text:
    A99A1846.
    RABERN v. STATE OF GEORGIA.
    (531 SE2d 373)
   Phipps, Judge.

After police discovered 450 marijuana plants, each three inches in height, growing in a shed attached to John Wesley Rabern’s house, the State instituted an in rem forfeiture proceeding against the residence and the 5.2 acres of land upon which it stood. After a bench trial, the trial court found that the property was used to manufacture and store marijuana for distribution and ordered the property forfeited. Because the trial court failed to apply the three-factor analysis adopted by our Supreme Court in Thorp v. State of Ga., we vacated its decision and remanded the case with instructions to conduct a posttrial hearing to determine whether the forfeiture violated the Eighth Amendment’s Excessive Fines Clause.

After a hearing, the trial court determined that

(1) the property was being used to grow marijuana, (2) the property’s use was extensive and sufficiently close to the crime involved to render the property “guilty,” and (3) the forfeiture’s harshness was not excessive in comparison with the gravity of the offense.

The trial court ordered the property forfeited in its entirety. Rabern appeals, contending, among other things, that the forfeiture amounted to an excessive fine within the meaning of the Eighth Amendment to the U. S. Constitution.

Thorp adopted the three-factor analysis proposed in United States v. 6625 Zumirez Drive, as the minimal inquiry for analyzing a claim under the excessive fines provision of the Eighth Amendment. The factors are: (1) the inherent gravity of the offense, as compared with the harshness of the penalty; (2) whether the property seized was close enough to the offense to render it “guilty’; and (3) whether the criminal activity involving the property seized was extensive in terms of time and space. Proper application of these factors requires the trial court to make certain mixed findings of law and fact. Normally a trial court’s findings of fact as to these matters must be accepted by an appellate court unless clearly erroneous. Because we find that the trial court’s findings were not supported by the evidence, we find that its determination that Rabern’s forfeiture was not excessive was clearly erroneous, and therefore, we reverse.

1. The evidence, evaluated under the three-factor Thorp analysis, was insufficient to show that the forfeiture of Rabern’s home, including the surrounding 5.2 acres, was not excessive.

(a) The inherent gravity prong of the first factor considers the culpability. Rabern was convicted of manufacturing marijuana. Part of the inherent gravity of Rabern’s offense is that the marijuana presumably would have been sold. The trial court’s order stated that “the contraband at Tull maturity1 [would be] worth as much as $1,000,000 after cloning procedures were used to reproduce said marijuana.” But there was no evidence that Rabern had actually reproduced any of the plants by cloning or that the three-inch plants were at “full maturity.” Moreover, the number of plants that might have reached full maturity and the street value of the marijuana at that time are speculative. The trial court’s finding of $1,000,000 worth of marijuana sold is not supported by the evidence.

The second prong of the first factor evaluates the harshness of the penalty imposed. The trial court forfeited Rabern’s family residence, including the surrounding 5.2 acres. Consideration must be given not only to the monetary value of the property forfeited, but also to the intangible value of the type of property, particularly in the case of a home. At stake here are the security and privacy of Rabern’s home and of those who take shelter within it. The trial court determined that Rabern’s property was worth $70,000 and then ruled that “[i]f the property is sold and the money the property brings exceeds $57,000 then any overage shall be paid to the condemnees.” Essentially, that order provided only that the State would receive up to $57,000 in proceeds but failed to give due consideration to Rabern’s remaining interest in the property. Thus the forfeiture was done without sufficient regard for the proportionality inquiry specifically adopted in and required by Thorp,

(b) The second factor, which focuses on the relationship between the property and the offense, evaluates whether the property was close enough to the offense to render the property guilty. The evidence shows that the shed housed the marijuana plants, but there is no other link between the property and illegal activity. There is no evidence that Rabern used any money derived from illegal sources to purchase the property. There is no evidence that the marijuana had produced revenue which enabled Rabern to conduct an illegal enterprise on the property. And there is no evidence that Rabern used the living area of the family home or the surrounding acres for illegal activities.

(c) The third factor considers whether the criminal activity involving the property was extensive in terms of time and/or spatial use. A confidential informant, who had been arrested in Troup County for involvement with an indoor marijuana grove, told a Georgia Bureau of Investigation agent that he had been assisting Rabern in a cloning operation involving approximately 1,000 plants. Within two days of receiving the information, the agent executed a search warrant and discovered Rabem’s 450 plants. The record contains no evidence which purports to show a period of time during which marijuana plants were cloned nor proof that cloning occurred on Rabern’s property, which he had owned since 1988.

GBI agents found all 450 plants growing inside the 10-foot by 12-foot shed. Although the shed was attached to the rear of the residence and a window between the shed and the residence provided “an opening from the ground level floor of the residence to [the shed],” the shed also had a separate outside entrance and was not a part of the living area of the home.

The land around the house was heavily wooded, and a GBI agent testified that the trend in illegal marijuana production was to plant no more than two or three plants in one particular plot and to widely scatter them out in a wooded area to conceal their locations. He further testified that Rabern’s acreage would have provided sufficient area for the plants to grow to maturity. A police officer, who was responsible for assisting in the search outside the house, noticed several trails leading into the wooded areas. He testified that it appeared that some livestock had lived on the property. However, the search of the wooded areas revealed no marijuana plants. The record contains no evidence that marijuana was found anywhere except inside the shed.

A finding that a portion of real property was used to facilitate drug activities does not make the entire tract of land contraband subject to forfeiture, unless “[a] 11 property [was] directly or indirectly, used or intended for use in any manner to facilitate a violation of [the Georgia Controlled Substances Act].” Here, the trial court determined that Rabern’s property, in its entirety, should be forfeited. But we find that the trial court’s determination was clearly erroneous, because the evidence, evaluated under the “minimal guidelines for excessiveness inquiries in this State,” as adopted in Thorp, fails to show that the forfeiture was not excessive.

Decided March 16, 2000.

James P. Brown, Jr., for appellant.

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

2. Because of our holding in Division 1, we need not address Rabem’s remaining enumerations.

Judgment reversed.

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

       See OCGA § 16-13-49.

       264 Ga. 712 (450 SE2d 416) (1994).

       See Rabern v. State of Ga., 221 Ga. App. 874, 878 (4) (473 SE2d 547) (1996); Rabern v. State of Ga., 231 Ga. App. 84-85 (1) (497 SE2d 631) (1998).

       Supra, 264 Ga. at 714-718 (3).

       845 FSupp. 725 (C. D. Cal. 1994).

        Thorp, supra, 264 Ga. at 717-718 (3).

       Id.

        State of Ga. v. Evans, 225 Ga. App. 402, 403 (484 SE2d 70) (1997).

       Id.

       Supra, 264 Ga. at 714-718 (3).

        6625 Zumirez Drive, supra, 845 FSupp. at 733.

       See Rabern, supra, 221 Ga. App. at 877 (3) (court determined “the sheer number of marijuana plants, coupled with the other evidence, demonstrate [d] that the property was being used to facilitate a marijuana sale”) (emphasis omitted).

        Thorp, supra, 264 Ga. at 717 (3).

       Id.

       See id. at 713-718 (2), (3) (the court notes particular importance in applying the proportionality analysis in forfeiture cases because the government stands to benefit from the revenue raised, and the court expressly refuses to adopt the “instrumentality test” as the only appropriate criterion for determining whether a civil forfeiture is excessive).

       Id. at 713-714 (2), 717 (3).

       See OCGA § 16-13-49 (d) (2).

        Thorp, supra, 264 Ga. at 718 (3).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A99A2008.
    A99A2285.
    WILLIAMS v. SOLOMON. WILLIAMS v. MAYOR & ALDERMEN OF THE CITY OF SAVANNAH.
    (531 SE2d 734)
   Pope, Presiding Judge.

Robert Williams sued the Mayor and Aldermen of the City of Savannah and Ramsey William Solomon, a Savannah police officer. Williams’ suit sought damages for injuries sustained in a collision with Solomon’s patrol car on January 23, 1998. Williams’ complaint alleged that at the time of the collision Solomon was not using his siren or operating the blue lights on his patrol car and that the collision occurred because Solomon ran a stop sign without slowing as required by OCGA § 40-6-6.

Solomon and the City each moved for summary judgment on Williams’ claims. In support of these motions, Solomon submitted an affidavit stating that he was pursuing a suspected stolen vehicle when he approached the intersection where the collision occurred. Before entering the intersection, he avers that he stopped at the stop sign. He then proceeded into the intersection where he collided with Williams’ car. Throughout the chase and up until the time of the collision, Solomon asserts that he was utilizing his siren and blue lights.

Williams submitted his own affidavit in opposition to the summary judgment motions. Williams stated that Solomon “did not appear to have even attempted to stop at the stop sign facing him and the first time I realized the presence of his vehicle was when he struck my vehicle.” He also asserted that Solomon did not have his siren or emergency lights on at the time of the collision and he had no warning of his presence before he ran the stop sign and struck his car.

At his deposition, Williams reiterated that he did not see the patrol car until'the time of the collision. He also stated that he lost consciousness from the point of impact until he was placed in an ambulance. Williams then conceded that because he did not see Solomon’s car until the point of impact and because he was unconscious thereafter, he could not say how fast the car was going; he did not know if Solomon stopped at the stop sign; and he did not know if Solomon had his siren and blue lights on at the time.

The trial court granted both defendants’ motions for summary judgment, and Williams appeals.

Case No. A99A2008

1. Williams contends the trial court erred in granting summary judgment to Solomon because factual issues remain as to Solomon’s liability. We disagree.

Because he was acting in his capacity as a municipal police officer at the time of the collision, Solomon is entitled to the protection of official immunity. Sommerfield v. Blue Cross &c., 235 Ga. App. 375, 376 (1) (509 SE2d 100) (1998); Pearson v. City of Atlanta, 231 Ga. App. 96, 101 (5) (499 SE2d 89) (1998); Ga. Const. of 1983, Art. I, Sec. II, Par. EX (d). “Such immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption.” (Citation and punctuation omitted.) Sommerfield v. Blue Cross, 235 Ga. App. at 376 (1).

It is undisputed that Solomon’s actions in pursuing a suspected stolen vehicle were within the scope of his official authority. The Supreme Court of Georgia previously has held that a police officer responding to an emergency call is exercising discretion in deciding to rush to the scene of a fight or in rushing to back up another officer. Gilbert v. Richardson, 264 Ga. 744, 753 (6) (452 SE2d 476) (1994); Logue v. Wright, 260 Ga. 206, 207-208 (1) (392 SE2d 235) (1990). Similarly, Solomon was exercising his discretion in deciding to pursue the suspected stolen car. Therefore, Solomon is liable only if he acted “with actual malice or with actual intent to cause injury.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d). See Kidd v. Coates, 271 Ga. 33 (518 SE2d 124) (1999).

Williams has not alleged, however, that Solomon acted either with actual malice or intent to cause injury. While he asserts that Solomon acted with reckless disregard for his safety,* the Supreme Court of Georgia has held that conduct exhibiting a reckless disregard for the safety of others does not equate with the actual malice necessary to defeat a claim of official immunity. Merrow v. Hawkins, 266 Ga. 390, 392 (2) (467 SE2d 336) (1996); Adams v. Hazelwood, 271 Ga. 414 (2) (520 SE2d 896) (1999). Therefore, Solomon’s actions fall within the ambit of his official immunity, and the trial court properly granted him summary judgment. Logue v. Wright, 260 Ga. at 207-208.

2. Williams’ reliance upon OCGA § 40-6-6 is misplaced. That statute sets out certain privileges granted to emergency and law enforcement vehicles while responding to emergency calls or pursuing suspects. OCGA § 40-6-6 (a), (b). And although it also defines the duties such vehicles owe to the public, the statute expressly states that it is not intended to create a waiver of any immunity to which a defendant is otherwise entitled. OCGA § 40-6-6 (d) (3). Because OCGA § 40-6-6 applies only where a defendant’s actions are not entitled to immunity, it has no application in this case. See Hilson v. Dept. of Pub. Safety, 236 Ga. App. 638, 641 (512 SE2d 910) (1999); Pearson v. City of Atlanta, 231 Ga. App. at 101 (5).

Case No. A99A2285

3. Williams also contends the trial court erred in granting summary judgment to the City.

While we have found that Solomon has official immunity, this finding does not resolve the issue of the City’s liability. The City may be liable for any negligent acts by Solomon to the extent it has waived its sovereign immunity. Gilbert v. Richardson, 264 Ga. at 754 (7). Under OCGA § 36-33-3, a municipal corporation is not liable for torts committed by its police officers while engaged in their official duties. That immunity may be waived, however, to the extent the City has purchased liability insurance to cover Solomon’s actions in operating his police car. OCGA § 33-24-51 (b); City of Thomaston v. Bridges, 264 Ga. 4, 7, n. 7 (439 SE2d 906) (1994). Williams concedes that there is absolutely no evidence that the City maintains such insurance. He contends, however, that the City is liable under a number of exceptions to its sovereign immunity.

He first asserts that the immunity afforded by OCGA § 36-33-3 is waived if a police officer acts in reckless disregard of the safety of others. But under the circumstances of this case, the City would not be liable even if Solomon had committed an intentional tort. See Brown v. City of Union Point, 52 Ga. App. 212, 215 (183 SE 78) (1935); see also Mayor &c. of Savannah v. Radford, 261 Ga. 129, 130-131 (1) (401 SE2d 709) (1991) (city not liable for either intentional or negligent torts where employees performing a governmental, rather than a ministerial, function). So in the absence of some waiver of this immunity, there can be no municipal liability for a claim based on allegedly reckless conduct by police.

4. Williams next asserts that the City’s immunity is waived by estoppel because it failed to secure liability insurance on its police vehicles in accordance with OCGA §§ 33-34-2, 33-34-4, and 40-9-37. Those statutes require the owner of any motor vehicle registered in this state to maintain liability insurance. But under OCGA § 33-24-51, “a municipal corporation ... is authorized in its discretion to secure and provide insurance to cover liability for damages . . . arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation. . . .” Thus, the General Assembly has granted the City the discretion to decide whether to purchase liability insurance for its police cars. Brantley v. Edwards, 197 Ga. App. 713, 714 (2) (399 SE2d 215) (1990). And sovereign immunity is waived in this instance only if and to the extent that the City purchased such insurance. Because the City does not maintain insurance, it has not waived its sovereign immunity under OCGA § 36-33-3.

5. Williams also argues that the City is liable because (a) it maintained a nuisance and (b) it intentionally violated his constitutional rights by training its police officers to chase suspects in a dangerous manner with a reckless disregard for the life and health of the public. While under some circumstances a municipality may be liable for maintaining a nuisance or violating an individual’s constitutional rights, Williams’ claims fail because, as the City notes, Williams has produced no evidence with regard to the City’s policies or police training methods. Therefore, Williams cannot point to any evidence that would create a jury issue on his claims:

Decided March 16, 2000

Harold J. Cronk, for appellant.

Oliver, Maner & Gray, Patrick T. O'Connor, for appellee (case no. A99A2008).

Weiner, Shearouse, Weitz, Greenberg & Shawe, William W. Shearouse, Jr., Malcolm Mackenzie III, for appellees (case no. A99A2285).

[T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). See also Banks v. Mayor &c. of Savannah, 210 Ga. App. 62 (435 SE2d 68) (1993) (the fact that a number of collisions have occurred with police cars was insufficient to prove negligence in training or that the city maintained a nuisance).

The trial court, therefore, correctly granted summary judgment to the City.

Judgments affirmed.

Smith and Miller, JJ., concur.

       We note that the Supreme Court’s opinion in Merrow v. Hawkins, 266 Ga. 390, 393 (467 SE2d 336) (1996) disapproved language in Logue indicating that immunity does not apply to acts taken in reckless disregard for the rights or safety of others and reaffirmed that actual malice is required to overcome a claim of official immunity. But the Supreme Court’s holding in Merrow does not affect the result in Logue, and it remains authority for the proposition that a police officer acts in his discretionary capacity in responding to an emergency call.

       The trial court found that Williams’ affidavit testimony in support of this claim was contradicted by Williams’ deposition testimony and thus must be disregarded pursuant to Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986). But even construing the testimony in Williams’ favor, Solomon is entitled to immunity. Therefore, we need not determine whether his testimony was self-contradictory.

       We note that the Supreme Court’s opinion Mixon v. City of Warner Robins, 264 Ga. 385 (444 SE2d 761) (1994), upon which Williams relies, did not address the issue of immunity and was decided before the statute was amended to state that it “shall not affect the existence or absence of immunity.” OCGA § 40-6-6 (d) (3); Ga. L. 1995, p. 855, § 1.

       See Martin v. City of Fort Valley, 235 Ga. App. 20 (508 SE2d 244) (1998) (municipality may be liable for creating and maintaining a nuisance); City of Cave Spring v. Mason, 252 Ga. 3, 4-5 (310 SE2d 892) (1984) (cause of action under 42 USC § 1983 creates cause of action against city for acts implementing an intentional policy resulting in the deprivation of constitutional rights).


author: Ruffin, Judge.

text:
    A99A2038.
    MULLINAX et al. v. MILLER et al.
    (531 SE2d 390)
   Ruffin, Judge.

Plaintiffs Don Mullinax and Roy Dobbs, public officials in Pick-ens County, filed a libel action against a former candidate for county commissioner, Cheryl Sams, and her campaign committee chairman, C. Mark Miller, based on a statement in one of Sams’ newspaper campaign ads. Miller won summary judgment on the ground that he did not publish the statement in question. Because there was no evidence that Miller exercised any control over the content of the statement, we affirm.

Under the standard of Lau’s Corp. v. Haskins, Miller was entitled to summary judgment if he showed an absence of evidence in the record to support an essential element of the plaintiffs’ case. We review the trial court’s grant of summary judgment de novo, viewing the evidence and all reasonable inferences from it in favor of plaintiffs.

So viewed, the record shows as follows. In 1996, Sams ran against incumbent Mullinax for the position of Pickens County Commissioner. On September 19, 1996, an advertisement paid for by the Committee to Elect Cheryl Sams appeared in the Pickens County Progress newspaper. The ad criticized Mullinax and Dobbs, an employee of the Board of Tax Assessors, for their alleged treatment of Pickens County resident Ola Ann Brown. According to the ad, Brown purchased property in Pickens County on which the 1995 taxes had been paid, but — unbeknownst to her — the county claimed after the closing that the taxes had not been paid properly and placed a lien on her property for the money. The ad stated that Brown “never found out that Roy Dobbs and Don Mullinax had stolen the taxes from her property until she read a legal notice in the Pickens County Progress.” (Emphasis supplied.)

Mullinax and Dobbs sued Sams and Miller for libel per se based on the use of the word “stolen” in the ad. They alleged that the sentence containing that word falsely accused them of committing a crime. Miller denied writing the ad or publishing the challenged statement.

Sams testified at her deposition and by affidavit that she, and she alone, wrote and published the ad. She explained that she first learned about Brown’s situation from a friend with whom she was discussing ideas for campaign ads. The friend told her that Miller, an attorney, had handled the closing when Brown purchased the property. Sams questioned Miller, who told her he would need Brown’s permission before releasing any information for use in an ad. Brown apparently agreed, and Miller arranged a telephone call between himself, Sams, and Brown. Sams testified that Brown, not Miller, supplied the information for the ad. Although Sams used a computer at Miller’s law office to compose the ad and directed one of Miller’s staff to deliver it to the newspaper, she stated: “I wrote the ad. I paid for the ad out of campaign funds. I signed the check. It is my ad.” She further stated that she decided to use the word “stolen” in the ad to describe the actions of Mullinax and Dobbs after consulting a dictionary. Finally, Sams stated that Miller was not involved in any way with writing or editing the ad. Sams did not know, however, if Miller reviewed the ad before it went to the newspaper.

Like Sams, Miller testified that he did not write, publish, or pay for the ad. At his deposition, however, Miller refused to state whether he gave Sams any information for the ad or saw the ad before publication. Miller asserted the attorney-client privilege, claiming that he served as the lawyer for the Committee to Elect Cheryl Sams and that details about the preparation of the ad were privileged communications.

Nearly one year after Miller’s deposition — and two weeks after Miller moved for summary judgment — the plaintiffs filed a motion to compel discovery, challenging Miller’s assertion of the attorney-client privilege. In its order granting summary judgment to Miller, the trial court denied the motion to compel without explanation. Plaintiffs appeal both rulings.

1. Plaintiffs argue that the trial court should have granted their motion to compel. We disagree.

“The trial courts have broad discretion to determine what is and what is not discoverable, and this court will not interfere with those decisions absent a clear abuse.” As Miller points out, plaintiffs waited more than ten months after Miller’s deposition and two weeks after Miller filed his motion for summary judgment before asking the court to rule on his assertion of the attorney-client privilege. Plaintiffs’ motion to compel contains no explanation for this delay. Although we have found no rule setting a specific time limit for bringing a motion to compel under these circumstances, Uniform Superior Court Rule 5 provides that a party must pursue discovery promptly, diligently, and “without unnecessary delay” in order to take advantage of the court’s compulsory process to compel discovery. That rule also states that the court has discretion to shorten the time for a party to utilize the court’s compulsory process to compel discovery. As plaintiffs’ unexplained ten-month delay in filing their motion to compel shows a lack of promptness and diligence, we cannot say that the trial court clearly abused its discretion in denying the motion.

2. Plaintiffs also argue that the trial court erred in granting summary judgment to Miller on their libel claim. Once again, we disagree.

A libel is “a false and malicious defamation of another, expressed in print [or] writing . . ., tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1 (a). To be actionable, the libel must be “published” — i.e., communicated to a third party. There is no question that the allegedly libelous sentence stating that plaintiffs “stole” Brown’s taxes was published in the local newspaper. The issue, rather, is whether Miller published it. Plaintiffs have the burden of proving that he did so.

This case presents the question of what it means to “publish” a statement, in the context of the libel laws. We are aware of no Georgia cases examining precisely which actions a person must take to be labeled a “publisher.” We have held, however, that “[publication entails the ability to control the libel.” At a minimum, therefore, we think plaintiffs must prove that Miller exercised some control over the sentence containing the word “stolen” in the ad. Miller clearly could be liable if he wrote the offending sentence himself or directed someone else to write it, knowing that it would be printed. He could also be liable, perhaps, if he approved the sentence after someone else wrote it or if he paid for the article. But Miller cannot be liable for playing some lesser role — such as contributing background information for the article or allowing Sams to use his office to write the ad and his employees to deliver it to the paper — that did not entail controlling the content of the ad. This is especially true because the background information regarding the real estate transaction is not what is alleged to be libelous here; the alleged libel, rather, lies in the term used to describe that transaction.

With this framework in mind, we find that plaintiffs failed to present any evidence that Miller exercised the requisite degree of control. Sams testified unequivocally that she alone wrote the ad, including the word “stolen.” Miller likewise testified that he did not write the ad. None of the evidence identified by plaintiffs contradicts this testimony or suggests that Miller had any control over the offending statement.

In support of their position, plaintiffs first point to the affidavit of John Trammell, who stated that he talked to Miller the day after the ad appeared in the paper and that Miller said he “and some others” were helping Sams write her political ads. But Trammel’s affidavit does not say that Miller admitted to helping with the ad in question, much less the “stolen” sentence. Nor does the affidavit say whether the “help” of which Miller spoke involved any control over sentence construction or word choice, as opposed to merely generating ideas, providing logistical support, and the like.

Second, plaintiffs note that Miller was chairman of Sams’ campaign committee, which paid for the ad. But plaintiffs have sued Miller individually, not as a representative of the committee, and they offer no rationale for holding him personally responsible for acts of the committee. Although the doctrine of respondeat superior applies in libel cases, so that a principal is liable for the libel committed by his employees in the scope of their employment, plaintiffs essentially seek to hold the agent (Miller) liable for the acts of the principal (the campaign committee). We find no support for this theory of liability in logic or in case law. Moreover, we find no authority applying the respondeat superior rule in libel cases outside the employment context to unpaid volunteers like Miller.

Third, plaintiffs argue that Miller provided Sams with office space and clerical help and that someone in his office took the finalized ad to the newspaper. As discussed above, however, this kind of logistical help does not show that Miller exercised control over — or was even aware of — the content of Sams’ campaign ads and therefore cannot render him liable.

Fourth, plaintiffs point out that Miller gave Sams information about Brown and acted as a liaison between Sams and Brown. While this evidence suggests that Miller may have helped shape Sams’ views about Brown’s situation and plaintiffs’ role therein, it does not signal that Miller controlled the ad’s content, including the reference to stealing. We again point out that the only evidence in the record as to the source of the word “stolen” is Sams’ testimony that she chose it after consulting a dictionary. Sams also testified that Miller never told her that plaintiffs stole Brown’s taxes.

Finally, plaintiffs assert that had the trial court granted their motion to compel and forced Miller to answer the questions on which he claimed attorney-client privilege, they would have evidence that Miller published the offending sentence of the ad. As explained above, however, the trial court acted within its discretion in denying the motion to compel. Plaintiffs therefore were not entitled to this additional discovery.

In the absence of any evidence that Miller wrote or exercised control over the “stolen” sentence in the ad, defendants were entitled to summary judgment.

Decided March 16, 2000.

Law Offices of William G. Hasty, Jr., P.C., William G. Hasty, Jr., Jonathan A. Pope, for appellants.

Edwin Marger, for appellees.

Judgment affirmed.

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

       261 Ga. 491 (405 SE2d 474) (1991).

        Zarach v. Atlanta Claims Assn., 231 Ga. App. 685, 686 (500 SE2d 1) (1998).

       Id.

       According to Miller, he represented the mortgagee bank, not Brown.

       Sams denied that Miller did legal work for the campaign committee.

        Smith v. U-Haul Co. Ga., 225 Ga. App. 356, 357 (1) (484 SE2d 49) (1997).

       OCGA § 51-5-1 (b); Luckey v. Gioia, 230 Ga. App. 431, 432 (1) (496 SE2d 539) (1998).

       See Sigmon v. Womack, 158 Ga. App. 47, 50 (1) (279 SE2d 254) (1981).

       (Emphasis supplied.) Southern Bell Tel. &c. Co. v. Coastal Transmission Svc., 167 Ga. App. 611, 615 (2) (b) (307 SE2d 83) (1983).

       See Gantt v. Patient Communications Systems, 200 Ga. App. 35, 39 (3) (406 SE2d 796) (1991).

       See Sigmon, supra at 50-51; Luckey, supra at 433.


author: Barnes, Judge. Eldridge, Judge,

text:
    A99A2046.
    PETERS v. THE STATE.
    (531 SE2d 386)
   Barnes, Judge.

Carlos Peters appeals from his conviction of possessing cocaine with the intent to distribute it. In this appeal, Peters argues (1) the trial court erred by denying his motion to suppress; (2) insufficient evidence supports his conviction; and (3) the trial court erred when it recharged the jury without notifying him or his counsel. For reasons that follow, we reverse.

The evidence presented during the motion to suppress hearing, and at trial,* showed that two armed and uniformed DeKalb County police officers prevented Peters from getting into his car and leaving an apartment complex because they “observed a black male, the defendant, come out of a breezeway in a hurried fashion.” The officers testified that the breezeway from which Peters exited was known for heavy drug sales. When Peters saw the officers, he became very nervous and continued to hurry out of the complex toward his car. After stopping Peters and asking him for identification, Officer West reached into Peters’ pants and removed a “three to four-inch cookie-sized chunk” of crack cocaine and two bags of marijuana.

1. In his first enumeration of error, Peters asserts the trial court should have granted his motion to suppress because the officers did not have the articulable suspicion necessary to detain him.

[United States] Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

(Citations and punctuation omitted.) McAdoo v. State, 164 Ga. App. 23, 26 (1) (295 SE2d 114) (1982).

In the first [tier], police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.

(Citations and punctuation omitted.) McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997).

In order to address Peters’ first enumeration of error, we must first determine whether the initial contact between the officers and Peters should be categorized as a first- or a second-tier-encounter. Because the officers verbally commanded Peters to stop and prevented him from entering his automobile, we find that it was a second-tier encounter for which a reasonable, articulable suspicion of criminal activity was required. See State v. Blair, 239 Ga. App. 340 (521 SE2d 380) (1999).

In this case, the officers lacked the requisite suspicion. Peters did not flee from a high drug sale area at the sight of the officers. Compare Illinois v. Wardlow, 528 U. S. 119 (120 SC 673, 145 LE2d 570, 575) (2000) (defendant “looked in the direction of the officers and fled”); Harris v. State, 205 Ga. App. 813, 814 (1) (423 SE2d 723) (1992) (when defendant and others “saw the patrol car, they began running”). Instead, Peters continued hurrying toward his car, just as he was before he spotted the officers. See State v. Winnie, 242 Ga. App. 228 (529 SE2d 215) (2000). Appearing nervous in the presence of police officers also falls short of the reasonable, articulable suspicion required by Terry. See Holt v. State, 227 Ga. App. 46, 50 (487 SE2d 629) (1997).

Since the officers stopped Peters without a reasonable, articulable suspicion that he was engaged or about to engage in criminal activity, the trial court erred when it denied his motion to suppress evidence seized as a result of this unlawful stop and seizure of his person.

2. Based on our holding in Division 1, Peters’ remaining enumerations of error are moot.

Judgment reversed.

Blackburn, P. J, and Eldridge, J., concur fully and specially.

Eldridge, Judge,

concurring specially.

I concur fully in the majority opinion and write only to make clear certain, specific facts of this case.

1. The record regarding the stop is quite clear. It is uncontroverted that Officers West and Waltower verbally ordered Peters to stop and, after he obeyed their command, the officers approached Peters for questioning. The officers did so solely because Peters was “hurrying” away from a known drug sale location. Peters appeared “nervous” to the officers only after he had already been stopped as shown by the following testimony first from the suppression hearing:

[Officer Waltower:] We observed a black male, the defendant, come out of a breezeway in a hurried fashion. . . . He was basically coming in our direction towards a yellow vehicle in a hurried fashion. When he saw us, he became very nervous. . . . When he saw us, he came almost to a complete stop and began looking around as if he was looking for an escape avenue. . . . He was stopped by myself and Officer West. . . . He was stopped with a verbal command. . . . [He] [d]id obey . . . our verbal commands to stop. . . . He was in the parking lot near his vehicle. . . . [Q:] Was he doing anything else that was suspicious?
[Waltower:] When he was stopped, sir, he became very nervous.
[Q:] When he was stopped?
[Waltower:] Yes, sir.

and also from the trial: That Peters may have appeared “nervous” or looked like he wanted an “escape avenue” when he was stopped cannot, after the fact, supply reasonable' articulable suspicion to do what the officers had already done. Hurrying to one’s automobile — even in a known drug sale location — is not, alone, sufficient to erode the people’s constitutional right against unreasonable government intrusion. See, e.g., Hughes v. State, 269 Ga. 258, 260 (497 SE2d 790) (1998). Unsupported by any reasonable articulable suspicion that Peters was engaging or about to engage in criminal activity, the stop was an unconstitutional detention.

[Officer Waltower:] [W]e observed a black male, later identified as Carlos Peters, was coming up from one of the lower levels in the breezeway in a hurried fashion, going towards a yellow Buick Regal, I believe it was. . . . We stopped Mr. Peters. He seemed to be quite nervous when we stopped him. I believe Officer West questioned him as to what he was doing. . . . (Emphasis supplied.)
[Officer West:] [W]e walked around Building 2801, we observed Mr. Peters run from a breezeway where drugs is heavily sold. . . . He was hastily walking towards his car.
. . . Based on him running from the breezeway, I attempted to stop him to identify him.

2. Even if the officers had been able to articulate a reasonable suspicion to justify a second-tier Terry stop of Peters, the subsequent search was bad. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). There were no exigent circumstances which would permit the officers to abandon a Terry protective pat-down, reach into the compliant suspect’s pants, and remove a paper towel to see what is in it.

In Terry v. Ohio, supra, the court’s emphasis upon the procedures followed by the officer indicates that a two-step process must ordinarily be followed: (1) The officer must pat down first, and (2) then intrude beneath the surface only if he comes upon something which feels like a weapon.

Clark v. State, 208 Ga. App. 896, 900 (432 SE2d 220) (1993). “More invasive procedures have been approved where an officer has had a reasonable basis for concluding that a suspect was armed or was otherwise a threat to his personal safety. See Hayes v. State, 202 Ga. App. 204 (414 SE2d 321) (1991).” State v. Newton, 227 Ga. App. 394, 396 (1) (489 SE2d 147) (1997). But implicit in this holding is that the officer concluded that the suspect was armed or was otherwise a threat to his personal safety and can articulate a basis for his conclusion so that a Terry protective pat-down would not be unreasonable under the circumstances. Hayes v. State, supra at 206-207. Here, the officers never testified that they concluded Peters was armed and dangerous.

In fact, Officer West (who conducted the search) testified that he felt “suspicion” because Peters appeared to be concealing something behind his right hand. So, West turned Peters around and moved the offending hand. Peters was compliant and nonthreatening throughout these maneuvers. Clearly, after West moved Peters’ hand, nothing was then being concealed.

However, after West moved Peters’ hand, West saw a “bulge”: “His hand over his waistline. When I removed the hand, that is when I noticed the bulge in his waistline.” West testified that he had no idea what the “bulge” was and that he “didn’t draw any conclusions.” The “bulge,” itself, was a white paper towel wrapped around a three-to four-inch chunk of crack cocaine and two small baggies containing less than an ounce of marijuana in total. Neither West nor Waltower testified that they thought the “bulge” looked like a weapon. Nor did they know Peters or have reason to suspect him, specifically, to be armed. Officer West provided no explanation for not patting down Peters before he “removed his hand from his waistline, pulled the pants back[,] observed the bulge,” and “reached” for it. Officer West may have recited the litany that he checked Peters for “my safety to check for a weapon,” but, at the same time, he stated that he also checked him “for whatever else he was concealing”; West provided no evidence to demonstrate that the Terry pat-down was dispensed with because West’s safety was in jeopardy or might be if he did not immediately, prior to a protective pat-down, remove the white paper towel he discovered when he looked in Peters’ pants.

Decided March 16, 2000.

Gerard B. Kleinrock, for appellant.

J. Tom Morgan, District Attorney, Maria Murder-Ashley, Thomas S. Clegg, Assistant District Attorneys, for appellee.

While officer safety is of paramount importance, an officer must provide some evidence to show that an act performed under the aegis of “for my safety” is actually for such purpose and either follows the constitutional guidelines of Terry or has an appropriate basis for a departure therefrom. Absent any testimony that the “officer . . . had a reasonable basis for concluding that [Peters] was armed or was otherwise a threat to his personal safety,” State v. Newton, supra at 396, so as to avoid the constitutional requirements of Terry, the search of Peters was unconstitutional.

I am authorized to state that Presiding Judge Blackburn joins in this concurrence.

       When reviewing a trial court’s ruling on a motion to suppress, we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing. Sanders v. State, 235 Ga. 425, 431-432 (2) (219 SE2d 768) (1975).

       Clearly, if a Terry protective pat-down had been conducted and the officer had felt an object whose contour or mass made its identity immediately apparent, there would have been no invasion of Peters’ privacy beyond that already authorized by the officer’s search for weapons. Under this “plain feel” exception, the warrantless seizure of the object in Peters’ clothing would be justified by the same practical considerations that inhere in the plain-view context. Of course, such concept has no application here, since a protective pat-down was not performed and the officer testified that he had no idea what the object was before he reached into Peters’ waistband to retrieve it. Takes v. State, 236 Ga. App. 77, 79 (511 SE2d 534) (1999); State v. Dills, 237 Ga. App. 165, 168 (514 SE2d 917) (1999).


author: Barnes, Judge.

text:
    A99A2172.
    A99A2173.
    KENDALL v. GRIFFIN-SPALDING COUNTY HOSPITAL AUTHORITY et al. SPALDING COUNTY et al. v. GRIFFIN-SPALDING COUNTY HOSPITAL AUTHORITY et al.
    (531 SE2d 396)
   Barnes, Judge.

These appeals concern the capacity of a hospital authority to create a trust and delegate to the trust the power and discretion to carry out its functions, missions, and responsibilities. M. Michael Kendall (Case No. A99A2172) and Spalding County and the City of Griffin (Case No. A99A2173) (collectively “Spalding/Griffin”) appeal the trial court’s judgment following a bench trial in a declaratory judgment action upholding the hospital authority’s action.

After Kendall filed this action against the Griffin-Spalding County Hospital Authority (“the Authority”), Spalding County Health Care Trust (“the Trust”), and certain individuals as members of the Authority and the Trust, Spalding/Griffin intervened in the action. Although invited to do so by the trial court, the District Attorney of the Griffin Judicial Circuit and the State Attorney General declined to intervene.

Kendall and Spalding/Griffin complain primarily that the trial court erred by finding that the Authority did not act beyond its authorized powers by creating and operating the Trust. We agree with this contention and, consequently, must reverse the trial court.

The Authority was created in 1945 by resolutions of Spalding/ Griffin under a state authorizing act. The Authority administered a hospital and related health care facilities until 1984, when it sold the hospital to a private entity. Under the purchase agreement, some proceeds of the sale were used to establish the Trust, and the initial and subsequent payments for the hospital were deposited into the Trust. The Trust now has assets of over $20,000,000. A second Trust created by the Authority has assets of over $4,000,000.

1. Neither the appellants nor the appellees have complied with Court of Appeals Rule 27 (c) (3). References to exhibits introduced in the trial court without further reference to the volume and page of the record do not satisfy the Rule’s requirement to cite to the record on appeal.

2. Spalding/Griffin contends the Trust Agreement shows that the powers granted the Trust by the Authority constitute an impermissible delegation of governmental authority to the Trust. According to Spalding/Griffin, the effect of this delegation was to render the Authority merely an advisory board. Article III of the Trust grants the Trustees authority to:

pay, distribute, or use the income and principal of this Trust in a manner consistent with Article XII in its sole discretion, from time to time only on behalf of and in support of the Grantor for purposes related to providing health or medical services and related social services to the residents of the City of Griffin, Georgia, or Spalding County, Georgia, or for any other health-related purpose permitted to the Grantor under the Georgia Hospital Authorities Law as it exists on October 1, 1996. The means by which the Trust shall fulfill Grantor’s functions, missions and responsibilities shall be determined by the Board of Trustees in its sole discretion, in connection with the Grantor’s recommendations, and shall include, but is not limited to, grants or below-market loans to governmental and charitable organizations; contracts with governmental or other organizations to provide medical or health care services within the scope of the Grantor’s authority under the Georgia Hospital Authorities Law as it exists on October 1, 1996.

(Emphasis supplied.)

Spalding/Griffin contends the emphasized text “renders the trust agreement ultra vires, null and void on the grounds that it constitutes an impermissible delegation of governmental authority. . . .”

The Authority argues that its enabling statute permits it to delegate the fulfillment of its functions, missions, and responsibilities to the Trust. Because the Authority’s enabling statute does not specifically authorize it to take this action, we must look to see if that authority is necessarily implied from the express grant of other powers. While the Authority’s enabling statute provides that it “shall be liberally construed to effect the purposes hereof,” OCGA § 31-7-96, the Supreme Court has held that “liberally” in a similar context does not mean “ultra-liberally.” Day v. Dev. Auth. of Adel, 248 Ga. 488, 490 (284 SE2d 275) (1981). Our question is whether the Georgia Hospital Authorities Law authorizes such a delegation of the Authority’s powers to a separate entity.

Statutes should be construed in accordance with their real intent and meaning and not so strictly as to defeat the legislative purpose. Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816-817 (403 SE2d 97) (1991). They should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions to limit or extend their operation. Burbridge v. Hensley, 194 Ga. App. 523, 524 (1) (391 SE2d 5) (1990). Statutory construction “ ‘must square with common sense and reasoning.’ ” Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (418 SE2d 367) (1992).

The functions and powers of a hospital authority are established in OCGA § 31-7-75, which vests an authority with 27 specific grants of power that permit it to act as a corporation by, for example, entering into contracts, buying or selling property, and selecting officers. The section further permits the Authority:

(24) To provide management, consulting, and operating services including, hut not limited to, administrative, operational, personnel, and maintenance services to another hospital authority, hospital, health care facility, as said term is defined in Chapter 6 of this title, person, firm, corporation, or any other entity or any group or groups of the foregoing; to enter into contracts alone or in conjunction with others to provide such services without regard to the location of the parties to such transactions; to receive management, consulting, and operating services including, but not limited to, administrative, operational, personnel, and maintenance services from another such hospital authority, hospital, health care facility, person, firm, corporation, or any other entity or any group or groups of the foregoing; and to enter into contracts alone or in conjunction with others to receive such services without regard to the location of the parties to such transactions. . . .
(27) To form and operate, either directly or indirectly, one or more networks of hospitals, physicians, and other health care providers and to arrange for the provision of health care services through such networks; to contract, either directly or through such networks, with the Department of Community Health to provide services to Medicaid beneficiaries to provide health care services in an efficient and cost-effective manner on a prepaid, capitation, or other reimbursement basis; and to undertake other managed health care activities; provided, however, that for purposes of this paragraph only and notwithstanding the provisions of Code Section 33-3-3, as now or hereafter amended, a hospital authority shall be permitted to and shall comply with the requirements of Chapter 21 of Title 33 to the extent that such requirements apply to the activities undertaken by the hospital authority pursuant to this paragraph. No hospital authority, whether or not it exercises the powers authorized by this paragraph, shall be relieved of compliance with Article 4 of Chapter 18 of Title 50, relating to inspection of public records unless otherwise authorized by law. Any health care provider licensed under Chapter 30 of Title 43 shall be eligible to apply to become a participating provider under such a hospital plan or network which provides coverage for health care services which are within the lawful scope of his or her practice, provided that nothing contained in this Code section shall be construed to require any such hospital plan or network to provide coverage for any specific health care service.

Additionally, OCGA § 31-7-74 provides that “[t]he authority shall make rules and regulations for its governance and may delegate to one or more of its members, officers, agents, or employees such powers and duties as may be deemed necessary and proper.” Our courts have held that municipal or public corporations have acted outside the scope of their enabling statutes in connection with various sales and leases. For example, a hospital authority acted ultra vires in operating a store to sell or rent durable medical goods (Tift County Hosp. Auth. v. MRS of Tifton &c., 255 Ga. 164 (335 SE2d 546) (1985)); electric authorities acted or would act ultra vires in selling propane or telecommunications services to the public for hire (Flint Elec. Membership Corp. v. Barrow, 271 Ga. 636 (523 SE2d 10) (1999); Municipal Elec. Auth. of Ga. v. Ga. Pub. Svc. Comm., 241 Ga. App. 237 (525 SE2d 399) (1999)); and a development authority acted ultra vires in acquiring real property to lease to a grocery store (Day v. Dev. Auth. of Adel, supra, 248 Ga. at 488). These cases in which the authorities’ actions were disapproved involved much more restricted endeavors than the broad abdication of power involved here.

The Authority’s reliance on Richmond County Hosp. Auth. v. Richmond County, 255 Ga. 183 (336 SE2d 562) (1985), is misplaced. The court in Richmond approved a hospital authority’s lease with four private corporations pursuant to the provisions of OCGA § 31-7-75 (7), which specifically approves such leases subject to certain conditions. The court did not approve a complete transfer of all the hospital authority’s functions and responsibilities to. the private hospitals. While the Authority is clearly permitted to delegate necessary powers and duties to its officers under OCGA § 31-7-74, we find no authority, express or implied, that would permit the Authority to transfer the power and discretion to carry out all of its functions to a separate entity, as was done in this case. Even construing the statute liberally, we conclude that we cannot interpret it to allow these actions without resorting to “ ‘subtle and forced constructions.’ ” Burbridge v. Hensley, supra, 194 Ga. App. at 524. Accordingly, we must reverse the trial court on this point. See Tift County Hosp. Auth. v. MRS of Tifton &c., supra, 255 Ga. at 166 (2).

3. In view of our disposition of the error discussed in Division 2, we need not review the remaining enumerations of error in Case No. A99A2173 and the enumerations of error in Case No. A99A2172.

Judgments reversed.

Blackburn, P. J., and Eldridge, J., concur.

Decided March 16, 2000.

M. Michael Kendall, pro se.

Beck, Owen & Murray, James R. Fortune, Jr., Mullins & Whalen, Andrew J. Whalen III, for appellants (case no. A99A2173).

Bondurant, Mixson & Elmore, M. Jerome Elmore, David G. Brackett, John M. Cogburn, Jr., for appellees.


author: Phipps, Judge.

text:
    A99A2261.
    CARTWRIGHT v. THE STATE.
    (531 SE2d 399)
   Phipps, Judge.

Darrell Dewayne Cartwright was indicted for rape, statutory rape and aggravated sodomy. A jury found him guilty of forcible rape and aggravated sodomy. He appeals, raising three enumerations of error. He asserts that the trial court erred by admitting evidence of a similar transaction for which he was acquitted and by allowing the State to prove the similar transaction with the detective’s rendition of the victim’s statement. He also claims that the evidence demanded a verdict of guilty but mentally retarded on each count.

We find that the similar transaction was a proper subject of evidence and that the jury was authorized to find Cartwright guilty instead of guilty but mentally retarded. We find that the trial court committed reversible error, however, when it allowed the State to prove the similar transaction through the officer’s hearsay testimony recounting the complainant’s statement, because it was not shown that she was unavailable to testify and her statement was not part of the res gestae.

On August 16, 1995, a man identifying himself as Shawn Norman, later determined to be thirty-one-year-old Cartwright, initiated a three-way phone conversation with fourteen-year-old L. D. and her friend. Eventually, L. D.’s friend quit the conversation, and L. D. and Cartwright continued talking. During their conversation, Cartwright learned where L. D. lived and asked if he could come to her home. L. D. told him, “No,” but the next day, while L. D. was home alone, he went over anyway. When he knocked on the door, L. D. stood speechless for a while but eventually opened the door because Cartwright threatened to kill her if she did not. When L. D. opened the door, Cartwright pushed himself inside. Then Cartwright forcibly performed oral sodomy on L. D. and had sexual intercourse with her forcibly and against her will. After a schoolmate of L. D.’s arrived with her family, Cartwright left on a bicycle.

1. The State sought to present evidence that two years before this occurrence, Cartwright had raped and sodomized another fourteen-year-old girl, S. H., under similar circumstances. S. H. was now a student at an out-of-town college, and, through her mother, she informed the prosecutor that she did not wish to testify at this trial. Also, her mother did not want S. H. to testify. On one occasion, an investigator for the prosecutor’s office went to S. H.’s parents’ home with a subpoena for her. She was not at home and her stepfather would not put the investigator in contact with her. After hearing evidence, the court determined that the State had not shown that S. H. was unavailable to testify at trial.

Nevertheless, under the res gestae exception to the hearsay rule, the court allowed the State to present a statement that S. H. made to a detective at the police station an hour and one-half to two hours after the incident. This statement was made after she had spoken with her parents, who brought her to the police station, and with another officer. According to the detective, S. H. stated that Cartwright called her for several days using a false name, asked her if he could come to her home, came over one day when she was alone, despite having been told by her that she did not want him to come, raped her inside her home and left the scene on a bicycle.

(a) Cartwright was tried for and acquitted of forcible rape in the S. H. case. He asserts that under the Fifth .Amendment protection from double jeopardy the State was collaterally estopped from presenting evidence of that matter in this trial. The trial court determined that collateral estoppel did not bar evidence of the prior incident because statutory rape was in issue in this trial whereas it was not an issue in the prior trial. In the time between these two incidents, the statutory age of consent increased from fourteen to sixteen. Consequently, while consensual intercourse with fourteen-year-old S. H. was not criminal, it was criminal with respect to fourteen-year-old L. D.

Collateral estoppel places limits on the extent to which evidence of allegedly criminal conduct may be reused against a defendant where he has already been tried and acquitted of the crime.

“[T]he application of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant’s favor at the first trial.” [Moore v. State, 254 Ga. 674, 676 (333 SE2d 605) (1985).] . . . [I]t must be determined whether an issue that was in dispute in the previous trial — and resolved in the defendant’s favor — is what the state is now trying to establish in this trial, notwithstanding the previous acquittal.

In Salcedo v. State, the defendant was tried for burglary based on allegations that he had entered the complainant’s home early one morning, partially clothed, and held her down on her bed before she managed to escape. In a previous case, the defendant had been tried in Florida for sexual battery (comparable to rape in Georgia), burglary and criminal trespass. There, it had been alleged that he entered a woman’s home one morning and raped her. The defendant asserted the intercourse was consensual, and he was acquitted of rape and burglary and convicted only of criminal trespass. The Supreme Court of Georgia held that evidence of the prior transaction could not be admitted in the trial of the subsequent transaction because the issue of forcible intercourse had been resolved in the defendant’s favor in the first trial.

Both the prosecution and the defense represent that Cartwright defended himself in the S. H. trial on a theory of consent, and a statement of Cartwright’s introduced at the S. H. trial is consistent with that.

Here, at Cartwright’s request, the court included in its final charge to the jury, “[t]he defendant contends that there was no rape and that the intercourse with the alleged female victim was with the consent of the female freely and voluntarily given.” But the record indicates that at the time the court admitted the similar transaction evidence, the identity of the perpetrator was also an issue in this case. Immediately before trial, when offered an opportunity to plead guilty to one count of statutory rape, Cartwright pled not guilty, saying, “I ain’t done it.” Cartwright’s position suggested a denial of any type of intercourse with L. D.

Identity was one of the purposes for which the State sought to introduce evidence of the prior transaction. It asserted that the modus operandi of the prior transaction was so distinctively similar to that in this case that evidence of the prior matter aided in proving Cartwright was the perpetrator of the present offenses. That use of the prior transaction evidence was proper and not foreclosed by collateral estoppel. We find that evidence of the prior transaction was admissible.

(b) Finding that it was part of the res gestae, the trial court

allowed the State to prove the similar transaction by introducing the hearsay statement of the victim who was not shown to be unavailable to testify. “Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” There are no concrete boundaries for statements that will qualify as res gestae, but the hallmark is that the statement is spontaneous and so devoid of premeditation and reflection that it “ ‘spring [s] out of the transaction’ ” and is “ ‘free from all suspicion of device or afterthought.’ ”

There was a lengthy interval between the incident at S. H.’s home and her interview at the police station. Her statement was narrative, which “ ‘is apt to carry with it the impress of afterthought.’ ” Before she gave the statement, she had spoken with her parents and another officer. The detective who interviewed S. H. testified that she was giggling during the interview and that he cautioned her about making a false report of a crime. We have found no Georgia case in which a narrative statement given to a police officer at a police station has qualified as res gestae. And the State has cited no such case. Considering the circumstances surrounding the taking of this statement, we find that the trial court’s determination that S. H.’s statement was admissible as part of the res gestae was clearly erroneous.

(c) The State asserts that even if the admission of S. H.’s statement was erroneous, it was harmless in light of the overwhelming weight of the evidence against Cartwright. The test is whether it is highly probable that the error did not contribute to the verdict.

If the error is relevant to the issues in dispute, not cumulative of other evidence, not beneficial to the defendant and uncorrected by the trial court, then there is perhaps no reason for saying it is harmless, but it may nevertheless be harmless in the context of the entire case.

Where the evidence of the defendant’s guilt is overwhelming, we have found errors in the admission of evidence to be harmless.

Here, there is no question that evidence of the S. H. matter was relevant, not cumulative of other evidence in the case, not beneficial to Cartwright and uncorrected by the court. The question then becomes whether the properly admitted evidence of his guilt was overwhelming. Evidence of Cartwright’s guilt was presented through the testimony of L. D. and those who encountered her immediately after this incident. However, we cannot say that the evidence against him was so overwhelming that it was highly probable that the error did not contribute to the jury’s verdict.

Despite L. D.’s testimony of threats to kill her, she admitted Cartwright into the home. Despite her testimony that he pushed her from room to room and that they struggled, there was no sign of struggle inside the home. L. D.’s clothing was not damaged. And L. D. had suffered no injuries clearly attributed to Cartwright. While these matters are not necessary to convict for rape or aggravated sodomy, we cannot say that the evidence as to Cartwright’s guilt was so overwhelming that the erroneous admission of highly prejudicial hearsay similar transaction evidence was harmless.

Moreover, the S. H. matter also was significant to the jury’s determination on whether Cartwright was guilty or not guilty but mentally retarded. We cannot conclude that it is highly improbable that this evidence did not affect that determination.

2. Cartwright asserts the jury should have found him guilty but mentally retarded because he presented expert testimony that he was mildly retarded and the State did not present expert testimony in rebuttal. The defendant bears the burden of proving his mental retardation or mental illness beyond a reasonable doubt. While the jury could not arbitrarily ignore the testimony from Cartwright’s expert, it was authorized to consider all evidence in the case that reflected upon Cartwright’s mental condition.

We do not find the expert’s testimony so overwhelming that it compelled a finding that Cartwright was mentally retarded. While the expert noted that there are many considerations in assessing whether a person is mentally retarded, his diagnosis of Cartwright appeared to be based primarily on intelligence quotient test performance. He testified that Cartwright had scored as low as 50 on an IQ test in 1981 but had scored 70 when tested in connection with this case. The expert further testified that 70 is the borderline between low intellectual functioning and mild mental retardation. Viewing the evidence in the light most favorable to the State, a rational trier of fact could have concluded that Cartwright failed to meet his burden of proving mental retardation or mental illness at the time of the crime.

Decided March 16, 2000.

L. Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, Graham A. Thorpe, Howard Z. Simms, Assistant District Attorneys, for appellee.

Because in Division 1 we find that the manner in which the similar transaction was admitted was clearly erroneous and harmful error, we reverse.

Judgment reversed.

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

       The indictment captioned “Rape” contains the elements for both forcible rape and statutory rape.

       (Emphasis in original.) Salcedo v. State, 258 Ga. 870-871 (376 SE2d 360) (1989); accord Moore v. State, 254 Ga. 674 (333 SE2d 605) (1985); Felker v. State, 252 Ga. 351, 361-362 (1) (b) (314 SE2d 621) (1984).

       Supra.

       Id. at 871.

       OCGA § 24-3-3.

       (Citation omitted.) Nasworthy v. State, 169 Ga. App. 603, 604 (2) (314 SE2d 446) (1984).

       (Citation omitted.) Wilbourne v. State, 214 Ga. App. 371, 372-373 (1) (448 SE2d 37) (1994).

        Nasworthy, supra.

       See id. at 605 (clearly erroneous standard).

        Richards v. State, 222 Ga. App. 853, 856 (3) (476 SE2d 598) (1996); Williams v. State, 144 Ga. App. 130, 133 (2) (240 SE2d 890) (1977) (each citing Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976)).

        Johnson, supra.

       See, e.g., Richards, supra.

        Pittman v. State, 269 Ga. 419, 420 (499 SE2d 62) (1998); OCGA § 17-7-131.

        Brown v. State, 250 Ga. 66, 71 (2) (c) (295 SE2d 727) (1982).

       See Pittman, supra.

       See Brown, supra.

       See Pittman, supra.


text:
    A99A2328.
    FAIRBANKS v. THE STATE.
    (531 SE2d 381)
   Phipps, Judge.

Patrick Fairbanks enumerates two errors in his appeal of his armed robbery conviction. First, he asserts that the trial court erred by admitting the prior consistent statement of his co-defendant, Derrick Hallback, before Hallback’s veracity had been challenged. Second, he asserts that the trial court erred by not excluding testimony from Hallback’s mother and sister on the ground that the State had not given the defense at least ten days notice of its intent to call them as witnesses.* We find that Hallback’s prior consistent statement was properly admitted and that the court did not abuse its discretion in permitting Hallback’s mother and sister to testify. For these reasons, we affirm Fairbanks’s conviction.

On January 11, 1997, Fairbanks and Hallback robbed at gunpoint a liquor store near their homes. After the robbery, they fled on foot toward their homes. The police soon found Hallback hiding under a car in Fairbanks’s yard. They were not able to apprehend Fairbanks at that time. Shortly after his arrest, in response to questioning at the scene, Hallback stated that Fairbanks was the other perpetrator of the robbery. Later, Hallback pled guilty to a lesser charge in exchange for his testimony against Fairbanks.

1. Before trial, Fairbanks filed a motion in limine to exclude any testimony regarding Hallback’s statement except when Hallback was testifying. After a hearing, the court ruled that the statement would be admissible as a prior consistent statement and that Hallback need not testify before the statement was admitted as long as he was called to testify at some point and was subject to cross-examination. During the trial, the deputy sheriff who arrested Fairbanks recounted Hallback’s statement at the scene implicating Fairbanks. Hallback testified later.

Under Woodard v. State the prior consistent statements of a witness are admissible at trial if: “(1) the veracity of [the] witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.” 4Fairbanks argues that it was error for the trial court to admit Hallback’s prior consistent statement before he testified because his veracity had not been placed in issue when the statement was admitted.

Fairbanks’s argumentas controlled adversely to him by Powell v. State There, the Supreme Court of Georgia upheld the admission of a witness’s prior consistent statement where her veracity was challenged, she testified later at trial, and she was subject to cross-examination.

We find the instant situation analogous to that in Powell. Hallback testified after his statement was introduced, he was subject to cross-examination, and his veracity was challenged on cross-examination. Applying Powell, we conclude that Hallback’s prior consistent statement was properly admitted.

2. In another motion in limine, Fairbanks sought the exclusion of testimony from Hallback’s mother and sister because of the State’s failure to furnish their names at least ten days before trial. They testified that after Hallback had been arrested and while Fairbanks was still at large, Fairbanks called their home several times to inquire about Hallback’s needs and said that he or his grandmother would provide for Hallback’s needs. According to Hallback’s sister, during one of the conversations, Fairbanks made statements that indicated that he had participated in the robbery.

Hallback’s mother and sister were added to the State’s witness list on the day of jury selection. The evidentiary phase of the trial began two days later. Fairbanks asserted that the late addition of the Hallbacks to the witness list was inexcusable because the sheriff’s department had known of the calls for at least two months. The record reflects that Hallback’s mother had reported the calls to aid in the apprehension of Fairbanks.

Decided March 16, 2000.

William D. Hall, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

The prosecutor stated that although he had known that Fairbanks had contacted the Hallbacks while he was a fugitive, he did not learn until the day before jury selection, while interviewing Hallback, that Fairbanks had incriminated himself during the phone conversations. The interview with Hallback was conducted on a Sunday, and the prosecutor served defense counsel with an amended witness list the next day.

The court ruled that the Hallbacks’ testimony would not be excluded but that the defense would have three options for a remedy — time to interview the Hallbacks, a continuance to another day, or a continuance to another calendar. Defense counsel responded: “We are prepared to go to trial today. That does not mean, for the record, that we consent to the use of these witnesses, and we’d just like a couple of minutes before trial to talk to the two Hallbacks.” The defense was given an opportunity to interview the witnesses.

“In reviewing a trial court’s decision as to whether to impose sanctions or take other corrective action as a result of the State’s failure to comply with its discovery obligations, the appropriate standard of review is whether the trial court abused its discretion.”

Excluding evidence is a harsh sanction and should be imposed only when there is “ ‘a showing of prejudice to the defense and bad faith by the State. . . .’ [Cit.]”

The hearing record does not show bad faith by the State. Moreover, defense counsel’s statement that the defense was ready for trial that day and his rejectibn of a continuance suggest that Fairbanks was not prejudiced by the late addition of the Hallbacks to the State’s witness list. We find the trial court did not abuse its discretion by allowing the State to call the Hallbacks as witnesses.

Judgment affirmed.

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

       See OCGA § 17-6-8.

       269 Ga. 317 (496 SE2d 896) (1998).

       Id. at 320 (2).

       271 Ga. 575, 576 (2) (522 SE2d 656) (1999).

       (Citation omitted.) Brown v. State, 236 Ga. App. 478, 481 (3) (512 SE2d 369) (1999).

       Id. at 481-482 (3): accord OCGA § 17-16-6.


author: Smith, Judge.

text:
    A99A2391.
    JAY v. CHRISTIAN METHODIST EPISCOPAL CHURCH.
    (531 SE2d 369)
   Smith, Judge.

Dr. Lewis W. Jay, a pastor in the Christian Methodist Episcopal Church, filed suit against his church, asserting that a certain bishop failed to comply with the church’s internal rules when transferring him to another location. Dr. Jay alleged that Bishop Othal H. Lakey transferred him without providing 60 days advance notice and without consulting with him 30 days before the transfer. Dr. Jay claimed that Bishop Lakey’s actions violated certain express rules in the church’s Book of Discipline. He sought damages for the church’s breach of an alleged employment contract as well as attorney fees and litigation costs.

The trial court granted the church’s motion to dismiss, finding that subject matter jurisdiction was lacking because the underlying issues were ecclesiastical matters. We agree and affirm.

1. Dr. Jay contends the trial court erred in dismissing his complaint because the issues are nonecclesiastic in nature and concern property rights to salary and benefits.

“[C]ivil courts have no jurisdiction to inquire into and to control the acts of the governing authority of a religious organization undertaken with reference to its internal affairs.” Anderson v. Dowd, 268 Ga. 146, 147 (1) (485 SE2d 764) (1997). In order to safeguard the constitutional guarantee of freedom of religion, religious bodies must have the power “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” (Citations and punctuation omitted.) Id. See Tucker v. Paulk, 148 Ga. 228 (2) (96 SE 339) (1918).

In cases involving disputes over church property, we must distinguish between two types of church government: congregational and hierarchical. Kidist Mariam Ethiopian &c. Church v. Kidist Mariam Ethiopian &c. Church, 219 Ga. App. 470, 472-473 (1) (465 SE2d 491) (1995). While a congregational church is usually strictly independent of other ecclesiastical associations, a hierarchical church is associated with other churches that share similar faith and doctrine and have a common ecclesiastical head. Id. at 473.

As a matter of constitutional law, a hierarchical religious organization must be permitted to establish the rules and regulations by which it is governed. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696, 724 (IV) (96 SC 2372, 49 LE2d 151) (1976).

First Born Church &c. v. Hill, 267 Ga. 633, 634 (1) (481 SE2d 221) (1997).

Here, it is not disputed that the organization and structure of the Christian Methodist Episcopal Church are hierarchical. The central issue, moreover, is ecclesiastic in nature: A pastor is alleging that his bishop transferred him from one church to another church within the Sixth Episcopal District without complying with two rules set forth in the church’s Book of Discipline. The very essence of Dr. Jay’s complaint is that the bishop acted arbitrarily in exercising his authority within the church when he transferred Dr. Jay without proper notice and consultation as required by the Book of Discipline. Plainly, by instituting this lawsuit, Dr. Jay sought to contest his supervising bishop’s right to manage and control the internal affairs of the church. But as Dr. Jay concedes, the church provides for internal review of violations of the Book of Discipline. It is the church’s judicial council that exercises “appellate jurisdiction to review decisions of a Bishop,” and “render [s] declaratory judgments as to the meaning, application and effect of any paragraph of the Discipline.” Notwithstanding this level of appellate review, it is undisputed that the bishop for a district has final authority in decisions relating to the transfer and termination of pastors because the judicial council has no ability to enforce its rulings.

Despite Dr. Jay’s contention that the underlying issues are nonecclesiastic, the crux of this complaint concerns an internal church matter: a decision by a bishop to assign Dr. Jay to a different church. See, e.g., McDonnell v. Episcopal Diocese of Ga., 191 Ga. App. 174, 176 (381 SE2d 126) (1989) (physical precedent only) (bishop’s decision to terminate minister constituted an ecclesiastical matter over which the trial court lacked jurisdiction). This is not a property dispute that can be resolved using “ ‘neutral principles of law’ ” — a permissible category of judicial inquiry. Leopold v. St. Paul’s Greek Orthodox Church, 235 Ga. App. 188, 193 (509 SE2d 121) (1998). Neutral principles include state statutes, corporate charters, relevant deeds, and organizational constitutions of the denomination. Kidist Mariam, supra at 473. But Dr. Jay’s complaint that his bishop violated certain rules of the Book of Discipline cannot be resolved by the application of neutral principles of law. Compare Crocker v. Stevens, 210 Ga. App. 231, 234 (3) (435 SE2d 690) (1993) (division of disputed property upon dissolution of church not an ecclesiastical matter); see also First Born Church &c. v. Bank South, 221 Ga. App. 739 (472 SE2d 469) (1996).

Dr. Jay’s reliance on Hickman v. Booker, 231 Ga. 129 (200 SE2d 279) (1973) is misplaced. In Hickman, unlike here, the issue was whether the defendant bishop and elder violated a court order, prohibiting them from taking any action against the pastor of a church until further order of the court. Id. at 130. Here, as in Bledsoe v. Morningside Baptist Church, 232 Ga. App. 122, 124 (501 SE2d 292) (1998), the issue of compensation or purported reduction in income is only peripheral to the main issue — whether the bishop had a right to transfer a pastor, Dr. Jay, to another church within the district. The trial court correctly determined that subject matter jurisdiction. was lacking. Anderson, supra at 147 (1).

Decided March 16, 2000.

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

Arrington & Hollow.ell, Stanley E. Foster, Mark W. Wortham, for appellee.

The constitutional guarantee of freedom of religion includes the power of religious bodies to decide for themselves, free from interference by the state, matters of church government as well as matters of faith and doctrine. First Born Church &c. v. Hill, supra at 634 (1). Here, any judicial interference with the bishop’s decision would involve an impermissible intrusion into religious affairs violative of the First Amendment of the United States Constitution, applicable to the states by the Fourteenth Amendment. See Leopold, supra at 193. This we cannot do. Anderson, supra at 147 (1).

2. Because the underlying claims are matters construing and applying internal church rules, Dr. Jay’s contention that his claims were not barred by the First and Fourteenth Amendments is without merit.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


text:
    A99A2451.
    MORETON ROLLESTON, JR. LIVING TRUST v. DEPARTMENT OF TRANSPORTATION.
    (531 SE2d 719)
   Phipps, Judge.

Moreton Rolleston, Jr. Living Trust owns a 50-foot by 85-foot tract of undeveloped land abutting an Interstate 75 frontage road. A billboard on the land has been leased to companies for advertising to 1-75 northbound traffic. In 1995-1996, the Department of Transportation reconstructed a portion of 1-75 near the billboard. The northbound lanes were lowered several feet, a center wall was constructed, and a 16-foot by 16-foot directional signboard was suspended 18 feet above the southbound lanes. The Trust claims that, afterward, visibility of its billboard to 1-75 northbound traffic was reduced and that the billboard no longer produces revenue.

The Trust maintains that the only way to make the billboard visible again to northbound traffic is to raise it. In October 1996, the Trust requested DOT’s permission to raise its billboard. When DOT refused the Trust’s requests, the Trust sued DOT, alleging that its refusal constituted a denial of equal protection and a taking.

DOT moved for summary judgment, and the Trust moved for partial summary judgment on the issue of liability. After a hearing, the trial court concluded that the Trust had not shown that it was treated differently than others similarly situated and had not shown a compensable taking. The court granted summary judgment to DOT and denied the Trust’s motion for partial summary judgment. The Trust appeals.

Because the Trust has failed to show that it received treatment dissimilar to others similarly situated and has failed to show a compensable taking, we affirm.

On appeal of a grant of summary judgment, we determine whether the trial court erred in concluding that the moving party demonstrated that no genuine issue of material fact remained and that the party was entitled to judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. We view the evidence, and all reasonable conclusions and inferences drawn from it, de novo and in the light most favorable to the nonmovant.

1. The Trust contends that the trial court erroneously granted DOT summary judgment on its equal protection claim. It maintains that DOT’s refusal to allow it to raise its billboard constituted a denial of equal protection in violation of the Fourteenth Amendment of the Constitution of the United States and of Art. I, Sec. I, Par. II of the Constitution of the State of Georgia. To support this claim, the Trust must show that it was treated differently than others in the same or similar circumstances with no rational basis for the differing treatment.

Georgia’s Outdoor Advertising Control Act regulates billboards and seeks to “ ‘promote the safety and recreational value of public travel, and to preserve natural beauty.’ [Cit.]” Under the Act, there •are two classes of billboards, “conforming’’ and “nonconforming.” A nonconforming sign is one which was lawfully erected but no longer complies with state law or regulations due to changes in the law or regulations since the sign was erected. The Trust’s billboard, although lawfully erected in 1954, became a nonconforming sign after the Act was passed.

In 1981, Moretón Rolleston, Jr. applied for a permit to maintain the billboard as a nonconforming sign. The permit application stated:

Applicant understands and agrees that if a permit for a nonconforming advertising outdoor sign is issued for this sign that the sign must remain substantially the same as it now is, that maintenance is allowed but only to the extent specified by DOT Rules and Regulations.

DOT granted the application.

The General Assembly’s intent in creating a “nonconforming” classification was to avert “ ‘a substantial economic hardship’ ” and to allow continued use of billboards that were in existence before the Act.*

As a nonconforming sign, the billboard may continue to stand, but it “must remain substantially the same as it was on the effective date of the State law or regulations which rendered [it] nonconforming. Extension . . . will be considered a change in the existing use.” Therefore, in October 1996, when the Trust requested DOT’s permission to raise the billboard’s height, DOT denied the request, determining that extending the billboard’s height was a “change in existing use.”

Although the Trust points to other nearby nonconforming billboards that stand taller than its billboard, the record demonstrates that those billboards were classified “nonconforming” under dissimilar circumstances. All but one were initially classified as conforming signs, but when DOT extended an entrance ramp for 1-75 in 1996, those signs then fell within a “blocked out” zone of an interchange. They then became nonconforming and have since “remained substantially the same.” Therefore, the Trust is not similarly situated to the owners of those billboards.

The Trust points to one billboard that was raised in height while classified as a nonconforming sign. But in that instance, the owner raised the billboard without obtaining DOT’s permission. When the DOT discovered that the billboard had been raised, an administrative proceeding ended with a settlement, which provided that the billboard owner remove the illegal billboard within 30 months and pay $6,000 for illegally cutting trees. The Trust is not similarly situated to the owner of that billboard.

Though there are similarities between the [circumstances of the Trust and other billboard owners], there are dissimilarities recognized by [DOT] in its decision which render appellant’s equal protection argument meritless; [the Trust] is simply not in the same or similar circumstances as the [other billboard owners].

2. The Trust contends that the trial court erroneously granted DOT summary judgment on its claim of a compensable taking. It maintains that the reconstruction of 1-75, which reduced visibility of its billboard to 1-75 northbound traffic, constituted a taking of its property in violation of the Fifth Amendment of the United States Constitution and of Art. I, Sec. Ill, Par. I of the Constitution of the State of Georgia. Whether an impairment is compensable depends on whether the impairment is that which is shared by the public in general, which is not compensable, or that which is special to the landowner, which is compensable.

In Dept. of Transp. v. Taylor, the plaintiff claimed that the DOT’s widening of a bridge damaged him because the resulting changes in the traffic pattern would make it more difficult to enter and exit his property. The Court held that the plaintiff’s inconvenience was caused by traffic flow and traffic volume and was shared by the public in general. Here, as in Taylor, the Trust’s claim is based on an impairment caused by changes in traffic flow and conditions, which are shared by the public in general and are not special to the Trust. Impaired visibility by a certain flow of traffic, without more, does not constitute a taking or damaging of property that would entitle the Trust to compensation under either federal or state law. The fact that the Trust uses its property in a particular commercial manner does not change this result. The trial court correctly ruled that the Trust has not shown a compensable taking.

Decided March 16, 2000

Moreton Rolleston, Jr., for appellant.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, R. O. Lerer, Senior Assistant Attorney General, Alison L. Spencer, Assistant Attorney General, for appellee.

3. Our holdings in Divisions 1 and 2 render the Trust’s remaining enumeration of error moot.

Judgment affirmed.

Johnson, C. J., and'McMurray, P. J., concur.

       OCGA § 9-11-56 (c).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

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

       “No State shall make or enforce any law which shall. .. deny to any person within its jurisdiction the equal protection of the laws.”

       “No person shall be denied the equal protection of the laws.”

        Stuart-James Co. v. Tanner, 259 Ga. 289, 290 (380 SE2d 257) (1989).

       OCGA § 32-6-70 et seq.

        Dept. of Transp. v. Shiflett, 251 Ga. 873, 875-876 (1) (310 SE2d 873) (1984).

       OCGA § 32-6-71 (12).

       OCGA § 32-6-71 (28).

       OCGA § 32-6-70 (b).

       Ga. DOT Rules & Regs. r. 672-6-.05 (d) (1) (v).

       See id. (the maintenance of a nonconforming sign is limited to: (1) replacement of nuts and bolts, (2) additional nailing, riveting or welding, (3) cleaning and painting, (4) manipulation to level or plumb the device, but not to the extent of adding guys or struts for stabilization of the sign structure; (5) a change of the advertising message, including changing faces, as long as similar materials are used and the sign face is not enlarged).

       See OCGA § 32-6-75 (a) (18) (no sign shall be erected or maintained outside of the corporate limits of a municipality and adjacent to an interstate highway within 500 feet of an interchange, intersection at grade, or safety rest area).

        Charter Med.-Fayette County v. Health Planning Agency, 181 Ga. App. 184, 185 (3) (351 SE2d 547) (1986).

       “[pjrivate property [shall not] be taken for public use, without just compensation.”

       “[PJrivate property shall not be taken or damaged for public purposes without just and adequate compensation. .. .”

        Dept. of Transp. v. Taylor, 264 Ga. 18,19-20 (3) (a), (b) (440 SE2d 652) (1994).

       Id. at 21 (3) (c).

       Id.

       See Dept. of Transp. v. Bridges, 268 Ga. 258 (486 SE2d 593) (1997) (“uniqueness” of property does not constitute a cause of action, nor does it transform an impairment to a compensable taking).


text:
    A99A2471.
    SULLIVAN v. THE STATE.
    (531 SE2d 367)
   Barnes, Judge.

Although indicted for murder, felony murder, aggravated assault, and three counts of possession of a firearm while committing those crimes, George Robert Sullivan was convicted only of aggravated assault and possession of a firearm during the commission of an aggravated assault. He was sentenced to twenty years to serve on the first conviction and five years to serve on the second. The sentences are to be served consecutively.

Sullivan contends the trial court erred by (1) denying his motion to suppress, (2) denying his motion in limine to prevent the State from referring to removing or mutilating the deceased victim’s body, (3) preventing him from calling certain defense witnesses, and (4) denying him bond. He also contends his conviction for aggravated assault is inconsistent with his acquittal of murder. We disagree and affirm.

Viewed in the light most favorable to the verdict, the evidence shows that Sullivan and the victim had a dispute that culminated in a drunken incident in which the victim struck Sullivan on the head with a maul and Sullivan shot the victim in the head with a high-powered rifle. Later, the victim’s body was found near a highway tied behind his pickup truck. The evidence showed that the body had been dragged to that location. Two experts testified that Sullivan’s rifle was defective and would fire without the trigger being pulled.

1. Sullivan asserts his convictions must be reversed because they are inconsistent with his acquittal of the murder charges against him. We find no merit to this contention because the inconsistent verdict rule in criminal cases has been abolished in this state. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). Further, while Sullivan contends the verdicts were mutually exclusive (see Dumas v. State, 266 Ga. 797, 799 (2) (471 SE2d 508) (1996)), that doctrine is inapplicable here. The doctrine of mutually exclusive verdicts applies only when a jury returns multiple convictions for crimes which are mutually exclusive of each other. In this case, the jury returned not guilty verdicts on the murder counts and a guilty verdict on the aggravated assault count. Therefore, the verdicts actually returned by the jury were neither inconsistent nor mutually exclusive. Huntley v. State, 271 Ga. 227, 229 (3) (518 SE2d 890) (1999).

2. Sullivan also contends the trial court erred by denying his motion to suppress evidence seized at his home. The evidence showed that after the victim’s body was discovered, the police investigation led to Sullivan’s home. When the police arrived, a locked gate barred access to his property, but the police walked around the gate and entered Sullivan’s property. Once on the property, they found a pool of blood and other evidence that appeared to be connected to the victim’s death. They then arranged for a search warrant to complete the search of Sullivan’s property.

Sullivan contends that the police’s entry on his property was unlawful because no exigent circumstances existed to justify the warrantless search. Sullivan also asserts that the illegal search tainted the subsequent search pursuant to the warrant and that the items seized from his property should have been suppressed. Pretermitting whether the motion to suppress should have been granted, however, is the question whether Sullivan was harmed by the trial court’s decision. We find that he was not. Because Sullivan’s defense to the charges was that he shot the victim in self-defense and because other independent evidence connected him to the weapon used in the shooting and the act itself, we find it highly probable that the trial court’s holding did not contribute to the judgment and that the error, if any, was harmless beyond a reasonable doubt. McGee v. State, 209 Ga. App. 261, 262 (1) (433 SE2d 374) (1993).

3. Sullivan’s allegation that the trial court should have prevented the State from referring to the fact that the victim’s body was moved and mutilated is also without merit. As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Whisnant v. State, 178 Ga. App. 742, 743 (1) (344 SE2d 536) (1986). Although Sullivan contends the evidence concerning the dragging was not relevant to any issue in the case, this evidence was admissible on whether the victim was murdered because the jury might conclude removing the victim’s body from Sullivan’s property and mutilating it in the process was inconsistent with Sullivan’s claims of self-defense. Thus,

Decided March 16, 2000

[e]ven though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. This is true even if the defendant’s character is incidentally placed in issue.

(Citations and punctuation omitted.) Carroll v. State, 202 Ga. App. 544, 547 (2) (415 SE2d 37) (1992).

4. Sullivan further contends that the trial court abused its discretion by refusing to allow him to call witnesses about whom he failed to furnish the State with the information required by OCGA § 17-16-8 (a). We find no error. Under OCGA § 17-16-6, the trial court had discretion to exclude these witnesses upon showings of prejudice to the State and bad faith by the defense. Implicit in the trial court’s decision to exclude these witnesses is the determination that prejudice and bad faith were shown. The trial court’s rulings on these matters are accepted unless they are clearly erroneous, and this determination is supported by the evidence. Even the partial information provided was given so late as to prevent the State from adequately investigating the witnesses, their testimony, and their criminal history. Further, as the witnesses who were belatedly noticed were the defendant’s relatives, friends, neighbors, acquaintances, co-workers, and employers, some evidence supports the trial court’s conclusion that the required information was not provided in bad faith. Therefore, we do not find that the trial court abused its discretion by excluding these witnesses. Todd v. State, 230 Ga. App. 849, 854 (3) (b) (498 SE2d 142) (1998).

5. Pretermitting whether the trial court erred by denying Sullivan bond, the issue is now moot. Sullivan wanted bail pending trial, and because the trial has been concluded, there is nothing for us to review. See Lane v. State, 247 Ga. 387 (276 SE2d 644) (1981).

Judgment affirmed.

Blackburn, P. J., and Eldridge,J., concur.

Ray C. Smith, Lloyd D. Murray, for appellant.

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