text:
    A01A1327.
    BUTLER v. McNEAL.
    (555 SE2d 525)
   Smith, Presiding Judge.

This appeal arises out of the trial court’s order granting summary judgment to Lisa McNeal, a teacher, in an action for personal injuries filed by a student, Jonathan Butler. The trial court concluded that McNeal was entitled to official immunity because no evidence of actual malice was presented. We agree, and we affirm.

On the date of the incident at issue, Butler was a student at Hilsman Middle School in Athens. He was in his homeroom class, which was adjacent to a class taught by McNeal. Butler’s class, under the supervision of a substitute teacher, became noisy and disruptive, and McNeal entered through a connecting door to help the teacher control the classroom. Butler, who had a history of disciplinary problems at the school, was separated from the other students and was seated at a table near this door. He acknowledged during his deposition that this seating arrangement was designed to “keep me out of trouble.” The facts are somewhat in dispute as to the events that occurred after McNeal entered the classroom.

McNeal testified during her deposition that when she arrived, Butler was banging his chair against the wall. She asked him to stop, and he did so, but he began making comments such as, “Why do you teachers have to come over here?” and “Why are you getting in the business?” When Butler did not obey her instruction to stop making these comments, she told him to go to her classroom. He did not go, and she placed her hand on his back, on the shoulder area in order to get his attention, and said, “Come on, now let’s go.” She also placed her hand on the back of his chair, and she testified that while doing so, she heard a disturbance in her own classroom and leaned back to look through the connecting door. She felt the chair get “lighter” and turned around to see Butler on the floor, which was carpeted, “and then he jumped up.” McNeal testified that she did not intentionally pull the chair but assumed that it moved when he stood up. He did not seem injured. McNeal instructed him to go into her classroom; she wanted him to have an opportunity to “cool down.” He did so, but before she could return, he left the classroom, and she found him in the office. She then took him to the assistant principal’s office, where he was assigned to in-school suspension.

Butler denied being disruptive or banging his chair into the wall. He stated that McNeal came to his chair and told him to be quiet and that she could hear him talking. He also testified that she poked him in the shoulder area, but he “was not really thinking about” whether this hurt. According to Butler, he told McNeal that he was not talking, and she told him to get up and go into her classroom. He reached forward to get his notebook and pushed his chair backward approximately two feet, and the next thing he knew, he was on the floor. Although he testified that it “felt like she just snatched the chair” and that she could not have been looking into her classroom when the incident occurred, he acknowledged that he was not looking at McNeal at the time and that he did not know if she pulled the chair on purpose or if the incident was an accident. He thought she purposefully pulled the chair because she did not apologize to him or ask him whether he was hurt. Butler stated that he heard McNeal “giggling or something” and saying “thank you” to the other teacher. He went into her classroom for a few minutes but then left to go to the office and call his mother. Before he could use the phone, however, McNeal arrived, and he testified that she took him by the arm to the assistant principal’s office.

Butler argues that the trial court erroneously granted summary judgment to McNeal on the ground that disputed issues of fact exist as to how the incident happened and the extent of his injuries. Indeed, the accounts of the incident by McNeal and Butler do differ in some respects. But these factual discrepancies are not controlling on the issue of whether McNeal was entitled to official immunity. Public officials are protected from personal liability for discretionary actions taken within the scope of their professional authority, if those actions are not accompanied by actual malice or actual intent to cause injury. Daniels v. Gordon, 232 Ga. App. 811, 813 (2) (503 SE2d 72) (1998). And “the general task imposed on teachers to monitor, supervise, and control students has also been held to be a discretionary action which is protected by the doctrine of official immunity.” (Citations and punctuation omitted.) Id.

Decided October 17, 2001.

Anthony T. Pete, for appellant.

McLeod, Benton, Begnaud & Marshall, Malcolm C. McArthur, for appellee.

Here, McNeal was simply exercising her discretionary authority to monitor, control, and supervise the children in her school, after hearing the disruption in the neighboring class. Liability could therefore attach only if her actions were undertaken with actual malice, which “requires a deliberate intention to do wrong.” Merrow v. Hawkins, 266 Ga. 390, 391 (467 SE2d 336) (1996). Furthermore, malice in this context cannot be implied, see Crisp County School System v. Brown, 226 Ga. App. 800, 802 (2) (487 SE2d 512) (1997), and “[a]ctual malice requires more than harboring bad feelings about another.” Adams v. Hazelwood, 271 Ga. 414, 415 (2) (520 SE2d 896) (1999). Regardless of the discrepancies between the accounts of the parties as to how the incident occurred, even construing the facts in favor of Butler, as nonmovant on motion for summary judgment, the record does not show that McNeal acted with actual malice or that she intended to injure Butler. See Daniels, supra, 232 Ga. App. at 813. The trial court correctly granted summary judgment to McNeal based on the doctrine of official immunity.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       The action was filed by Butler’s mother and next friend, Gale Sheats.

       The lawsuit also named as defendants the Athens-Clarke County School District and Patricia Clifton, individually and as principal of Hilsman Middle School. The trial court granted summary judgment to these defendants on sovereign immunity grounds. Butler appeals only the grant of summary judgment to McNeal.

       In fact, the record is undisputed that he did not tell McNeal or anyone else at the school that he was injured, nor did he act in a manner that made him appear to have any injuries.


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A01A1333.
    MANN v. THE STATE.
    (555 SE2d 527)
   Smith, Presiding Judge.

Edward Scott Mann was convicted by a jury of two counts of aggravated sodomy. The trial court granted in part and denied in part his motion for new trial as amended, finding that as to one count, the indictment did not properly allege the offense for which Mann was convicted. The court denied the motion with respect to the remaining charge. Mann appeals. Because we agree with Mann that his trial counsel was ineffective under the standard of Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), in failing to object to improper opinion testimony that the victim was telling the truth, we reverse and remand this case for a new trial.

The only evidence concerning the allegations against Mann came through the testimony of the victim and witnesses to whom the victim made statements. The victim’s stepmother testified that her six-year-old daughter told her that the victim, who was the same age as her daughter, “pulled his pants down and made me suck his pee-pee.” The stepmother asked the victim what happened. He first replied, “Nothing,” but he then began crying. She told him not to lie to her and asked who showed him how to behave in this manner. He answered, “My Uncle Scott.” The stepmother testified that “Uncle Scott” was her brother, Scott Mann, who babysat the two children from time to time. According to the stepmother, the victim told her that Mann had tried to place his penis into the victim’s bottom and that “it hurt bad.” She testified that she did not seek medical attention because no penetration had been made; she stated that she asked the victim “if he put it inside, and he said no, ma’am but it hurt real bad.”

Much of the victim’s testimony was nonresponsive. Although he often nodded his head affirmatively or shook his head negatively when asked questions by the prosecutor, many times he refused to respond to the prosecutor’s questions, particularly those involving the incidents alleged against Mann. When asked to describe what had happened, he refused to respond. He did, however, shake his head negatively when asked if he was happy being around Uncle Scott and nodded his head when asked if Uncle Scott had done anything that he did not like and whether Uncle Scott had touched him on his body. On more than one occasion, he would not respond when the prosecutor asked him to state or point to the part of his body that Mann had touched, but he once nodded affirmatively when asked if Mann touched his mouth with his penis. When asked who showed him how to do what he did to his sister, he answered, “Scott.”

Mann complains about the testimony of the remaining two State’s witnesses. The first witness called by the State was Laurie Love, who investigated child abuse cases for the local sheriff’s department. She interviewed the victim, who told her that Mann had licked his penis and his bottom several times. The prosecutor asked this witness whether, during her investigation, she found a reason to “investigate further.” The witness answered, “I believed him.” No objection was made to this testimony.

The State’s second witness was Holly Shepherd, a professional counselor who worked with the victim because of the charges brought against Mann and because the victim had been “acting out.” He told her that Mann had touched his penis with Mann’s hands and mouth and that he had touched Mann’s penis with his hands and mouth. The victim could not remember when, or how many times, these events occurred. The prosecutor asked Shepherd if she found “any evidence whatsoever that he is not telling the truth when he told you these things?” Shepherd answered, “The answer to that question is no. I believe he’s telling the truth.”

The trial court then called a bench conference and stated to the prosecutor that it was not proper for the State “to test another witness’s credibility by this witness.” Defense counsel objected to this line of questioning on the ground that witnesses cannot testify to the ultimate issue of molestation, and the trial court added that “one witness can’t tell whether another witness is telling the truth.” The prosecutor stated that he would not “go there again,” and the trial court stated that it would sustain the objection. Although the trial court sustained the objection, the jury nevertheless heard the testimony; no instruction was given to the jury to disregard the testimony, and no other type of curative instruction was asked for or given. Mann testified, denying the allegations and denying ever acting as a babysitter for his sister’s children.

1. Among other contentions, Mann argues that his trial counsel’s failure to object to this testimony concerning the victim’s credibility constituted ineffective assistance of counsel. Under the standard of Strickland, supra, 466 U. S. at 687, to prevail on an ineffectiveness claim, a defendant must show both that trial counsel’s performance was deficient and that, but for this deficiency, a reasonable probability exists that the outcome of the trial would have been different. See, e.g., Head v. Carr, 273 Ga. 613, 615-616 (4) (544 SE2d 409) (2001). We have repeatedly held that a witness, even an expert, can never bolster the credibility of another witness “as to whether the witness is telling the truth. Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury. OCGA § 24-9-80.” (Citations and punctuation omitted.) Price v. State, 220 Ga. App. 176, 177 (2) (b) (469 SE2d 333) (1996). See also Lagana v. State, 219 Ga. App. 220, 221 (1) (464 SE2d 625) (1995); Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994). Given this well-settled law, trial counsel’s failure to object to this clearly objectionable testimony when it first occurred constituted deficient performance. In addition, although it appears that trial counsel lodged an objection after the second witness testified concerning the victim’s credibility, as noted above, the evidence was nevertheless admitted and heard by the jury. The jury was not instructed to disregard it. Under this circumstance, we farther conclude that trial counsel’s failure to move for a mistrial, or at the very least, to request curative instructions, was deficient as well.

We note that the record does not support the State’s contention that defense counsel’s failure to object constituted trial strategy. On motion for new trial, Mann submitted the affidavit of his trial counsel, in which counsel recited that it was not trial strategy on her part for the jury to hear either witness testify that she believed the victim was telling the truth or that she believed the victim had been molested. She farther noted that even assuming that the issue of her failure to object “was not preserved for appeal, it would have been because of inexperience and not trial strategy as this was my first jury trial.”

Of course, our inquiry does not end here, for we must address the second prong of the Strickland analysis. Mann must show a reasonable probability, or a probability that undermines confidence in the outcome of the case, that but for the deficiency, the result would have been different. Head, supra, 273 Ga. at 616. We conclude that testimony by the State’s witnesses that they believed the victim undermined any confidence in the outcome of the trial and that Mann has satisfied the second prong of the Strickland analysis.

Unlike the evidence in Odom v. State, 243 Ga. App. 227 (531 SE2d 207) (2000), in which reversal was not required even though an expert had given improper opinion testimony concerning whether the victim had been molested, the evidence against Mann was hardly overwhelming. The only evidence linking Mann to the crimes alleged against him arose out of statements made by the victim, whose credibility was very much in issue during the trial and whose testimony was far from compelling. The victim’s statements varied in material respects. He told his stepmother that Mann had tried to place his penis in his bottom and that it hurt. But he told Love that Mann had placed Mann’s mouth on his penis and had licked his anus. His allegations to Shepherd again differed, for he reported to this witness that he had touched Mann’s penis with his hands and mouth and that Mann had done the same to him. On direct examination by the State, Shepherd testified that the victim did not state that Mann had placed his mouth on his anus.

Decided October 17, 2001.

Mau & Kondritzer, Kenneth D. Kondritzer, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

In addition, the victim’s allegations against Mann arose after the victim found himself in trouble, and the victim acknowledged that he sometimes blamed wrongdoing on others. We further note that the stepmother testified that the victim had stolen “repeatedly.” Mann’s mother, who was also the mother of the victim’s stepmother, testified as well. She stated that the stepmother had expressed concern about the victim’s truthfulness on three occasions before trial and that the victim had lied to her about other people having abused him; he had accused his father and stepmother of not feeding him. On cross-examination, the prosecutor asked this witness whether she believed it happened, and she answered, “I don’t.” The prosecutor asked this witness whether she believed anything the victim said, and she replied that she did not. The State’s case depended on the victim’s credibility. Despite the impropriety of this latter witness’s testimony concerning her stepgrandson’s credibility, under the circumstances of this case, in which two different trained professionals testified that they believed the victim, we cannot conclude that defense counsel’s failure to properly object and have this testimony removed from the jury’s consideration had no effect on the verdict. Compare Godbey v. State, 241 Ga. App. 529 (526 SE2d 415) (1999) (physical precedent only) (although witness improperly bolstered witness’s credibility, denial of mistrial motion upheld where proper curative instructions twice given to jury). Reversal is required.

2. We need not reach Mann’s remaining enumerations, as they are not likely to recur at retrial.

Judgment reversed.

Barnes and Phipps, JJ, concur.

       The evidence in Odom consisted of two videotapes of the victim identifying Odom the defendant as the perpetrator, “strong physical evidence of sexual abuse,” and “three outcry witnesses who demonstrated the consistency of the victim’s outcry,” as well as “two mental health experts who each offered proper, competent testimony that the victim’s outcry and behavior are consistent with that of children who have been sexually abused.” Id. at 231 (1) (d) (ÍÜ).

       The State appears to acknowledge as much in its appellate brief.


text:
    A01A1477.
    BELL v. THE STATE.
    (555 SE2d 747)
   Smith, Presiding Judge.

Frederick Eugene Bell was charged with violation of the Georgia Controlled Substances Act in eight particulars: four counts of sale of cocaine; one count of possession of cocaine; two counts of trafficking in cocaine; and possession of cocaine with intent to distribute. Stephanie Denise Wallace was charged along with Bell with respect to one of the trafficking charges, Count 7. Immediately before trial commenced, Wallace entered a guilty plea to a lesser offense. She was sentenced to first offender probation and a $1,700 fine. Bell was tried before a jury and convicted on all counts. With regard to Count 7, which is the only charge and sentence of which he complains, he was sentenced to life imprisonment and a $300,000 fine. His motion for new trial as amended was denied, and he appeals. He raises arguments concerning his alleged attempt to enter a guilty plea before trial began, the disparity between the sentence he received after trial and the sentence imposed on Wallace, and the sufficiency of the evidence with respect to Count 7. We find no error, and we affirm.

1. Combining two enumerations into one discussion, Bell argues that the trial court improperly injected itself into plea negotiations by calling jurors into the courtroom after Bell stated that he wanted to plead guilty and that this action rendered defense counsel “constructively ineffective.”

(a) In support of his contention that the trial court erroneously interfered with plea negotiations, he cites to a portion of the transcript showing the events that occurred immediately prior to trial. The court did, as pointed out by Bell, ask him whether he wanted a jury trial, and the court stated, “Do you plead not guilty, you want a jury trial on this case.” Bell responded, “No. I ain’t pleading not guilty.” The court then asked, “How are you pleading then?” Bell replied, “I don’t want no jury trial.” Referring to his testimony during the hearing on the motion for new trial, he claims that the prosecutor then made an offer of a “split sentence of 30 serve 20 years to a seven count indictment.” He maintains that he was given no explanation as to how this recommendation applied to each of the seven counts. Bell argues that “[a]bsent an explanation of the consequences of his plea to this new recommendation,” neither he nor his trial counsel immediately responded, and “[t]he Court then cut off any opportunity for [him] to consult with his attorney about the new offer by calling for jurors.” He maintains that “time was not of the essence” because the trial had been delayed for over an hour while Wallace entered her guilty plea.

Bell has taken the colloquy between the trial court and himself out of context and has misstated and mischaracterized the events that occurred before the jury was chosen. We first note that after Wallace entered her guilty plea, Bell’s counsel stated that he became involved in the case approximately one year before trial began and that the case had been pending for fourteen months prior to that time. He filed discovery and a bond motion, and approximately nine months before trial, he participated in a pre-trial conference with the former prosecutor involved in the case. During that conference, the prosecutor made a plea offer to Wallace in which she would receive probation, essentially the same offer she again received and accepted just prior to trial, and offered Bell a sentence of twenty years, with ten to serve, in exchange for a guilty plea. The prosecutor also offered at that time to drop Count 7.

Defense counsel presented the offer to Bell who, according to counsel, stated that he had not “done anything on the case” and rejected the offer. The offer was withdrawn immediately. After Wallace’s entry of a guilty plea and her agreement to testify against Bell, however, defense counsel indicated that Bell would accept the previously made offer. A brief discussion between the court and counsel for the State showed that the offer remained withdrawn. The court asked whether further negotiations were required, and the prosecutor responded negatively. The court then asked Bell if he was ready to go forward, and Bell responded, “Yeah.”

A short time later, after the trial court discussed procedural issues with the attorneys, but before the jury was brought into the courtroom, a question arose as to whether Bell wished to plead guilty. The trial court asked Bell if he wanted a jury trial. As discussed above, Bell expressly refused to plead not guilty and stated that he did not want a jury trial. Apparently, a plea offer had been made, because the trial court asked, “What do you mean you don’t want a jury trial? Do you want to accept the State’s recommendation on the plea, is that what you’re saying?” Bell did not respond, and the prosecutor stated that the recommendation was for a sentence of 30 years with 15 to serve and stated the basis for this offer.

The trial court again asked Bell whether he wanted to accept the State’s offer or be tried by a jury, stating that “[n]ow is the time” to make the decision. Importantly, the trial court offered defense counsel the opportunity to “take [Bell] back and talk with him a little bit” about the offer. Defense counsel asked Bell if he wanted to “talk about it one more time” and noted that they had already “been talking ... for really a couple of hours.” Bell did not respond to the inquiries of either the trial court or defense counsel. The court once more asked Bell if he wanted the record to reflect a plea of not guilty being entered, and defense counsel specifically instructed Bell that he must “respond to the Judge whether you want to accept the plea or you want to go forward with a plea of not guilty and start the jury trial. We need to do one or the other.” Again, Bell refused to respond. The trial court ordered that the record reflect entry of a not guilty plea and had the jury pool brought into the courtroom. The trial commenced, with Bell ultimately being convicted on all counts.

A trial court is not authorized to participate in plea negotiations except to the extent of indicating whether the court is or is not likely to agree with the proposed disposition. State v. Dawson, 203 Ga. App. 854, 855 (1) (419 SE2d 30) (1992). But the trial court here did not participate in the negotiations. It simply repeatedly attempted to learn from Bell, to no avail, whether he accepted the State’s offer. Bell steadfastly refused to respond to the court’s and his own counsel’s inquiries. Contrary to Bell’s argument that he was not given an opportunity to consult with his attorney before accepting or rejecting the “new” offer, the trial transcript shows clearly that the court stated that Bell and his attorney had an opportunity to discuss the offer in private, and defense counsel reiterated to Bell that they could talk about the plea at some greater length. And given defense counsel’s statement at trial that they had already been talking for a “couple of hours,” the record lends support to our conclusion that the newest plea offer was not suddenly made in court, but had been discussed at some length. The trial court did not interfere impermissibly with plea negotiations or otherwise inject itself improperly into the proceedings, and a new trial is not warranted on this ground.

(b) It follows that because the trial court did not erroneously interfere with the plea negotiations, Bell’s claim that defense counsel was rendered “constructively ineffective” is meritless. As discussed above, defense counsel offered to talk with Bell in private about the plea offer, and he instructed Bell that he needed to respond to the trial court’s inquiries. We also note that defense counsel attempted to have the earlier plea offer, made several months prior to trial, reinstated, or at least to initiate further discussion about that offer. And defense counsel testified that Bell “was very adamant” he was not interested in taking a plea. Under the circumstances of this case, we cannot say that counsel’s performance was deficient or that it fell outside the broad range of reasonable professional conduct expected of members of the bar. See LeGallienne v. State, 180 Ga. App. 108, 109 (348 SE2d 471) (1986).

2. Bell argues that a gross disparity in sentencing as to Count 7 exists, because he received life imprisonment while Wallace received first offender probation for the same criminal act. On this basis, he contends he was denied equal protection. We do not agree. It is true that “[w]hen considering an equal protection challenge in criminal matters, individuals are ‘similarly situated’ only if they are charged with the same crime or crimes.” (Citation and footnote omitted.) Woodard v. State, 269 Ga. 317, 321-322 (3) (496 SE2d 896) (1998). But here, although Wallace and Bell were initially charged with the same crime, Wallace pled guilty to a lesser charge and was sentenced to probation as a first offender and received a $1,700 fine. Bell, however, in addition to being convicted of seven other drug charges, was convicted of a charge that he sold, delivered, and possessed 200 grams or more of cocaine. Prior convictions of robbery and possession of cocaine with intent to distribute were also introduced in aggravation of sentence. A life sentence was therefore authorized. See OCGA §§ 16-13-30 (d); 17-10-7 (a); Howard v. State, 234 Ga. App. 260, 261 (2) (506 SE2d 648) (1998) (full concurrence as to Division 2). Furthermore, Wallace’s guilty plea could be regarded as an acknowledgment of guilt and a willingness to assume responsibility for her conduct. See Lee v. State, 199 Ga. App. 246 (2) (404 SE2d 598) (1991). Although Bell may have expressed that he did not want a jury trial following the entry of Wallace’s plea, his continuing recalcitrance and stubborn silence in the face of repeated attempts by the trial court to determine whether he wished to accept the plea offer demonstrated a lack of willingness to cooperate with the trial court and to accept responsibility for his own actions. On these facts, we cannot conclude that Bell was denied equal protection.

3. Bell argues that the evidence was insufficient to convict him of Count 7, which charged him with possessing, delivering, and selling 200 grams or more of a mixture of cocaine. The record shows that after completing several transactions with Bell in which she purchased smaller quantities of cocaine, undercover agent Erica Crabb arranged to meet with Bell at a particular parking lot in order to purchase approximately nine ounces of powder cocaine. Bell arrived at the designated location. He was a passenger in a car driven by Wallace. After Crabb arrived, she walked to the car in which Bell was sitting and leaned inside the open window. He reached onto the floorboard at his feet and pulled out two bags of suspected powder cocaine. She told him she needed to go to her car to get the $7,000 they had agreed on as a purchase price. She walked toward her car and gave a signal for an arrest to be made. After Bell was arrested, the suspected cocaine was seized. It weighed 244 grams and tested positive for “cocaine with a concentration of seventy percent” according to the forensic chemist who testified at trial.

Bell argues that the State failed to show possession, delivery, and sale of cocaine as alleged in the indictment. But even though the indictment was formed in the conjunctive, proof that Bell committed the crime by any of the methods charged would form a basis for upholding his conviction. See, e.g., Mahone v. State, 247 Ga. App. 596, 598 (544 SE2d 514) (2001); Stone v. State, 229 Ga. App. 367, 370 (1) (b) (494 SE2d 48) (1997). Unlike the facts oí Whipple v. State, 207 Ga. App. 131, 132 (427 SE2d 101) (1993), relied on by Bell, in which the defendant’s conviction was reversed because the evidence showed only his mere presence near a quantity of drugs, the evidence presented by the State established that Bell actually showed Crabb the cocaine he intended to sell her. The cocaine weighed more than 200 grams as required by OCGA § 16-13-31 (a) (1) (B). The evidence was sufficient to convict Bell of the offense charged against him. See Moran v. State, 170 Ga. App. 837, 841 (2) (318 SE2d 716) (1984).

Decided October 17, 2001.

Richard D. Wilson, for appellant.

Patrick H. Head, District Attorney, Amy H. McChesney, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       Although Bell was sentenced as a first offender for the armed robbery conviction, this conviction was admissible for sentencing purposes. Williams v. State, 228 Ga. App. 622, 623 (3) (492 SE2d 290) (1997).


author: Miller, Judge. ANDREWS, Presiding Judge,

text:
    A01A1557.
    JOHNS v. MARLOW.
    (555 SE2d 756)
   Miller, Judge.

William Scott Johns sued David Marlow for injuries he sustained when Johns’s motorcycle collided with Marlow’s horse on a public road. The trial court granted Marlow’s motion for summary judgment, and Johns appeals. As genuine issues of fact remain, we reverse.

Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. When this Court reviews an appeal from a grant of summary judgment, a de novo review of the law is conducted and the evidence and all reasonable conclusions and inferences drawn from the evidence are viewed in the light most favorable to the nonmovant.

So construed, the evidence reveals that six to eight weeks prior to the accident, Marlow purchased a horse he named Bones and placed him in the same pasture with two other horses. These two horses were not receptive to Bones, and soon all three horses began running and kicking in an attempt to establish dominance. To prevent the horses from injuring one another, Marlow separated Bones from the other two horses and placed him in an adjacent pasture separated by a cross-fence that was secured by a gate with a latch.

On the morning of October 23, 1997, Bones strayed onto a road where he collided with Johns’s motorcycle. Marlow subsequently discovered that the gate to the cross-fence between the pastures was open and that some force had pushed the boards on the outer fence adjacent to the road so that they had become separated from the posts, leaving a gap for a horse to escape.

In two related enumerations, Johns challenges the grant of summary judgment to Marlow, arguing that the court erred in finding that Marlow exercised ordinary care in maintaining his horses, which the court held rebutted the permissible inference of negligence associated with Bones straying onto the road.

OCGA § 4-3-3 provides that “[n]o owner shall permit livestock to run at large on or to stray upon the public roads of this state. . . .” And where an individual is injured by livestock,

[t]he mere fact that livestock is running at large permits an inference that the owner is negligent in permitting the livestock to stray; but when the owner introduces evidence that he has exercised ordinary care in the maintenance of the stock, that permissible inference disappears. For the evidence to require a verdict for the defendant it must demand a finding that he was not negligent in any respect. A jury question reappears in the case where, although evidence of facts showing ordinary care on his part have been introduced, other facts would support a contrary inference.

Marlow surmised that the other two horses opened the gate to the cross-fence by manipulating the latch with their teeth and weight and that, once inside the pasture that Bones occupied, they ran at and shoved Bones, pushing him through the outer fence adjacent to the road. It is true that “[g]uesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.” But here, Mar-low’s surmising is based upon facts of which he had firsthand knowledge.

Ordinary care is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. Although Marlow deposed that he exercised ordinary care in the maintenance of the horses (i.e., regular feeding and watering and well-constructed and -maintained fences), there was evidence to the contrary. Marlow’s own testimony establishes that he was aware that the horses were running and kicking at each other to establish dominance. And he acknowledged that the two horses had opened the cross-fence gate during the night previous to the accident and entered the pasture where Bones was located and that the horses broke the electric wire attached to the outer fence where Bones escaped. Marlow also deposed that he was aware that some horses are capable of opening gates but nevertheless failed to secure the fence between the pastures with a lock. Moreover, the fact that Bones pushed through the fence adjacent to the road merely dislodging the boards from the posts without breaking the fence is contrary to Mar-low’s assertion that he exercised ordinary care in the maintenance of his fence.

Under these circumstances, a jury should decide whether ordinary care required Marlow to do more than merely separate the horses by a cross-fence secured only by a latch that was not locked and that horses could open. A jury could infer that such lack of maintenance allowed the two aggressive horses to enter the adjacent pasture and challenge Bones, resulting in him being pushed through the outer fence and running astray.

Notwithstanding Marlow’s presentation of evidence to show that he exercised ordinary care, there were other facts present to support a contrary inference, thereby creating a jury question. Thus, the court erred in granting summary judgment in favor of Marlow.

Judgment reversed.

Blackburn, C. J, Johnson, P. J, Ruffin, Eldridge, Barnes and Ellington, JJ., concur. Andrews, P. J., dissents.

ANDREWS, Presiding Judge,

dissenting.

Because I agree with the trial court’s conclusion that Marlow was entitled to summary judgment because nothing but guesses and speculation were posited by plaintiff Johns in opposition to Marlow’s motion for summary judgment, I respectfully dissent.

To obtain summary judgment, a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Where the inference of negligence allowed by the fact that Bones was in the road when struck by Johns is refuted by the concrete explanation provided by Marlow of the construction, maintenance, and inspection of his fence, Johns was required to come forward with some evidence of negligence by Marlow, besides Marlow’s speculation regarding how Bones ended up in the road, in order to defeat Mar-low’s motion for summary judgment.

As stated in Porier v. Spivey, 97 Ga. App. 209, 211-212 (102 SE2d 706) (1958),

there arises a permissible inference authorized prima facie by the mere fact of the running at large by the animal that the owner of the livestock was negligent in allowing the stock to run at large or stray, but when the owner introduces evidence which would authorize a finding that he had exercised ordinary care in the maintenance of the stock, that permissible inference disappears.

In addition to the facts stated by the majority, the following facts are pertinent to consideration of the motion.

The fences around Marlow’s pastures, which he constructed to contain his horses, consisted of four- by four-inch comer posts which had been cemented into the ground. The remaining posts were three by five inches, planted two feet into the ground and packed with rocks and dirt. The railings on the fences were one-inch by four-inch boards, and four were installed between each post with eight penny spiral siding nails. Because the original boards were not pressure treated lumber, Marlow replaced them with pressure treated lumber in 1996, the year before Johns’ accident. The outer perimeter of the fences was topped with an electrified wire, which was monitored from an electric indicator panel in the tack room. The electrical wire was working on October 23, 1997. An internal cross-fence with a gate and latch separated Marlow’s two pastures.

Marlow purchased Bones, a gentle twelve- to fifteen-year-old saddle horse, approximately six to eight weeks before the accident. Marlow had two other horses which he had owned for six years. Upon first getting Bones, Marlow had enclosed him in the same pasture with the other two horses, which exhibited “normal horse behavior, running, kicking, trying to establish which one is going to be the boss.” Because one of the other horses had kicked at Bones and because horses can injure each other while adapting to one another, Marlow separated Bones from the other two, placing him in an adjacent pasture separated from the others by the cross-fence with a gate and metal latch. Marlow had previously owned lots of horses and had never had any that did not eventually get along.

Bones had stayed within his enclosure and the other two within theirs and the cross-fence gate had remained closed “for some time with no problem. . . .” Prior to this incident, none of Marlow’s horses had opened the gate between the two pastures or escaped from his enclosures, although Marlow acknowledged that “some” horses could open gates. Marlow did not know of any instances of horses pushing other horses through fences before October 23. Prior to October 23, 1997, neither of the other horses had gotten over or through the cross-fence and gate into Bones’ pasture.

The morning after Johns’ crash into Bones, Marlow found the gate connecting the two pastures open, the other two horses in Bones’ pasture, and the rails pushed off the corner post. The rails were not damaged, and Marlow nailed them back to the post after the accident. While, based on finding these horses in Bones’ pasture with the gate open and the rails pushed off the fence, Marlow expressed his assumption (or “surmised,” as the majority states) that the other horses had opened the latch on the cross-fence and entered Bones’ pasture, chasing him and causing him to push the railings off the fence, that alone is insufficient to preclude summary judgment in his favor on the record before us.

This case, I believe, is controlled by John Hewell Trucking Co. v. Brock, 239 Ga. App. 862 (522 SE2d 270) (1999), which, as acknowledged by the majority, recognizes that an inference based on impermissible speculation will not overcome direct, competent evidence of ordinary care to prevent summary judgment. Impermissible speculation is all that is presented here by Johns.

There is no evidence in the record indicating that, as constructed, Marlow’s fence did not comply with local custom, industry practice, or any other standard applicable to fencing horses. Compare Carver v. Kinnett, 209 Ga. App. 577, 579 (1) (434 SE2d 136) (1993) (opinion testimony that fence was inadequate, based on height, loose mesh, and mesh not meeting barbed wire, provided facts which created jury issue). As stated in Carver, “[t]here was evidence of [the owners’] negligence in maintaining their fences other than the mere fact that the cows strayed in the road.” Id. at 579-580 (1). See also Wilkins v. Beverly, 124 Ga. App. 842 (186 SE2d 436) (1971) (fence, as built, was not high enough to prevent the livestock from jumping it).

Marlow’s own speculation and guess about the chain of events resulting in Bones’ presence in the road do not conflict in any way with the concrete evidence regarding the construction of his fence and his use of ordinary care. As he stated, “I feel like I did everything within reason that I could do. You learn every day. Hindsight is 20/20. But at that time[,] I felt that I had my horses confined, secured, had done everything within reason to take care of them.”

Summary judgment to Marlow, in my opinion, was appropriate. John Hewell Trucking Co., supra; see Taylor v. Thompkins, 242 Ga. App. 789, 791 (531 SE2d 360) (2000).

Decided October 17, 2001.

Parker & Lundy, William L. Lundy, Jr., Charles E. Morris, Jr., for appellant.

Tisinger, Tisinger, Vance & Greer, David F. Miceli, Glenn M. Jarrell, for appellee.

       OCGA § 9-11-56 (c); see Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Matjoulis, supra, 226 Ga. App. at 459 (1).

       (Citations and punctuation omitted; emphasis supplied.) Carver v. Kinnett, 209 Ga. App. 577, 579 (1) (434 SE2d 136) (1993), quoting Wilkins v. Beverly, 124 Ga. App. 842 (186 SE2d 436) (1971).

       (Citations and punctuation omitted.) John Hewell Trucking Co. v. Brock, 239 Ga. App. 862, 864 (522 SE2d 270) (1999).

        Carver, supra, 209 Ga. App. at 579 (1) (a witness may give his opinion if he testifies to the facts on which that opinion is based, and the trier of fact is not necessarily bound by such opinion testimony but may arrive at a different conclusion based upon the evidence).

       OCGA § 51-1-2.

       Marlow deposed that the cross-fence gate was not secured with a lock.

       Because of his injuries, Bones was shot by Marlow after the accident.


author: Miller, Judge.

text:
    A01A1439.
    HERRMAN v. COHEN et al.
    (555 SE2d 17)
   Miller, Judge.

Ronald Cohen pled guilty to a federal indictment which charged him with conspiracy to conduct financial transactions knowing that the funds involved represented the proceeds of wire fraud in violation of 18 USC § 1343. Edward J. Herrman then filed a complaint in state court against Cohen seeking to set aside a contract and alleging conversion and fraud arising out of the transactions for which Cohen was indicted. Cohen filed a motion for summary judgment, which motion the court granted.

On appeal Herrman contends that the trial court erred in granting Cohen’s motion for summary judgment. Herrman further contends that the court erred in failing to enforce an order compelling discovery and erred in characterizing Cohen’s motion for summary judgment as unopposed. We discern no error and affirm.

1. The trial court ordered Cohen to answer Herrman’s interrogatories and to properly respond to Herrman’s request for production. Although Cohen responded to the court order with certain information, Herrman argues that he received no useful information in preparation for trial. Herrman now contends that the trial court abused its discretion in failing to enforce this order compelling discovery.

Herrman misperceives the role of the court in the discovery process. If Herrman was dissatisfied with Cohen’s response to the court order, it was Herrman’s obligation to move for sanctions under OCGA § 9-11-37 (b). It was not the court’s obligation to sua sponte determine whether compliance was complete. Moreover, in his various requests for discovery, Herrman sought a list of Cohen’s victims, his co-conspirators, his aliases, all Social Security numbers used, income and real estate information, a list of persons to whom Cohen transferred money or property to in excess of $100 since 1997, a copy of Cohen’s petition for voluntary disbarment, and a copy of all responses from the Georgia Bar, including Cohen’s disbarment. Even assuming the court erred somehow in failing sua sponte to enforce its order compelling discovery, such failure would have been harmless as this information was immaterial under the circumstances of this case.

Decided September 24, 2001

Reconsideration denied October 18,2001

2. Herrman argues that the court erred in characterizing Cohen’s motion for summary judgment as unopposed. The first line of the court’s three-page order states that “[u]pon full review of the entire record before the Court, Defendant’s unopposed Motion for Summary Judgment is hereby GRANTED.” A further reading of the order makes it clear that the court granted the motion for summary judgment because it found no genuine issues of material fact. Specifically, the court found that there was no evidence to support Herr-man’s claims. Under these circumstances, the mere reference to the fact that Cohen’s motion was unopposed was not error.

3. Herrman contends that the court failed to consider the law and evidence in awarding summary judgment to Cohen. In his argument, however, Herrman has failed to point to any facts or relevant law requiring reversal of the grant of summary judgment. And the only citation to the record is in the paragraph of Herrman’s argument where he discusses the court’s order to compel discovery, which issue was argued in a separate enumeration. Herrman’s argument consists of general principles of summary judgment and authority for those principles. “This is not the kind of argument required to preserve an enumeration for appellate review. . . .” The purpose of argument is “to provide guidance to this court on the basis for a claim of error and for citations of authority which tend to support appellant’s allegation of error.”

Therefore, in the absence of proper argument and corresponding citation to authority, or to the record, we will not consider this enumeration.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Arthur J Shelfer, Jr., for appellant.

T. Mark Thedieck, for appellees.

        Kerr v. Cohen, 249 Ga. App. 392, 397 (2) (548 SE2d 17) (2001).

       See Pearson v. Small World Day Care Center, 234 Ga. App. 843, 844-845 (2) (a) (508 SE2d 200) (1998).

       (Citations omitted.) Clark v. Stafford, 239 Ga. App. 69, 74 (4) (522 SE2d 6) (1999).

       (Citation and punctuation omitted.) Green v. State, 208 Ga. App. 1, 2 (2) (429 SE2d 694) (1993).

       See Starrett v. Commercial Bank of Ga., 226 Ga. App. 598, 601 (2) (486 SE2d 923) (1997) (appellant enumerated the grant of summary judgment as error but only made conclusory statements and failed to present argument or citation to authority); see also Court of Appeals Rule 27 (c) (2), (3) (i).


author: Johnson, Presiding Judge.

text:
    A01A1771.
    COOK v. THE STATE.
    (555 SE2d 759)
   Johnson, Presiding Judge.

Eddie Cook was convicted of armed robbery and hijacking a motor vehicle for having used a handgun to take $20 and a car from Jovaun Hicks. Cook appeals, arguing that there is insufficient evidence to support the convictions, that Hicks’ identification of him as the perpetrator was unreliable, and that the trial court should have charged the jury on the lesser included offense of theft by taking. The arguments are without merit, so we affirm Cook’s convictions.

1. On appeal from a criminal conviction, this court no longer presumes that the appellant is innocent, and we view the evidence in the light most favorable to support the conviction. Our role is not to weigh the evidence or judge witness credibility, but to determine if there is sufficient evidence from which a rational trier of fact could have found the appellant guilty of the crimes charged beyond a reasonable doubt.

Viewed in the light most favorable to support Cook’s convictions, the evidence shows that at 4:00 p.m., on December 30, 1998, Hicks drove his 1987 Chevrolet Caprice to an automotive shop a half-mile from his apartment in Atlanta. Hicks parked near the front of the shop and opened his car door. Before he was able to get out of the car, a man wearing a white and gray camouflage outfit and carrying a gun approached him. The man ordered Hicks to empty his pockets, so Hicks gave the gunman the $20 that he had. The man then ordered Hicks to get out of the car. When Hicks hesitated, the man hit Hicks on the head with the gun. After being hit, Hicks got out of the car as the man aimed the gun at him. The gunman then got into the car and drove away from the shop. As soon as the man left, Hicks ran into the shop and called the police.

A short time later, a police officer was sent to investigate a suspicious vehicle that had been found in a wooded area not far from the automotive shop. The officer found Hicks’ car in the woods and then found Cook outside an apartment complex adjacent to the woods. Cook, who was wearing a white and gray camouflage outfit, ran when he saw the officer. The officer chased Cook and apprehended him.

Approximately two hours after the robbery, other officers took Hicks to the site where his car had been found and where Cook was sitting in the backseat of the arresting officer’s police car. Upon seeing Cook, Hicks immediately identified him as the man who had taken his car. At trial, Hicks again identified Cook, testifying that there was no doubt in his mind that Cook was the perpetrator.

Based on our review of all the evidence, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Cook is guilty of armed robbery and hijacking a motor vehicle. Because there was sufficient evidence to support the jury’s verdict, Cook has shown no basis for reversing his convictions.

2. Cook complains that the procedure whereby Hicks identified him while he was sitting in the back of the police car was impermissibly suggestive and caused a substantial likelihood of misidentification. The confrontation between Hicks and Cook was not necessarily improper, and we must consider the totality of the circumstances to evaluate the likelihood of misidentification.

There is no per se exclusionary rule applied to preindictment confrontations. Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a likelihood of misidentification which offends against due process and the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation.

Considering those factors, we find no likelihood that Hicks misidentified Cook as the person who accosted him. The crimes occurred in broad daylight at 4:00 in the afternoon. Hicks testified that his encounter with the armed robber lasted about seven minutes, that he and the man were about one and a half feet apart, and that he saw the man’s face and clothing clearly. Hicks’ description of the perpetrator’s clothing — a white and gray camouflage outfit — matched what Cook was wearing when he was found near the stolen car. And when Hicks confronted Cook about two hours after the robbery, he was certain about his identity, immediately recognizing him as the perpetrator.

Decided October 18, 2001.

Richard A. Hunt, for appellant.

Under the totality of the circumstances, the identification procedure was not unnecessarily suggestive and was not conducive to irreparable mistaken identification. The trial court therefore did not err in allowing testimony about Hicks’ pre-trial identification of Cook or in allowing Hicks to identify Cook during the trial.

3. Cook claims that the trial court erred in failing to give his requested charge on theft by taking as a lesser included offense of armed robbery. The claim is without merit because there was no evidence to support such a jury charge.

The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. (But) where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.

In the instant case, the state’s evidence established all of the elements of Cook’s armed robbery of Hicks. None of the state’s evidence raised the lesser offense of a mere theft by taking, and Cook presented no evidence in his own defense. Because the evidence shows without dispute the completion of the armed robbery as charged, and there is no evidence that a weapon was not used in the robbery, Cook was not entitled to a jury charge on theft by taking as a lesser included offense. The trial court thus did not err in refusing to give the requested charge.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-44.1 (b).

        Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

       Id.

       See Anderson v. State, 246 Ga. App. 189, 190 (1) (539 SE2d 879) (2000).

        Huff v. State, 239 Ga. App. 83, 85 (1) (519 SE2d 263) (1999).

       See Self v. State, 245 Ga. App. 270, 273 (2) (537 SE2d 723) (2000).

       (Citation omitted; emphasis in original.) Smith v. State, 244 Ga. App. 667 (1) (536 SE2d 561) (2000).

       See Jones v. State, 233 Ga. App. 362, 363-364 (504 SE2d 259) (1998). Compare Smith, supra at 668 (1) (defendant and victim gave differing accounts of theft, with defendant testifying that he did not use a weapon to steal money).


author: Barnes, Judge.

text:
    A01A1466.
    THE STATE v. HEREDIA.
    (555 SE2d 91)
   Barnes, Judge.

The State appeals from the trial court’s order granting Kevin Heredia’s motion to suppress. The record shows that the trial court granted the motion for four reasons: (1) a Cobb County police officer arrested Heredia within the City of Kennesaw city limits and therefore had no jurisdiction; (2) Heredia’s right to an independent chemical test was compromised by the officer changing his request for a breath test to blood and urine tests; (3) the State conducted an improper impound search of Heredia’s car; and (4) the police commingled marijuana found in two different locations in the car into a single evidence bag. Because none of these grounds support the trial court’s grant of the motion to suppress, we reverse.

The record shows that a Cobb County police officer stopped Heredia in the City of Kennesaw because he was weaving in a lane. After administering field sobriety tests, the officer arrested Heredia for driving under the influence and failure to maintain a lane. He then asked another officer to search Heredia’s vehicle incident to his arrest and for inventory purposes. The searching officer found loose marijuana in the console area and additional marijuana in a pill bottle located in the glove box. These findings resulted in an additional charge against Heredia for violating the Georgia Controlled Substances Act. After the marijuana was discovered, the arresting officer reread the implied consent warning to Heredia and changed his request for a breath test to a request for blood and urine tests. The officer never tested Heredia’s breath, and Heredia made no request for independent tests.

1. The trial court determined that the Cobb County police officer who arrested Heredia had no jurisdiction to do so based upon its application of Georgia statutes and cases to undisputed facts. As a result, we conduct a de novo review of this portion of the trial court’s order. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

The trial court correctly noted that a peace officer ordinarily has power of arrest only in the territory of the governmental unit by which he was appointed. Hastings v. State, 211 Ga. App. 873, 874 (1) (441 SE2d 83) (1994). It erred, however, by too narrowly construing an exception to this general rule.

The general rule restricting the jurisdiction of peace officers in Georgia comes from our constitution, which provides:

Unless otherwise provided by law, (1) No county may exercise any of the [police protection] powers listed in subparagraph (a) of this Paragraph or provide any service listed therein inside the boundaries of any municipality or any other county except by contract with the municipality or county affected; and (2) No municipality may exercise any of the [police protection] powers listed in subparagraph (a) of this Paragraph or provide any service listed therein outside its own boundaries except by contract with the county or municipality affected.

Ga. Const, of 1983, Art. IX, Sec. II, Par. Ill (b).

This court has held that two statutes, OCGA §§ 40-13-30 and 17-4-23 (a), also authorize police officers to arrest persons for traffic offenses in other jurisdictions. State v. Gehris, 242 Ga. App. 384, 386 (528 SE2d 300) (2000) (OCGA § 17-4-23 (a)); Edge v. State, 226 Ga. App. 559, 562 (2) (487 SE2d 117) (1997) (OCGA § 17-4-23); Hastings, supra, 211 Ga. App. at 874 (OCGA § 40-13-30); City of Winterville v. Strickland, 127 Ga. App. 716, 718 (2) (194 SE2d 623) (1972) (predecessor to OCGA § 40-13-30). Since the Cobb County officer arrested Heredia for traffic offenses, DUI and failure to maintain a lane, he was authorized to do so outside of Cobb County. Accordingly, the trial court erred by granting the motion to suppress based on the officer’s lack of jurisdiction to stop and arrest Heredia.

2. The trial court further ruled that the results of Heredia’s blood and urine tests must be suppressed because the officer reread the implied consent warning to Heredia, changed his request from breath to blood and urine, and never obtained a test of Heredia’s breath. It reasoned that “the Defendant’s right to an additional test never attached because the officer’s designated breath test was neither withdrawn nor performed. Therefore, the Defendant’s right to an independent test was compromised and the result of the State’s test must be excluded.” We disagree with the trial court’s analysis. The defendant’s right to an independent test was not compromised simply because the officer reread the implied consent warning five minutes after its first reading and changed the test designation from breath to blood and urine based on newly discovered evidence. As a result, the trial court erred when it granted the motion to suppress for this reason.

3. The trial court also granted the motion to suppress because the State failed to prove (1) that the impoundment and inventory search of Heredia’s sport utility vehicle were necessary and (2) a routine Cobb County police department policy for opening closed containers during inventory searches. However, it failed to address whether the search of the car and the closed containers was valid as a search incident to Heredia’s arrest. Our law regarding searches incident to arrest and inventory searches provides two alternative means for finding that a particular search was reasonable. See Scoggins v. State, 248 Ga. App. 1 (545 SE2d 19) (2001); Vega v. State, 236 Ga. App. 319, 320, n. 1 (512 SE2d 65) (1999). Police officers may search the passenger compartment of a car, as well as closed containers inside it, after the arrest of the car’s occupant. Id. at 320. Because the search of the car and the closed containers within it was valid incident to Heredia’s arrest, we need not address the impoundment issue. Id. See also State v. Watkins, 182 Ga. App. 431 (356 SE2d 82) (1987). Therefore, the trial court erred by concluding that the search of the car and the closed containers in the passenger compartment was illegal. Id.

Decided October 4, 2001

Reconsideration denied October 19,2001

Barry E. Morgan, Solicitor-General, William R. Pardue, Assistant Solicitor-General, for appellant.

Chestney-Hawkins Law Firm, Michael M. Hawkins, Sherry B. Lantz, for appellee.

4. The trial court’s remaining reason for granting the motion to suppress was that “[s]ince the testimony was that the alleged marijuana in the container and that found loose in the console area of the car were placed in a single evidence bag, all of it must be suppressed.” The trial court cited no legal authority for this conclusion, and Heredia also fails to cite any authority to support the trial court’s reasoning. Furthermore, although the trial court apparently believed the loose marijuana was commingled with the marijuana in the pill bottle, the record does not support this conclusion. The only testimony on this issue was that one of the officers placed “all that,” referring to the loose marijuana, in a plastic bag. Thus, this remaining rationale cannot be used to support the trial court’s grant of the motion to suppress.

Judgment reversed.

Smith, P. J, and Phipps, J, concur.


author: Ruffin, Judge.

text:
    A01A0877.
    CONNER v. HART.
    (555 SE2d 783)
   Ruffin, Judge.

Donna Joann Conner sued her business partner, Joseph Hart, for breach of fiduciary duty, fraud, attorney fees, and punitive damages. The case proceeded to trial, and the trial court granted Hart a directed verdict on each of these claims at the close of Conner’s case. Conner appeals, and for reasons that follow, we affirm.

In reviewing the grant or denial of a motion for directed verdict, we apply the “any evidence” test and construe the evidence most favorably to the party opposing the motion. Under this standard, “[a] directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.”

Viewed favorably to Conner, the evidence shows that Conner and Hart formed two separate partnerships to own and operate two Subway Sandwich Shops, one in Alpharetta and the other in Lavonia. When Hart approached Conner in 1991 about partnering with him on the Alpharetta store, she initially declined. Ultimately, however, she decided to enter the partnership. The parties agreed that Hart would hold a 50 percent partnership interest, Conner would hold a 35 percent interest, and 15 percent of the profits would be reserved for emergencies or a future store. The parties further agreed that Hart would be responsible for developing, designing, and constructing the store, while Conner would handle its daily operations.

Before the Alpharetta Subway opened in June 1993, Conner gave Hart a general power of attorney relating to the store, which empowered him “to do, execute, and perform any act, matter, or thing whatsoever . . . which, in the opinion of [Hart], ought to be done, executed or performed.” The power of attorney specifically included “sale of store, and closing of sale of store.” Once the Alpharetta Subway opened, Conner took over its daily operations. Six months later, Hart made Conner a fifty percent partner.

Hart subsequently offered Conner a partnership in the Lavonia Subway. Conner accepted Hart’s offer, and they became equal partners in the Lavonia location. When the Lavonia store opened in 1994, Conner ran the daily operations.

The partnerships operated without incident for several years. Conner, however, eventually told Hart that she wanted to sell the Lavonia location. She spoke to a potential buyer, informed the buyer that she wanted to sell, and directed him “to go talk to Mr. Hart.” At some point, Hart began negotiating with this buyer to sell the Lavonia store. He later entered negotiations to sell the Alpharetta store to a different buyer.

On December 3,1998, Conner asked Hart about the negotiations for sale of the Lavonia store. Hart responded that the buyer was pursuing financing. Almost two weeks later, Conner again met with Hart and inquired about the sale: “I asked him when Lavonia sold . . . what would be my part. Because at that time I did not even know the asking price because he’s the one that is well-known [sic] on how to figure that up. So at that point in time ... I didn’t even know what the asking price was.”

Hart told her that the sale might go forward, but that she would receive no proceeds from the sale because she had not invested any money in the Lavonia partnership. According to Hart, Conner was only a partner in profits in the Alpharetta and Lavonia stores and had no equity interest. Hart also told Conner that she had given him a power of attorney authorizing him to sell the Lavonia Subway. Conner responded that she had not signed a power of attorney relating to the Lavonia location.

On December 23, 1998, Hart entered into an agreement to sell the Lavonia store. A few days later, he signed an agreement to sell the Alpharetta store.. These December 1998 agreements required payment of the sale proceeds directly to Hart. Hart signed Conner’s name to both agreements, allegedly pursuant to powers of attorney, and scheduled the closings for January 1999.

Before the closings took place, Conner sued Hart, alleging fraud and breach of fiduciary duty stemming from Hart’s effort to sell the stores and keep the proceeds for himself. She also requested injunctive relief to prevent Hart from selling the partnerships’ assets pending dissolution of the partnerships. At a subsequent evidentiary hearing, Conner stated that she did not object to selling the Alpharetta and Lavonia stores. The trial court allowed the sales to go forward, but ordered that Conner participate in the closings and that any disputed sale proceeds be deposited into the court’s registry. Both sales later closed under amended purchase contracts with Conner’s participation and agreement. According to Conner, they received a fair price for the stores.

The case proceeded to trial on Conner’s tort claims, as well as the question of how to dissolve the partnerships and distribute the proceeds deposited with the court. At the close of Conner’s case, the trial court directed a verdict for Hart on Conner’s breach of fiduciary duty, fraud, attorney fee, and punitive damages allegations. The court also exercised its equity jurisdiction to wind up both partnerships. Despite Hart’s claims to the contrary, the court found that Conner and Hart were equal equity partners and awarded Conner one-half of the partnerships’ assets.

1. On appeal, Conner first argues that the trial court erred in granting Hart a directed verdict on the breach of fiduciary duty claim. We find no error.

(a) The Lavonia Store. According to Conner, although she wanted the Lavonia store sold, she never gave Hart authority to retain the sale proceeds for himself. She asserts that he breached his fiduciary duty by concealing the sale from her, using a forged power of attorney to sign her name to the December 1998 Lavonia purchase agreement, and structuring the sale to deprive her of her interest in the store assets.

Unquestionably, partners owe a fiduciary duty to one another. To successfully bring a tort claim for breach of this duty, however, the claimant must show injury. As described by our Supreme Court, the traditional formula for a claim in tort has three elements: “duty, breach (failure to conform to the required standard) and damage proximately caused by the breach.” Damages compensate for injury and may be inferred from invasion of a property right. Where no actual damage flows from the injury, nominal damages may be awarded. Yet, some injury — even if small or nominal — is necessary. In this case, Conner was not injured by the alleged breaches of duty.

As an initial matter, Conner’s claim that Hart concealed the Lavonia sale from her lacks merit. Conner encouraged Hart to sell the store, spoke with the eventual buyer, told the buyer that she wanted to sell, and sent the buyer to meet with Hart. She testified that Hart negotiated the sale and set the sale price because “he’s the one that is well-known [sic] on how to figure that up.” Hart told her during the negotiations that she would receive nothing from the sale and that he had her power of attorney giving him the right to sell the store. Finally, Conner testified that she never objected to the sale, even after Hart informed her that she would receive no proceeds, because she “always wanted to sell Lavonia.” The evidence shows that she left the sale’s details to Hart, who made his position regarding the transaction quite clear. As Conner admits in her brief, she moved to block the sale “[u]pon learning from Hart that she was to receive nothing from the sale of the Lavonia store.” We are hard-pressed to find concealment.

Furthermore, even if Hart did conceal some aspects of the sale from her, Conner suffered no injury. She argues that Hart used an invalid or “forged” power of attorney to sign the December 1998 agreement, through which hé planned to keep all proceeds for himself. At trial, the parties presented conflicting evidence regarding the validity of the Lavonia power of attorney and the rightful owner of those proceeds. The evidence clearly showed, however, that the sale outlined in the December 1998 Lavonia agreement never closed. Instead, Conner sought judicial intervention, participated in a court-approved closing, agreed to the sale terms, and placed the proceeds into the court’s registry for judicial distribution. Ultimately, she received 50 percent of these proceeds.

Recognizing that she consented to the sale and received her share of the proceeds, Conner does not claim any actual damages from the alleged breaches of duty. She rests her argument on nominal damages, asserting that Hart inváded her property rights by “exercis [ing] dominion over [her] partnership assets.” But, although Hart may have attempted to invade her property rights, he did not succeed. The sale did not close under the December 1998 purchase agreement, and he never exercised control over Conner’s property. Hart’s claimed breaches — failing to disclose aspects of the sale, signing Conner’s name to the purchase contract, and structuring the transaction to benefit only himself — resulted in no harm, as Hart never completed the contemplated transaction. Rather, after Hart told Conner that he planned to keep all of the sale proceeds, she stopped the sale. Under these circumstances, the trial court properly granted Hart a directed verdict on Conner’s fiduciary duty claim relating to the Lavonia store.

(b) The Alpharetta Store. A directed verdict was also proper on Conner’s fiduciary duty claim involving the Alpharetta store. Conner testified that, although she hoped to sell the Lavonia store, she never consented in December 1998 to selling the Alpharetta location, which she wanted to keep. She admitted, however, that she executed a power of attorney giving Hart “full and complete power and authority” to conduct the Alpharetta store’s affairs, including its sale. Nothing in the power of attorney required Hart to obtain Conner’s consent before entering into the December 1998 Alpharetta purchase agreement. Because Hart was expressly authorized to sell the Alpharetta store, his attempt to do so cannot constitute a breach of fiduciary duty.

Moreover, even if Hart exceeded his authority by not informing Conner about the sale or structuring the transaction to benefit only himself, Conner’s breach of fiduciary duty claim still must fail. She presented no evidence that these alleged breaches harmed her in any way. Like the Lavonia transaction, the Alpharetta sale did not proceed as Hart originally intended under the December 1998 purchase contract. On the contrary, it closed under terms approved by Conner, who participated in and profited from the sale.

2. Conner also contends that the trial court erred in directing a verdict for Hart on her fraud claim. According to Conner, she presented ample evidence that Hart fraudulently concealed the Alpharetta and Lavonia sales from her. As discussed above, however, Conner gave Hart a general power of attorney to sell the Alpharetta store. Furthermore, she knew Hart was negotiating the Lavonia sale, knew he claimed to have her power of attorney to sell the store, and never objected to that sale, even after Hart told her that she would receive no proceeds. The record belies Conner’s concealment claim.

Even assuming some evidence of concealment exists, the trial court properly directed a verdict on Conner’s fraud allegation. Fraud has five elements: “(1) a false representation or omission of a material fact; (2) scienter; (3) intention to induce the party claiming fraud to act or refrain from acting; (4) justifiable reliance; and (5) damages.” Conner cannot show damages.

Again, Conner does not claim actual damages, but argues that her fraud evidence permitted a nominal damages award. Our Supreme Court has held that nominal damages will not support a fraud claim: “The rule is that an award of nominal damages for fraud is improper, as to establish a cause of action for fraud, a party must show that actual damages, not simply nominal damages, flowed from the fraud alleged.” Yet, even if nominal damages could satisfy fraud’s damages requirement, Conner’s evidence does not authorize a nominal damages award.

Decided October 19, 2001.

The sales anticipated by the December 1998 purchase contracts did hot close. Hart arguably tried to exercise control over Conner’s partnership assets, but he disclosed his plans to her, enabling Conner to stop him and prevent injury. Conner alleges that Hart’s fraudulent conduct forced her to file suit, which caused the partnership proceeds to be deposited in the court’s registry, “thus denying [her] her share of [those] proceeds.” The record shows, however, that Conner agreed to sell the stores and place the partnership proceeds into the registry for court distribution. We cannot find that Conner was injured by a judicial procedure in which she willingly participated.

“ ‘Falsehood, or ... a lie, without damage, will not entitle the plaintiff to recover.’ ” Because Conner has shown no invasion of her person or property sufficient to sustain a damages award, her fraud claim must fail. Accordingly, the trial court properly directed a verdict for Hart on this claim.

3. Finally, Conner argues that the trial court erred in directing a verdict on her claims for attorney fees and punitive damages. According to Conner, “[i]f [she] is entitled to submit the issues of breach of fiduciary duty and fraud to the jury for recovery of nominal damages, then [she] is also entitled to submit the issue of attorney fees to the jury.” She further claims that her evidence of fraud and breach of fiduciary duty authorized a punitive damages recovery. As found in Divisions 1 and 2, however, the trial court properly granted Hart’s motion for directed verdict on Conner’s fraud and fiduciary duty claims. Accordingly, we find no error in the trial court’s decision to grant Hart a directed verdict on Conner’s claims for attorney fees and punitive damages, as well.

Judgment affirmed.

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

Hipes & Norton, John D. Hipes, Joseph C. Peake III, for appellant.

Wilson Law Firm, L. Matt Wilson, Davis K. Loftin, for appellee.

        Evans Timber Co. v. Central of Ga. R. Co., 239 Ga. App. 262 (1) (519 SE2d 706) (1999).

       Id.

       Hart has not appealed this ruling.

       See OCGA § 23-2-58 (“Any relationship shall be deemed confidential . . . where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.”); Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 606 (1) (503 SE2d 278) (1998) (“Fiduciary duties and obligations are owed by those in confidential relationships”).

        Tante v. Herring, 264 Ga. 694 (1) (453 SE2d 686) (1994).

       OCGA § 51-12-4; U. S. Fidelity &c. Co. v. Paul Assoc., 230 Ga. App. 243, 251 (8) (496 SE2d 283) (1998).

       Id.

       See OCGA § 51-12-4 (“Damages are given as compensation for injury. . . .If an injury is small or the mitigating circumstances are strong, nominal damages only are given”) (emphasis supplied).

       (Emphasis supplied.)

       See Fuller v. Fuller, 211 Ga. 201, 202-203 (84 SE2d 665) (1954) (by not delivering deeds executed to defraud creditors, “grantor fell short of executing his fraudulent purpose, and [was] guilty of no wrong to his creditors”).

        See Bumgarner v. Green, 227 Ga. App. 156, 158-160 (1) (489 SE2d 43) (1997) (conduct permitted by an agreement does not constitute breach of fiduciary duty).

        ReMax North Atlanta v. Clark, 244 Ga. App. 890, 893 (537 SE2d 138) (2000).

       (Punctuation omitted.) Stiefel v. Schick, 260 Ga. 638, 639 (2) (398 SE2d 194) (1990). See also Woodhull Corp. v. Saibaba Corp., 234 Ga. App. 707, 713 (2) (507 SE2d 493) (1998).

       See U. S. Fidelity, supra at 251 (8) (“Fraud or breach of a legal duty may give rise to nominal damages; even if plaintiff suffered only nominal damages by them, the question of damages is for the jury”) (punctuation omitted). Because Conner’s evidence does not support a nominal damages award, we need not address the apparent conflict between U. S. Fidelity and the Supreme Court’s decision in Stiefel, supra.

       See Hendricks v. Monroe Realty, 196 Ga. App. 121, 122-123 (3) (395 SE2d 375) (1990) (party who agrees to place disputed funds in escrow pending resolution of dispute cannot complain that, by escrowing the funds, the opposing party interfered with his right to the money). Cf. Callahan v. Panfel, 195 Ga. App. 891, 893 (4) (395 SE2d 80) (1990) (invasion of property right resulted from real estate agent’s unilateral decision to pay earnest money into the court’s registry, rather than returning money to buyer upon demand; although money was subsequently returned to buyer with interest, agent had no legal basis for withholding or interpleading the money).

        Foster v. Sikes, 202 Ga. 122, 125 (42 SE2d 441) (1947).

        Mack v. Smith, 178 Ga. App. 652, 653 (4) (344 SE2d 474) (1986).


author: Phipps, Judge.

text:
    A01A1264.
    In the Interest of C. C., a child.
    (555 SE2d 762)
   Phipps, Judge.

The juvenile court terminated the parental rights of C. C.’s biological mother and putative father based upon a petition alleging that C. C. was deprived. Her mother appeals, challenging the sufficiency of the evidence in several claims of error. Because the termination was based on a previous deprivation order that subsequently has been reversed, we vacate the termination order and remand the case for entry of findings of fact and conclusions of law and a new judgment.

The material facts of this case are set forth in In the Interest of C. C., in which C. C.’s mother appealed the juvenile court’s order finding that the child was deprived. While that appeal was pending, the Department of Family & Children Services (DFACS) petitioned for the termination of the parental rights of C. C.’s mother and putative father, alleging that the child was deprived. After a hearing, the court terminated the parental rights of both parents. Subsequently, however, this court reversed the deprivation order, determining that the evidence was insufficient to support a finding of deprivation. We now consider the mother’s appeal from the juvenile court’s termination of her parental rights.

1. The mother contends that the evidence was insufficient to terminate her parental rights. Before terminating parental rights, a juvenile court must employ a two-prong test that determines whether there is clear and convincing evidence of parental misconduct or inability and whether the termination of parental rights is in the best interest of the child. On appeal, we review the evidence in the light most favorable to the State and determine whether a rational trier of fact could have found by clear and convincing evidence that the biological parent’s rights have been lost.

The juvenile court based its determination of parental misconduct or inability on certain findings it made pursuant to OCGA § 15-11-94 (b) (4) (A) (i) through (iv). One such required finding is that the child is deprived as defined in OCGA § 15-11-2. While the juvenile court made a specific finding that C. C. was deprived, the order shows that the court based that finding on its previous deprivation order, which now stands reversed for lack of clear and sufficient evidence of deprivation.

Decided October 19, 2001.

Elena M. Mushkin, for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Edwards, Friedewald & Grayson, Robert J. Grayson, for appellee.

DFACS argues that reversal of the deprivation order does not mandate reversal of the termination order and asserts that additional evidence of deprivation was presented at the termination hearing. But the juvenile court’s order shows that the court did not rely on such evidence in finding deprivation. Therefore, whether such evidence is in the record is not properly before us for we are unable to find such evidence given the juvenile court’s order that is insufficient on its face. Accordingly, the judgment is vacated, and the case is remanded for the juvenile court to enter findings of fact and conclusions of law and a new judgment.

2. Based on our ruling in Division 1, we need not address the remaining claims.

Judgment vacated and case remanded with direction.

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

       249 Ga. App. 101 (547 SE2d 738) (2001).

       See id.

       OCGA § 15-11-94 (a); In the Interest ofT. M. S., 242 Ga. App. 442, 446 (2) (529 SE2d 892) (2000).

        In the Interest ofT. M. S., supra.

       OCGA § 15-11-94 (b) (4) (A) (i).

        In the Interest ofC. C., supra at 103.

       See In the Interest of M. L. R, 231 Ga. App. 223, 225 (498 SE2d 786) (1998); In the Interest of D. S., 212 Ga. App. 203, 205 (441 SE2d 412) (1994), overruled on other grounds, In the Interest of J P., 267 Ga. 492, 493 (480 SE2d 8) (1997); In the Interest of C. D. E., 248 Ga. App. 756, 764-765 (2) (546 SE2d 837) (2001) (given court’s express reliance on hearsay, the principle that judges are presumed to “separate the wheat from the chaff” in making their determinations is inapplicable).

       See In the Interest of M. L. P., supra; In the Interest of D. S., supra.


text:
    A01A1426.
    McRAE v. THE STATE.
    (555 SE2d 767)
   Ruffin, Judge.

A jury found Thessalonias McRae guilty of armed robbery. McRae appeals from the trial court’s denial of his motion for new trial, asserting that the evidence was insufficient to support his conviction, that his statement to police and the statements and testimony of two witnesses were inadmissible, that trial counsel was ineffective, and that he was denied a commitment and bond hearing. Finding no error in the trial court’s rulings, we affirm.

1. McRae raises several arguments challenging the sufficiency of the evidence. In reviewing McRae’s assertions, we view the evidence

in the light most favorable to the verdict, and [McRae] no longer enjoys the presumption of innocence; moreover, [we do] not weigh the evidence or determine witness credibility but only determine [ ] whether the evidence is sufficient under the standard of Jackson v. Virginia. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

Viewed in favor of the jury’s verdict, the evidence shows that the armed robbery victim, Shawnda Stewart, an admitted cocaine dealer, had known McRae and his accomplice, Tyronza Faison, her entire life. Faison, a State’s witness, testified that in the early evening hours preceding the robbery, he was with McRae and a few other people, and they “smoked dope and rode around.” As the evening progressed, McRae and Faison encountered Stewart twice and purchased crack cocaine. After McRae and Faison smoked the cocaine, they went to Stewart’s house to obtain more. Stewart testified that around 11:00 p.m., she was getting ready for bed, and her roommate, Diana Paramore, was asleep when McRae knocked on the door. As Stewart opened the door, McRae, with Faison present, held a gun to her head and said, “I know you got some, give it up.” Stewart gave McRae $400 worth of cocaine, and he and Faison ran out the door.

Stewart, accompanied by Paramore, who awoke during the robbery, went to the sheriff’s department that night and reported that McRae and Faison had robbed her of $400 in cash. According to Stewart, she “told them it was money instead of crack because [she] was scared [,]” but returned the next day and confessed that McRae and Faison had actually stolen cocaine.

McRae and Faison were arrested the day after the robbery. When McRae was arrested, he was armed with a .22 automatic handgun. After being informed of his Miranda rights, McRae gave a statement in which he admitted that he “snatched the crack out of [Stewart’s] hand and walked out the door[,]” but denied that he had a gun. Faison also gave a statement in which he said that when Stewart opened the door, McRae “threw a gun in her face” and told her “to give him the dope and the money.” Both McRae and Faison testified at trial consistent with their prior custodial statements, and recordings of their statements were played for the jury. Stewart and Faison also testified that the handgun found on McRae when he was arrested looked like the one McRae used during the robbery.

(a) McRae asserts that the evidence was insufficient because it showed that Stewart “voluntarily let him have the cocaine.” We disagree. McRae apparently ignores the unequivocal testimony of both Stewart and Faison establishing that he, McRae, held a gun to Stewart’s head and demanded the cocaine. Accordingly, this assertion has no merit.

(b) McRae asserts that the evidence was insufficient because cocaine cannot be legally owned by anybody and therefore cannot be the object of an armed robbery. Again, we disagree. “Robbery is a crime against possession, and is not affected by concepts of ownership. Moreover, the gravamen of the offense of armed robbery is the taking of items from the possession of another by use of an offensive weapon, and not the ownership status of the item taken.” Thus, this argument, too, has no merit.

(c) McRae asserts that the evidence was insufficient because his conviction was based solely on the uncorroborated testimony of a co-conspirator. According to McRae, Faison’s testimony was corroborated only by “Stewart’s impeached testimony [which] must be disregarded entirely.” Though McRae’s argument is unclear, he appears to believe that the jury was required to disregard all of Stewart’s testimony because she recanted her original report to investigators that she was robbed of cash, rather than cocaine.

It is true that McRae’s conviction for a felony cannot be based solely on the uncorroborated testimony of his accomplice, but his conviction was not based solely on Faison’s uncorroborated testimony. Indeed, although McRae denied he pulled a gun on Stewart, his own testimony corroborated virtually every other aspect of Faison’s account of the events surrounding the robbery. And, although Stewart recanted her original report concerning the robbery, it was for the jury, and not this Court, to resolve any conflicts in the evidence and assess Stewart’s credibility. The jurors were not, as argued by McRae, required to disbelieve her entire testimony.

(d) For the reasons stated, we conclude that the evidence presented at trial is sufficient to affirm McRae’s conviction for armed robbery under the Jackson v. Virginia standard.

2. McRae next asserts that the trial court erred in admitting his custodial statement in evidence because it was not voluntary. McRae argues that his statement was induced by “intimidation and coercion,” and, thus, inadmissible under OCGA § 24-3-50. We disagree.

The transcript shows that, prior to admitting the statement, the trial court conducted a hearing pursuant to Jackson v. Denno. At the hearing, the State presented the testimony of the investigator who interviewed McRae and played the tape recording of the interview. The investigator testified that he reviewed McRae’s Miranda rights with him and that McRae indicated that he understood his rights. The investigator further testified that he never threatened, coerced, or otherwise forced McRae to make a statement, nor did he offer McRae any hope of benefit for the statement. The tape recording of the interview corroborated the investigator’s testimony. Based on this evidence, the trial court concluded that McRae’s statement was voluntary.

On appeal, we look at the totality of the circumstances and review the trial court’s determination that McRae’s statement was voluntary under the clearly erroneous standard. Considering the evidence presented, and noting that McRae has not pointed to any evidence supporting his assertion that his statement was induced by hope of benefit or fear of injury, the trial court’s finding of voluntariness was not clearly erroneous, and the court, therefore, did not err in admitting the statement in evidence.

3. In two enumerations of error, McRae contends that the trial court erred in admitting the testimony of Stewart and Faison because it was the product of coercion by the investigators. McRae has not shown, however, that he raised this objection at trial, and it is therefore waived. “[A] party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” We therefore reject this assertion.

4. McRae, who is represented by new counsel on appeal, asserts that he was denied effective assistance of trial counsel because his attorney failed to spend sufficient time investigating the case, failed to call two witnesses, and did not “require the State to prove that the weapon before the jury in the case was the weapon used in the alleged crime.” We find no error.

For McRae to prevail on his ineffective assistance claim, he must rebut the presumption that counsel was effective and “show that his attorney’s performance was deficient and that the deficiency prejudiced his defense.” We review the trial court’s finding that McRae received effective assistance under the clearly erroneous standard.

(a) The record does not support McRae’s contention that counsel failed to sufficiently investigate the case. At the motion for new trial hearing, trial counsel testified that he met with McRae on approximately six occasions to discuss “in detail” everything about the case, that he filed discovery motions, reviewed the State’s file, listened to the taped interviews, and interviewed the witnesses and all the deputies involved in the case. In light of this testimony, the trial court’s determination that counsel sufficiently investigated the case was not clearly erroneous.

(b) Neither has McRae shown that counsel was deficient because he failed to call certain witnesses. According to McRae, his attorney failed to call his uncle, who McRae contends “had knowledge of the gun that was alleged to have been used in the theft.” The other witness was Stewart’s roommate, Paramore, whose testimony, he asserts, “could have been favorable.” As a general rule, “[t]he decision as to which defense witnesses will be called is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel.” Considering this rule and the fact that McRae has not demonstrated what favorable testimony might have been given, we conclude that the trial court properly rejected the claims.

(c) McRae’s remaining assertion, concerning the identity of the handgun produced at trial, is unsupported by argument and citation of authority and is, therefore, deemed abandoned.

Decided October 19, 2001.

Walter E. Baker, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Karen L. Jenkins, Assistant District Attorneys, for appellee.

5. Finally, McRae asserts that we should reverse his conviction because he was not afforded a preliminary or bond hearing. It does not appear, however, that McRae ever raised these issues below. Moreover, we are unaware of any evidence supporting such assertions. Without such evidence, we will rely on the presumption in favor of the regularity and legality of all proceedings in the trial court. We will not presume error from a silent record. Furthermore, even if McRae was denied a preliminary hearing, the issue was rendered moot by the grand jury’s indictment. And, as for his bond hearing, McRae has not cited any authority for the proposition that failure to conduct a bond hearing warrants reversal of a conviction. Accordingly, we find no merit in these assertions.

Judgment affirmed.

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

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

       (Citation and punctuation omitted.) Leigh v. State, 223 Ga. App. 726, 728 (2) (478 SE2d 905) (1996).

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

       (Punctuation and footnotes omitted.) Holcomb v. State, 268 Ga. 100,105 (5) (485 SE2d 192) (1997) (ruling that narcotics can be the object of an armed robbery).

       See OCGA § 24-4-8.

       See Leigh, supra; Frady a State, 245 Ga. App. 832 (1) (a) (538 SE2d 893) (2000).

       See Leigh, supra.

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

       See Cochran v. State, 248 Ga. App. 705, 708 (2) (548 SE2d 417) (2001).

       See id.

       See Court of Appeals Rule 27 (a) (1) (requiring party to establish how enumerated errors are preserved for consideration); Anthony v. State, 236 Ga. App. 257, 258 (1) (511 SE2d 612) (1999) (ruling that failure to object to testimony at trial results in waiver on appeal).

       (Punctuation omitted.) Id.

        Ucak v. State, 273 Ga. 536, 538 (2) (544 SE2d 133) (2001).

       See id.

        Aleman v. State, 227 Ga. App. 607, 611 (2) (b) (489 SE2d 867) (1997).

       (Punctuation omitted.) Callaway v. State, 247 Ga. App. 310, 321 (6) (b) (542 SE2d 596) (2000).

       See id.; Aleman, supra (appellant failed to show deficient performance with bare assertion in brief).

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

       See Merrill v. State, 201 Ga. App. 671, 672 (1) (411 SE2d 750) (1991).

       See id.; Copeland v. State, 248 Ga. App. 346, 349 (2) (b) (i) (546 SE2d 351) (2001).

       See Spears v. Johnson, 256 Ga. 518 (350 SE2d 468) (1986); McClarity v. State, 234 Ga. App. 348, 351 (3) (a) (506 SE2d 392) (1998).