, then Latham had no prescriptive rights for purposes of OCGA § 44-9-59. The probate court properly denied Latham relief, but for the wrong reason.

The principle of promissory estoppel applies in this case to Acey, as a third party, whose grantor Mamie Clarke was compelled to surrender her prescriptive interest in the “settlement road” by the crossing license of Ply-Marts and Latham over the new paved crossing, because Clarke’s ingress and egress over Ply-Marts’ land on the “settlement road” was terminated under the license agreement by Ply-Marts and the railroad, and she had to sign the supplemental crossing license to have ingress and egress to her home then over the new crossing that had replaced the settlement crossing. Clarke relied to her detriment upon the substitution of the license for the new paved road and new crossing in 1973 for the prescriptive “settlement road” crossing rights to give her substantially the equivalent of what she gave up by signing the license. OCGA § 13-3-44 (a); Insilco Corp. v. First Nat. Bank of Dalton, 248 Ga. 322 (1) (283 SE2d 262) (1981); Mooney v. Mooney, 235 Ga. App. 117, 119 (1) (508 SE2d 766) (1998); Irvin v. Lowe’s of Gainesville, 165 Ga. App. 828, 830 (3) (302 SE2d 734) (1983).

However, CSX has to maintain the new crossing for Acey’s use, because CSX allowed the new crossing to be built and maintained for nearly 23 years as a substitution for the “settlement road” for her, which was the substitution of prescriptive rights from one private way to another. Acey’s grantor, Clarke, had reasonably relied to her detriment on being allowed the same use of the new road and crossing instead of the “settlement road,” which had already been abandoned at the time of her execution; Clarke had been forced to sign the crossing agreement, retroactively agreeing to its abandonment after the railroad and Ply-Marts had already closed it. Further, Acey never executed a crossing license with CSX. OCGA §§ 13-3-44 (a); 44-9-1; 44-9-59; Knotts Landing Corp. v. Lathem, 256 Ga. 321, 324 (3) (348 SE2d 651) (1986); Irvin v. Lowe’s of Gainesville, supra. Thus, the probate court entered judgment in Acey’s favor correctly but, again, for the wrong reason.

To the extent that the probate court made a determination as to title to land, the judgment is vacated for lack of subject matter jurisdiction. However, both the probate court and this Court can determine that the plaintiffs had standing to bring the action in the probate court without deciding title. To have standing, all the plaintiffs must have is prescriptive legal interest in the private way at some time. See Ga. Const., Art. VI, Sec. IV, Par. I; Art. VI, Sec. VI, Par. III (1); see also Ingold, Inc. v. Adair, 247 Ga. 155 (274 SE2d 560) (1981); In re Estate of Adamson, supra at 613. The right, title, and property interests of the plaintiffs must be decided by the Superior Court of Fulton County prior to determining what damages, if any, plaintiffs have sustained by the obstruction of the private crossing. Therefore, the transfer of such remaining claims was proper by the probate court. Uniform Transfer Rules, 251 Ga. 893-895 (1984).

We direct that the probate court enter judgment finding that the plaintiffs had standing; that Acey was entitled to the removal of the obstruction of a private road, because she had a prescriptive interest; that Latham no longer had a prescriptive interest, because it had surrendered such by executing the crossing licenses; and that all other issues be transferred to the Fulton Superior Court for adjudication.

Decided August 4, 2000

Reconsideration denied August 17, 2000

Aubrey T. Villines, Jr., Heidi A. Honis, for appellant.

Casey, Gilson & Williams, Matthew D. Williams, Glenn C. Tornillo, for appellees.

Judgment affirmed in part, vacated in part, and remanded with directions.

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


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A00A1430.
    WILEY v. THE STATE.
    (538 SE2d 483)
   Pope, Presiding Judge.

Raymond Edward Wiley, Sr. was tried and convicted of aggravated child molestation. Here he appeals, raising three enumerations of error. Concluding that his arguments lack merit, we affirm.

Evidence at trial showed that Wiley molested a nine-year-old family member. The State also introduced evidence of a similar transaction in which Wiley had placed his hands inappropriately on the body of a 14-year-old family friend. Robbie Johnston, a detective with the Henry County Police Department, interviewed Wiley on the date the victim revealed the molestation. Johnston testified that in his interview with Wiley, the defendant admitted committing the molestation. A videotape of the interview in which Wiley admitted the crime was played for the jury.

1. In his first enumeration of error, Wiley argues that the trial court erred by allowing the admission of similar transaction testimony regarding an incident which occurred in 1990. Specifically, he argues that there was insufficient similarity between the offenses to allow the admission of the previous incident. At the hearing before trial regarding the prior incident, the court found that the State had made the three affirmative showings required by Williams v. State, 261 Ga. 640, 642 (2) (409 SE2d 649) (1991). We find no error in the court’s admission of the evidence.

The rules regarding the use of similar transaction evidence are construed most liberally in cases involving sexual offenses. Moreover, a trial court’s determination that similar transaction evidence is admissible will not be disturbed absent an abuse of discretion.

(Citations and punctuation omitted.) Sweet v. State, 237 Ga. App. 613, 615 (2) (516 SE2d 317) (1999). “Furthermore, the sexual molestation of young children, regardless of sex or type of act, is of sufficient similarity to make the evidence admissible.” Livery v. State, 233 Ga. App. 332, 334 (1) (a) (503 SE2d 914) (1998). In this case, contrary to Wiley’s arguments, the evidence showed that the previous act was sufficiently similar to allow its admission into evidence.

2. Secondly, Wiley claims that the court erred by allowing into evidence the videotaped statement he made to the police. He claims that the chain of events from the victim’s revelation of the crime until his confession created a snowball effect, which resulted in his involuntary statement. This argument also lacks merit.

Evidence at the hearing regarding the admissibility of the statement established that Wiley gave the statement on the night the victim told her parents of the molestation. On that night, after hearing the victim’s story, the victim’s parents called Wiley and discussed the crimes with him. Wiley initially denied the allegations. Wiley then admitted that he had kissed the victim’s belly button.

The victim’s father then stated: “Ray you know, if you talk to us now, maybe we can work this out, if you tell us the truth now.” Wiley still denied the crime, and the victim’s father then called the police. After the police were called, Wiley turned to his wife and stated: “I did it.”

The Spalding County police then came to the home and took Wiley to the Spalding County jail. Because Spalding County did not have jurisdiction, Henry County police officer Johnston retrieved Wiley from the Spalding County jail. Officer Johnston testified that Wiley “stated that he wanted to talk to me, that he wanted to come to police headquarters.”

On the way to the Henry County jail, Wiley rode in the front seat of the police car with Johnston. Johnston testified that he “made absolutely certain” that Wiley knew that he was not in police custody and was not under arrest. Johnston recalled that he had returned Wiley’s personal possessions to him and that Wiley was not handcuffed. Johnston offered to take Wiley to a pay phone and let him call whomever he needed to call; Johnston also told Wiley he could get out of the car and walk.

At the police station, Johnston stated that he told Wiley that he was not in police custody, but that Johnston would like to talk with Wiley about the allegations against him. Johnston read Wiley his Miranda rights, and Wiley then signed a waiver of those rights. Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Johnston then obtained the videotaped statement in which Wiley admitted committing the crimes.

Whether a defendant waives his rights under Miranda and makes a voluntary and knowing statement depends on the totality of the circumstances. On appeal, the standard of review is whether the trial court was clearly erroneous in its factual findings on the admissibility of this statement.

(Citations and punctuation omitted.) Pollard v. State, 238 Ga. App. 253, 256 (4) (518 SE2d 463) (1999).

The record shows that Wiley was advised of his rights, that he understood those rights, and that he gave his statement freely and voluntarily without hope of benefit or fear of injury. Thus, the trial court did not err in concluding that Wiley’s statement was freely and voluntarily given after a knowing and intelligent waiver of his rights under Miranda. See generally Davis v. State, 271 Ga. 527 (2) (520 SE2d 218) (1999); Pollard v. State, 238 Ga. App. at 256. Wiley’s argument that the entire sequence of events resulted in his involuntary statement to Johnston lacks merit.

3. Finally, Wiley argues that the court erred in allowing into evidence the confession which he made to the victim’s parents. Citing Griffin v. State, 230 Ga. App. 318 (496 SE2d 480) (1998), Wiley contends that the statement was involuntary under OCGA § 24-3-50 because it was induced by the hope of benefit — specifically, the victim’s parents’ representation that they would not involve the police.

“The findings of a trial court as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous.” (Punctuation omitted.) Morrow v. State, 226 Ga. App. 833, 835 (2) (487 SE2d 669) (1997). As stated above, Wiley made the statement after the victim’s father had stated that maybe they could “work this out.” There was testimony that Wiley still denied the crime and the victim’s father then called the police. After the police were called, Wiley turned to his wife and stated: “I did it.” Although the victim’s father did not recall stating that he would not call the police if Wiley told the truth, the victim’s mother testified that the victim’s father had made this statement.

In Griffin v. State, 230 Ga. App. 318, the defendants, who were employed by Cato’s, a clothing retailer, had confessed to stealing merchandise from the store after being questioned for hours by the store’s Loss Prevention Specialist. The defendants filed motions to suppress the written statements, and the trial court refused to hold a pretrial hearing regarding the voluntariness of the statements. The question before the court was whether the trial court should have conducted a hearing to make a threshold determination regarding the voluntariness of statements before the evidence was admissible.

Decided August 17, 2000.

Kelley S. Powell, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

The Griffin court concluded that the trial court erred in failing to hold such a hearing, and this court remanded the case to the trial court with directions “to hold a hearing, make an express threshold determination of voluntariness under OCGA § 24-3-50 on the record, and, only upon finding that the statements were voluntary, admit the defendants’ confessions.” Id. at 324. In reaching this holding, the Griffin court stated that in enacting OCGA § 24-3-50, “the Georgia General Assembly deemed inadmissible all involuntary confessions, i.e., those that result from the hope of benefit or the fear of injury, not just confessions resulting from official state action.” (Emphasis in original.) Griffin, 230 Ga. App. at 322.

In this case, the trial court conducted a hearing in light of Griffin and OCGA § 24-3-50 and concluded that Wiley’s statements were voluntary and admissible. We find no error in this ruling and conclude that Wiley’s statements to the victim’s father were made voluntarily. And, in the present context the trial court’s conclusion that the statement was not rendered involuntary by the hope of benefit was not clearly erroneous.

Judgment affirmed.

Miller and Mikell, JJ, concur.

       We note that the evidence indicates that Wiley was not in custody when he gave the statement. See Sams v. State, 239 Ga. App. 715 (521 SE2d 848) (1999). And, “[a] suspect is not entitled to warnings under Miranda, unless that suspect has been taken into police custody or has been deprived of freedom of action in another significant way.” (Citation omitted.) Id. at 717.

       We note that the circumstances in Griffin differed significantly from the situation here: Griffin involved a coercive environment, unlike the instant factual scenario. Nevertheless, the language from Griffin is broad, and our Supreme Court has cited the case with approval. See Cook v. State, 270 Ga. 820, 828 (2) (514 SE2d 657) (1999) (citing Griffin for the proposition that “when confession is made to a witness who is not a state agent, it must still be voluntary under OCGA § 24-3-50.” Cook at 828.).


author: Miller, Judge.

text:
    A00A1669.
    JOHNSON v. THE STATE.
    (538 SE2d 481)
   Miller, Judge.

Travis Johnson and his sister were convicted of possessing cocaine in violation of OCGA § 16-13-30 (a). Johnson appeals, arguing the sufficiency of the evidence. Since there is no evidence which connects Johnson to the cocaine found in his sister’s residence, we reverse.

When a defendant challenges the sufficiency of the evidence for his criminal conviction, we construe the evidence in favor of the verdict to determine whether a rational trier of fact could have found beyond a reasonable doubt that the defendant committed the charged crime. Here the evidence showed that on the day in question police three times saw Johnson outside his sister’s residence — once beside the apartment house, once on the apartment’s porch with another person, and once in a crowd of 15 or more people gathered around a grill outside the apartment for a cookout. When police executed a search warrant for drugs in the apartment, the only person they found in the apartment was the sister.

During their search they discovered three bedrooms: one which they described as a junk or storage room, one which they determined to be the sister’s bedroom, and one which they described as a children’s bedroom (because of toys and bunk beds). The testifying officer stated they were not able to determine who slept in the apparent children’s bedroom, although the sister had her two or three children living with her at the residence. In this third bedroom police discovered three rocks of cocaine hidden in a portable cassette radio player. In the residence’s only bathroom they also found a matchbox containing cocaine residue.

The State presented no evidence that Johnson resided with the sister; in fact the evidence was uncontradicted that Johnson did not reside with her but resided elsewhere, and only occasionally spent the night at this apartment. A witness testified only that Johnson had been at the apartment “in days prior” to the search.

Mere presence at the time and place a crime is committed is insufficient to sustain a conviction. The State must provide evidence of a connection linking the defendant to the contraband other than his mere spatial proximity. Carthern v. State defined that connection as follows:

A connection can be made between a defendant and contraband found in his presence by evidence which shows that the contraband was discovered on premises occupied and controlled by the defendant with no right of equal access and control in others. Such occupation and control may be inferred when the accused is the owner or tenant of the premises upon which the illicit drugs are discovered. However, a mere occupant, as distinguished from a resident, does not necessarily have the requisite control over the premises to authorize the inference that he possesses all property found thereon. If such were the case, a person’s mere presence at the scene of the discovery of illegal drugs would authorize his conviction, and that plainly is not the law.

Evidence merely showing that contraband was found in a residence occupied by the defendant is simply insufficient to support a conviction, especially where other persons had equal access to the contraband and therefore an equal opportunity to commit the offense.

Here the evidence showed that others were present at the residence, and that at most Johnson was a mere temporary occupant of the premises, with no evidence showing he had any control over the premises or that he had any connection to the rooms where the cocaine was found. Evidence of occasional or even frequent visits to a residence cannot alone constitute occupying and controlling the residence. The presence of the children at the residence and the indications the room was occupied by children further distance Johnson from the bedroom in which the cocaine rocks were found. The State points to a cap found near the cassette player as evidence linking Johnson to the cocaine, but no evidence linked the cap to Johnson. Nor is there evidence showing Johnson had control over the bathroom where the matchbox was found.

Moreover, because no evidence showed Johnson was in actual possession of the cocaine, the State relied upon circumstantial evidence to show constructive possession. To sustain a conviction based on circumstantial evidence the proved facts must not only be consistent with the hypothesis of guilt, but must also exclude every other reasonable hypothesis. Here evidence showed that Johnson and several other people were outside the apartment the day the drugs were found, and that the drugs were found in a bedroom obviously occupied by the sister’s children. No evidence linked Johnson to the three rocks of cocaine, to the matchbox, or to the bedroom or bathroom in which these were found; thus, the evidence did not exclude the hypotheses that the drugs belonged to the sister, or to the children, or to any of the others present at the apartment. Under OCGA § 24-4-6, the conviction cannot stand.

Decided August 17, 2000.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Judgment reversed.

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

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

        Reese v. State, 157 Ga. 766 (122 SE 195) (1924); Sweat v. State, 119 Ga. App. 646 (1) (168 SE2d 654) (1969).

        Francis v. State, 231 Ga. App. 112, 113 (1) (497 SE2d 827) (1998).

       238 Ga. App. 670, 672 (2) (519 SE2d 490) (1999) (quoting Morris v. State, 161 Ga. App. 141, 143-144 (5) (288 SE2d 102) (1982)).

        Ellison v. State, 233 Ga. App. 637, 639 (2) (504 SE2d 779) (1998).

       See Francis, supra, 231 Ga. App. at 113 (1) (no evidence connected defendant to bedroom where marijuana was found).

        Morrison v. State, 220 Ga. App. 151, 153 (1) (469 SE2d 686) (1996).

       See Diggs v. State, 234 Ga. App. 335, 336-337 (506 SE2d 683) (1998) (State presented no evidence linking defendant to footprints found near drugs).

       OCGA § 24-4-6; Ellison, supra, 233 Ga. App. at 639 (2); accord Paden v. State, 216 Ga. App. 188, 189 (1) (453 SE2d 788) (1995).

        Ridgeway v. State, 187 Ga. App. 381, 382 (370 SE2d 216) (1988) (no evidence linked defendant to the particular cocaine found in bedroom and kitchen).

        Brookins v. State, 202 Ga. App. 759-760 (415 SE2d 674) (1992) (whole court) (no evidence linking defendant to suitcase in which drugs were found).

       See Diggs, supra, 234 Ga. App. at 336 (State presented no evidence connecting defendant to room where drugs were found, to the residence, or to the contraband); Paden, supra, 216 Ga. App. at 190 (1) (evidence did not connect defendant to drugs where others also had access).


author: Blackburn, Presiding Judge.

text:
    A99A0819.
    BROWN et al. v. WALTON ELECTRIC MEMBERSHIP CORPORATION.
    (538 SE2d 508)
    Decided August 18, 2000.

      McArthur & McArthur, John J. McArthur, Charles E. Auslander III, for appellants.

      Lambert & Roffman, M. Joseph Reitman, Jr., for appellee.
   Blackburn, Presiding Judge.

In Brown v. Walton Elec. Membership Corp., 272 Ga. 453 (531 SE2d 712) (2000), the Supreme Court reversed this Court’s opinion in Brown v. Walton Elec. Membership Corp., 238 Ga. App. 347 (518 SE2d 727) (1999). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own. The judgment is reversed.

Judgment reversed.

Barnes and Ellington, JJ, concur.


author: Ruffin, Judge.

text:
    A00A0922.
    BURTON v. COMPOSITE STATE BOARD OF MEDICAL EXAMINERS.
    (538 SE2d 501)
   Ruffin, Judge.

Physician Charles H. Burton filed a complaint seeking, among other things, a declaratory judgment as to whether a rule of the Composite State Board of Medical Examiners prohibited him from providing medical treatment to his wife if he also engaged in a sexual relationship with her. The trial court dismissed the complaint on the grounds that a ruling on this question would be an advisory opinion. Burton appeals. Because the trial court ruled correctly, we affirm.

The record shows that, on May 13, 1998, the Board initiated disciplinary proceedings against Burton, accusing him of engaging in acts of sexual intimacy with a patient — other than his wife — in violation of Board Rule 360-2-.09 (i). That rule provides that

[t]he Board has the authority to . . . discipline a physician licensed in Georgia if that physician has engaged in unprofessional conduct. For the purpose of the implementation and enforcement of this rule, unprofessional conduct is as, but not limited to, practicing in or aiding the following: . . . Commission of any act of sexual intimacies, abuse, misconduct or exploitation related to the licensees’ practice of medicine.

Acting through the Office of State Administrative Hearings, the Board served Burton with notice that a hearing would be held before an administrative law judge to resolve the matter. Burton and the Board tried to settle the matter without a hearing, but apparently failed.

Burton then filed a complaint for declaratory judgment against the Board in superior court, alleging that Rule 360-2-.09 (i) was unconstitutionally vague, overbroad, and unreasonable. Burton sought “a declaration of his rights and the lawful obligations and responsibilities of the State” with respect to Rule 360-2-.09 “in order that he may be able to properly defend himself’ in the administrative proceeding. The Board moved to dismiss the complaint, arguing that the rights of the parties had already accrued due to the administrative action and that Burton did not face the risk of future harm.

After the Board filed the motion to dismiss, Burton amended his complaint to add an allegation that he did not know whether Rule 360-2-.09 (i) would prohibit him from providing medical treatment to his wife if he also engaged in sexual intimacies with her. Accordingly, Burton also sought a declaratory judgment to answer that question.

After holding a hearing on the matter, the trial court granted the Board’s motion to dismiss. As to Burton’s claims regarding the administrative disciplinary action, the court ruled that Burton had to exhaust his administrative remedies before pursuing a declaratory judgment and that his constitutional claims could be raised in the administrative proceeding and reviewed by a superior court following an adverse final agency decision. As to Burton’s claims regarding his wife, the court ruled that there was no evidence that the Board intended to prosecute Burton for rendering medical treatment to his wife, so any ruling on that issue would be an advisory opinion and would usurp the right of the Board to interpret its own rules.

On appeal, Burton argues that the trial court erred by dismissing his amended declaratory judgment complaint challenging the validity of Rule 360-2-.09 (i) as it relates to potential medical treatment of his wife. We agree with the trial court that a ruling on this issue would be an impermissible advisory opinion.

The Declaratory Judgment Act is intended “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Declaratory relief is not available unless there is an actual, justiciable controversy between the parties. The controversy cannot be merely “hypothetical, abstract, academic or moot.” As our Supreme Court has ruled,

[flor a controversy to justify the making of a declaration, it must include a right claimed by one party and denied by the other, and not merely a question as to the abstract meaning or validity of a statute. There can be no justiciable controversy unless there are interested parties asserting adverse claims upon a state of facts which have accrued.

“Declaratory judgment will not be rendered based on a possible or probable future contingency” because such a ruling would be “an erroneous advisory opinion.”

Applying these principles here, we conclude that declaratory relief is not available. Burton has not alleged that he is currently providing medical treatment to his wife, or that he plans to provide such treatment in the future, or even that he wants to do so. Moreover, there is no evidence that the Board has interpreted or would interpret Rule 360-2-.09 (i) to preclude a physician from rendering medical care to a spouse. And, as Burton’s attorney conceded in the trial court, there is no indication that the Board has sought to discipline Burton — or any other physician — for doing so. Thus, the issues raised in Burton’s amended complaint are purely hypothetical. As there is no justiciable controversy, any judicial ruling on the proper construction or constitutionality of Rule 360-2-.09 (i) with respect to the provision of medical treatment to a spouse would be merely advisory.

Burton argues that his complaint is authorized by OCGA § 50-13-10 (a), which provides:

The validity of any [agency] rule . . . may be determined in an action for declaratory judgment when it is alleged that the rule ... or its threatened application interferes with or impairs the legal rights of the petitioner. A declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule ... in question.

Under that statute, “the state has consented to suit in actions alleging necessity of a declaratory judgment on validity of rules of state agencies.” Even so, declaratory judgment actions brought under § 50-13-10 “shall be in accordance with Chapter 4 of Title 9, relating to declaratory judgments.” Thus, the requirement remains that there must be a justiciable controversy between the parties. Put another way, § 50-13-10 does not allow advisory opinions; it simply permits the State to be sued in an otherwise proper declaratory judgment action involving the validity of an agency rule.

Because there was no justiciable controversy here, the trial court properly dismissed Burton’s amended complaint.

Decided August 18, 2000.

George W. McGriff, Eric E. Wyatt, for appellant.

Bodker, Ramsey & Andrews, Stephen C. Andrews, Thurhert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Janet B. Wray, Senior Assistant Attorney General, Emily P. Hitchcock, Wendy Goodwin, Assistant Attorneys General, for appellee.

Judgment affirmed.

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

       Ga. Admin. Code Rule 360-2-.09 (i).

       After Burton filed a petition in superior court to enforce a tentative settlement agreement between the parties, the court stayed the administrative proceedings.

       Burton does not appeal the court’s dismissal of his original complaint challenging the validity of the rule as it relates to the pending administrative proceeding.

       OCGA § 9-4-1.

       OCGA §.9-4-2 (a); Baker v. City of Marietta, 271 Ga. 210, 213 (1) (518 SE2d 879) (1999).

       (Punctuation omitted.) Bd. of Trustees &c. v. Kenworthy, 253 Ga. 554, 557 (322 SE2d 720) (1984).

       (Citation omitted.) Pilgrim v. First Nat. Bank &c., 235 Ga. 172, 174 (219 SE2d 135) (1975).

       (Punctuation omitted.) Baker, supra at 215.

       Burton has alleged that he has provided medical treatment to his wife in the past.

       Compare Thomas v. Ga. Bd. of Dentistry, 197 Ga. App. 589 (398 SE2d 730) (1990) (dentist could properly bring declaratory judgment action where attorney general had issued opinion that certain procedures performed by dentist were unlawful; dentistry board had adopted the opinion; and board had sent dentist a letter advising that “future performance of any of the enumerated procedures would be viewed as grounds for . . . the initiation of administrative proceedings against your license to practice dentistry in this state”) (punctuation omitted),

        Ga. State Bd. of Dental Examiners v. Daniels, 137 Ga. App. 706, 707 (1) (224 SE2d 820) (1976).

       OCGA § 50-13-10 (c).

       In light of our decision, we need not address Burton’s second enumeration of error or the Board’s motion to dismiss that enumeration.


text:
    A00A0942.
    WEBER AIR CONDITIONING, INC. v. TRIPLE-R POOLER, INC. et al.
    (538 SE2d 499)
   Ruffin, Judge.

Weber Air Conditioning, Inc. (Weber) attempted to enforce a materialman’s lien against property owned by Triple-R Pooler, Inc. and Tri-Rivers Foods, L.P. (collectively Pooler). Pooler sued to have the lien canceled, arguing that Weber’s failure to properly file notice of suit as required by OCGA § 44-14-361.1 (a) (3) rendered the lien unenforceable. The trial court granted Pooler’s motion for summary judgment, and Weber appeals. For reasons that follow, we affirm.

The undisputed facts establish that Weber was a subcontractor for D & M Contractors, Inc., which was building a fast food restaurant on Pooler’s property. When D & M Contractors allegedly did not pay Weber, Weber filed a materialman’s claim of lien against Pooler’s property in the amount of $27,154. On July 30,1997, Weber sued D & M to recover the $27,154. On August 1, 1997, in accordance with OCGA § 44-14-361.1 (a) (3), Weber filed a Notice of Lien Foreclosure against Pooler. The notice, however, did not comply with the requirements set forth in that Code section. Thus, on August 27, 1997, Weber voluntarily dismissed the original complaint and then refiled its complaint along with an amended Notice of Lien Foreclosure.

On May 12, 1999, Pooler brought suit against Weber seeking to have the lien canceled. According to Pooler, Weber’s failure to perfect its notice following the filing of its first complaint served to extinguish the lien. Thus, Pooler asserted, Weber’s claim of lien was “invalid, void, and unenforceable.” The trial court agreed, concluding that the incorrect information in the first notice invalidated the lien as a matter of law. We agree with the trial court.

Under OCGA § 44-14-361.1 (a), liens “must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable.” “The lien comes into potential existence only when the statute is satisfied, and if there is a failure to satisfy the statute, the lien is inoperative.”

OCGA § 44-14-361.1 (a) (3) requires the party claiming the lien to file a notice of lien within 14 days of filing a claim to recover the amount of the lien. The notice must

contain a caption referring to the then owner of the property against which the lien was filed and referring to a deed or other recorded instrument in the chain of title of the affected property. . . . The notice shall identify the court wherein the action is brought; the style and number of the action, including the names of all parties thereto; the date of the filing of the action; and the book and page number of the records of the county wherein the subject lien is recorded.

Here, Weber acknowledges that in the first notice it filed, it failed to include all of the information required under OCGA § 44-14-361.1. Accordingly, the lien was rendered unenforceable, as “failure to comply with the statute extinguished [Weber’s] right to a lien against the real estate.”

Weber contends that, by refiling the complaint along with an amended notice, it should still be permitted to enforce the lien. Contrary to Weber’s contention, however, the subsequently filed action “could not breathe new life into the extinguished right to a lien so as to give the materialman another bite at the apple it had missed on its first bob.”

Finally, Weber argues that the cases that hold that failure to comply with the lien statute extinguishes the lien do not apply. According to Weber, those cases do not involve an attempt to file an amended notice within the applicable statute of limitation. Weber fails to recognize, however, that the time the second notice is filed is not at issue. As the Supreme Court makes clear, a materialman seeking to enforce a lien has but one bite at the apple. By failing to make the most of that one opportunity, Weber is precluded from enforcing the lien. Although, as we have noted, this result seems harsh, “it is consistent both with the requirements of the lien statute . . . and with the longstanding principle that statutes involving material-man’s liens must be strictly construed in favor of the property owner and against the materialman.” As Weber’s lien was unenforceable, the trial court did not err in granting Pooler’s motion for summary judgment.

Decided August 18, 2000

Karsman, Brooks & Callaway, Stanley E. Harris, Jr., for appellant.

McCorkle, Pedigo & Johnson, David H. Johnson, Amy E. Edgy, for appellees.

Judgment affirmed.

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

       Tri-Rivers, the original owner of the property, entered into the contract with D & M Contractors. Tri-Rivers apparently sold the property to Triple-R Pooler, Inc.

       Weber obtained a default judgment against D & M Contractors, but apparently has been unable to collect the judgment.

       (Punctuation omitted.) Metromont Materials Corp. v. Cargill, Inc., 221 Ga. App. 853, 854 (473 SE2d 498) (1996).

       OCGA § 44-14-361.1 (a) (3) also requires that the notice be made under oath, but failure to fulfill this requirement is an amendable defect.

       Specifically, the notice did not list the correct property owner, the correct defendant to the suit, or the correct book and page number where the lien was recorded.

        Palmer v. Duncan Wholesale, 262 Ga. 28, 31 (2) (413 SE2d 437) (1992).

       (Punctuation omitted.) Metromont, supra at 855.

       See Palmer, supra. See also Consolidated Systems v. Amisub, Inc., 261 Ga. 590, 591 (1) (408 SE2d 109) (1991) (defective notice renders lien unenforceable).

         See Gwinnett-Club Assoc. v. Southern Elec. Supply Co., 242 Ga. App. 507, 509-510 (529 SE2d 636) (2000) (when notice not filed, claim of lien is lost).

        Metromont, supra.


text:
    A00A1146.
    CACONI CANDY & GUM, INC. v. CURTIS PRODUCTS COMPANY, INC.
    (538 SE2d 497)
   Ruffin, Judge.

CaCoNi Candy & Gum, Inc. sued the Curtis Products Company, Inc. in November 1997 for breach of contract. On February 8, 1999, CaCoNi filed a “Notice of Bankruptcy Filing and Automatic Stay,” asserting that an involuntary bankruptcy petition had been filed against Curtis Products in January 1997. On October 18, 1999, the trial court dismissed CaCoNi’s complaint for want of prosecution after CaCoNi failed to appear for trial on September 21, 1999. CaCoNi appeals, asserting that the dismissal violated the automatic stay in Curtis Products’ bankruptcy case. Because CaCoNi failed to present any evidence that an automatic stay was in effect with respect to Curtis Products, we affirm.

In its Notice of Bankruptcy Filing, CaCoNi asserted that an involuntary bankruptcy petition had been filed against Curtis Products on or about January 29, 1997. CaCoNi did not, however, attach any notice from the bankruptcy court showing that such a petition had been filed. Instead, it attached a letter purporting to be from the trustee in a bankruptcy case involving Curtis Candy Company. In its complaint, CaCoNi had alleged that Curtis Products was the “alter ego” of Curtis Candy, while in its Notice of Bankruptcy Filing it referred to Curtis Candy as a “sister company” of Curtis Products. The letter from the trustee, however, indicated that Curtis Candy and Curtis Products were separate corporations, and that Curtis Products’ assets were not part of the bankruptcy estate. Although the bankruptcy was allegedly filed almost ten months before CaCoNi’s complaint, there is no indication in the record that Curtis Products ever claimed entitlement to the automatic stay.

The burden is on the appellant to show error affirmatively by the record. “[W]here the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.” In order to show that the trial court erred, CaCoNi would have to demonstrate, at a minimum, that (1) an automatic stay was actually in place when the trial court dismissed the complaint, and (2) the automatic stay prevented prosecution of the claim against Curtis Products. Neither of these is shown by the meager record CaCoNi requested be forwarded on appeal. Apart from the bare assertion by CaCoNi in its Notice of Bankruptcy Filing, there is absolutely no indication in the record that Curtis Products was ever the debtor in a bankruptcy proceeding, and even the bare assertion is belied by the attached document showing that the debtor was actually Curtis Candy. Assuming that an involuntary petition had been filed against Curtis Candy, there is absolutely no evidence that the automatic stay would operate to preclude prosecution of a claim against Curtis Products. And finally, even assuming that a bankruptcy proceeding was initiated in January 1997, as CaCoNi asserts, and that the automatic stay would extend to claims against Curtis Products, there is no evidence that the case was still open more than two and a half years later, when the trial court dismissed CaCoNi’s lawsuit. In short, CaCoNi has wholly failed to carry its burden of showing error by the record. Accordingly, the trial court’s order is affirmed.

Decided August 18, 2000.

Ana M. Rountree, Mason B. Rountree, for appellant.

Bird & Associates, Jeffrey L. Pombert, for appellee.

Judgment affirmed.

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

       CaCoNi specifically requested that almost the entire record be omitted from the record on appeal, including Curtis Products’ answer and numerous motions. The list of omitted documents contains no indication that Curtis Products claimed the benefit of the automatic stay.

        In the Interest of M. J. B., 238 Ga. App. 833, 834 (1) (520 SE2d 497) (1999).

       (Punctuation omitted.) Clark v. State, 240 Ga. App. 303 (523 SE2d 388) (1999).

       We note that CaCoNi’s argument is not that it is improper under state law to dismiss a claim for failure to prosecute when such prosecution is barred by the automatic stay. Rather, the gist of CaCoNi’s argument is that the dismissal itself constitutes a violation of the automatic stay. We need not address this issue, however, since CaCoNi has not shown that an automatic stay was in effect with respect to the claim at issue.

       We note that Curtis Products failed to file an appellee’s brief. However, this does nothing more than admit the appellant’s statement of facts, “which so far as they are supported by the record, this court may accept as being prima facie true.” (Emphasis supplied.) Montford v. State, 164 Ga. App. 627, 628 (298 SE2d 319) (1982). CaCoNi’s meager statement of facts does not appear to distinguish between Curtis Products and Curtis Candy, and the record citations provided do not show that Curtis Products was ever the debtor in a bankruptcy proceeding.

       CaCoNi does not even make such an argument on appeal.

       The trustee’s letter, which was dated more than eight months before the dismissal in this case, purported to forward a report of no distribution to the United States Trustee. The documents that CaCoNi asked the clerk to omit from the appellate record indicate that two status conferences were held on April 6 and September 21,1999, well after CaCoNi filed the notice of the purported bankruptcy, although there is no indication of what transpired at those conferences.


text:
    A00A1166.
    LEGG v. STOVALL TIRE & MARINE, INC.
    (538 SE2d 489)
   Ruffin, Judge.

Stovall Tire & Marine, Inc. (Stovall Marine) sued Robert Legg for a commission Legg allegedly owed under a brokerage contract. Rejecting Legg’s argument that no valid contract existed between the parties, the trial court granted summary judgment to Stovall Marine. Legg appeals, and we reverse because genuine issues of material fact preclude summary judgment.

Construing the facts and all inferences therefrom most favorably to Legg, the record shows that, in February 1997, Legg contacted Jon Stovall, a sales representative at Stovall Marine, and asked for help in selling his boat. Stovall told Legg that he thought the boat could be sold for $91,500, and he faxed Legg one of Stovall Marine’s standard brokerage agreements.

The agreement provided that Legg would place the boat “on consignment” with Stovall Marine for a period of 90 days and that, if Stovall Marine sold the boat, it would pay Legg $91,500. Paragraph Five of the agreement stated that Stovall Marine would receive a 15 percent commission if Legg sold the boat during the 90 day period without Stovall Marine’s help: “During the consignment period stated above Stovall Tire & Marine, Inc. is rendering a valuable service and shall receive 15% of the gross sales price as commission if the sale is originated from parties other than Stovall.” The agreement contained a blank space for the signature of the owner (Legg), as well as blank spaces for “Mgr. Approval” and “Listing Agent.” Legg crossed through Paragraph Five of the agreement, then signed it and returned it to Stovall Marine. No one from Stovall Marine ever signed the agreement.

According to Legg, he spoke with Jon Stovall approximately two weeks later, and Stovall told him that Stovall Marine would not honor the agreement because “the price was too high and the agreement had not been accepted or signed by his manager, and the agreement was not binding until it had been both accepted and signed by his manager.” Legg therefore placed the boat for sale at another company, Holiday Marina.

Legg received no offers for the boat, so in May 1997 he called Jon Stovall back to negotiate a new agreement. Stovall said that Stovall Marine would accept Legg’s boat and would give Legg $83,500 if Stovall Marine sold it. He faxed Legg a new standard brokerage agreement which was identical to the previous one, except for the date and amount to be paid to Legg upon sale. Legg signed the new agreement and returned it to Stovall Marine. This time, Legg did not cross out Paragraph Five. However, no one from Stovall Marine ever signed the new agreement.

After signing and returning the second agreement, Legg took his boat to Stovall Marine,’ which cleaned and repaired it. Several days after Legg brought in the boat, he received a call from David Lyle, who said he had seen the boat at Holiday Marina and was interested in buying it. According to Legg,

I immediately contacted [Jon Stovall] to let him know that I had a potential buyer who had seen the boat before my renewed discussions with Stovall Marine, and that ... I would pursue the sale, until such time as I received a copy of the agreement, signed by a manager at Stovall Marine, showing Stovall Marine’s acceptance of the agreement.

But Legg never received a copy of the second agreement signed by anyone at Stovall Marine, and neither Stovall nor anyone else ever told him that Stovall Marine had accepted the second agreement.

Lyle agreed to buy the boat from Legg, who instructed Stovall Marine to release it. Stovall Marine then demanded that Legg pay it 15 percent of the sales price pursuant to Paragraph Five of the second agreement. When Legg refused, Stovall Marine sued him for breach of contract. Stovall Marine moved for summary judgment, and the trial court granted the motion without explanation.

Legg argues that genuine issues of fact remain as to whether a valid contract existed between the parties. Specifically, Legg contends that there is evidence that Stovall Marine never assented to the second agreement. We agree.

A binding contract exists only where both parties have assented to all the terms. In determining whether there was a mutual assent,

courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party’s manifestations of assent, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent.

In some cases, the only evidence of the parties’ intent is the express language of the contract. But in other cases, such as this one, “the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement.” Where such extrinsic evidence exists and is disputed, the question of whether a party has assented to the contract is generally a matter for the jury.

Although no one from Stovall Marine ever signed the May agreement, “[a]ssent to the terms of a contract may be given other than by signatures.” Stovall Marine contends that it indicated its assent to the agreement by accepting, cleaning, and repairing Legg’s boat. Legg, however, argues that the course of dealing between the parties shows that Stovall Marine never assented to the agreement. According to Legg, Jon Stovall told him that the first agreement, which Legg signed and returned in February, was not binding because it had not been “both accepted and signed by his manager.” In addition, Stovall testified during his deposition that a manager’s approval is required for acceptance of a brokerage agreement. The fact that there were signature blocks in the agreement for the Stovall Marine listing agent and manager approval also tends to show that the agreement was not intended to be binding until it was signed by Stovall Marine.

Decided August 18, 2000.

Merritt & Tenney, David E. Spalten, Leon P. Hudgins, for appellant.

Albert B. Wallace, Stephen B. Wallace II, Thomas J. Smith, Jr., for appellee.

Legg maintains that after Lyle contacted him about the boat, Legg called Stovall and told him that he would pursue the sale until he received a copy of the May agreement signed by a manager at Stovall Marine indicating acceptance of the agreement. It is undisputed that no one from Stovall Marine ever signed the second agreement. From this evidence, a jury could conclude that Stovall Marine had not, in fact, accepted the May agreement and that no contract existed between the parties. In light of this disputation of fact, summary judgment was inappropriate.

Judgment reversed.

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

       In ruling on a motion for summary judgment, the court should give the nonmoving party the benefit of all reasonable doubt and should construe the evidence and all inferences and conclusions therefrom most favorably toward the nonmoving party. McDuffie v. Argroves, 230 Ga. App. 723, 724 (1) (497 SE2d 5) (1998).

       OCGA §§ 13-3-1; 13-3-2.

        Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d 733) (1982).

       Id.

       See, e.g., Danfair Properties v. Bowen, 222 Ga. App. 425, 426 (474 SE2d 295) (1996) (fact that defendant contested whether there was “meeting of the minds” on material contract term “required that the issue be presented to the jury”); Re/Max Specialists v. Kosakai, 202 Ga. App. 871, 872 (415 SE2d 698) (1992) (summary judgment inappropriate where “[t]he issue of whether a valid written contract existed is crucial to the resolution of this case and the evidence is in total conflict as to whether the writing in issue is such a contract”).

        Cochran v. Eason, 227 Ga. 316, 318 (1) (180 SE2d 702) (1971).

       Stovall Marine argues that the February agreement that Legg signed and returned to Stovall Marine was a counteroffer because Legg struck through Paragraph Five. Thus, Stovall Marine argues that Jon Stovall’s alleged statement that a manager’s approval was required to make the agreement binding only shows that managerial approval is needed to accept a counteroffer, not to indicate assent to a contract. This is hypertechnical. Assuming Legg is telling the truth, the question is whether a reasonable person in Legg’s position could have believed from Stovall’s alleged statement that managerial approval was required to indicate assent, and the answer to that question is yes.

       See Century 21 Pinetree Properties v. Cason, 220 Ga. App. 355, 356 (2) (a) (469 SE2d 458) (1996) (reversing grant of summary judgment where there were “genuine issues of material fact as to whether Century 21 is a party to the contract even though it did not sign the document”).


text:
    A00A1466, A00A1467.
    HELMER et al. v. RUMARSON TECHNOLOGIES, INC. (two cases).
    (538 SE2d 504)
   Blackburn, Presiding Judge.

Robert E. Helmer a/k/a Bob Helmer and Percy Helmer, Jr. appeal the trial court’s orders in which it granted plaintiff Rumarson Technologies, Inc.’s (RTI) motion for summary judgment, denied the Helmers’ motion for summary judgment, and awarded damages to plaintiff on the underlying suit on an account and for bad check charges. The issue presented on appeal is whether an authorized signatory on a corporate account can be held personally liable for corporate checks returned for insufficient funds. Because this issue is controlled adversely to RTI by our decision in Peterson v. Holtrachem, Inc., we reverse.

On appeal from the grant of a motion for summary judgment, we review the evidence de novo, with all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp. Additionally, summary judgment is proper only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

The relevant facts are not in dispute. The Helmers, as authorized signatories on the corporate account of Event Marketing, Inc., signed a check drawn on Event Marketing’s account issued to RTI in the amount of $24,965. The check was dated August 14, 1998, although there was evidence presented that the check was actually signed on or around July 13, 1998. The check was dishonored at the bank due to insufficient funds. Thereafter, RTI filed the underlying complaint to collect the amount owed from the Helmers personally.

The trial court relied upon Kolodkin v. Cohen, in granting RTI’s motion for summary judgment which held the Helmers personally liable on Event Marketing’s check. In Kolodkin, this Court construed an earlier version of OCGA § 11-3-403. Therein, the Court found that, in 1995, an individual signing a check drawn on a business account could be personally liable if the check was not honored by the bank. However, the present case is controlled by our recent decision in Peterson, supra, which construed the 1996 amendments to the Commercial Code:

[T]he revised statute [OCGA § 11-3-402 (c)] has the exact opposite effect of the previous statute in that it codifies the rule that an authorized representative is not personally liable when he or she signs a negotiable instrument on behalf of the represented entity, even if the instrument does not indicate on its face that it is being signed in a representative capacity.

Decided August 18, 2000.

Fine & Block, Kenneth I. Sokolov, for appellants.

Stokes, Lazarus & Carmichael, Marion B. Stokes, Mary E. Lysak, for appellee.

(Emphasis in original.) Id. at 840.

RTI asserts that Peterson is inapplicable because it was decided after the check was written and dishonored, and after the trial court’s order. The statute, however, was amended in 1996, and it is applicable to the present case as the check was written in 1998. Furthermore, we must apply the law as it exists at the time of our judgment, not as it existed at the time of the trial court’s determination. See Sharfuddin v. Drug Emporium. Therefore, not only does Peterson apply, it controls the outcome of this case.

The trial court erred in granting summary judgment to RTI and in denying the Helmers’ motion for summary judgment.

Judgments reversed.

Eldridge and Barnes, JJ, concur.

        Peterson v. Holtrachem, Inc., 239 Ga. App. 838 (521 SE2d 648) (1999).

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

        Kolodkin v. Cohen, 230 Ga. App. 384 (496 SE2d 515) (1998).

        Sharfuddin v. Drug Emporium, 230 Ga. App. 679 (1) (498 SE2d 748) (1998).


author: Andrews, Presiding Judge.

text:
    A00A1498.
    PECK v. THE STATE.
    (538 SE2d 505)
   Andrews, Presiding Judge.

Timothy Peck appeals from the judgment entered after a jury found him guilty of theft by taking a truck from the lot of a trucking company, criminal damage to property, driving under the influence, driving while license suspended, and obstruction of officers. We affirm in part and reverse in part.

The evidence at trial, taken in the light most favorable to the verdict, was as follows. Peck’s ex-wife, Kelly Cole, testified that she called 911 on the night the truck was stolen and said that Peck had been drinking and threatened to steal a truck and come after her. Earlier, Cole had taken Peck to a convenience store and, instead of waiting for Peck to come out, left him there.

At trial, however, Cole said she lied about Peck stealing a truck because she thought the police would not come if she simply said she was afraid of him.

An officer from the Sheriff’s Department testified that when he responded to Cole’s 911 call, she told him that Peck was going to go down to Simpson Trucking Company and “get a truck.” While he was at Cole’s house, the officer got a call about another disturbance, and when he went to investigate, found a Simpson Trucking Company truck on the side of the road. The truck had some damage to the front end, and another officer said that when he pulled up beside the truck, he saw someone run away. Officers also confirmed that there was a hole in the fence at Simpson Trucking and it appeared that a truck was missing from the lot. The chain link fence around the trucking company lot had a hole in it consistent with someone driving a truck through it, and there were parts that appeared to have broken off some vehicle lying by the hole in the fence.

When officers searched the area around the truck, they found Peck running through the woods and arrested him. Peck was about 100 yards from the truck when officers caught him. Officers testified that Peck had a strong odor of alcohol about him.

1. The evidence was sufficient to support the guilty verdicts on the charges of theft by taking, criminal damage to property, driving while license suspended, and obstruction of officers.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence; moreover [,] an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) [(1991)]; King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) [(1994)].

Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995).

But, there was insufficient evidence to convict Peck of DUI. Peck was charged with driving under the influence under OCGA § 40-6-391 (a) (1), which provides that a person shall not drive a motor vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive. Under this Code section, “impaired driving ability is an element of the crime that the state must prove to obtain a conviction.” Kevinezz v. State, 265 Ga. 78, 79 (2) (454 SE2d 441) (1995). In this case, no one saw Peck drive the truck. The officer stated that the truck was found off the roadway in some bushes. Although there was evidence of damage to the truck, there was also testimony that the truck had been driven through the fence around the lot at Simpson Trucking Company. Therefore, because there was no testimony or other evidence about Peck’s manner of driving or ability to drive, the evidence was insufficient to support the verdict on the DUI count. See Davis v. State, 206 Ga. App. 647, 649 (426 SE2d 267) (1992); Clay v. State, 193 Ga. App. 377, 378 (387 SE2d 644) (1989).

2. Next, Peck contends the trial court erred in denying his motion for mistrial after an officer impermissibly placed his character into evidence. This incident occurred when the prosecutor asked an officer if there was anything peculiar about Peck’s appearance or mannerisms. The officer replied, “I mean, he was very dirty, had a lot of dirt and mud on him. He was saying a lot of stuff that he was — he was doped up, he’d been taking drugs.” Defense counsel objected to this statement saying the State had not produced evidence of this statement before trial. The prosecutor replied that the testimony was a surprise to him also and he did not intend to elicit that response.

The court denied the motion for mistrial and asked defense counsel if there was anything further he wanted to say. At that point, counsel withdrew his request to have the jury instructed to disregard the statement or to have it stricken from the record. Nevertheless, the judge offered to give the jury curative instructions to the effect that any statements made by the deputy about what Peck said to him that night were not evidence and should be “stricken not only from the record but stricken from their mind.” Counsel again rejected any curative instructions.

Where a witness for the State in a criminal case voluntarily injects into the trial improper and prejudicial matter, on motion for a mistrial based thereon, whether mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing testimony from the consideration of the jury under proper instructions, is a matter ordinarily in the discretion of the trial court.

(Citations and punctuation omitted.) Crawford v. State, 256 Ga. 585, 587 (2) (351 SE2d 199) (1987).

Here, defense counsel never requested that the trial court give any curative instructions to the jury regarding this testimony. “Where the objection to the prejudicial matter is sustained, . . . the court has no duty to rebuke counsel or give curative instructions unless specifically requested by the defendant.” Woodham v. State, 263 Ga. 580 (1) (a) (439 SE2d 471) (1993). Further, we find no abuse of discretion in the trial court’s decision to deny Peck’s motion for mistrial because this testimony was not so prejudicial as to warrant the declaration of a mistrial. Id. at 581 (1) (b).

Decided August 18, 2000.

Turner & Willis, Christopher W. Willis, for appellant.

Timothy P. Peck, pro se.

Lydia J. Sartain, District Attorney, Richard A. Vandever, Assistant District Attorney, for appellee.

3. Peck also claims the trial court erred in giving the jury charge on DUI. In light of our reversal of the conviction on the DUI count, we need not address this enumeration.

Judgment affirmed in part and reversed in part.

Ruffin and Ellington, JJ., concur.


author: Eldridge, Judge.

text:
    A00A1596.
    BRASWELL v. THE STATE.
    (538 SE2d 492)
   Eldridge, Judge.

A Laurens County jury found Jeffery Lamar Braswell guilty of aggravated assault, robbery, and theft by taking — motor vehicle, which charges arose from a 1996 incident in which Braswell and his brother beat and kicked the victim, took the victim’s ring and wallet, and stole the victim’s 1994 Nissan Altima; as a result of the assault, the victim suffered three broken ribs, a punctured lung, and severe lacerations to the head. Braswell appeals, raising seven claims of error, including ineffective assistance of trial counsel. After review of the alleged errors, we affirm Braswell’s conviction.

1. Braswell challenges the sufficiency of the evidence as to the aggravated assault. He first claims that, because the victim’s testimony showed that Braswell’s brother beat the victim at the same time as Braswell, the evidence was insufficient to establish Bras-well’s guilt of aggravated assault beyond a reasonable doubt. This contention is meritless. The evidence showed the victim was assaulted by the men as described in the indictment, making both Braswell and his brother responsible as parties to the crime regardless of which man struck which blow.

Braswell also contends that the State failed to prove that Bras-well’s hands and feet were used against the victim as “deadly weapons” as charged in the indictment. This is a jury question, resolved adversely to Braswell. The injuries sustained by the victim supports the jury’s decision that Braswell used his hands and feet as “deadly weapons” in his assault of the victim. Under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient to convict Braswell of aggravated assault, as well as the other crimes charged.

2. Braswell contends that the trial court erred in permitting the State to cross-examine him about burning the victim’s car after he took it. We find his contentions meritless.

(a) Braswell elected to take the stand and present a justification defense to the aggravated assault charge; he claimed that, after a night of drinking together at a bar, the victim attacked him and Braswell hit the victim to protect himself. As to the charge of theft by taking, Braswell testified that, after the fight, he took the victim’s car because “[m]y truck was at the bar and I just wasn’t thinking clear, I reckon, just got in his car and drove it back to the bar.”

Once Braswell elected to take the stand and testify, he could be cross-examined as any other witness. Accordingly, the prosecution was permitted on cross-examination to fully explore Braswell’s taking of the victim’s car, including what he did with it after he took it since Braswell’s burning of the victim’s car reflected on his “intention of depriving [the victim] of the property.” OCGA § 16-8-2. “The State, like any other party, has the right to conduct a thorough and sifting cross-examination of a witness as to any material issue.”

(b) We also reject Braswell’s contention that his burning of the . victim’s car after taking it was inadmissible “other crimes” evidence. Such evidence did not show “another crime,” but was the culmination of a single continuous criminal transaction.

3. Braswell’s failure to object to the State’s closing argument waives his right to assert any alleged impropriety of that argument on appeal. Accordingly, we will not review Braswell’s third enumeration of error.

4. Braswell contends that he cannot be convicted and sentenced for the offenses of aggravated assault and robbery because the crimes merge as a matter of fact. Under the circumstances presented here, however, we do not agree. “While it is settled that aggravated assault is not included in robbery, armed robbery or attempted armed robbery as a matter of law, it may be included as a matter of fact.” The key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. For example, “[i]f one crime is complete before the other takes place, the two crimes do not merge.”

Here, the victim testified that Braswell and his brother attacked him, beating him about the head and face with their fists and hands. The victim then fell to the ground where Braswell and his brother then began to kick him in the ribs while the victim “asked them to quit beating on me.” The victim testified that he finally “played dead” in the hope that the two men would leave him alone. It was at this point — after the victim had been beaten, had fallen, had been kicked, and was lying on the ground as if dead — that Braswell and his brother removed the victim’s clothing, took the victim’s wallet, and removed the victim’s emerald ring. The victim testified that he “felt them taking my stuff off of me.” From the extent of the injuries the victim received; the fact that Braswell beat the victim until he fell and then started to kick the victim after the victim was already incapacitated; and the fact that the items were removed from the victim, not during the beating but after the victim appeared “dead,” the jury was authorized to conclude “that at least a portion of this violence was gratuitous and unconnected with the theft of the victim’s [wallet and ring].” In this case, then, “[t]he crimes do not merge as the assault was complete at the time [Braswell] took the [wallet and ring] from the [victim].” Under such circumstances, there was no error in failing to merge the offenses.

5. Braswell claims two errors during voir dire require reversal. On review, we do not agree.

(a) Braswell contends that the prosecutor asked improper questions on voir dire. However, if such errors occurred, Braswell waived them by failing to object. “To raise an issue as to error in the conducting of the voir dire, objection must be made in the trial court to preserve the issue for appeal.”

(b) Braswell did object during voir dire to the prosecutor’s description of an aggravated assault as an attempt to “beat somebody to death”; Braswell stated to the trial court that “He [prosecutor] needs to ask questions, Your Honor, that’s appropriate for voir dire, not to go into the case of this trial.” The trial court then, in accord with Braswell’s objection, instructed the prosecutor to ask questions and refrain from rereading and describing the crimes as alleged in the indictment. Thereafter, Braswell did not object to the trial court’s ruling, move for mistrial, or in any fashion attempt to preserve this issue for appellate review. As such, Braswell acquiesced in the court’s ruling, and any claim of error with regard thereto is waived.

6. Next, Braswell claims several instances of prosecutorial misconduct occurred during his cross-examination by the State. He contends that (a) the prosecutor continued to question him about burning the victim’s car after Braswell invoked his Fifth Amendment right against self-incrimination; and (b) the prosecutor made several allegedly improper comments about Braswell’s answers to the cross-examination questions posed. We find these contentions meritless.

(a) A defendant in a criminal case who voluntarily testifies in his own behalf waives his privilege under the Fifth Amendment.

Furthermore, when a defendant voluntarily takes the stand in his own behalf and testifies as to his guilt or innocence as to a particular offense, his waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing. His voluntary offer of testimony upon any fact is a waiver as to all other relevant facts because of the necessary connection between all.

As noted in Division 2 (a), supra, testimony regarding Braswell’s burning of the victim’s car was relevant and admissible. Accordingly, the prosecutor’s questions with regard thereto were not improper and form no basis for reversal.

(b) We have reviewed the other two comments by the prosecutor about which Braswell now complains. As to each, an objection and a motion for mistrial were interposed, the trial court instructed the prosecutor to refrain from making comments, and the prosecutor moved on. No further objection was registered, and renewal of the motion for mistrial was not made following the trial court’s ruling. A defendant dissatisfied with a trial court’s action on a motion for mistrial must renew the motion. The failure to do so amounts to a waiver.

7. Finally, Braswell claims that his trial counsel’s performance was so deficient that it deprived him of the effective assistance guaranteed by the Sixth Amendment. We disagree.

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense, that is, whether there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency.

Trial strategy and tactics do not equate with an ineffective assistance of counsel claim, and a trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

With these principles in mind, we have reviewed Braswell’s claims of defective performance in relation to the trial transcript and the testimony of his trial attorney at the motion for new trial. We find with regard to Braswell’s claims of defective performance that they either: (a) were not raised at the motion for new trial and are thus waived; (b) are substantively meritless as addressed in the Divisions above; (c) were the result of sound trial strategy as testified to by trial counsel during the hearing on the motion for new trial; (d) were decided adversely to Braswell by the trier of fact on a credibility basis; or (e) were not shown to have prejudiced Braswell’s defense so that there is a reasonable possibility that the outcome of the proceedings would have been different. As such, we cannot say the trial court’s finding that Braswell had been afforded effective assistance of counsel was clearly erroneous.

Decided August 18, 2000.

McLendon & Smith, Harold D. McLendon, Verna Smith, for appellant.

Ralph M. Walke, District Attorney, Trade J. Hobbs, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Markee v. State, 229 Ga. App. 644, 647 (4) (b) (494 SE2d 551) (1997).

        Dixon v. State, 268 Ga. 81, 82 (1) (485 SE2d 480) (1997). (“Although hands and feet are not considered per se deadly weapons within the meaning of OCGA § 16-5-21 (a) (2), the jury may find them to be so depending on the circumstances surrounding their use, including the extent of the victim’s injuries. [Cit.]”).

       OCGA § 24-9-20 (b); Scott v. State, 270 Ga. 93, 94 (507 SE2d 728) (1998).

        Wilkey v. State, 215 Ga. App. 354, 355 (450 SE2d 846) (1994).

        Beasley v. State, 269 Ga. 620, 623 (502 SE2d 235) (1998); Grace v. State, 262 Ga. 746, 747 (1) (425 SE2d 865) (1993).

        Mullins v. State, 270 Ga. 450, 451 (2) (511 SE2d 165) (1999); Ward v. State, 238 Ga. App. 540, 542 (2) (519 SE2d 304) (1999).

       (Citations omitted.) Hambrick v. State, 256 Ga. 148, 150 (4) (344 SE2d 639) (1986).

       (Citation and punctuation omitted.) Kellibrew v. State, 239 Ga. App. 783, 786 (4) (521 SE2d 921) (1999).

        Coaxum v. State, 146 Ga. App. 370, 371 (3) (246 SE2d 403) (1978); Woodson v. State, 242 Ga. App. 67, 69-70 (3) (530 SE2d 2) (2000); Taylor v. State, 202 Ga. App. 671, 672 (415 SE2d 483) (1992); Sylvester v. State, 168 Ga. App. 718 (2) (310 SE2d 284) (1983); compare Head v. State, 202 Ga. App. 209, 210 (2) (413 SE2d 533) (1991).

        Taylor v. State, 219 Ga. App. 475, 478 (4) (465 SE2d 473) (1995).

       (Citation and punctuation omitted.) Primas v. State, 231 Ga. App. 861, 862 (2) (501 SE2d 28) (1998).

        Griffin v. State, 241 Ga. App. 783, 786 (5) (527 SE2d 577) (2000).

        Carter v. State, 161 Ga. App. 734, 736 (3) (288 SE2d 749) (1982).

       (Citations, punctuation and emphasis omitted.) Hubbard v. State, 173 Ga. App. 127, 129 (7) (325 SE2d 799) (1984).

       At the hearing on the motion for new trial, Braswell’s trial attorney testified that he interposed objections during the prosecutor’s cross-examination as a strategy to break the rhythm of the prosecutor’s questioning.

        Garrett v. State, 184 Ga. App. 593, 594 (2) (362 SE2d 150) (1987).

        Pope v. State, 240 Ga. App. 803, 805 (2) (522 SE2d 291) (1999).

        Phillips v. State, 233 Ga. App. 557, 559 (504 SE2d 762) (1998).

       Braswell contends that trial counsel erred by (a) failing to call his brother/co-defendant, who provided favorable evidence for the State, to testify on his behalf; (b) failing to object to improper comments of the prosecutor during voir dire; (c) failing to communicate the continued viability of a plea bargain offer that Braswell had previously rejected; (e) failing to “prepare” Braswell to testify at trial regarding his burning of the victim’s car; (f) failing to call character witnesses whose names Braswell could not recall at the motion for new trial; and (g) failing to request rulings by the trial court on each motion for mistrial made during Braswell’s cross-examination by the State, which motions the attorney testified had been interposed for tactical reasons to break the rhythm of the prosecutor’s questioning.

        Keanum v. State, 212 Ga. App. 662, 663 (1) (442 SE2d 790) (1994).

        Hall v. State, 210 Ga. App. 792, 794 (1) (437 SE2d 634) (1993).


text:
    A00A0917.
    ADAMS v. THE STATE.
    (538 SE2d 508)
   Ruffin, Judge.

Sherman Adams was convicted of aggravated assault, possession of a firearm during the commission of a crime, possession of a sawed-off rifle, and obstruction of an officer. He appeals, contending that the evidence was insufficient to support the convictions and that the court erred in conducting a portion of the trial in his absence.

1. Viewed in the light most favorable to support the verdict, the evidence was as follows. About midnight on April 19, 1997, Saleh Grogan was walking across a bridge in Columbus when he heard two shots. Grogan ran and hid behind a car near some apartments on Martin Luther King Boulevard. Directly across the street from the apartments was the Marshall Middle School football field. Grogan saw a medium-built male dressed in black on a hill in the field, reloading a lever-action rifle. Grogan called out to the man, asking why he was shooting at him. The man walked toward Grogan, who started running toward the apartment building. The man shot Grogan in the back.

Grogan then knocked on the window of Rosie Butler’s apartment, asking to be let in. When she said no, Grogan broke in through the window. Butler called the police and tried to control Grogan’s bleeding while waiting for them to arrive.

Sandra Rigons, who lived in the same complex as Butler, corroborated many details of Grogan’s testimony. She testified that, after hearing what sounded like a car backfiring, she looked out her window and saw Grogan standing by the cars in the parking lot. According to Rigons, Grogan was talking to someone across Martin Luther King Boulevard, saying," [W]hat’s up, man[?] Why you doing this[?] Why you trippin’ like this[?]” Rigons looked across the road and saw a male standing on a hill in the field, dressed in black pants, a white t-shirt, and black and white tennis shoes. This man pulled up what looked to Rigons like a shotgun and started shooting at Grogan. Rigons saw Grogan fall after being shot.

Officer Jackie Lee arrived at the scene and spoke with Grogan. Lee then advised Officer Kimberly Trumble that shots had been fired from the Marshall Middle School area. Trumble and other officers drove toward the school to search for the shooter. At the comer of Sheppard Drive and Seventeenth Avenue, they encountered a man, later identified as Adams, who told them he had heard shots and had seen someone running down Sheppard Drive. Officer Michael Green, who arrived on the scene as Trumble was talking to Adams, saw Adams pointing toward the middle school. Adams was wearing a black jacket and dark pants, and had grass in his hair and on his clothing. Officer Green performed a pat-down search and found two 30/30 caliber bullets in Adams’ jacket pocket. Green then told Trumble to place handcuffs on Adams. Adams began struggling with the officers. He eventually broke free and ran down Sheppard Drive toward the Farley Homes apartments. Officer Torrence Goodwin saw Adams running across Nina Street near the apartments. After Adams unsuccessfully tried to jump over a fence, Goodwin drew his weapon and ordered Adams to put his hands in the air. Adams did so, and was taken into custody.

After Adams was arrested, Officer Trumble returned to the intersection of Sheppard Drive and Seventeenth Avenue where she had first seen him. She found a bag next to a telephone pole where Adams had been standing. Inside the bag was a sawed-off 30/30 lever-action rifle, along with 27 rounds of 30/30 caliber ammunition. In addition, there were a Blockbuster Video card and a food stamp card with Adams’ name on them, as well as a receipt in the name of “S. Adams.”

Officer Lee searched the hill from which the shots were supposedly fired, and found a 30/30 caliber shell casing on the ground. He explained that the shell casing would have been ejected from the rifle when it was recocked after firing.

Rigons saw Adams after he was arrested, and told police that he was wearing the same clothes as the man she had seen firing the shots. However, she said that she had not seen the man’s face. At trial, she was shown the sawed-off rifle found in Adams’ bag, and said that it could have been the weapon the man was firing, although she could not be sure because it was dark. Grogan testified that the rifle looked like the one with which he was shot.

Although Adams points out that no eyewitness positively identified him as the shooter, the circumstantial evidence was sufficient for the jury to conclude that he was in fact the shooter. Adams was discovered shortly after the shooting, near the scene of the crime, at a time of night when few people would be out. His clothing matched that worn by the shooter. There was abundant evidence that the sawed-off rifle was his, since it was found where he had been standing, identifying information was discovered in the bag, and 30/30 caliber bullets were found both in the bag and on his person. A spent 30/ 30 caliber shell casing was found on the hill from which witnesses said shots were fired. The sawed-off rifle was a lever-action rifle, like the one Grogan described the shooter as having. The fact that Adams fled from police also constitutes circumstantial evidence of guilt. Viewed in the light most favorable to support the verdict, the evidence was sufficient to authorize the jury to conclude that the only reasonable hypothesis was that Adams was the shooter.

2. Adams argued that the evidence was insufficient to support his conviction for possession of a sawed-off rifle, asserting that there was no evidence the rifle had “a barrel... of less than 16 inches in length or. . . an overall length of less than 26 inches,” as required by OCGA §§ 16-11-121 (4) and 16-11-122. He points to the fact that a prosecution witness, showing the rifle to the jury, testified that "[fit’s been a barrel open and sawed down and less than ten inches and the stock itself has been removed.” Adams states that “[fit is impossible to tell from the testimony of the officer what had been sawed down or what the overall length of the weapon was.” However, the rifle itself was introduced into evidence for the jury to view, and the jury was properly charged as to the elements of the crime. Because the rifle has not been included in the record on appeal, we cannot say that the evidence was insufficient to support the conviction.

3. Adams contends that the trial court erred in conducting a portion of the trial in his absence. During jury deliberations, the trial court asked the jury whether it had reached a verdict on any of the charges, and the foreman said that a verdict had been reached on some charges. The trial court then dismissed the jury for lunch. Although the trial transcript does not indicate that Adams was absent during this exchange, Adams testified at the motion for new trial hearing that he was not present. The judge, however, noting that he had taken detailed notes during the proceedings, found that Adams had in fact been present. Because this factual finding is not clearly erroneous, this enumeration is without merit.

Decided August 21, 2000.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Roger H. Anderson, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       See Renner v. State, 260 Ga. 515, 517 (3) (b) (397 SE2d 683) (1990); Wilson v. State, 230 Ga. App. 271, 272 (1) (495 SE2d 894) (1998).

       See Murray v. State, 271 Ga. 504, 505 (1) (521 SE2d 564) (1999) (reasonableness of hypothesis is generally question for jury).

       See Morrissette v. State, 229 Ga. App. 420, 425 (494 SE2d 8) (1997) (burden is on appellant to bring up all evidence, including physical evidence, necessary for consideration of issues on appeal).

       See White v. State, 221 Ga. App. 860, 862 (2) (473 SE2d 539) (1996) (trial court’s findings of fact on motion for new trial will be upheld unless clearly erroneous).