text:
    A94A1549.
    ZIELINSKI v. CLOROX COMPANY et al.
    (450 SE2d 222)
   Birdsong, Presiding Judge.

Appellant Gary Zielinski sued his former employer Clorox Company, its distribution manager Lora Cecere and plant manager William Castleberry for defamation and invasion of privacy, all arising out of termination of his employment for suspicion of theft and false accusations publicly made against him.

After the alleged defamation, it was found by Clorox executives that Zielinski was not involved in the theft; a worker under his supervision had devised the theft scheme and Zielinski did not discover it.

Appellant Zielinski had been distribution manager but was replaced by appellee Cecere. Soon after, a new clerk discovered a suspect purchase order for pallets and a scheme was discovered involving large payments made by Clorox to a post office box for pallets which were never received. Zielinski had initialed the invoices. During an audit, Zielinski was interviewed. On July 15, 1990, he was suspended with pay, and appellee Castleberry called an all-plant meeting and announced to all employees the suspension of Zielinski and of Cornelius Butts, who had worked under Zielinski’s supervision. A former plant accountant affied that he attended the all-plant meeting “wherein William Castleberry announced that illegal pallet activity . . . had been discovered. It was announced that [Butts] and Gary Zielinski had been suspended for being involved. Mr. Castleberry said they were conducting further investigations and that the employees would be kept informed. ... I believed, from what I had heard, that Gary Zielinski was involved. I also heard other employees talking as they filed out of the [meeting and saying that Zielinski] must have been involved for Mr. Castleberry to make such an announcement. Although Mr. Castleberry told the employees . . . that they would be kept informed, nothing else was ever communicated to all employees, to my knowledge, other than the announcement on the bulletin board that Gary Zielinski had been terminated.” At this meeting Castle-berry also announced that the matter was being turned over to the Clayton County District Attorney’s office.

According to Castleberry’s affidavit, “the purpose of the all-plant meeting was to quell any false implications or rumors.” Zielinski was terminated on August 15, 1990, and the crimes were reported to the district attorney; Castleberry also had meetings with managers and supervisors and discussed the investigation of Zielinski’s suspension. Castleberry affied that “the purpose of the meetings was to advise those who had reason to know of the events in the plant.”

According to Castleberry, Zielinski was terminated for “neglect of duty . . . [failing] to have proper handling procedures in place to prevent or detect the pallet theft.” Zielinski contends the record shows that while at Clorox, he received good evaluations, that the illegal pallet activity went on five years before he was made manager of distribution but none of his predecessors was questioned by Clorox, and that Castleberry’s own job was in jeopardy when Zielinski was accused of theft and fraud. According to Zielinski, no evidence was ever found that he was involved in theft or fraud.

The trial court granted defendants’ motion for summary judgment in part and denied it in part. Appellees did not respond to each of appellant’s enumerations but only responded generally. Held:

1. The trial court correctly held that the statements made prior to August 15, 1990, including the statements made at the all-plant meeting, were not actionable as defamation, as this suit was not filed until August 15, 1991. OCGA § 9-3-33. However, these statements may be admissible to explain the underlying circumstances and defamatory nature of the announcement of termination on August 15, 1990.

According to the evidence construed in Zielinski’s favor (see Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)), the statements made at the all-plant meeting were made to employees who were without a duty or responsibility which required them to know of it. Walter v. Davidson, 214 Ga. 187 (2), 191-192 (104 SE2d 113); Madden-Lee v. Day’s Inns of America, 184 Ga. App. 485, 486 (361 SE2d 714); Land v. Delta Airlines, 147 Ga. App. 738 (2) (250 SE2d 188); Garrett v. Lockheed Aircraft Corp., 98 Ga. App. 443 (106 SE2d 333); OCGA § 51-5-7. The statement in Kurtz v. Williams, 188 Ga. App. 14, 15 (371 SE2d 878) as to “intra-corporate communications” refers only to communications to persons who because of their duty or authority “[have] reason to receive the information.” Id. Statements made to employees who are without a duty and authority to control or have knowledge of the plaintiff’s conduct are not privileged. Wal ter, supra; Melton v. Bow, 145 Ga. App. 272 (2) (243 SE2d 590).

2. As to consideration of surrounding circumstances of a publication to determine whether it was defamatory, see Montgomery v. Pacific & Southern Co., 131 Ga. App. 712, 715 (206 SE2d 631). The import of an alleged defamatory statement may be gathered not only from words themselves but from circumstances under which they are published (Burrow v. K-Mart Corp., 166 Ga. App. 284, 285-286 (304 SE2d 460)), but the trial court correctly held that the bald announcement of Zielinski’s termination carried no defamatory implication. See Yandle v. Mitchell Motors, 199 Ga. App. 211, 212 (404 SE2d 313).

In Yandle, a notation that Yandle’s “ ‘lack of sales effort resulted] in low production’ ” was read to prospective employers. Yandle contended the statement was incomplete because it omitted the explanation that his child’s illness was the reason for his lack of sales success. Id. at 211. The statement contained a criticism of Yandle’s performance which he acknowledged was the literal truth, but it was not the whole truth. In this case, the alleged defamation is the posting of the termination notice which contained no criticism of Zielinski and which was obviously true; nevertheless, he says it was defamatory in light of the earlier announced suspicions of theft leading to his suspension and investigation.

Judging the evidence in favor of respondent Zielinski on defendants’ motion for summary judgment (Lau’s Corp. v. Haskins, supra), the termination notice on its face contained no criticism of him. Even if it confirmed the suspicions earlier reported by Castleberry at the all-plant meeting, the law of “innuendo” does not permit the enlargement of this single true, unambiguously noncritical statement into defamation on the grounds of other rumors or suspicions others may have received. “The office of an innuendo is merely to explain the ambiguity, where the precise meaning of terms employed in an alleged [defamatory] statement may require elucidation.” Whitley v. Newman, 9 Ga. App. 89, hn. 2 (70 SE 686), cited in Yandle, supra. The published statement about Yandle was true and unambiguous; and therefore could not be enlarged by “innuendo” merely because it was a criticism of him which he alleged was not the whole truth. The mere notice of Zielinski’s termination is even less susceptible to enlargement to defamation by innuendo than was the statement in Yandle. The “meaning of terms employed” in it (Whitley, supra) did not need elucidation. It was unambiguous and it was true. The defendants may have had a moral duty to explain it in the underlying circumstances, but their failure to do so “was not a breach of a legal duty which exposed it to liability for defamation.” Yandle, supra at 212. An employee’s associates may speculate, based on some prior information, as to the reasons behind every termination notice and they often will be wildly incorrect; generally, it would be unfair and would place an onerous burden on employers and co-workers to enlarge a simple termination notice into defamation on the basis of a prior rumor or defamatory remarks. The ruling of the trial court that the termination notice, being unambiguous and literally true, was not susceptible to enlargement by the “law of innuendo” was correct. Yandle, supra; Whitley, supra.

3. (a) The trial court held that as to any defamatory statements made by Cecere to outside vendors, an unsigned statement of one vendor (Wilhelm) that defamatory remarks were made to him by Cecere after Zielinski’s termination on August 15, 1990, cannot overcome the vendor’s sworn affidavit to the opposite effect. For its ruling the trial court cited Bethea v. Kennedy, 176 Ga. App. 328 (1) (335 SE2d 732), which cites Raley v. Mayor &c. of Warrenton, 120 Ga. 365, 368 (47 SE 972) and State v. Barnett, 136 Ga. App. 122, 123 (220 SE2d 730). The trial court erred in this ruling. We do not know what was in the “unsigned document purporting to be the affidavit” in Bethea-, it was simply held “ftjhis document is technically deficient and thereby presents no facts in opposition to the plaintiff[’s] motion for summary judgment.” (Emphasis supplied.) Id. at 328-329. That statement does not amount to a holding that an unsigned statement purporting to be an affidavit presents no facts in opposition to a motion for summary judgment. Raley did not hold that an unsworn statement is technically deficient and presents no facts in opposition to a sworn affidavit; it merely held that the signature of the affiant is necessary to validate an affidavit. State v. Barnett did not hold that an unsworn statement purporting to be an affidavit is technically deficient and presents no facts in opposition to a motion for summary judgment. If an unsworn statement were incompetent to contradict sworn testimony, there would be no such thing as perjury. The truth of the sworn affidavit is a question of fact for the jury, and any inconsistent statement or other evidence going to its verity may be considered by the jury to determine its truth and weight. Such inconsistencies are construed favorably to a respondent to a motion for summary judgment and where there is an apparent inconsistency in any person’s testimony and statements, the matter should be submitted to the jury. J. C. Penney Cas. Ins. Co. v. Williams, 149 Ga. App. 258, 261 (253 SE2d 878).

However, appellee Cecere did not respond to appellant’s arguments concerning the “unsigned affidavit,” and the trial court’s order refers to the document as a “sworn affidavit” of Mark Wilhelm. All this is misleading, because in fact the paper is not Mark Wilhelm’s affidavit at all. It is a paper purporting to impeach Mark Wilhelm’s deposition, and it was prepared by appellant, who unsuccessfully tried to get Wilhelm to sign it. The trial court’s holding and appellant’s arguments concerning the admissibility of unsworn affidavits are therefore off-point. The paper is insufficient to impeach Wilhelm’s deposition testimony, not because it is “unsworn,” but because it is not Wilhelm’s statement. There is no issue of fact as to whether any libelous statements were made to the vendor Wilhelm by Cecere.

(b) As to the allegations that Cecere made defamatory remarks to another vendor (Perry Carter), the trial court held that in her bare statement, “Yes, Perry, he was terminated,” Cecere made no implication that Zielinski committed a crime. The trial court was correct for the reasons given in Division 2. Although the statement was made in response to Carter’s remarks that he had heard rumors about Zielinski and theft, the statement itself was unambiguous and true. Yandle, supra; Whitley, supra. It may be that in some circumstances a plain, unambiguous statement of fact might be enlarged by the speaker’s own innuendo, but any defamatory suggestion was made by vendor Carter. Cecere merely responded with fact. In some cases even dead silence may be inferred by a listener to be damning, but that alone does not make the response defamatory. As Cecere’s replies were true and unambiguous, they could not be enlarged by innuendo in the circumstances of this case. Yandle, supra.

(c) Cecere allegedly also told Carter that Zielinski had been arrested. The trial court did not rule whether this statement was true, or was defamation, or was barred by the statute of limitation. Appellees make no response to appellant’s appellate arguments on this claim. An issue of fact remains whether this allegedly untrue statement was defamatory, and on this point, the trial court erred in granting summary judgment to Cecere.

4. The statements made by appellees to the district attorney’s office are privileged if made in good faith. OCGA § 51-5-7; Fly v. Kroger Co., 209 Ga. App. 75, 78 (432 SE2d 664). Although after this suit was filed, Castleberry testified that he always believed Zielinski was innocent, there is evidence that Castleberry’s own job was in jeopardy because of the thefts and he had made statements that he did not intend to take the blame, his “belief” and possible “suspicions” are not the same thing, and there is nothing wrong in not wanting to take the blame for what he did not do. Castleberry had a duty to assist in the investigation in good faith. This included revealing any possible suspicions even if he personally “believed” they would be proved untrue, and even if his own job was in jeopardy.

The trial court did not err in holding that no issue of bad faith arises as to Cecere merely because she testified she doubted whether Zielinski was involved in the thefts but failed to express such doubts to the district attorney. Cecere’s personal belief as to Zielinski’s innocence does not prevent her from stating any suspicions to the district attorney. Her personal belief does not remove her duty to cooperate with law enforcement officers to investigate the thefts and does not destroy her privilege.

Decided September 28, 1994

Reconsiderations denied November 2, 1994

Vincent R. Lauria, Murray Z. Kahn, James A. Burgess, Jr., for appellant.

Arrington & Hollowell, W. Ray Persons, Gary W. Diamond, for appellees.

5. As to the alleged defamation by Castleberry at weekly “team leader” meetings after Zielinski was terminated, no question of fact exists whether the continued implications by Castleberry that Zielinski was involved in the pallet scheme were published to persons who had no duty or authority with respect to the matter, and therefore had no reason to receive the information. See Division 1, infra and cases cited herein. There is evidence that the “team leaders” met as a group to consider all business which might affect productivity and morale in their respective “teams” and that it was their duty to coordinate their efforts.

Likewise the trial court did not err in holding that Castleberry and Cecere did not invade Zielinski’s privacy by placing him in a “false light” during the team leader meetings, as the thefts and Zielinski’s possible role in them was a pertinent subject of those meetings. See Thomason v. Times Journal, 190 Ga. App. 601, 604 (379 SE2d 551); Cabaniss v. Hipsley, 114 Ga. App. 367 (151 SE2d 496).

As to their statements to the district attorney’s office, appellant cites no authority that a cause of action for being placed in a “false light” with the district attorney’s office survives the privilege in OCGA § 51-5-7, and such claim is deemed abandoned. Court of Appeals Rule 15 (c) (2).

Judgment affirmed in part and reversed in part.

Blackburn and Ruffin, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A1575.
    ELLERBEE v. THE STATE.
    (449 SE2d 874)
   McMurray, Presiding Judge.

Defendant was charged via accusation with two alternative counts of driving while under the influence of alcohol. The evidence presented at a jury trial showed that Officer Jamie S. Brown of the Georgia State Patrol stopped defendant near Tenth Street and Piedmont in Atlanta, Georgia, for operating a motor vehicle at a speed “above the posted speed limit.” “[immediately when [Officer Brown] made eye contact with the driver there was no question . . . that he had been drinking[; . . . and] that he was extremely intoxicated.” During the administration of field sobriety tests, defendant looked at Officer Brown “and said, I’ve just had too much to drink, I guess.” Defendant “couldn’t keep his balance . . . and almost fell down. ...” Officer Brown had “no doubt that [defendant] was a less safe driver. ...” Defendant was formally placed under arrest and read his implied consent warnings. Breath analysis showed his blood-alcohol level to be: “Point one eight grams.”

The jury found him “guilty on both charges,” and he appeals from the judgment of conviction entered by the trial court on the jury’s verdicts. Held:

1. The two separate verdicts for violating OCGA § 40-6-391 (a) (1) (less safe driver) (Count 1) and OCGA § 40-6-391 (a) (4) (blood-alcohol level of .10 grams percent or greater) (Count 2) are based on the same conduct and were combined by the trial court at sentencing into a single sentence. In Morgan v. State, 212 Ga. App. 394 (1), 395 (442 SE2d 257), this court held “it is . . . well settled that OCGA § 40-6-391 (a) establishes a single crime of driving while in a prohibited condition and that subsections (a) (1) and (a) (4) merely define different modes of committing that one crime.” We treat this as a conviction based on conduct violating OCGA § 40-6-391 (a) (4), as driving with a prohibited blood-alcohol level poses the more serious risk of injury to property or the public. See Lester v. State, 253 Ga. 235, 238 (3), n. 5 (320 SE2d 142). Compare Fudge v. State, 184 Ga. App. 590, 592 (6) (362 SE2d 147) (physical precedent only) and Page v. State, 202 Ga. App. 828, 830 (4) (415 SE2d 487). The evidence that defendant drove an automobile while his blood-alcohol level was in excess of the legal limit was sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, as alleged in the accusation in Count 2. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Morgan v. State, 212 Ga. App. 394, 397 (3), supra. Defendant’s eleventh enumeration is without merit.

2. Defendant’s tenth enumeration contends the trial court erred in admitting into evidence a photocopy of the results of the State-administered intoximeter test showing defendant’s blood-alcohol level to be .18 grams percent, over his objection that the State failed to account adequately for the original as required by OCGA § 24-5-25. This objection is without merit. “[C]opies of duplicate originals are admissible under Code Ann. § 38-710 [now OCGA § 24-5-26], without accounting for the original.” Strickland v. Foundation Life Ins. Co., 129 Ga. App. 614, 616 (2), 617 (200 SE2d 306).

3. In his sixth enumeration, defendant contends the trial court erred in failing to quash the uniform traffic citation for being improperly drawn. In this regard, defendant argues that a uniform traffic citation cannot be amended, relying on State v. Rustin, 208 Ga. App. 431, 432 (2), 434-435 (430 SE2d 765). However, after defendant’s arrest, the solicitor preferred a two-count accusation against defendant, specifying alternative methods by which he allegedly violated OCGA § 40-6-391 (a).

“[I]t is not true that a prosecution must proceed upon the uniform traffic citation form that has initially been issued [or] that the prosecuting attorney has no authority to file a subsequent formal accusation. ‘(T)he (S)tate is not prohibited from issuing a subsequent accusation. . . .’ Cargile v. State, 244 Ga. 871, 874 (2) (262 SE2d 87) (1979).” State v. Doyal, 184 Ga. App. 126, 127 (361 SE2d 17). The subsequent issuance of a formal accusation did not amend the uniform traffic citation, as contended by defendant. Rather, such accusation superseded any uniform traffic citation as the charging instrument.

4. The trial court erred in refusing to give defendant’s written request to charge the law on circumstantial evidence. “ ‘Virtually every case contains some circumstantial evidence and, if the charge is not given, stands in danger of being reversed. . . . The charge is a fundamental principle of law as to criminal guilt and there is no reason not to give it; the (s)tate is not harmed by it and has no right to have it omitted.’ [Cit.]” Mims v. State, 264 Ga. 271, 272, n. 2 (443 SE2d 845). Nevertheless, in the case sub judice, that error is rendered harmless by the overwhelming direct evidence that defendant drove while his blood-alcohol level was .18 grams percent, in violation of OCGA § 40-6-391 (a) (4). This “evidence and all reasonable deductions therefrom were completely inconsistent with a reasonable hypothesis of innocence. To reverse [this conviction] would be a perversion of justice. [Cits.]” Johnson v. State, 210 Ga. App. 99, 100 (1), 101 (435 SE2d 458). Defendant’s first enumeration is without merit.

5. In his second enumeration, defendant argues that the trial court’s charge was burden-shifting.

The trial court informed the attorneys that it intended to charge the substance of OCGA § 40-6-392 (b) as to the conclusions which may be drawn according to various blood-alcohol levels. At defendant’s behest, the trial court agreed to alter the language of this Code section to instruct the jury in terms of inferences rather than presumptions. In the charge, the trial court stated: “If there was at that time an alcohol concentration of point zero eight grams or more, it shall be inferred that that person was under the influence of alcohol as prohibited by the statute.” (Emphasis supplied.) Error is assigned to the emphasized portion of this charge.

“A permissive device is valid if it is rational. Williamson v. State, 248 Ga. 47 (281 SE2d 512) (1981). A mandatory inference or presumption concerning an element of the offense is invalid, and this is so whether it is mandatory-conclusive or mandatory-rebuttable. Sandstrom v. Montana, [442 U. S. 510 (99 SC 2450, 61 LE2d 39)].” (Emphasis in original.) Isaacs v. State, 259 Ga. 717, 734 (35b), 735 (386 SE2d 316).

In the case sub judice, the trial court’s mandatory instruction that the influence of alcohol “shall be inferred” (rather than the permissive “may infer” as requested by defendant) is impermissibly burden-shifting, for it “is just as mandatory as an instruction that ‘the law presumes fact x from fact y.’ In either event, the jury is told that a finding of fact. . . legally follows from proof of [another] fact. . . .” (Emphasis omitted.) Isaacs v. State, 259 Ga. 717, 734 (35b), 735, supra. Compare Gilbert v. State, 262 Ga. 840, 841 (4) (426 SE2d 155). Moreover, it is the better practice to “include language reaffirming that it is within the jury’s discretion whether or not it will draw such an inference. . . .” Thompson v. State, 257 Ga. 481, 483 (6) (361 SE2d 154). Nevertheless, “[t]his error does not require reversal of the conviction under Count 2 (violation of OCGA § 40-6-391 (a) (4)), since the erroneous burden-shifting charge is not relevant to the determination of any of the elements of the crime [as] established in OCGA § 40-6-391 (a) (4). See Lester v. State, 253 Ga. 235, 237 (2)[, supra]; Peters v. State, 175 Ga. App. 463, 469 (a) [(333 SE2d 436), overruled on other grounds, Hogan v. State, 178 Ga. App. 534, 535 (343 SE2d 770)].” Simon v. State, 182 Ga. App. 210, 212 (4) (355 SE2d 120). See also Paradise v. State, 212 Ga. App. 166, 169 (4), 170 (4b) (441 SE2d 497).

6. In his third enumeration, defendant contends the trial court erred in refusing to give his written request to charge on the weight to be given the results of defendant’s breath test. The request contained the following language: “No procedure is infallible. Even where a procedure in general is based upon sound scientific theory, it may have some margin for error and give an erroneous result under certain circumstances.” The trial court determined the request was more properly the subject of closing “[a]rgument[.]” Defendant argues that his request “is taken virtually verbatim from the language of the Georgia Supreme Court’s decision in Lattarulo v. State, 261 Ga. 124 [(401 SE2d 516)] (1991), and constitutes a correct statement of the law adjusted to the facts of this case.”

“Though this language was taken from a decision by [the Georgia Supreme Court], the court properly refused to give it. It is not always proper for the court to charge the jury in language used in one of the decisions of the [appellate] court. Sometimes the language is argumentative, and sometimes it merely expresses the opinion of the judge delivering the opinion, where it is not precisely upon an issue presented in the record.” Chedel v. Mooney, 158 Ga. 297, 300 (11) (123 SE 300). In the case sub judice, the trial court did not err in refusing to give this argumentative request.

7. The failure to charge on the presumption on non-impairment contained at OCGA § 40-6-392 (b) (1) was not harmful error as that provision by its terms applies only to the conduct “prohibited by paragraphs (1), (2), and (3) of subsection (a) of Code Section 40-6-391.” In the case sub judice, defendant’s conviction is for violating OCGA § 40-6-391 (a) (4). Defendant’s fourth enumeration is without merit.

8. In related enumerations, defendant contends the trial court erred in failing to suppress evidence “obtained as a result of an illegal arrest . . .” and in failing to suppress a custodial statement made without the benefit of Miranda warnings.

In the case sub judice, Officer Brown had probable cause to believe that defendant was committing the moving violation of speeding in the officer’s presence. This was sufficient to authorize a warrantless stop of defendant’s vehicle. State v. Webb, 193 Ga. App. 2, 3 (1), 4 (386 SE2d 891). Compare Clark v. State, 208 Ga. App. 896, 897 (1) (432 SE2d 220) (physical precedent only). After seeing defendant’s apparent state of intoxication, Officer Brown was authorized to investigate further and ultimately was authorized to administer an alcohol breath test. State v. Johnston, 249 Ga. 413, 414 (1), n. 1 (291 SE2d 543). Consequently, there was no error in denying defendant’s motion to suppress on the ground that his arrest was illegal. Defendant further complains of the admission into evidence of Officer Brown’s testimony relating defendant’s statement: “I’ve had too much to drink.” However, the “testimony adduced below authorized the trial court’s conclusion that defendant’s ‘statement “was spontaneous and not in response to any interrogation or prodding by ((the [arresting]) officer).” (Cits.)’ Hallman v. State, 263 Ga. 72, 73 (1) (428 SE2d 344) (1993). The determination of the trial court is supported by evidence, is not clearly erroneous, and will not be disturbed on appeal. Wilson v. State, 211 Ga. App. 457 (1) (439 SE2d 685) (1993).” Leatherwood v. State, 212 Ga. App. 342, 343 (2) (441 SE2d 813). Defendant’s seventh and eighth enumerations are without merit.

9. Defendant’s fifth enumeration contends the trial court erred in overruling his challenge to the prosecutor’s use of peremptory challenges under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69).

Defendant, who is white, objected after the State’s attorney used both of her peremptory challenges to strike white venire, “which resulted in a jury of only one white person on it. ...” In response, the State’s attorney explained that she excused one venireman because he was “unemployed [and] might be a little prejudice [d] against the State.” The second strike was used against a white female realtor. According to the State’s attorney, she struck this potential juror because Officer Brown told her that “[t]hey arrest a lot of realtors because they are carrying their clients out and it was at his instance that I struck her. He says that a lot of people that he arrests are real estate people, and they drink often out with their clients and he thought she would not be a good juror for the State.”

“ ‘The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, [cit.], or on the false assumption that members of his race as a group are not qualified to serve as jurors, [cits.].’ Although a defendant has no right to a ‘petit jury composed in whole or in part of persons of (the defendant’s) own race,’ [cit.], he or she does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria.” Powers v. Ohio, 499 U. S. 400, 404 (111 SC 1364, 113 LE2d 411). In the case sub judice, since the State’s attorney placed her reasons on the record we pretermit whether a prima facie showing of racial discrimination is demonstrated where a prosecutor uses both, that is to say all, peremptory challenges against white venire. “In order to overcome an inference of discrimination in the use of peremptory strikes, the prosecution must offer concrete, tangible, race-neutral and neutrally applied reasons for its strikes. Ford v. State, 262 Ga. 558 (423 SE2d 245) (1992).” Smiley v. State, 263 Ga. 716 (1) (438 SE2d 75). “Although the trial court did not make specific findings [that the stated reasons rebutted any prima facie case], such a finding is implicit in overruling a Batson objection. Stevens v. Ivey, 212 Ga. App. 407, 409 (442 SE2d 248).” Teasley v. State, 214 Ga. App. 646 (1) (448 SE2d 904) (physical precedent).

In the case sub judice, the explanation that the State’s attorney exercised her first peremptory challenge against an unemployed venireman was “concrete, tangible and race neutral. Davis v. State, [263 Ga. 5, 7 (10) (426 SE2d 844)].” Thomas v. State, 208 Ga. App. 367 (1), 369 (430 SE2d 768). See also McCormick v. State, 184 Ga. App. 687 (362 SE2d 472). The explanation given for the State’s second strike, i.e., that the officer did not think realtors would make good jurors for a DUI prosecution because “most realtors drink[,]” may strike some as “fanciful.” See, e.g., Ford v. State, 262 Ga. 558, 559 (3), 560, supra. Moreover, “the State does not fulfill its burden to provide racially-neutral reasons by stating that its peremptory challenges were exercised in deference to the wishes of an individual concerned about the case.” Lewis v. State, 262 Ga. 679 (2), 681 (424 SE2d 626). Nevertheless, a peremptory strike will not be found to be impermissible simply because it was exercised from “mistake, or from ignorance, or from idiosyncrasy.” Gamble v. State, 257 Ga. 325 (2), 326 (357 SE2d 792). In the case sub judice, although the officer’s concern over the white female realtor “may have been the result of [his] ‘mistake,’ ‘ignorance,’ or ‘idiosyncrasy,’ it was certainly racially-neutral.” Lewis v. State, 264 Ga. 101, 103 (440 SE2d 664). There is no contention that this reason for exercising a peremptory challenge is subject to additional scrutiny as an impermissible “stereotypical [attitude]” or a pretext. Compare Tharpe v. State, 262 Ga. 110, 111 (6), 112 (416 SE2d 78). Considering the non-racial reason explanation for the other strike, we hold that, notwithstanding the relatively weak explanation for striking the white female realtor, the trial court did not err in overruling defendant’s Batson challenge. Lewis v. State, 264 Ga. 101, 103, supra.

Decided October 20, 1994

Reconsideration denied November 2, 1994

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

Louise T. Hornsby, Solicitor, for appellee.

Judgment affirmed as to Count 2; judgment vacated as to Count 1.

Pope, C. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A94A1652.
    BRUNO’S, INC. et al. v. PENDLEY.
    (449 SE2d 637)
   Smith, Judge.

Beverly Hope Pendley filed suit against Bruno’s, Inc. and Food Max of Georgia, Inc., seeking recovery of damages for injuries she incurred when she slipped and fell at a Food Max store in Austell. The trial court denied the defendants’ motion for summary judgment, but granted a certificate of immediate review. We granted the defendants’ application for interlocutory appeal.

The record shows that when Pendley entered the store she noticed bags of ice stacked on a pallet in front of the ice cooler. She also observed a yellow “wet floor” sign next to the ice bags. She testified on her deposition that the ice bags and the sign were both immediately obvious when she entered the store, and that the ice bags could not be missed. After attending to some business at the in-store bank branch, Pendley picked up several items. She proceeded to the checkout registers about 20 minutes after entering and noticing the ice bags. As she passed the end of a large soft drink display near the ice machine, she slipped and fell on what she termed a “gigantic” puddle of water that had leaked onto the floor from the stacked bags of ice.

Pendley admitted that when she fell she was “looking straight ahead” and did not see the water on the floor. She believed that had she looked down at the floor before she fell, she would have seen the puddle.

Decided October 17, 1994

Reconsideration denied November 2, 1994

Long, Weinberg, Ansley & Wheeler, Stephen H. Sparwath, Paul L. Weisbecker, for appellants.

Hughes, Kaplan & Gravante, John A. Gravante, Andrew Shaul, for appellee.

Appellants contend the trial court erred in denying their motion for summary judgment, because the evidence showed that Pendley had not exercised ordinary care for her own safety and that the defendants had exercised reasonable care.

In order to establish a proprietor’s liability for a slip and fall caused by a foreign substance on the floor, a plaintiff customer must show both that the proprietor had actual or constructive knowledge of the foreign substance and that she had no knowledge of that substance or was prevented from discovering it by some reason attributable to the proprietor. Hudson v. Quisc, 205 Ga. App. 840 (424 SE2d 37) (1992).

Here, even assuming the defendants had actual knowledge of the floor hazard created by the melting ice because a store employee placed and left the pallet and ice bags in front of the ice cooler, Pendley’s own testimony established that she had equal knowledge of that hazard. A customer must exercise ordinary care for her own safety. A customer also must use ordinary care to avoid the effect of a merchant’s negligence after it becomes apparent to her, or in the exercise of ordinary care she should have learned of it. She must use all her senses in a reasonable measure amounting to ordinary care to discover and avoid those things that might cause her harm. Hudson, supra, 205 Ga. App. at 841.

A defendant/movant may prevail on a motion for summary judgment by showing the court that the evidence is insufficient to create a jury issue on at least one element of the plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Because lack of knowledge on her part was an essential element of Pendley’s claim, and the evidence showed that on the contrary, her knowledge of the hazard was equal to that of the defendants, the trial court erred in denying appellants’ motion for summary judgment.

Judgment reversed.

Pope, C. J., and McMurray, P. J., concur.


author: Blackburn, Judge.

text:
    A94A1790.
    BUTTS et al. v. SOUTHERN CLAYS, INC.
    (450 SE2d 244)
   Blackburn, Judge.

This is an appeal from the trial court’s grant of defendant Southern Clays, Inc.’s (“Southern”) motion for summary judgment. In their underlying complaint filed on February 13, 1986, the plaintiffs allege that in 1959, Southern fraudulently purchased 580 acres of land from them for a mere fraction of its fair market value. Specifically, plaintiffs claim that Southern failed to disclose material information with regard to the quantity, quality, and value of the kaolin reserves on the land. By way of this omission, plaintiffs claim that Southern defrauded them and that the fraud continued until it was discovered in 1986. Plaintiffs sought actual and punitive damages, attorney fees, and costs.

In 1933, Southern obtained a mineral lease on the land in question for an unspecified time period. In 1939, Southern obtained a 99-year mineral lease on the land which required Southern to pay a minimum annual royalty, and if Southern chose to mine the property, mining royalties. The plaintiffs claim that the 1939 mineral lease could have been voided or rescinded for fraud as Southern had fraudulently reduced the amount of mining royalties provided for in the 1933 lease. The 1933 lease provided for a royalty of “Ten Cents . . . per ton of twenty-two hundred and forty (2240) pounds, railroad weights.” The 1939 lease provided for a royalty of “Ten Cents . . . per ton of twenty-two hundred and forty (2240) pounds refined clay, railroad weights.” In Smith v. Freeport Kaolin Co., 687 FSupp. 1550, 1553 (M.D. Ga. 1988), the court recognized that 1.5 tons of dry crude kaolin is required to produce one ton of refined clay.

However, plaintiffs’ claim for fraud with regard to the 1939 lease is without merit as it is undisputed that they signed the lease, and they do not claim that they were prevented from reading it. “Where one who can read signs a contract without apprising himself of its contents ... he can not defend an action based on it, or have it canceled or reformed, on the ground that it does not contain the contract actually made, unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud as would reasonably prevent him from reading it.” (Citation and punctuation omitted.) Hall v. World Omni Leasing, 209 Ga. App. 115, 117 (433 SE2d 297) (1993). The parties who negotiated both leases are no longer alive. Therefore, pursuant to Georgia’s Dead Man’s Statute, any testimony regarding the lease negotiations is inadmissible. See Former Code Ann. § 38-1603.

On February 8, 1957, Mack Tucker wrote to Southern and complained about the kaolin lease and requested that Southern purchase the property. Tucker wrote: “Since the cost of living index has gone up so greatly in years since 1933, we don’t feel that the $1,000 per year rental or the $.10 per ton royalty is even near the value of our clay. ... I saw an index recently which showed that if $.10 per ton was a fair price in 1933 it should be at least $.20 per ton today. I am in the investment business, and I would like a lump sum to invest in one of our mutual funds. I think that all concerned would be pleased if your company would buy the clay that you know is there from your recent prospecting, and pay according to the present prevailing price.” On September 3, 1959, Southern purchased the property for $103,000. Southern also agreed to let plaintiffs’ mother live the remainder of her life on the property and allowed plaintiffs to remove the dwelling from the land after she died. Southern further allowed plaintiffs to keep a stream of income from the land with respect to timber grown on the land.

Plaintiffs have admitted, that in selling to Southern they were not expecting or relying on Southern to make any statement or disclosure as to what Southern believed to be the value of the property. Plaintiffs’ testimony also indicates that, at the time of the sale, they did not believe they had received a fair price for their land, and that they thought their land was worth more than the selling price of $103,000. Plaintiffs’ testimony also makes it very clear that they were well aware that Southern was withholding information about the true value of the kaolin reserves.

OCGA § 23-2-53 provides that “[suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” In McLendon v. Ga. Kaolin Co., 782 FSupp. 1548 (M.D. Ga. 1992), plaintiffs conveyed their land to a Kaolin company in 1969. Plaintiffs had no knowledge of the existence of kaolin on their property, and the options to buy the property were in the name of an individual, rather than the name of the kaolin company. Under those facts, the United States District Court for the Middle District of Georgia determined that as to all but one plaintiff, the jury could find that the kaolin company had “a duty to disclose an intrinsic quality of the property not easily discoverable.” Id. at 1565. However, with regard to the plaintiff who knew the kaolin company was the ultimate purchaser, who knew the kaolin company had conducted drilling on the property, who had leased mineral rights to the kaolin company, and who lived on the property during the drilling, the court determined that the particular circumstances did not create a duty of disclosure. Id.

In the present case, plaintiffs argue that the kaolin reserves constituted a latent or hidden characteristic of the land not subject to visual observation. However, this case is not controlled by precedent regarding latent defects or hidden issues unknown to plaintiffs. In those cases, the plaintiffs had no knowledge of the latent characteristic, see Miller v. Clabby, 178 Ga. App. 821 (344 SE2d 751) (1986); however, plaintiffs herein were aware of the existence of substantial kaolin reserves. Plaintiffs even knew that the largest strata of clay was located under the family home. Plaintiffs also were aware that Southern had more information regarding the kaolin reserves than they possessed.

The plaintiffs assert that the quantity, quality, and commercial value of the kaolin were discoverable only through drilling and testing the cores of kaolin. Plaintiffs contend that this information was readily available to Southern; however, such information was not available to the plaintiffs who had no expertise or equipment in order to establish this value. Plaintiffs admit they were aware of the kaolin reserves and did not seek to have the property tested by any independent company. Furthermore, plaintiffs did not inquire of Southern as to the value of the kaolin reserves, and there is nothing in the record which indicates that Southern misrepresented such facts to plaintiffs. Although the president of Southern testified that he was unaware of any other company who could have done the testing, at that time, the record, as well as common knowledge, indicates that other kaolin companies existed in 1959. See Brooks v. Freeport Kaolin Co., 253 Ga. 678 (324 SE2d 170) (1985) (Freeport Kaolin Company operated in Georgia); McLendon, supra (Georgia Kaolin Company operated in Georgia).

Under the facts of this case, plaintiffs are unable to meet their burden of establishing that Southern had a duty to disclose any information with regard to the kaolin reserves on plaintiffs’ property absent an inquiry by plaintiffs. This is not a case where the plaintiffs did not know that their land contained kaolin prior to the sale. Plaintiffs knowingly sold their land for its kaolin content to a company that they knew was in a position to have superior knowledge regarding the quantity and quality of the reserves. Plaintiffs requested that Southern purchase the land for its kaolin content; however, Southern already owned the rights to the kaolin pursuant to the 1939 lease. Therefore, Southern had the right to mine the kaolin whether or not they purchased the land. Indeed, the sellers (one of whom was in the investment business), obtained a large sum of money to invest in mutual funds.

Decided October 21, 1994

Reconsideration denied November 2, 1994

Foy R. Devine, Franklin R. Nix, for appellants.

King & Spalding, Richard A. Schneider, Frank C. Jones, Ralph A. Pitts, Nicole Caucci, for appellee.

A buyer-seller relationship existed between Southern and plaintiffs, not a confidential relationship. Absent facts not herein existing, a buyer-seller relationship does not require that the buyer disclose information regarding the value of the seller’s property. “The vendor and vendee of property are not, by virtue of such fact, placed in a confidential relationship to each other, but on the contrary are presumed to be dealing at arm’s length.” (Citation and punctuation omitted.) Mabry v. Pelton, 208 Ga. App. 891, 892 (432 SE2d 588) (1993). Therefore, Southern was under no duty to disclose, absent agreement, the results of its testing of the kaolin reserves, and the trial court did not err in granting Southern’s motion for summary judgment.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       Former Code Ann. § 38-1603 (3) provided: “Where any suit shall be instituted or defended by a corporation, the opposite party shall not be admitted to testify in his own behalf to transactions or communications solely with a deceased or insane officer or agent of the corporation; nor shall an officer or agent of a corporation be admitted to testify to transactions or communications with an opposite party who is insane at the time of trial; nor shall such officer or agent be admitted to testify, against an opposite party who is the personal representative of a deceased person, as to transactions or communications with such deceased person.”
      OCGA § 24-9-1 abolished the Dead Man’s Statute for transactions occurring on or after July 1, 1979, but provided for its continued applicability with respect to transactions occurring prior to that date. OCGA § 24-9-1 (b).

       The property was owned prior to the sale to Southern by four family members: three sisters and their brother, plaintiffs Marie T. Butts (now deceased), Elizabeth T. Hooks, Corinne T. Dykes and Mack R. Tucker (now deceased).


author: Smith, Judge. Pope, Chief Judge,

text:
    A94A1141.
    TOLBERT v. THE STATE. PHILLIPS v. THE STATE.
    A94A1142.
    (449 SE2d 671)
   Smith, Judge.

Robert Tolbert, Jr. and Demetrius A. Phillips were jointly indicted and tried on four counts of aggravated assault with a deadly weapon. Each was convicted on one count and acquitted on the other three. Each filed a motion for new trial, and each such motion was denied. Their appeals will be considered together.

1. In Phillips’s sole enumeration of error, he contends the trial court erred in refusing to give his requested charge on reckless conduct. The aggravated assault for which Phillips and Tolbert were convicted resulted in the shooting of the assault victim. Under such circumstances, reckless conduct is considered a lesser included offense of aggravated assault. Cauley v. State, 206 Ga. App. 233, 234 (2) (424 SE2d 822) (1992). However, “a trial court is not obligated to give a charge on a lesser included offense where the evidence does not reasonably raise the issue as a matter of fact. [Cit.]” Id.

Phillips’s position at trial was that he was not even at the scene of the crime at the time the shooting occurred, and even if he was in fact there, he was not the person who shot the victim. Phillips contends the actions for which he was directly implicated under the evidence amount only to reckless conduct, not aggravated assault.

It is not Phillips’s culpability for other offenses amounting to reckless conduct that is at issue here, but rather his culpability for the crime committed on the shooting victim. It is irrelevant whether Phillips actually shot the victim himself so long as he can be said to have been a party to the offense beyond a reasonable doubt. See generally OCGA § 16-2-21. Accepting for the sake of argument that Phillips did not personally shoot the victim himself, it follows that he was either a party to an aggravated assault committed by another or he bears no responsibility at all for that crime. Under such circumstances, the trial court did not err in refusing to give Phillips’s requested charge. Cauley, supra.

2. Tolbert contends the trial court erred in allowing a police officer to testify regarding a statement made by Tolbert with respect to plea negotiations.

During the course of the trial, a Jackson-Denno hearing was held outside the presence of the jury regarding an oral statement made by Tolbert to a police officer. The officer testified that the Thursday before trial he ran into Tolbert in front of a package store, and Tolbert asked him for a pen so that he might “get a phone number from a young lady.” The officer observed that it “looks like we are going to court on this little shooting incident that happened up on Stanton Road on Monday.” He then asked: “Did they offer you anything?” According to the officer, Tolbert replied: “Well, they offered me ten, but I don’t want to do ten ... I’d do two, but I won’t do ten. ...”

The court, without any prompting from defense counsel, then inquired as to the relevance of the statement. The State responded that it “was pursuant to and about this case.” Tolbert’s counsel argued that it was an interrogation made outside his presence despite the fact that the officer knew Tolbert was represented by counsel. Counsel also argued that “negotiation of any criminal case is not admissible in front of the jury.”

Relying on Daniels v. State, 192 Ga. App. 446, 447 (2) (385 SE2d 107) (1989), the State offered that Tolbert’s statement tended to show his consciousness of guilt. The court rejected this argument, observing that a defendant “can take a plea without being guilty. And I’m sure people do it many times.” Based on the court’s initial ruling, it would appear that the evidence was deemed to be without any relevance whatsoever. However, all discussion with respect to the relevance of the evidence was initiated by the court itself, not by Tolbert or his counsel.

After the close of evidence and charge conference but before closing arguments, the State made a motion to reopen the evidence specifically for the purpose of introducing the statement now at issue. See Traylor v. State, 163 Ga. App. 473, 474 (2) (294 SE2d 707) (1982). The State pointed out that OCGA § 24-3-37, barring the use of certain admissions, including those made with a view toward compromise, is not applicable to criminal cases. Moore v. State, 230 Ga. 839, 840 (1) (199 SE2d 243) (1973); Williams v. State, 178 Ga. App. 216, 217 (1) (342 SE2d 703) (1986).

The State also relied heavily on the case of Stone v. State, 166 Ga. App. 245, 246 (2) (304 SE2d 94) (1983). Stone involved a statement very similar to the one now at issue. The defendant in that case argued that the testimony should have been ruled inadmissible specifically because it concerned a conditional guilty plea or an offer to plead guilty. See OCGA § 17-7-93 (b). Stone held only that the otherwise voluntary statement in question was admissible in the face of the defendant’s objection premised upon OCGA § 17-7-93.

Tolbert’s counsel then attempted to distinguish Stone by challenging the voluntariness of the statement, but was unsuccessful. The court reiterated that it did not appear that the statement tended to show consciousness of guilt on Tolbert’s part, but observed that such a statement “doesn’t have the cloak of nonadmissibility based on it being an offer of compromise.” The court interpreted the cases presented by the State, especially Stone, supra, to hold that a statement such as the one ascribed to Tolbert is in fact “an admission.” To this interpretation Tolbert’s counsel responded: “Exactly, Your Honor, subsequent to being Mirandized.” The discussion continued, and Tolbert’s counsel ultimately conceded that Miranda warnings need be given only when the defendant is in custody. Upon that concession the trial court ruled that the evidence would be reopened, and the officer was then allowed to testify on the statement in question without further objection.

On appeal, Tolbert contends he was denied the opportunity to have available to him Tolbert’s entire statement to the officer; that the statement wrongly put Tolbert’s general character at issue; and generally, that the testimony was inherently harmful. None of these objections was made at trial, and therefore they have not been preserved for appellate review.

Tolbert likewise failed to press for and preserve an objection based on the ground relied on by the trial court in its original ruling (that the statement does not show consciousness of guilt) and does not argue this position on appeal. However, in light of the discussion that transpired at trial, we emphasize that neither in Stone, supra, nor in any other case cited to us has this court specifically held that an expression of willingness to accept a particular plea is considered an “admission” or that it shows consciousness of guilt. We are not called upon to decide whether the trial court’s unwavering opinion that the statement did not in fact show consciousness of guilt (and therefore should not be used for that purpose) was in fact correct; it suffices to observe that our holding in Stone is not necessarily contrary to that conclusion.

3. Tolbert’s remaining enumerations are without merit.

Judgments affirmed.

McMurray, P. J., concurs. Pope, C. J., concurs specially.

Pope, Chief Judge,

concurring specially.

With respect to Division 2, I fully concur with the affirmance of Tolbert’s conviction on the grounds that the arguments he raises on appeal were not raised below.

I write separately in an attempt to clarify the current state of the law on the admissibility of a defendant’s statement about what kind of plea bargain he might have accepted. It seems to be an open question whether such statements should be categorically admitted or excluded, and it is thus within the trial court’s discretion to admit or exclude such a statement on a case-by-case basis. Stone v. State, 166 Ga. App. 245, 246 (2) (304 SE2d 94) (1983) holds only that such statements do not have to be excluded under OCGA § 17-7-93 (b) (defendant’s withdrawn plea of guilty is not admissible against him). The Georgia Supreme Court has gone beyond the limits of this statute in holding that evidence regarding pleas and possible pleas should be excluded if irrelevant, however. See Davis v. State, 255 Ga. 598 (24) (340 SE2d 869) (1986). In my opinion, a defendant’s statement about a possible plea should usually be excluded because it will usually be legally irrelevant (i.e., any marginal probative value it may have is substantially outweighed by its prejudicial character), and because a contrary norm could chill a defendant’s willingness to consider a plea. And in cases where the statement is admitted, the defendant should be allowed (as he was here) to explore the question of why a defendant might consider pleading guilty even if he were not guilty.

Decided November 2, 1994.

Neville T. Francis, for Tolbert.

Rickey L. Richardson, for Phillips.

Lewis R. Slaton, District Attorney, Donald P. Geary, Rebecca A. Keel, Assistant District Attorneys, for State.

       Phillips does not contend that the shooting itself may have been the product of mere reckless conduct.


author: Beasley, Presiding Judge.

text:
    A94A2137.
    KEENER v. THE STATE.
    (449 SE2d 669)
   Beasley, Presiding Judge.

Counts 1 and 2 of a five-count indictment jointly charged Keener and Dills with attempt to commit armed robbery (OCGA § 16-8-40) and unlawful possession of firearms, a sawed-off shotgun (OCGA § 16-11-123). This is Keener’s appeal of his convictions.

Prior to trial, Keener moved for a severance. At the hearing on the motion, his attorney stated that if Keener and Dills were tried separately, Dills would testify that the shotgun was in his possession and that Keener was not aware of it. The court denied the motion.

At trial, employees of the Favorite Market in Eton testified that at about 3:00 a.m. one morning the defendants appeared at the store, bought gas, and made other purchases. After Keener came into the store, he fumbled around. He and Dills left the store, sat in their truck for approximately five to ten minutes and kept staring into the store in such a way as to arouse the suspicions of the store employees. They drove away but returned within about five minutes and backed into a parking place to the side of the front door. A store employee called the police. The defendants exited their truck and kept peeking into the store Until other customers left. Keener then entered the store and a few minutes later, Dills entered. At about the time they arrived at the cash register to make their purchases, Murray County Deputy Sheriff Parker arrived. Dills whispered to Keener something like, “don’t freak out” or “just be cool.” They paid for the items selected, left, and as they were walking toward the truck, Parker noticed something protruding from Dills’ waistline underneath his shirt. Parker told Dills to stop, but he failed to do so. When another officer told Keener to stop, he threw his hands in the air. Parker grabbed Dills and retrieved a 410-gauge sawed-off shotgun from underneath his shirt.

At the close of the State’s evidence, Keener unsuccessfully moved for a directed verdict of acquittal on grounds that the evidence failed to show that he knew of the shotgun in Dills’ possession or that any substantial step was taken toward commission of any criminal act.

1. The court did not abuse its discretion in denying the motion for severance. See generally Cain v. State, 235 Ga. 128, 129 (2) (218 SE2d 856) (1975); Givens v. State, 184 Ga. App. 498, 499 (1) (361 SE2d 830) (1987).

“ ‘ “In order to be entitled to a severance on the ground urged, the movant must demonstrate: (1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant will in fact testify if the cases are severed. (Cits.) Given such a showing, the court should (1) examine the significance of the testimony in relation to the defendant’s theory of defense; (2) assess the extent of prejudice caused by the absence of the testimony; (3) pay close attention to judicial administration and economy; (4) give weight to the timeliness of the motion.” ’ [Cits.]” Habersham v. State, 190 Ga. App. 211, 212 (1) (378 SE2d 489) (1989).

Keener did not demonstrate that Dills would in fact testify if the cases were severed. He did not produce, for example, any affidavit from Dills. The statement of Keener’s attorney that he would have no reason not to testify does not establish the affirmative fact required. Moreover, any testimony by Dills that Keener did not have knowledge of the sawed-off shotgun would have been wholly lacking in credibility. See House v. State, 203 Ga. App. 55, 56 (2) (416 SE2d 108) (1992); Habersham, supra. Thus, defendant was not prejudiced by its absence.

2. The court did not err in denying the motion for directed verdict of acquittal.

“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. There are three elements: “ ‘first, the intent to commit the crime; second, the performance of some overt act towards the commission of the crime . . . ; and third, a failure to consummate its commission.’ [Cit.]” Howell v. State, 157 Ga. App. 451, 455 (4) (278 SE2d 43) (1981).

The question is whether defendants’ activities or any of them constituted an overt act toward the commission of armed robbery. In general, the act must be inexplicable as a lawful act, and it must be more than mere preparation. In this case, the evidenqe showed that after “casing” the store, leaving, and returning, the defendants parked their vehicle out of view of the store clerk, waited until all customers exited the store, and entered the store with Dills carrying a concealed sawed-off shotgun. They eventually approached the cash register. After they saw the police they paid for items and left.

A rational trier of fact was authorized upon consideration of the evidence to find beyond a reasonable doubt that these acts constituted a substantial step toward armed robbery and that Keener had knowledge of Dills’ possession of the gun. The element of failure is shown directly, and the element of intent circumstantially. See Gaither v. Cannida, 258 Ga. 557, 558 (1) (372 SE2d 429) (1988); Loumakis v. State, 179 Ga. App. 294, 299 (8) (346 SE2d 373) (1986); Adams v. State, 178 Ga. App. 261, 262 (2) (342 SE2d 747) (1986). The evidence was sufficient to exclude every reasonable hypothesis save that of guilt.

Decided November 2, 1994.

Richard L. Yancey, for appellant.

Jack 0. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A94A2387.
    ORGERTRICE v. NASH.
    (450 SE2d 708)
    Decided November 2, 1994.

      John H. Ridley, Jr., for appellant.

      Greer, Klosik & Daugherty, John F. Daugherty, Robert J. Mc-Cune, for appellee.
   Birdsong, Presiding Judge.

Appellant William O. Orgertrice, Jr., has filed a direct appeal from the final judgment of the state court entering judgment in favor of appellant after reducing the jury verdict of $5,348.78 by set-off in the amount of $4,600.

This case arose as a suit for damages as a result of injuries allegedly sustained in an automobile collision; therefore, as this is an appeal from an action in damages in which the judgment is $10,000 or less, appellant was required to follow the discretionary appeals procedure. OCGA § 5-6-35 (a) (6). Accordingly, this appeal must be dismissed for failure to comply with OCGA § 5-6-35. See generally CaShar, Inc. v. McKesson Corp., 204 Ga. App. 865 (420 SE2d 810); Heuer Indus. v. Crum, 202 Ga. App. 675 (415 SE2d 307).

Appeal dismissed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2493.
    WINN v. THE STATE.
    (449 SE2d 667)
   Birdsong, Presiding Judge.

Laurie Ann Winn appeals her conviction for shoplifting, and her sentence. The State’s evidence showed that Winn entered the Jonesboro K-Mart in Clayton County and returned a small Emerson television which she had purchased one hour earlier at another K-Mart store. After receiving her refund of about $180, she was later seen in the garden shop adjoining the main store, with a small Emerson television and a word processor in her shopping cart. She was seen looking briefly at a plant which she did not buy; she then exited the garden shop and hastily proceeded into the parking lot. When accosted by the store security officer, she produced a receipt for another item but could produce no receipt for the television or the word processor. She then told the officer she had forgotten to pay for the items and became uncooperative, falling and screaming to avoid apprehension. Appellant produced a false name to police. Appellant produced witnesses at trial who testified that appellant had money in her purse to pay for the television, but neither witness was in the store with appellant.

She contends on appeal that the evidence is insufficient to support the verdict, that the trial court abused its discretion by imposing a ten-year sentence which was disproportionate to the crime committed and constitutes cruel and unusual punishment, and that the trial court erred in sentencing appellant to ten years after stating that she had become a “professional” shoplifter although there was proof of only one prior conviction for shoplifting. Held:

1. On appeal of a guilty verdict, the appellant no longer enjoys a presumption of innocence, for the jury has heard the evidence and judged its weight and the credibility of witnesses; the evidence is construed so as to uphold the jury’s verdict, and on appeal we do not redetermine the factual issues decided by the jury nor the weight of the evidence, but we only determine its sufficiency under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Grant v. State, 195 Ga. App. 463 (393 SE2d 737). We have examined the evidence and we find it sufficient to persuade a rational trier of fact of appellant’s guilt of the crime of shoplifting, beyond a reasonable doubt. Jackson v. Virginia, supra.

2. The sentence was within the statutory limits set by OCGA § 16-8-14. We will not review for legal error any sentence which is within the statutory limits. Any question as to the excessiveness of such a sentence should be addressed to the sentence review panel as provided in OCGA § 17-10-6. Hill v. State, 212 Ga. App. 386, 390 (7) (441 SE2d 863).

3. The trial court’s discretionary sentence of ten years after it concluded appellant had become a “professional” shoplifter is, likewise, a question which does not address itself to our court. Hill, supra; OCGA § 17-10-6. We presume the trial court acted within the bounds of the law and based its sentence on the law and the evidence.

Decided November 2, 1994.

Faye W. Hays, for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


author: Andrews, Judge.

text:
    A94A1688.
    CHICAGO TITLE INSURANCE COMPANY v. INVESTGUARD, LTD. INVESTGUARD, LTD. v. CHICAGO TITLE INSURANCE COMPANY et al. MARSHALL et al. v. INVESTGUARD, LTD.
    A94A1689.
    A94A1690.
    (449 SE2d 681)
   Andrews, Judge.

These three cases arose out of Investguard, Ltd.’s foreclosure on a tract of property conveyed to it as collateral for a loan to Jack Jennings. Jennings purchased the property in question in 1988 with funds borrowed from Investguard, and Investguard retained a deed to secure debt on the property. At the time of the purchase, Chicago Title Insurance Company (“Chicago Title”) issued a title insurance policy on the property, insuring against encumbrance, defective title, lack of right of access and unmarketability of title.

When Jennings failed to repay the loan, Investguard foreclosed and took title to the property. Investguard later determined that part of the property was located in a flood plain and that it apparently lacked any means of access to a public road. Investguard made a written claim on the title insurance policy issued by Chicago Title for both conditions, which Chicago Title denied.

Chicago Title subsequently commenced this action seeking declaratory judgment that the property did not lack access to a public road and that the flood plain condition was not covered under the policy. Investguard counterclaimed for breach of contract and bad faith refusal to pay. As to the .flood plain issue, Investguard contended that the property’s location within a flood plain rendered title to the property unmarketable, that matters of survey were covered by the policy, and that physical inspection or accurate survey would have disclosed the flood plain condition. Investguard also counterclaimed against Marshall and his law firm, who performed the title search and certified the title, for breach of contract and professional negligence in failing to disclose the lack of access and flood plain conditions.

The trial court granted summary judgment to Chicago Title, and Marshall and his law firm, on the access issue but denied it on the flood plain issue, finding a genuine issue of material fact as to the marketability of the property due to its location in a flood plain. Chicago Title appeals from the denial of its summary judgment motion on that issue in Case No. A94A1688, and in Case No. A94A1689 Investguard cross-appeals from the grant of summary judgment for Chicago Title on the access issue. In Case No. A94A1690, Marshall and his law firm cross-appeal from the denial of their summary judgment motion with respect to the flood plain issue.

Case No. A94A1688

1. Chicago Title contends the trial court erred in denying its motion for summary judgment on the flood plain issue, claiming that location within a flood plain is a mere physical condition of the property that may diminish its value but does not constitute unmarketability of title. “A good title means not merely a title valid in fact, but a marketable title which can again be sold to a reasonable purchaser or mortgaged to a person of reasonable prudence as a security for the loan of money.” (Citations and punctuation omitted.) Ardex, Ltd. v. Brighton Homes, 206 Ga. App. 606, 608 (426 SE2d 200) (1992).

“[T]he liability of an insurer under a title insurance policy is for loss or damage by reason of defects in the title to the property or by reason of liens or encumbrances thereon. . . . The coverage of title insurance extends to reasonably anticipated implications of ownership which attach to the insured by reason of the record, but does not extend beyond that point.” (Citation and punctuation omitted.) U. S. Life Title Ins. Co. v. Hutsell, 164 Ga. App. 443, 445 (296 SE2d 760) (1982).

No Georgia decision appears to have addressed the question of whether location of the property within a flood plain renders title unmarketable. However, those courts which have addressed the issue of whether defects in the physical condition of the property are covered by title insurance have generally held that such defects do not constitute unmarketability of title. See Chicago Title Ins. Co. v. Kumar, 506 NE2d 154 (Mass. App. 1987); Title &c. Co. of Fla. v. Barrows, 381 S2d 1088 (Fla. App. 1979); Hocking v. Title Ins. &c. Co., 234 P2d 625 (Cal. 1951); Sperling v. Title Guar. &c. Co., 236 NYS 553 (N.Y. 1929), aff’d 170 NE 163 (1930).

We agree with the above-cited decisions that a difference exists between economic lack of marketability, which relates to physical conditions affecting the use of the property, and title marketability, which relates to defects affecting legally recognized rights and incidents of ownership. See Kumar, supra at 157. “One can hold perfect title to land that is valueless; one can have marketable title to land while the land itself is unmarketable.” Hocking, supra at 629. Although location of part of the property in a flood plain may affect its market value, it does not affect the marketability of title to the property. Accordingly, the trial court erred in denying summary judgment for Chicago Title on this issue.

Investguard defends the trial court’s denial of summary judgment for Chicago Title on the flood plain issue, on the basis that factual issues existed as to whether the flood plain would have been disclosed by inspection or an accurate survey, and whether matters of survey were insured by the policy. However, in light of our above holding that the location of property in a flood plain does not constitute a title defect, the discovery of that particular physical characteristic by inspection or survey would provide no basis for Investguard’s recovery.

Case No. A94A1689

2. The subject property in these appeals is separated from a public road by two other tracts that formerly were owned by Jennings. Investguard contends that the trial court erred in granting summary judgment for Chicago Title, Marshall, and Marshall’s law firm on the access issue, because issues of fact existed as to whether there was access from the property to that public road.

Prior to purchasing the property in question, Jennings executed a deed to secure debt on the second tract to Sidney Miller as security for a loan. In that deed, the second tract was described as “Section Two on a plat by Byron L. Farmer and dated October 15, 1986, the same being a compiled plat.” The plat itself, which was not recorded, showed two parallel lines beginning from the northern edge of the second tract and extending across both that tract and the third tract into the subject property. It also bore the designation “R/W,” 60', a scale of one inch equals 50 feet, and an arrow indicating north. Also before purchasing the property in question, Jennings conveyed the third tract to Empire Financial Services, Inc., pursuant to a deed under power of sale, and that deed contained a reservation of a 60-foot-wide easement for ingress and egress to the subject property.

“[W]here a deed to land refers to a map or plat as a part of the description of the land conveyed, such map or plat will ordinarily be considered as incorporated in the deed itself. . . .” Spencer v. Poole, 207 Ga. 155, 156 (60 SE2d 371) (1950). Further, where a plat is so incorporated by reference in a deed, “ ‘the plat itself and the words and marks on it are as much a part of the grant or deed, and control, so far as limits are concerned, as if such descriptive features were written out on the face of the deed or grant itself.’ [Cit.]” Etheridge v. Fried, 183 Ga. App. 842, 843 (360 SE2d 409) (1987).

With regard to the second tract of land, the description of the property indicated on the unrecorded plat prepared by Byron Farmer thus became part of the deed to secure debt Jennings executed in favor of Miller. We agree with the trial court that this incorporated plat established an easement across the second tract of land.

The 60-foot-wide parallel lines across the property indicated on the plat designated as “R/W” can be reasonably interpreted only as an easement. See Hardigree v. Hardigree, 244 Ga. 830 (262 SE2d 127) (1979). Further, the plat indicated that it was drawn to scale, with one inch equaling 50 feet, and designated which direction was north. Applying those keys to the plat, the exact dimensions and location of the easement could be determined. Lawyers Title Ins. Corp. v. Nash, 196 Ga. App. 543 (1) (396 SE2d 284) (1990).

With regard to the third tract, Investguard acknowledges that the deed executed by Jennings to Empire Financial Services purported to reserve a 60-foot-wide roadway across the tract to the adjoining property, but it contends that the general reservation of a roadway across the property was too indefinite to create an easement because it failed to specify the path of the roadway.

However, there is no absolute requirement of indicating the exact path of an easement. “Perfection in legal descriptions of tracts of land is not required. If the premises are so referred to as to indicate the grantor’s intention to convey a particular tract of land, extrinsic evidence is admissible to show the precise location and boundaries of such tract. The test as to the sufficiency of the description of property contained in a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that its identification is practicable.” (Citations and punctuation omitted.) McCann v. Miller, 111 Ga. App. 53, 54 (2) (338 SE2d 509) (1985). See also Lawyers Title Ins. Corp. v. Nash, supra.

In the instant case, the deed indicates a clear intention to reserve an easement and establishes the width of that roadway easement. The starting and ending points of that roadway can be easily ascertained by reference to the same plat that was incorporated by reference to the deed to secure debt on the second tract. Under these circumstances, the easement granted on the third tract was identifiable, and the trial court thus correctly determined that access to the subject property existed by virtue of the easements Jennings created on the second and third tracts.

Decided November 3, 1994.

Varner, Stephens, Wingfield & Humphries, James T. White, Fellows, Johnson, Davis & LaBriola, G. Terrell Davis, for Chicago Title.

Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., Susan S. Jones, for Investguard.

Arnall, Golden & Gregory, Halsey G. Knapp, Jr., Anthony W. Morris, for Marshall.

Case No. A94A1690

3. Investguard counterclaimed against Marshall and his law firm on the ground that the latter owed it a duty to warn of any conditions, such as lack of access and the flood plain issue, that rendered the title to the property unmarketable. In granting summary judgment for Marshall and his law firm on the access issue, the trial court concluded that its finding that access to the property did exist mooted this related claim against Marshall and the law firm. Similarly, in light of our holding in Division 1 that the location of the subject property in a flood plain did not constitute a title defect, and absent any other obligation of Marshall and the law firm to discover and disclose the flood plain condition, Marshall and his law firm were also entitled to summary judgment on the flood plain issue.

Judgment affirmed in Case No. A94A1689. Judgments reversed in Case Nos. A94A1688 and A94A1690.

Beasley, P. J., and Johnson, J., concur.

       We granted Chicago Title’s application for interlocutory appeal from the partial denial of its summary judgment motion.


author: Pope, Chief Judge.

text:
    A94A1692.
    ROBINSON v. THE STATE.
    (449 SE2d 679)
   Pope, Chief Judge.

Defendant Fonte Deron Robinson was convicted by a jury of theft by receiving stolen property. He appeals following the denial of his motion and amended motions for new trial.

1. Defendant’s first and third enumerations challenge the sufficiency of the evidence. Specifically, citing Dyer v. State, 150 Ga. App. 760 (258 SE2d 620) (1979), defendant contends there was a fatal variance between the crime charged and the proof offered at trial in that the State’s evidence established the elements of theft by taking rather than theft by receiving. However, our review of the record and transcript shows that unlike Dyer, in which the evidence demanded the conclusion that the offense of theft by taking had been committed, the evidence in this case was sufficient to establish defendant’s guilt of either theft by taking or theft by receiving. “[T]here was no uncontradicted evidence which demanded a finding that [defendant] was the thief. ‘The facts in the instant case are(, therefore,) distinguishable from those in Dyer v. State, . . . , supra, as the (S)tate did not produce conclusive evidence, as in Dyer, that [defendant] committed theft by taking . . . (G)uilt of either theft by taking or receiving could be inferred. “ ‘In a theft by receiving stolen property case, where the principal thief is unknown, there is no burden on the (S)tate of proving that such thief was not the defendant.’ (Cit.)” (Cit.)’ Duke v. State, 153 Ga. App. 204, 205 (264 SE2d 721) (1980). See also Poole v. State, 144 Ga. App. 228, 229 (1) (240 SE2d 775) (1977) (eyewitness testimony that defendant was the thief). ‘(T)he jury would have been authorized to find the existence of each fact necessary to sustain a conviction of (theft by receiving). . . . (Any) contention that there was a variance between the (S)tate’s allegations and proof . . . misses the point that the fatal variance doctrine merely is concerned with proof introduced in support of allegations and is not concerned with the findings the jury may make after having heard the evidence. (Cit.)’ [Cit.] Moreover, even if there were a variance, it would not be so material as to be fatal. The crimes of theft by taking and theft by receiving are mutually exclusive. Sosbee v. State, 155 Ga. App. 196, 197 (270 SE2d 367) (1980). ‘On convicting [defendant] of the charge that he knowingly received the stolen (automobile), the (jury) necessarily determined that the (taking) had been committed by someone other than [defendant].’ ” Redding v. State, 192 Ga. App. 325, 326 (384 SE2d 910) (1989). Consequently, defendant’s first and third enumerations of error are without merit.

2. Defendant also contends that the trial court erred in refusing to charge the jury, upon written request by the State which was apparently adopted by the defendant, that the “essence of [the] crime of theft by receiving stolen property is that the defendant, . . . bought or obtained property which had been stolen by some person other than the defendant.” See Thomas v. State, 261 Ga. 854, 855 (1) (413 SE2d 196) (1992). The transcript shows that the trial court charged the language contained in the Suggested Pattern Jury Instructions, which tracks the language of the Code setting forth the offense of theft by receiving. The court also charged the jury that “proof from whom a stolen article was received is not an essential element of the crime of receiving stolen property.” Although it may have been better for the court to go further and specifically instruct the jury that an essential element of the offense is that the property be stolen by another, “ [t] his . . . language implies that someone other than the accused person actually committed the taking of the property.” Dyer, 150 Ga. App. at 761. See also Duke v. State, 153 Ga. App. 204 (264 SE2d 721) (1980) (“ ‘ “where the principal thief is unknown, there is no burden on the [S]tate of proving such thief was not the defendant” ’ ”). After reviewing the charge in its entirety, we find the instructions given here were sufficient to inform the jury of the elements of the offense set forth in the indictment. Consequently, defendant’s second enumeration of error is without merit.

Decided November 3, 1994.

3. Defendant next contends that the trial court improperly limited his closing argument, in that his counsel was not allowed to argue inferences from the evidence. Our review of the record shows that the objection made by the State and sustained by the court was to the effect that defense counsel was “quoting law” from cases concerning the requirement that someone other than the defendant actually have stolen the property. “Simply stated, the jury should receive law from the court and not from the attorneys.” Beck v. State, 181 Ga. App. 681, 683 (3) (353 SE2d 610) (1987). Moreover, although the discussion or citation of statutory law is not precluded, and counsel has every right to refer to applicable law during closing argument, the attorneys for the parties should not be allowed to supplement the court’s charge by quoting law during closing argument which is not going to be charged by the court. Conklin v. State, 254 Ga. 558, 570 (10) (331 SE2d 532) (1985); see also Freels v. State, 195 Ga. App. 609, 611 (2) (394 SE2d 405) (1990). While counsel is permitted to argue inferences from the evidence, and obviously to urge that the State has failed to prove its case, to the extent that counsel here was attempting to urge her argument to the jury concerning the variance between the allegata and probata, the trial court properly sustained the objection. That was the type of argument which should have been, and was, properly addressed to the trial court on motion for directed verdict. Lastly, we would also point out that what could be inferred from defendant’s testimony was that he had been the victim of a “scam”; under no construction would defendant’s testimony have authorized the conclusion that he should not be convicted of the crime charged because he was the principal thief as opposed to the recipient of stolen goods. Under these facts, we do not think that defense counsel’s argument was improperly limited.

4. It follows from the foregoing that we find no error in the denial of defendant’s motion for new trial.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

Carla J. Friend, for appellant.

Lewis R. Slaton, District Attorney, Samuel W. Lengen, Frances E. Cullen, Assistant District Attorneys, for appellee.


text:
    A94A2314.
    THOMPSON v. PHELPS INDUSTRIES, INC.
    (449 SE2d 677)
   Birdsong, Presiding Judge.

Donald R. Thompson sued Phelps Industries, Inc. and others for injuries received when, after having driven his truck onto a hydraulic truck dump at the Southeast Paper Manufacturing Company plant in Dublin, Georgia, he stepped down from his truck and fell through a space between the platform of the hydraulic truck dump and the catwalk surrounding the truck dump. Phelps Industries moved for summary judgment, contending that it contracted only to build and supply the hydraulic truck dump and that it was not required to, and did not, build the catwalk surrounding the hydraulic truck dump. Phelps Industries further contends the evidence shows it merely supplied the truck dump to the specifications of Southeast Paper Manufacturing Company, and the catwalk surrounding the truck dump was built and installed by others. In response to Phelps Industries’ motion for summary judgment, Thompson supplied no rebutting evidence but merely asserted that “a material issue of fact exists as to whether Phelps Industries had any participation in the design and supplying any part of the catwalk on which plaintiff was injured.” The trial court granted summary judgment to Phelps, and Thompson appeals. Held:

The evidence shows that the hole through which appellant fell was a gap between a platform constructed by Phelps Industries to specification and the stationary catwalk supplied by others to surround the truck dump. The part of the platform constructed by Phelps Industries is attached to the truck dump; when the truck dump rises, the platform attached to it rises. Appellant contends the stationary catwalk should “meet” the platform attached to the truck dump. Phelps Industries contends the stationary catwalk was built around the truck dump by others. There is no evidence in the record that Phelps Industries is responsible for constructing the catwalk surrounding the hydraulic truck dump, that it negligently constructed the hydraulic truck dump and the platform attached to it, or that the truck dump and attached platform did not meet the specifications required by the proprietor. After appellant’s fall, Southeast Paper Manufacturing Company welded a metal plate to the stationary catwalk to cover the gap; this evidently removed the hazard. Phelps Industries made a prima facie showing that the gap was a shortfall in the stationary catwalk, for which Phelps was not responsible.

Decided November 3, 1994.

Frank Gonzalez-Burgos, for appellant.

Carter & Ansley, Christopher N. Shuman, Kent, Worsham, Williamson & Brannon, A. Martin Kent, Glover & Blount, Percy J. Blount, for appellee.

A respondent to motion for summary judgment is not required by law to produce new evidence to rebut the movant’s showing of a prima facie case; he may rest on the evidence theretofore presented (English Restaurant v. A. R. II, Inc., 194 Ga. App. 639, 640 (391 SE2d 462); Benefield v. Malone, 110 Ga. App. 607 (139 SE2d 500)) but if such evidence does not rebut the prima facie case made out by the movant and respondent provides no rebuttal evidence, then he has not borne his burden to establish an issue of fact. When Phelps Industries produced evidence that it did not construct the stationary catwalk and did not perform any negligent act in constructing the truck dump and platform, and that appellant’s injury was caused by the shortfall of the stationary platform built by others, appellant was required to show an issue of fact in the evidence of record or to come forward with rebuttal evidence. Balke v. Red Roof &c. Co., 190 Ga. App. 779, 781 (380 SE2d 61). This he did not do.

Appellant asserts there are contradictions in the affidavits of Phelps Industries’ agents which must be adjudged against them on motion for summary judgment, but appellant does not say what those contradictions are, and provides no citation to the record for this assertion and no citation of authority. This assertion is abandoned under Court of Appeals Rule 15. Further, we find no such contradictions.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2329.
    WEIDENDORF v. THE STATE.
    (449 SE2d 675)
   Birdsong, Presiding Judge.

Robert J. Weidendorf was indicted for theft by taking a motor vehicle and theft by receiving a motor vehicle. Both counts involved the same vehicle. The State presented evidence that a certain distinctive 1968 Chevrolet El Camino, which was for sale, sat in front of a gas station where the owner’s friend worked; it sat at that location until a few days after appellant inquired twice about the vehicle. Then, the El Camino disappeared. Nine months later, the gas station attendant saw the vehicle, now painted black, being driven in front of the station and being parked at a store across the street. The owner was called; he recognized the El Camino as his. When police arrived, the owner presented a title which matched the vehicle identification number on the vehicle. Appellant presented to the police a bill of sale which did not match the VIN on the vehicle. At trial, appellant admitted having seen the El Camino and having spoken to the gas station attendant; he presented a second bill of sale as representing his purchase of the vehicle, and admitted that the bill of sale he had presented to police was a fabrication made to get a license tag for the vehicle.

The jury acquitted appellant of the charge of theft by taking and convicted him of theft by receiving. He enumerates three errors on appeal. Held:

1. Appellant asserts as error the trial court’s refusal to charge the jury that the essential elements of theft by receiving are that the accused bought or received the goods; that the goods were stolen by some person other than the accused; that the accused knew the goods were stolen; and that in receiving the goods he acted with criminal intent. See Austin v. State, 89 Ga. App. 866 (81 SE2d 508); Suggs v. State, 59 Ga. App. 394 (1 SE2d 39). However, as noted in the dissent in Redding v. State, 192 Ga. App. 325, 328 (384 SE2d 910), the statement in Austin and Suggs that an essential element of receiving stolen goods is that the goods were stolen by some person other than the accused is a reference to the common law version of OCGA § 16-8-7; that common law version covered a type of “accessory after the fact” when theft was a felony and accessory after the fact was a misdemeanor. See Minor v. State, 58 Ga. 552; compare OCGA § 16-8-12.

OCGA § 16-8-7 (a) pertinently provides: “A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.” Current cases have quoted the common law principle from Suggs and Austin merely to show that an accused who is convicted of receiving stolen goods cannot be convicted of the theft of those same goods. See Thomas v. State, 261 Ga. 854, 855 (413 SE2d 196); Sosbee v. State, 155 Ga. App. 196, 197 (270 SE2d 367); Clark v. State, 144 Ga. App. 69, 70 (240 SE2d 270). The two offenses are mutually exclusive (Camsler v. State, 211 Ga. App. 826, 827 (440 SE2d 681)); a conviction of a defendant of both offenses as to the same stolen goods is a contradiction in terms. It is not a requirement of the present law that the State prove the accused did not steal the goods.

2. As the jury acquitted appellant of the charge of theft by taking, the trial court’s denial of a directed verdict on that charge is a moot point.

Decided November 3, 1994.

Moore & Davidson, W. Keith Davidson, for appellant.

Daniel J. Porter, District Attorney, Brian K. Wilcox, Assistant District Attorney, for appellee.

3. Appellant contends the trial court erred in denying a directed verdict as to receiving stolen property because ownership of the vehicle was not proven. The evidence was sufficient to persuade a rational trier of fact beyond a reasonable doubt that the vehicle was owned by the victim, that it was stolen, that appellant did not own it and he knew or should have known it was stolen, all of which are sufficient to satisfy the requirements of OCGA § 16-8-7 (a). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). As the evidence was sufficient to support the conviction, appellant could not have been entitled to a directed verdict of acquittal under OCGA § 17-9-1.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2340.
    BOBBITT v. THE STATE.
    (449 SE2d 674)
   Birdsong, Presiding Judge.

John Bobbitt appeals his burglary conviction; he was tried jointly with co-defendant Phillip W. Reeves. Held:

Appellant’s sole enumeration is that the trial court erred by allowing the co-defendant to give testimony regarding the substance of appellant’s prior testimony at a probation revocation hearing after appellant elected not to take the stand in his behalf. Appellant does not contend that error occurred by failing to sever his case from that of co-defendant or that his testimony at the probation hearing was not voluntary, thus these issues are not before us on appeal. Rather, appellant asserts that introduction of his prior testimony in evidence in view of his election not to testify at trial violated his privilege against self-incrimination under the Fifth Amendment of the United States Constitution and under the Georgia Constitution of 1983, and that the introduction of this testimony compelled him to give evidence in violation of OCGA § 24-9-20 (a).

The record reveals that it was co-defendant’s counsel who first stated on the record that co-defendant desired to place in evidence appellant’s prior testimony. Appellant did not object initially, but made a general observation that “it’s almost like a reverse Bruton problem. It’s not an inculpatory statement, but its going to be used in that fashion. I mean, the statement would deny all knowledge.” Later, after the trial court indicated its inclination to allow admission of appellant’s prior testimony, appellant’s counsel stated: “I’d certainly stipulate that the testimony was given at a hearing, but if I might. . . have the opportunity to look up some law.” The trial court agreed to that request. Thus initially appellant’s counsel did not pose any objection in proper form as to the introduction of appellant’s prior testimony at the probation revocation hearing. Subsequently, before the opening argument of co-defendant, appellant posed an objection to any mention of his prior testimony on the specific grounds that other evidence of record would impeach this prior testimony and this in effect forces appellant to incriminate himself. The trial court tacitly overruled this objection and permitted co-defendant’s attorney to proceed with opening argument. Thus, it was co-defendant and not the State that initially pressed to have this evidence admitted on the grounds that it was relevant to show appellant was lying to cover something up and protect himself. During trial the co-defendant testified in his behalf. During the course of his direct examination, co-defendant stated he hád heard appellant testify previously and deny that he (appellant) had anything to do with the stolen checks, and that he had been at work all day and had not seen co-defendant. Appellant objected on the additional grounds that evidence of appellant’s prior testimony was not “proper as original evidence.” Co-defendant did not reveal that appellant’s testimony was given at a probation revocation hearing or that appellant was a party at this hearing.

Appellant’s claim of error under OCGA § 24-9-20 (a) is not before us on appeal, as appellant failed to object on this particular ground at trial. Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395). Assuming arguendo appellant has adequately preserved on appeal the issue whether the testimony in question violated his privilege against self-incrimination under both the United States and the Georgia Constitutions, we nonetheless find his contentions are without merit. In Edison v. State, 256 Ga. 67, 69 (3) (344 SE2d 231), the defendant elected not to testify at his second trial and the State introduced his previous testimony in evidence to set out conflicts between his version of the events surrounding the murder and the versions of the State’s witnesses; the Supreme Court found no error opining that “[a] defendant who testifies on his behalf waives his privilege against self-incrimination to the extent of that testimony.” Id.; accord Carter v. State, 263 Ga. 401, 402 (2) (435 SE2d 42); Wright v. State, 207 Ga. App. 685, 686 (2) (428 SE2d 691). We conclude appellant waived his privilege against self-incrimination by testifying voluntarily on his behalf at the probation revocation hearing to the extent of that testimony. See Edison, supra; Carter, supra; Wright, supra.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.

Decided November 3, 1994.

Kelley A. Dial, for appellant.

T. Joseph Campbell, District Attorney, D. Scott Smith, Assistant District Attorney, for appellee.