text:
    A97A1948.
    ROBISON v. GREEN.
    (491 SE2d 95)
   Eldridge, Judge.

Appellant Skyler Robison sued appellee Robin E. Green f/k/a Robin E. Williams for damages resulting from an automobile collision on October 17,1994, in Carroll County. Appellant and her father attempted to negotiate a settlement with appellee’s insurance company; failing that, appellant retained counsel four days prior to the expiration of the statute of limitation. The suit was filed three days later on October 16, 1996. However, unaware that appellee’s address was actually located in Paulding County, appellant filed the suit in Douglas County.

After service failed in Douglas County, appellant’s counsel, on October 30, 1996, moved to transfer the case to Paulding County; the motion was granted on November 4, 1996, and the file was transferred on November 18, 1996. Appellee was served in Paulding County on November 25,1996. Appellee moved to dismiss the case on February 24, 1997, two months after filing her answer, alleging that appellant failed to exercise due diligence in serving appellee after the expiration of the statute of limitation. Appellant responded to the motion to dismiss on March 14, 1997, by filing her own brief and affidavit. After considering the briefs and affidavits of both parties, the trial court “dismissed” appellant’s case on April 8, 1997. Appellant appeals the dismissal. Held:

Appellant’s sole enumeration of error is that the Paulding County trial court erred in granting appellee’s motion to dismiss. In granting the motion, the trial court found that appellant failed to exercise due diligence in order to ascertain that appellee’s address was located in Paulding County, not Douglas County, prior to filing the case. The trial court specifically found that Cantin v. Justice, 224 Ga. App. 195 (480 SE2d 250) (1997), was controlling.

1. In addressing this enumeration, we must first emphasize that, in considering whether to grant appellee’s motion to dismiss the case sub judice under OCGA § 9-11-12 (b) (6), the trial court should have treated the motion as a motion for summary judgment under OCGA § 9-11-56, because appellee’s motion was filed after her answer and the trial court considered the entire record, including matters outside the pleadings, as to the issue of appellant’s due diligence. Under OCGA § 9-11-12 (b), such consideration converted the motion to dismiss into a motion for summary judgment. See also Beazley v. Williams, 231 Ga. 137 (200 SE2d 751) (1973). As such, once the decision was made to consider facts outside the pleadings, the trial court should have given notice that appellee’s motion was to be considered a motion for summary judgment and should have allowed 30 days for appellant’s response before considering the motion, pursuant to OCGA § 9-11-56 (c).

However, appellant did not raise such issue on appeal, asserting only that the trial court erred in finding that she did not exercise due diligence. Therefore, such issue is waived. See Adams v. Trust Co. Bank, 215 Ga. App. 269 (450 SE2d 305) (1994). Further, both parties submitted briefs and affidavits, so there is no indication of prejudice due to the trial court’s failure to give notice of the actual nature of the pending action. As such, this Court will not reverse the case sub judice on this issue, but will instead address the merits of the appeal, treating the asserted dismissal as a grant of summary judgment.

2. We agree with the trial court that Cantin, supra, controls the disposition of the case sub judice. In Cantin, the plaintiff was aware of the defendant’s correct street address, but erroneously determined that the address was in Fulton County instead of DeKalb County, the appropriate venue. After learning of the error, the plaintiff served the defendant with a second original of the complaint and filed a motion to transfer the action to DeKalb County. The defendant was served 19 days after the expiration of the statute of limitation. Following the transfer, the DeKalb County trial court granted the defendant’s motion for summary judgment based on the plaintiff’s lack of diligence in determining the defendant’s correct address prior to filing the complaint. This Court held that “[w]here a complaint is filed near the statute of limitation and service is made after the statute expires and after the five-day safe harbor provision contained within OCGA § 9-11-4 (c), the relation back of the service to the date of filing is dependent upon the diligence exercised by the plaintiff in perfecting service. McCane v. Sowinski, 143 Ga. App. 724 (240 SE2d 132) (1977). ‘ “The plaintiff has the burden of showing that due diligence was exercised. Ordinarily, the determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” ’ Mann v. Atlanta Cas. Co., 215 Ga. App. 747, 749 (452 SE2d 130) (1994).” Cantin, supra at 196.

Decided August 6, 1997.

James L. Kraemer, for appellant.

Law Office ofAl Bridges, Robert A. De Metz, Jr., for appellee.

Further, “when a plaintiff is aware of a defendant’s correct address, [she] must also determine the correct county in which that address is found, otherwise [her] actions show a lack of diligence that will support summary judgment against [her]. Nee v. Dixon, 199 Ga. App. 729, 730 (405 SE2d 766) (1991) (‘appellant was aware of appellee’s correct address at all times, and the burden was upon her to ascertain the county in which appellee resided before filing suit’); see also McManus v. Sauerhoefer, 197 Ga. App. 114 (397 SE2d 715) (1990); Walker v. Hoover, 191 Ga. App. 859 (383 SE2d 208) (1989).” (Emphasis supplied.) Cantin, supra at 196.

In the case sub judice, appellant admits in her brief to this Court that, in preparing the complaint, she “assumed” that appellee’s Douglasville address was in Douglas County, not Paulding County. There is no indication in the record that any affirmative action was taken by appellant to confirm the proper venue for this action. “Although appellant surely knew that the limitation period expired the day after she filed suit, the record does not disclose that she consulted readily available references such as county property records, postal authorities, [sheriff or other law enforcement agencies], or voting registration officials to ascertain the location of [appellee’s address] and effect prompt service.” Nee, supra at 730-731. As such, even though evidence was presented that could support a different conclusion, the trial court did not abuse its discretion in granting summary judgment to appellee after finding that appellant failed to exercise due diligence in perfecting service because of her failure to correctly determine the proper venue prior to filing the complaint. See Cantin, supra at 197; Nee, supra at 730.

Judgment affirmed.

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


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A2055.
    GLENN v. THE STATE.
    (491 SE2d 92)
   Eldridge, Judge.

On April 19, 1995, appellant Sharon Glenn was convicted of cruelty to children, OCGA § 16-5-70 (b), and aggravated child molestation, OCGA § 16-6-4 (a), (c). Upon sentencing, the cruelty conviction was merged into the aggravated child molestation conviction, and she was sentenced to ten years to serve. She appeals, and we affirm her convictions.

1. Appellant asserts that the evidence was insufficient to convict appellant of aggravated child molestation. We disagree.

“On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). The applicable standard of review by this Court is whether a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the crimes for which she was charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

“A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). Further, aggravated child molestation occurs when a person, during an act of child molestation, physically injures or sodomizes the child. OCGA § 16-6-4.

In the case sub judice, appellant is the mother of the victim, who was seven years old at the time of the assaults at issue. The victim testified that, on four occasions in 1991, appellant took him to a neighbor’s house, where they met Kennard Blount; that appellant accepted drugs from Blount; that appellant then ordered the victim to pull down his pants and lay down on his stomach; that appellant held the victim down by sitting on the victim’s shoulders; and that appellant allowed Blount to anally sodomize the victim. The victim also testified that Blount’s penis entered his anus; that the assaults caused him pain; and that he cried after the encounters. According to the victim, he did not toll anyone about the encounters because his mother had threatened that he would be in “big trouble” if he reported the abuse. The victim subsequently entered counseling for behavioral problems linked to the assaults.

In order to obtain a conviction, “[t]here is no requirement that the testimony of the victim of child molestation or aggravated child molestation be corroborated.” (Citation and punctuation omitted.) Turner v. State, 223 Ga. App. 448, 449 (1) (b) (477 SE2d 847) (1996); see also Newport v. State, 224 Ga. App. 481, 482 (480 SE2d 868) (1997); Weeks v. State, 187 Ga. App. 307, 308 (370 SE2d 344) (1988). Nevertheless, the testimony of the victim in the case sub judice was corroborated by Blount, who pled guilty to aggravated child molestation as a result of one of these incidents. He testified at appellant’s trial and admitted that he had had an encounter with appellant and the victim, during which time he undressed and pressed his penis against the victim’s anus, although he denied any penetration; he testified, that this act was performed in the presence and at the direction of the appellant. Although the details of Blount’s testimony differed in many respects from the victim’s version of the incidents, such differences go to the weight and credibility, not the sufficiency, of the evidence. Heard v. State, 221 Ga. App. 166, 167 (471 SE2d 22) (1996); Brewer v. State, 219 Ga. App. 16 (463 SE2d 906) (1995). Evidence of the essential facts remained the same, i.e., Blount admittedly molested the victim with the assistance of appellant.

The victim’s testimony also was corroborated through evidence of his subsequent outcry to a therapist and to his grandmother, both of whom testified at trial. A police officer and a physician also testified regarding the victim’s description of the abuse during the investigation of the incidents. All of the descriptions of the abuse were remarkably consistent. In addition, the investigating police officer testified that he drove around the neighborhood with the victim, after the victim had spotted Blount on the street. When they again saw Blount, the victim crouched down in the seat, of the car to avoid detection by Blount. Further corroborating the victim’s version of events was the testimony of a physician who examined the victim and testified that, while performing a manual rectal examination on the victim, the victim remarked that Blount’s penis “went in like that.” The physician testified that such a remark was very unusual for a young boy to make absent sexual abuse.

The evidence presented showed that Blount sodomized the victim and that appellant actively participated in the crime. The evidence in the case sub judice supports a finding that appellant was a party to the crime of aggravated child molestation in that she intentionally aided and abetted Kennard Blount in anally sodomizing the victim. OCGA §§ 16-2-20; 16-6-4 (a), (c). There was no error.

2. Appellant also challenges her conviction for cruelty to children. OCGA § 16-5-70 (b) provides that a “person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” The evidence presented, as outlined in Division 1, supra, showed that appellant caused the victim to experience the physical and mental pain associated with forced anal sodomy so that she could obtain drugs from Blount. As such, the evidence was sufficient to support a conviction for this crime under the standards of Jackson v. Virginia, supra.

Judgment affirmed.

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

Decided August 6, 1997.

James D. Michael, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Lee A. Man-gone, Assistant District Attorneys, for appellee.


author: Johnson, Judge.

text:
    A97A1037.
    BAKER v. THE STATE.
    (491 SE2d 78)
   Johnson, Judge.

Bobby Baker was indicted on one count of aggravated child molestation and one count of aggravated sodomy for acts involving his live-in girl friend’s ten-year-old daughter. A jury found him guilty of aggravated child molestation but not guilty of aggravated sodomy. Baker appeals from the judgment entered oh the conviction and the denial of his motion for new trial.

1. Court of Appeals Rule 27 (c) requires each enumeration of error to be supported by argument and by specific reference to the record or transcript. Most of Baker’s seven enumerations of error are unsupported by argument or by specific reference to the record or transcript. Moreover, at best only three of the enumerations specify any error allegedly committed by the trial court. See generally Johnson v. State, 216 Ga. App. 858, 859 (1) (456 SE2d 251) (1995). In addition, the enumerations of error are barely intelligible in themselves or in the brief. Under these circumstances, we would be authorized not to consider the enumerations at all. See Court of Appeals Rule 27 (c); Whisenhunt v. State, 172 Ga. App. 742, 744 (5) (324 SE2d 570) (1984). However, we will, to the extent we are able to do so, consider the issues Baker apparently seeks to assert on appeal.

2. Baker contends “there was a misunderstanding by the jury regarding the law ... as shown by guilty on the aggravated child molestation and not guilty on the aggravated sodomy, the underlying cause necessary to elevate child molestation to aggravated child molestation.” He argues that since aggravated child molestation requires physical injury or sodomy and there was no evidence of physical injury, he could only be found guilty of aggravated child molestation if he was also guilty of sodomy; because he was acquitted of the aggravated sodomy charge, he should have also been acquitted of the aggravated child molestation charge. This enumeration has no merit.

We note at the outset that the inconsistent verdict rule has been abolished in Georgia. See Hill v. State, 183 Ga. App. 654, 655 (1) (360 SE2d 4) (1987). Moreover, the elements of aggravated child molestation and aggravated sodomy are different. Aggravated child molestation involves child molestation accompanied by either physical injury or an act of sodomy. OCGA § 16-6-4 (c). Aggravated sodomy is sodomy committed with force or against the will of the victim. OCGA § 16-6-2 (a). Thus, a person may commit one of these offenses without committing the other.

In addition, the conduct related to each, as demonstrated in this case, is different. Count 1 of the indictment charged Baker with committing the offense of aggravated child molestation by penetrating the child’s vagina with his finger. Count 2 charged Baker with committing aggravated sodomy by placing his mouth on the child’s vagina. The child testified that it hurt when Baker molested her with his finger. In our opinion, evidence that the molestation “hurt” was sufficient to prove physical injury. It was not necessary for the child’s testimony to be corroborated by medical evidence. See generally Fitzgerald v. State, 193 Ga. App. 76 (2) (386 SE2d 914) (1989). There being evidence of physical injury, it was not necessary to prove sodomy. See OCGA § 16-6-4 (c). We also point out that, although Baker was not found guilty of aggravated sodomy, there was evidence that he sodomized the child. This enumeration presents no grounds for reversal.

3. Baker argues that the child’s memory of the events at issue was unreliable because it was influenced by suggestive and coercive interviewing techniques employed by an inexperienced and inadequately trained counselor. Baker does not specify how the interview was coercive or suggestive or how the interview elicited anything other than the truth. Indeed, our review of the transcript reveals the contrary.

The counselor testified that while the child and her mother were staying in a residential drug addiction center, the child approached the counselor in a playroom and told her that Baker touched her in her “private” and performed oral sex upon her. The counselor testified that she did not actually interview or initiate any conversations with the child, but simply let the child talk while she listened. Thus, Baker has failed to show any error.

4. Baker asserts three enumerations of error involving the Child Hearsay Statute, OCGA § 24-3-16.

(a) Baker contends that “there remains a question as far as the indicia of reliability.” However, he does not specify what question remains. Nor does he make any specific reference to the transcript or record to support this enumeration. In any event, the record contains sufficient evidence of reliability. The child related similar statements regarding acts of molestation and sodomy to her mother, a police investigator/DFACS caseworker, a children’s counselor, and the court at trial. Some of the child’s statements were corroborated at trial by her older brother. Furthermore, that the victim testified at trial and was subject to cross-examination provided an additional safeguard of Baker’s rights. See Watkins v. State, 212 Ga. App. 296, 297 (2) (441 SE2d 801) (1994). We find no error. See Gregg v. State, 201 Ga. App. 238, 241 (3) (c) (411 SE2d 65) (1991).

Decided July 24, 1997

Reconsideration denied August 7, 1997.

David E. Slemons, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

(b) For the reasons discussed in Divisions 1 through 4 (a) above, Baker’s separate enumeration of error that the conviction cannot stand because it is based on unreliable evidence is without merit.

(c) Baker’s argument that “the state’s use of OCGA § 24-3-16 is outside the scope of the exception” is unclear. He has failed to indicate which statements were erroneously admitted or why the statements were inadmissible. Again, Baker has failed to demonstrate any error.

5. Baker argues that the child’s mother improperly bolstered the child’s testimony by testifying that she had no reason to believe the child was being untruthful. However, he failed to raise any such objection below, and there is no reasonable probability that the outcome of the trial was changed by the mother’s comment. See Greene v. State, 266 Ga. 439, 446 (14) (469 SE2d 129) (1996).

6. Baker’s final enumeration that the “evidence was sufficiently close to warrant” the grant of a new trial is unsupported by any argument or citation of authority or reference to the record. In any event, this Court views the evidence in the light most favorable to support the verdict and does not weigh the evidence or determine witness credibility. See Ogles v. State, 218 Ga. App. 92, 93 (2) (460 SE2d 866) (1995). A challenge from the denial of a motion for new trial is reviewed under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). So viewed, the transcript reveals ample evidence from which any rational trier of fact could have found Baker guilty beyond a reasonable doubt of aggravated child molestation. See Ogles, supra; Gable v. State, 222 Ga. App. 768, 769 (1) (476 SE2d 66) (1996).

Judgment affirmed.

Pope, P. J., concurs. Blackburn, J., concurs in judgment only.


author: Beasley, Judge.

text:
    A97A1207.
    GOLDEN PLAZA, L.L.C. v. AUGUSTA-RICHMOND COUNTY et al.
    (491 SE2d 69)
   Beasley, Judge.

Golden Plaza, L.L.C., filed this four-count complaint against Vugusta-Richmond County and Augusta Exchange, L.L.C., alleging is follows: Golden Plaza is the owner of certain real property, which t acquired for the purpose of developing a shopping center. Augusta Exchange owns or has an interest in certain nearby property, which t intends to develop as a shopping center. Augusta Exchange wishes ;o acquire a roadway as access to its property, and it and the county rave entered into an agreement under which the county proposes to icquire by condemnation a parcel of land, ostensibly to be a public roadway, but the real purpose of which is to provide access at public expense to Augusta Exchange’s property. The agreement purports to limit the total costs to be incurred by the county, without regard to whether such sum would constitute just and adequate compensation for the property taken. The proposed taking would entail the acquisition of certain portions of Golden Plaza’s property, causing it to suffer irreparable harm.

In Count 1, plaintiff requested an interlocutory injunction barring the county from proceeding with the proposed condemnation. Count 2 sought a judgment declaring plaintiff’s rights and defendants’ duties with regard to the subject property. Count 3 sought damages both for inverse condemnation and under 42 USC § 1983, based on assertions that defendants had acted illegally and deprived plaintiff of constitutional rights by setting a maximum value to be paid for plaintiff’s property and in orchestrating a public taking for a private use. Count 4 sought attorney fees under the criteria set forth in OCGA § 13-6-11.

Plaintiff did not seek a hearing on its request for an interlocutory injunction, but, after the complaint was filed, the county initiated a proceeding to condemn the right-of-way. Plaintiff later conveyed its interest in the subject property to a third party. Notwithstanding the transfer of interest, plaintiff did not seek to amend its complaint or substitute the transferee as the real party in interest.

The defendants filed answers in which they sought a dismissal of the complaint on the following grounds, among others: the complaint fails to state a claim upon which relief may be granted, and plaintiff lacks standing to prosecute this action since it no longer has an interest in the subject property. As authorized by OCGA § 9-11-12 (d), the county applied to the trial court for a determination of whether its defense that plaintiff’s complaint fails to state a claim for relief should be sustained.

Decided June 11, 1997

Reconsideration denied August 7, 1997

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, Dan B. Wingate, for appellant.

Burnside, Wall, Daniel, Ellison & Revell, Harry D. Revell, Dunstan, Dunstan & Cleary, James R. Dunstan, Rowe, Foltz & Martin, Mitchell S. Rosen, Pamela R. Masters, for appellees.

After conducting a hearing, the court dismissed the complaint oi the following grounds: (1) plaintiff lacks standing to pursue its claim for injunctive and declaratory relief because it no longer has an; ownership interest in the subject property; (2) plaintiff’s claims fo: damages and attorney fees cannot be maintained under Thompson v. Dept. of Transp., 209 Ga. App. 353, 354 (1) (433 SE2d 623) (1993) which holds that alleged losses attributable to an anticipated con demnation are not compensable elements of damage under Georgia law regardless of whether the claim is styled as a direct or inversi condemnation; (3) under Thompson, supra at 354 (2), a county is no a "person” within the meaning of § 1983.

Plaintiff filed a notice of appeal, which the defendants moved tc dismiss because of mootness. The trial court granted defendants motions. Plaintiff contends that the court erred in dismissing it; appeal because its complaint does state a claim for relief. The countj has filed a motion to dismiss the appeal as moot.

The claims asserted by plaintiff in Counts 1 through 3 of its com plaint are based on its status as landowner. Plaintiff conveyed it; interest in the property without amending its complaint to assert anj claims for relief independent of such status. Therefore, the questior of whether these counts of the complaint state a claim for relief is moot. See Goodyear v. Trust Co. Bank, 248 Ga. 407, 408 (284 SE2d 6) (1981). The mootness of these counts renders the attorney fee requesl in the remaining count subject to dismissal, because such requesl was ancillary to the other claims. See Barnett v. Morrow, 196 Ga App. 201, 202 (396 SE2d 11) (1990). Dismissal of the appeal is required.

Appeal dismissed. Smith, J., concurs. McMurray, P. J., concurs in the judgment only.

       In addition, the initiation of the condemnation proceeding rendered plaintiff’s request for injunctive relief moot. See Adams v. Smith, 240 Ga. 436, 437 (241 SE2d 1) (1978).


text:
    A97A1534.
    LONGINO v. BANK OF ELLIJAY et al.
    (491 SE2d 81)
   Eldridge, Judge.

The appellant, John T. Longino, who is an attorney, filed suit in the case sub judice against the appellees, the Bank of Ellijay and Paul Nealey, President of the Bank of Ellijay, seeking damages in the amount of $400,000 that was paid in settlement of a malpractice case Bled against the appellant by his former client E. J. Fernandez as trustee of the Ellijay Medical Center, P. C. Pension & Profit Sharing Plans; damages for the termination of his contract of employment by Fernandez; general damages to his profession and business; and exemplary or punitive damages. The complaint asserts theories of Liability for: (1) fraud and (2) Georgia RICO.

The facts which give rise to the case sub judice originate from a series of underlying actions, an understanding of which is necessary for purposes of a proper disposition. During late September 1991, the appellant was retained by Fernandez to represent him in litigation regarding his purchase of three notes (“the notes”) from the Bank of Ellijay. Fernandez had previously purchased the notes, which were collateralized by stock in the North Georgia Regional Medical Center, in order to gain control of the hospital and thereby re-obtain staff privileges at the hospital. At the time Fernandez purchased the notes, they were in default. In order to purchase the notes, Fernandez obtained a loan from the Bank of Dahlonega in the amount of $1,068,547.11, and executed a promissory note, individually and as president of Ellijay Medical Center, P. C., which granted the Bank of Dahlonega a security interest in certain real property of Fernandez and Ellijay Medical Center, P. C. including, but not limited to, general intangibles, accounts, accounts receivables, promissory notes, and other personal property. Shortly thereafter, the assets (not the stock) of North Georgia Regional Medical Center were sold to a new entity, leaving Fernandez with valueless stock in a corporate shell.

The appellant, as a disclosed agent and attorney acting on behalf of Fernandez and Ellijay Medical Center, P. C., orally and by letters dated November 20, 1991, and November 25, 1991, requested that the Bank of Ellijay redeem the certificates of deposit held by the bank and directed that the proceeds from the certificates of deposits be placed in a cashier’s check made payable to “Ellijay Medical Center.” Even though the original certificates of deposit were in Fernandez’s office, his office manager was sick, and Fernandez was unable to locate his copies; the appellant had been unable to obtain copies from the bank. Rather than wait until the original certificates of deposit could be found, the appellant proceeded with the redemption of the certificates. Therefore, when the appellant requested the redemption of the certificates, he had not seen a copy of the certificates of deposit and relied upon erroneous information provided bj his client, not by the bank. The certificates of deposit were actually ir the names of “Ellijay Medical Center Profit Sharing Plan” anc “Ellijay Medical Center Pension Plan,” which were protected by the Employee Retirement Income Security Act (“ERISA”).

On November 27, 1991, the Bank of Ellijay redeemed the certifi cates of deposit as directed by the appellant on Fernandez’s instructions and issued two cashier’s checks in the amounts of $502,020.9Í and $455,541.29, payable to Ellijay Medical Center, P. C., whicl resulted in the funds no longer being under ERISA protection. Prioi to Fernandez taking actual possession of the two cashier’s checks, the Bank of Dahlonega, based on Fernandez’s default under the promissory note, provided the Bank of Ellijay with written notice of their perfected security interest in the property of Fernandez and Ellijaj Medical Center, P. C. .

In order to determine the proper recipient of the funds, the Bank of Ellijay filed an interpleader action in the Superior Court oi Lumpkin County, Civil Action File Number 91-CV-401-B, and interpled the funds held in the cashier’s checks. Contemporaneously with the filing of the interpleader, the appellant, as attorney for Fernandez, filed a separate suit against the Bank of Ellijay, the Bank oi Dahlonega, Glen Marshall and Nealey, Civil Action File Numbei 91V-539, alleging securities fraud in the sale of the notes to Fernandez (“securities action”). See Fernandez v. Bank of Dahlonega, 217 Ga. App. 739 (459 SE2d 424) (1995).

The trial court held that the Bank of Dahlonega was entitled to the interpled funds as a consequence of the appellant’s actions in directing how the funds were to be paid, and the trial court in the securities action rendered a judgment in favor of the defendants. Hence, a malpractice action against the appellant resulted, which was settled.

With this factual scenario in mind, we now turn back to the case sub judice. The appellant, in this case, alleges that deceptive misstatements and concealment of material facts were made to him by the Bank of Ellijay and Nealey, i.e., not informing him that the funds were held in the name of Ellijay Medical Center Pension & Profit Sharing Plan; not informing him that the funds were held in an ERISA protected account; not providing him with copies of the certificates of deposit; telling him that the bank did not have copies of the certificates of deposit when, in fact, it did; and not informing him that the Bank of Ellijay had issued and was holding the cashier’s checks payable to Ellijay Medical Center, P. C. because of the security interest of the Bank of Dahlonega. The appellant contends that because of these actions on the part of the appellees, he did not rescind his order to issue the money out of the ERISA protected accounts, and thus, the appellees should be liable to him in fraud for the damages previously set forth. The appellant also filed a Georgia RICO claim based on violations of OCGA § 10-5-12. The appellees filed a motion for summary judgment, which was granted by the trial court. It is from this grant of summary judgment that the appellant appeals.

1. The appellant, in his first two enumerations of error, alleges that the trial court erred in determining that the appellees had no duty to inform appellant as to the status of the certificates of deposit when the appellant had equal access to copies of the certificates of deposit, as well as information from his client during the critical time frame. We do not agree.

The tort of fraud has five elements: (1) that the defendant made a false representation; (2) that at the time he made the representation, he knew that the representation was false; (3) that he made the representation with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff reasonably relied on such representations; and (5) that the plaintiff sustained loss and damages as the proximate result of the representations having been made. Fuller v. Perry, 223 Ga. App. 129 (476 SE2d 793) (1996); Lister v. Scriver, 216 Ga. App. 741 (456 SE2d 83) (1995); Brown v. Ragsdale Motor Co., 65 Ga. App. 727 (16 SE2d 176) (1941). Summary judgment is appropriate if one essential element of the appellant’s claim is eliminated. Fuller v. Perry, supra; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

“Mere concealment of a material fact, unless done in such a manner as to deceive and mislead, will not support an action.” OCGA § 51-6-2 (a); see also Smith v. Wilfong, 218 Ga. App. 503 (462 SE2d 163) (1995). “While concealment of material facts may amount to fraud when the concealment is of intrinsic qualities the other party could not discover by the exercise of ordinary care, in an arms-length business or contractual relationship there is no obligation to disclose information which is equally available to both parties. Under such circumstances, actionable fraud cannot be shown unless the party alleging fraud exercised due care to discover the fraud. There is no legal relief afforded when one blindly relied on the representations [or lack of representations] of the other party as to matters of which he could have informed himself.” (Citations and punctuation omitted.) First Union Nat. Bank v. Gurley, 208 Ga. App. 647, 649 (431 SE2d 379) (1993).

Further, pretermitting that there was no material misrepresentation made to the appellant, there was no fiduciary or other special relationship between the appellant, the Bank of Ellijay, and Nealey that would justify the appellant’s blind reliance. “[A] bank owes no legal duty to act as a customer’s legal or financial advisor.” First Union Nat. Bank v. Gurley, supra at 648. “A fiduciary or confidentia relationship arises where one party is so situated as to exercise z controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the lav requires the utmost good faith, such as the relationship between partners, principal and agents, etc. OCGA § 23-2-58. The mere fact that one reposes trust and confidence in another does not create a confidential relationship.” (Punctuation omitted.) Id. at 648-649. Thus, no such fiduciary relationship existed and no representations were made which would justify reliance if representations were, in fact, made.

Under the facts of the case sub judice, in addition to Fernandez having the original certificates of deposit in his possession, it can also be assumed that Fernandez would receive regular reports or statements from the bank regarding how much interest had been paid on the certificates and information about renewal if the certificates reached maturity, which information would contain the name the certificates were in, maturity date, and other information. The appellant, as disclosed agent for Fernandez, acted on information he received about the account from Fernandez and not the bank. Clearly, the information the appellant was seeking was contained in these documents in Fernandez’s possession. Therefore, the appellees were under no obligation to provide the appellant with information to which he had equal access, and under such facts, the appellant could not reasonably rely on any alleged representations or concealment of facts by the appellees. The trial court did not err in granting summary judgment on such theory of liability.

2. In the appellant’s third and fourth enumerations of error he alleges that the trial court erred when ruling on the RICO claim in finding that the appellant was in privity with Fernandez in the prior action and in finding that the appellant lacked standing to bring a cláim under Georgia RICO. Again, we do not agree.

The initial question that this Court must address is whether the appellant had standing to bring a RICO action under the facts of the case sub judice. The appellant has alleged as the predicate acts to a RICO action that the appellees were engaged in securities fraud in violation of OCGA § 10-5-12; specifically, that the appellees committed crimes chargeable under OCGA § 16-14-3 (9) (A) (ix) and (xxi). Such claims are based on allegations stemming from Fernandez’s July 1990 purchase of the notes from the Bank of Ellijay and would have to give the appellant some derivative right of action therefrom for the purposes of standing.

In order for an individual to recover under RICO, his injuries “must ‘flow from the commission of the predicate acts.’ Sedimal, S.P.R.L. v. Imrex Co., 473 U. S. 479 (105 SC 3275, 87 LE2d 346) (1985)]. This means that a private plaintiff who wants to recover under civil RICO must show some injury flowing from one or more predicate acts. A plaintiff cannot allege merely that an act of racketeering occurred and that he lost money. He must show a causal connection between his injury and a predicate act. If no injury flowed from a particular predicate act, no recovery lies for the commission of that act.” Pelletier v. Zweifel, 921 F2d 1465, 1497 (11th Cir. 1991). “[A] plaintiff has standing to sue under [RICO] only if his injury flowed directly from the commission of the predicate acts. See Morast v. Lance, 807 F.2d 926, 933 (11th Cir. 1987). This means that, when the alleged predicate act is [violative of OCGA § 10-5-12], the plaintiff must have been a target of the scheme to defraud and must have relied to his detriment on misrepresentations made in furtherance of that scheme. [Cits.]” Id. at 1499-1500. Such was not the case with the appellant.

The purported acts which the appellant alleges give rise to the predicate acts are: (1) that the appellees represented to Fernandez that by purchasing the defaulted notes he would acquire the securities which were pledged as collateral and thereby acquire majority control of the corporation that owned the local hospital, which would enable Fernandez to regain his staff privileges at the hospital; and (2) that the appellees knew at the time they made these representations that the assets of the corporation were in the process of being sold, that Fernandez would be left with securities which had no value, and that the stock would not give Fernandez control of the hospital. Such issues were previously adjudicated adversely to Fernandez.

However, all of these acts occurred prior to the appellant’s representation of Fernandez. The appellant was not involved in the sale of the notes in any manner, either individually or as attorney for Fernandez. Appellant’s first involvement came after the sale of the notes had concluded, the assets of the corporation had been sold, and Fernandez had discovered the stock, which was collateral for the notes, was worthless. It was only after all of these events had occurred that Fernandez approached the appellant for advice on what legal action to take.

The appellant was not the target of any alleged prior scheme to defraud. There was no causal connection between the sale of the notes, which were collateralized by the securities, and the injuries of which the appellant complains. Since the appellant’s injuries did not flow directly from the commission of the predicate acts, he has no standing to bring a RICO action. Since the appellant lacks standing to bring a RICO action in the first place, we do not reach the appellant’s third enumeration of error. The trial judge did not err in granting summary judgment.

Decided July 28, 1997

Reconsideration denied August 7, 1997

John T. Longino, pro se.

James D. Parks, for appellees.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A97A1469.
    BLUN et al. v. REDD’S COMMERCIAL REFRIGERATION & AIR CONDITIONING, INC.
    (491 SE2d 113)
   Judge Harold R. Banke.

Pamela F. Blun and William A. Blun, Jr. sued Redd’s Commercial Refrigeration & Air Conditioning, Inc. d/b/a Redd’s Appliance Center (“Redd’s”) after an employee of Redd’s rear-ended Pamela Blun’s vehicle. The Bluns appeal the jury verdict.

Viewed in the light most favorable to the verdict, the evidence was as follows. When Redd’s employee’s truck bumped into the back of Pamela Blun’s vehicle, neither vehicle sustained any appreciable damage. The police were not summoned to the scene, and Blun proceeded to drive herself home. She did not seek medical attention until nine days later. The only damage to Blun’s vehicle was a small dent in the middle of the back fender which was never repaired.

Blun contended that the collision caused cervical strain and/or bulging and protruding disks in her neck which necessitated surgery. However, Blun’s medical history revealed that ten years earlier, she had been diagnosed with degenerative disk disease in her neck. In the month immediately preceding the accident, Blun had seen her family physician on two different occasions complaining of neck pain and arthritis symptoms in her neck. Prior to this accident, Blun had worked as a secretary and administrative assistant for nine years and had been caring for her terminally ill, extremely dependent mother in her home. The physician who first examined Blun after the accident, noted that lifting her mother and being struck from the rear “both contributed to the exacerbation of her pain.” Another treating physician testified that when he recorded Blun’s medical history on her initial visit, Blun told him she was required to lift her mother.

Some of Blun’s treating physicians testified by deposition during which hypothetical questions were posed as to whether Blun’s lifting and providing care for her terminally ill mother or executing her normal job duties possibly caused or aggravated her condition. The jury rendered a defense verdict. Held:

Decided August 7, 1997.

McCallar & Associates, C. James McCallar, Jr., Todd E. Schwartz, for appellants.

Woodall & Mackenzie, Malcolm Mackenzie III, Peter A. Giusti, for appellee.

The Bluns’ sole enumeration is that the trial court erred in denying a requested instruction on hypothetical questions posed to experts. The trial court refused to charge: “If the salient facts of a hypothetical question asked to a witness are not admitted into evidence, then the answer given by the witness is not proof that the conclusion reached applies to or establishes any fact in the case on trial.” See Kines v. City of Rome, 220 Ga. App. 732, 733 (470 SE2d 311) (1996).

Generally, hypothetical questions posed to an expert must be based on facts proven by other witnesses or other competent evidence. Ga. Power Co. v. Crutchfield, 125 Ga. App. 488, 489 (3) (188 SE2d 140) (1972). In this case, other admissible evidence provided factual support for the hypothetical questions, inasmuch as the evidence showed that Blun had a preexisting cervical condition which may have been worsened by her job duties and her care for her mother.

Moreover, although the requested charge correctly stated a legal principle, the trial court did not err in refusing to so instruct the jury because the desired charge created a fair risk of confusing or misleading the jury when examined in light of the other charges and the evidence. See Jones v. State, 200 Ga. App. 519, 521 (408 SE2d 823) (1991); Westinghouse Elec. Corp. v. Rider, 168 Ga. App. 136, 138 (2) (308 SE2d 378) (1983). Because the instruction as a whole accurately stated the relevant principles of law, the trial court did not err in refusing to give the requested charge. Swint v. Smith, 204 Ga. App. 54, 55 (2) (418 SE2d 375) (1992).

Judgment affirmed.

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

       The Bluns’ effort to raise a second error not mentioned in their enumeration of errors is foreclosed by Court of Appeals Rule 27 (c) (1).


text:
    A97A1787.
    BARNES v. THE STATE.
    (491 SE2d 116)
   Johnson, Judge.

R. C. Barnes was convicted of possession of cocaine and obstruction of an officer. He appeals the denial of his motion to suppress evidence.

The transcript reflects that the trial judge asked for an order to be prepared to reflect his oral denial of Barnes’ motion to suppress. However, we find no written order in the record. Nonetheless, a trial judge is not required to make findings of fact after a hearing on a motion to suppress. Shirley v. State, 166 Ga. App. 456, 458 (3) (304 SE2d 468) (1983). “When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citation and punctuation omitted.) Lambright v. State, 226 Ga. App. 424, 425 (487 SE2d 59) (1997). Although we are without specific findings in this case, in reviewing the denial of a motion to suppress, this Court may consider both the transcript of the motion hearing and the trial transcript. Beck v. State, 216 Ga. App. 532, 536 (1) (455 SE2d 110) (1995).

The burden of proving a search was lawful is on the state. OCGA § 17-5-30 (b). A single witness, one of the police officers who participated in Barnes’ arrest, testified at the motion to suppress hearing. The officer testified that he and another officer saw Barnes standing at an intersection in a “high stop and cop” area. When Barnes saw the police, he began walking away. The officers pulled their car over to Barnes and stopped, observing that he was “holding something in his hand with a rag.” Barnes turned away from them, and the officers asked Barnes to stop and talk with them. “He continued to act in a suspicious type manner. As we attempted to find out what was in his hand, Mr. Barnes started tussling with us. We then got this object from Mr. Barnes’ hand, which it was a matchbox containing several pieces of [crack cocaine].” When asked several times what exactly Barnes did to warrant the stop, the officer stated he tried to walk away and “he was just acting suspicious.” On cross-examination, the officer stated: “We didn’t see Mr. Barnes committing any type of criminal activity. We saw him standing at the intersection; and when people stand at the intersection [in this area], we usually go up and we investigate do they live in that area, you know, what are they doing. So we didn’t see Mr. Barnes doing anything, but we wanted to find out what [he] was doing.” When asked directly what gave rise to an articulable suspicion that Barnes was about to commit a crime, the officer testified that Barnes was “in a cop-and-stop area, and we were going to investigate Mr. Barnes.” Even the trial judge tried to focus the officer’s testimony, asking him: “What did you think [Barnes] was doing?” The officer responded that when Barnes tried to walk away, he thought he was “up to some type of activity, possibly engaging in some type of a drug transaction, maybe later on a sale. That’s my suspicion.”

At trial the other police officer involved in Barnes’ arrest testified as follows: “Traveling up 14th, we had turned off of Talbotton Road, were coming up 14th. I observed a black male standing right there at the corner of 26th and 14th. As soon as we come [sic] around the corner, that’s normally what we do, is look several blocks ahead. And as I come [sic] up — we come [sic] around the corner, I was looking at this subject and there was [sic] approximately three to four police cars in a row. And we’re well known as the jump-out boys in that area, the Tact Squad, and very hard on people who are involved with any type of drug activity. We came around the corner. I looked up. I saw this individual standing there. He looked up, and as soon as he saw us, or what I assumed made contact as far as eyes looking at us, he turned and started walking down 26th. As he was walking down 26th, we pulled up beside him. He looked over his shoulders several times. He appeared to me from my experience, looked like he was getting ready to run. At that point I asked him if he had seen a black male in a red jump suit run by here. At that time it stopped him and calmed him. He stated no. I got out of the vehicle. I said that just so I could get out and make sure I was out of the vehicle if he decided he wanted to start running. I stepped out. I asked him if he had seen a black male, he came through here. He said no. I got up on him. I said, you know, ‘What is your business being in this area right now?’ He stated — I can’t remember exactly what his words were as far as what he was doing at that point or what he had told me. I asked him if he would, if he had any drugs or — correction, knives or guns on him. At that point he stated to me no. I asked him if he would place his hands on the car.”

The United States Supreme Court has identified three levels of encounters between an individual and police. “ ‘The first involves the mere accosting by an officer usually requesting name and identification. There is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment. The second is the “Terry type” (Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)) stop involving temporary restraint, a brief ‘seizure’ which must be supported by articulable suspicion. The third is an actual or de facto arrest which requires probable cause and involves restraint of one’s liberty.’ [Cit.]” Lambright, supra at 425 (1).

Decided August 7, 1997.

Applying this analysis, Barnes was free to walk away and refuse to answer or ignore the officers’ request to speak unless the police had a particularized and objective basis for suspecting that he was involved in criminal activity. “ ‘This demand for specificity in the information upon which police action is predicated is the central teaching of (the Supreme Court’s) Fourth Amendment jurisprudence.’ [Cit.]” Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994). The police officer’s testimony at the motion hearing that Barnes looked suspicious or acted suspiciously is a tautology and without more is insufficient to support any type of investigatory stop. Likewise the trial testimony, that Barnes “looked like he was getting ready to run,” particularly when Barnes answered the officers’ pretextual questions, is inadequate to justify this stop. And although a neighborhood’s reputation has been regarded as a factor supporting articulable suspicion, the fact that Barnes was in a place which the officer characterized as a “stop and cop” area does not alone constitute an articulable suspicion justifying a Terry stop. See State v. Banks, 223 Ga. App. 838, 841 (479 SE2d 168) (1996) (physical precedent only), in which we held that mere presence in an area known to the police for drug activity, without more, is insufficient to support a reasonable suspicion that one is engaged in or about to engage in criminal activity. “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Citation and punctuation omitted; emphasis in original.) Id. at 840. See Lambright, supra, where a suspicion of criminal activity justifying a stop became articulable when the officer saw a hand-to-hand exchange. See also State v. Burnett, 220 Ga. App. 133 (469 SE2d 324) (1996).

In this case the police were not able to articulate any cogent basis for detaining Barnes or conducting a pat-down search. Simply put, the state has not met its burden of establishing that the search was lawful. See State v. Banks, supra at 840-841. Even under the strict “clearly erroneous” standard of review, it is clear that the evidence in this case was obtained as a result of an illegal seizure. The trial court erred in denying Barnes’ motion to suppress.

Judgment reversed.

Pope, P. J., and Blackburn, J., concur.

Hagler, Hyles, Adams & McKenna, Clark C. Adams, Jr., for appellant.

J. Gray Conger, District Attorney, Frances D. Hakes, Assistant District Attorney, for appellee.

       Later in his testimony, the officer admitted that he did not know whether there was anything inside the towel in Barnes’ hand when they first approached him.


author: McMurray, Presiding Judge.

text:
    A97A1955.
    CARTER v. FAYETTE COUNTY et al.
    (491 SE2d 115)
    Decided August 7, 1997.
    Anthony J. Carter, pro se.

      McNally, Fox & Cameron, Dennis A. Davenport, Philip P. Grant, for appellees.
   McMurray, Presiding Judge.

In this action, alleging wrongful or excessive levy in execution of judgments, claimant Anthony J. Carter filed his pro se notice of appeal on March 27, 1997, complaining of an alleged “Order on Return of Sheriff filed October 7, 1996.” Held:

“A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise, finally disposing of the motion.” OCGA § 5-6-38 (a). “ ‘The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.’ Jordan v. Caldwell, 229 Ga. 343, 344 (191 SE2d 530).” Barnes v. Justis, 223 Ga. App. 671, 672 (478 SE2d 402). In the case sub judice, the “RETURN OF SHERIFF” is not itself an appealable order. Scrutiny of the record reveals an “ORDER ON CLAIM OF JOHN ALAN CARTER,” filed February 3, 1997. But the March 27, 1997 notice of appeal from an order dated February 3, 1997, is not timely under OCGA § 5-6-38 (a). Since we are without jurisdiction to consider this appeal, it must be dismissed.

Appeal dismissed.

Beasley and Smith, JJ., concur.


text:
    A97A0886.
    SCAPA DRYERS FABRICS et al. v. MURPHY.
    (491 SE2d 146)
   Beasley, Judge.

Having convinced the administrative law judge and the appellate division of the State Board of Workers’ Compensation that Robin Murphy’s leg and back problems were not related to her employment, Scapa Dryers Fabrics and its insurers (“Scapa”) did not fare similarly at the superior court. They appeal on the basis that the court failed to follow the “any evidence” standard. We agree with Scapa and reverse.

Construed in favor of the Board’s findings, the evidence shows that from 1979 until 1995 Scapa employed Murphy as a Y-seamer at its plant in Ware County. Her job was sedentary, for her primary responsibility was to sit on a stool and operate (and with new equipment in later years, simply watch) a machine that would seam together certain industrial fabric. In 1984 she was involved in an auto accident, which subsequently caused her periodic pain in her back and legs. Various doctors treated her, and she repeatedly told those doctors and her fellow employees that her malady arose from the auto accident. She did not tell anyone at Scapa that it resulted from or was aggravated by her work.

In December 1994, Murphy left work early to receive hospital treatment for the pain. Affirming to Scapa once again that the pain was not job related, she submitted medical insurance forms over the next several months stating that her medical treatment was for a sickness and not for any injury associated with work. She returned to work the day after her December hospital treatment and worked continuously until March 2, 1995, when she took the day off to receive more medical treatment. She returned to work the next day, the pain reoccurred, and thereafter she has not returned to work. When she told Scapa her condition was job related and requested workers’ compensation, Scapa declined, based on her previous statements.

Murphy filed for workers’ compensation, claiming that her job activities either caused her pain or aggravated her injuries from the car accident. Following a hearing, the ALJ denied the claim and wrote “I find that the employee sustained a motor vehicle accident over 10 years ago wherein she injured her lower back. I find that she remained at work and performed her regular duties all the way until March 3, 1995. I find that the employee’s job did not independently aggravate the employee’s pre-existing condition. I so find in part based upon medical evidence, where in relatively little of the histories given over the course of treatment over the last six years did she mention her work as being the cause. I also find that the employee did not report to her supervisors that her job was causing her difficulties. The employee may have reported that she was having difficulties while she happened to be at work, but this is not the same thing. I am persuaded by the testimony of the witnesses from the employer, all of whom were told by the employee that her motor vehicle accident was the real cause of her problems. I am also persuaded by the employee’s statements made on her insurance claim forms, on none of which did she indicate that her problems were caused by an injury. I find that the employee so continued to report not only through March of 1995 but all the way through May of 1995, long after she had ceased work. I find that the employee’s condition was not the result of an accident arising out of and in the course of employment. There are indications in some of the medical records that the employee’s difficulties may have resulted from other causes. Moreover, there is no indication in any of the medical evidence that the herniated disc that the employee obviously had was in any way caused by or aggravated by her work activities. I so conclude because I find that the employee’s job was in the main sedentary, requiring relatively little in the way of heavy lifting, pushing, pulling, or bending. This is particularly as shown by the videotape [of Murphy’s job duties] and by the employee’s own testimony as well as that of [her supervisor].”

The appellate division held the findings were supported by a preponderance of the competent and credible evidence and adopted the ALJ’s award as its own. See OCGA § 34-9-103 (a). Murphy appealed to superior court, which set aside three of the Board’s fact findings as being unsupported by evidence and remanded the matter for reconsideration consistent with the court’s holding.

OCGA § 34-9-105 (c) (4) authorizes the trial court to set aside the Board’s fact findings only if “[t]here is not sufficient competent evidence in the record” to support those findings. See Bankhead Enterprises v. Beavers, 267 Ga. 506, 508 (480 SE2d 840) (1997); Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 139 (1) (473 SE2d 166) (1996). “In reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division. It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board.” (Citations and punctuation omitted.) Atlas Automotive v. Wilson, 225 Ga. App. 631, 633 (1) (484 SE2d 669) (1997). See Waffle House v. Padgett, 225 Ga. App. 144, 146 (483 SE2d 131) (1997); Southwire Co. v. Molden, 223 Ga. App. 389, 390 (477 SE2d 646) (1996). Ample evidence supported the Board findings at issue.

The superior court first set aside the finding of fact that “the claimant was impeached by health insurance forms that her problems were sickness and not injury.” The court explained “that the uncontradicted evidence showed the claimant followed her employer’s instructions in filling out these forms.” The court erred in several respects.

First, the Board did not find that Murphy was “impeached” by her medical insurance forms. Rather, the Board simply referred to those forms as one indication that her condition was not related to an injury arising out of her employment. Other evidence included her repeated comments to co-workers and doctors as well as her not reporting to her supervisors that her work either caused or aggravated her pain. In fact, in her brief to the appellate division, Murphy conceded “[s]he told everybody at work that she thought her problems arose from her car wreck in 1984. She freely admitted at the hearing that she thought the problems arose from her car wreck.”

Murphy impeached herself. She testified that she believed as early as 1986 that her pain was job related. Yet she did not tell this to anyone for at least eight years. She claims she finally told the hospital personnel when she was there for treatment in December 1994, but the hospital records do not reflect that she mentioned it. When queried about this very subject by her supervisor on the day she went to the hospital, she expressly denied her pain was job related.

Second, the court’s focus on Murphy’s self-serving testimony that her supervisor told her to mark the box “sickness” on the insurance forms ignores that her supervisor relied on her representation, for Murphy had consistently denied that her pain arose out of any job-related injury and related it instead to a car accident. A supervisor could well believe that “sickness” was the correct category box, and that the box for “job-related injury” should not be checked. In addition, the forms signed by Murphy certified to the insurance company “that the information given by me in support of this claim is true and correct to the best of my knowledge.” It was not a certification by her supervisor, who did not fill out the form for her and was not present each time she completed one. Murphy filled out six forms after she ceased working for Scapa.

Assuming Murphy’s testimony on her supervisor’s instructions is unimpeached, “[t]he testimony of an unimpeached witness must be considered and cannot be arbitrarily disregarded, but this does not mean that the triors of fact are obliged to believe testimony which in fact they discredit. [Cit.] Nor do they have to believe the party at interest, but they are the sole judges of credibility, particularly when there are facts and circumstances inconsistent with the party’s testimony. [Cits.]” (Punctuation omitted.) Brown Transp. Co. v. Parker, 129 Ga. App. 737, 739-740 (2) (201 SE2d 17) (1973). The Board’s finding was supported by evidence. The court erred in substituting itself as the factfinder.

Decided August 8, 1997.

Barrow, Sims, Morrow, Lee & Gardner, Charles W. Barrow, Moore, Clarke, DuVall & Rodgers, Dennis L. Duncan, for appellants.

Hackel & Hackel, Thomas M. Hackel, for appellee.

The court also set aside the Board finding that some of the medical records indicated Murphy’s difficulties may have resulted from other causes. The court explained that the “medical evidence does not support this finding.” Murphy’s repeated statements to her doctors (as reflected in the medical records) that her pain resulted from the car accident are alone sufficient to support this Board finding. But the Board in its award also thoroughly reviewed all the medical records and found that several causes were mentioned as possible sources of Murphy’s difficulties, including diabetes, lupus, compression syndrome of the sciatic nerve, sacralization of L5, lumbosacral neuropathy, radiculopathy, disc herniation, and nerve root compression. The Board also noted the paucity of entries in the medical records mentioning her work activities. Ample evidence supported the Board’s finding.

The third factual finding reversed was that no medical evidence reflected that Murphy’s herniated disc was either caused by or aggravated by her work activities. The discussion above demonstrates that the Board had reason to make this finding. The few references to Murphy’s work activities in the medical records generally do not attribute her ailments to those activities; they appear to indicate that her pain made working difficult at times. She points to a conclusory statement in an October 10, 1995 letter written by Dr. Lindley to her attorney that “if she did report the injury at work that she should be covered under workman’s compensation.” Dr. Lindley does not opine, however, that her work aggravated or caused her pain. And Dr. Lindley’s statement is based on faulty information, for she had told him (1) no traumatic event had occurred which could be the cause of her pain, (2) she did a lot of heavy lifting at work, and (3) she had not experienced any problems with her back or legs prior to March 1995. Even if Dr. Lindley’s opinion was construed as evidence her problem was work related, the Board had an evidentiary basis for disregarding it.

Since the Board’s findings were supported by record evidence, the superior court erred in setting them aside, and its order is reversed.

Judgment reversed.

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


author: Ruffin, Judge.

text:
    A97A1049.
    GLEATON et al. v. APAC-GEORGIA, INC.
    (491 SE2d 138)
   Ruffin, Judge.

In this personal injury and loss of consortium action arising from an accident at a highway construction site in Macon, plaintiff Joe William Gleaton and his wife appeal the grant of summary judgment to defendant APAC-Georgia, Inc. (“APAC”). For reasons which follow, we affirm the trial court’s judgment.

As we must do when assessing the propriety of a grant of summary judgment, we review the facts of this case de novo and construe the evidence, and all inferences, strongly in favor of the Gleatons. See Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996). The record shows that, pursuant to a contract with the Georgia Department of Transportation (“DOT”), APAC was improving a ten-mile stretch of Interstate 75 through Macon by adding an inside lane and concrete median barrier. To prevent the traffic on Interstate 75 from using the unfinished inside lane, APAC used DOT-specified plastic barrels with weighted bottoms to mark the proper lanes of travel. Gleaton, a Bibb County Sheriff’s Deputy, was driving his marked patrol car through this area of Interstate 75 when he noticed cars ahead of him slowing down to swerve around a barrel which, apparently, had separated from its weighted base and was lying in the lane of traffic. Gleaton was on his lunch break and on his way to have a light fixed on his patrol car. This area was within his jurisdiction, however, and he decided to pull off into the unfinished lane and move the barrel, which was a substantial traffic hazard. As Gleaton pulled to a stop in the unfinished lane, a tractor-trailer in the same line of traffic braked, came into the unfinished lane, and struck Gleaton’s patrol car, injuring him. According to the truck driver, Daren Lowe, the accident was caused by the sudden braking action of a brown car between his truck and Gleaton’s patrol car.

Gleaton sued Lowe and APAC for personal injuries, and his wife brought a derivative action for loss of consortium. Among their other allegations, the Gleatons claimed APAC was negligent in placing and securing the barrels and had negligently failed to discover and remove the fallen barrel from the roadway.

The standards for a grant of summary judgment are found in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). A defendant may obtain summary judgment by showing 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. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the 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. [Cit.]” Id. at 491.

1. Reviewed under the Lau’s Corp. standard, the trial court’s grant of summary judgment was proper as to any claims that APAC negligently erected, placed, or secured the marking barrels or other construction warning devices. APAC personnel testified these devices were placed in accordance with DOT specifications. A highway contractor who follows precautions specified by the DOT is not responsible if those precautions prove to be inadequate. Fine v. APAC-Ga., 192 Ga. App. 895, 897 (2) (386 SE2d 692) (1989); C. W. Matthews Contracting Co. v. Marasco, 184 Ga. App. 150, 151 (361 SE2d 34) (1987) (physical precedent only). Once APAC produced evidence that it situated barrels and other traffic control devices as specified by the DOT, the burden shifted to the Gleatons to point out facts in the record showing an issue for trial on this claim. See Lau’s Corp., supra.

The Gleatons note that APAC concrete foreman Tony Fooshee testified DOT rules required the barrels to be 100 feet apart, but project supervisor Frank Cannington testified the barrels were supposed to be placed 200 feet apart. Cannington’s deposition does reveal that he had retired from APAC by the time he testified, could not remember the exact specifications during his testimony, and discussed the procedure for placing barrels while cautioning, “don’t quote me on that.” After reviewing his deposition, Cannington filed an errata sheet and attempted to correct his testimony to “100 feet,” stating that he had not accurately remembered the specifications. But see Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 776 (7) (403 SE2d 235) (1991) (errata sheet may not be used to “erase” substantive testimony given at deposition). But even assuming this contradictory evidence creates an issue of fact as to whether the barrels were improperly spaced at 200 feet rather than 100 feet, this evidence creates no issue of material fact. The Gleatons have not alleged that a departure from DOT barrel-spacing requirements contributed to the accident at issue. They allege in their complaint, and their evidence shows, that this accident may have been caused by a barrel which was lying in the road, and not by any inadequacies in the number of barrels lining the roads. Cannington’s testimony, while creating a conflict in the evidence as to how far apart the barrels should be placed, does not indicate that the barrels may have been placed too close to the traffic lanes. With no evidence that this alleged defect caused the accident, we find the trial court properly granted summary judgment on these issues. See Whitt v. Walker County, 176 Ga. App. 643, 645-646 (337 SE2d 425) (1985); see also Eslinger v. Keith, 218 Ga. App. 742 (463 SE2d 501) (1995) (grant of summary judgment must be affirmed if it is right for any reason).

2. A more difficult issue is the Gleatons’ contention that APAC negligently failed to discover and remove the fallen barrel. As they note, “[a] contractor constructing a road or bridge owes a duty to the public to exercise ordinary care to protect it from injuries arising by reason of such construction. [Cits.]” State Constr. Co. v. Johnson, 82 Ga. App. 698, 701 (62 SE2d 413) (1950). Here, the allegations of negligence involve the failure to inspect and discover the fallen barrel. Although this is not a traditional premises liability case, we may use principles from such cases to determine whether APAC took appropriate steps to inspect its worksite and determine whether defects in its worksite presented a hazard to passing traffic.

In Fine, supra at 897, we found the defendants entitled to summary judgment where no evidence showed they could have anticipated or prevented the hazardous condition through the exercise of due care. Here, the evidence establishes that no APAC employee actually knew that this barrel had fallen in the roadway, so we determine whether a jury could find APAC had constructive knowledge of the barrel such that the contractor could have removed it. We have discussed constructive knowledge in premises liability cases, which are somewhat analogous to the situation at hand. “Constructive knowledge can be established in one of two ways. First, it can be inferred by showing that an employee of the defendant was in the immediate area of the hazardous condition and could have easily seen [it]. . . . Second, constructive knowledge can also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, although recovery under this approach requires proof of the length of time the dangerous condition was allowed to exist.” (Citations and punctuation omitted.) Sheriff v. Hosp. Auth. of Houston County, 221 Ga. App. 14, 15 (471 SE2d 3) (1996).

Although the affidavit and deposition testimony show no APAC employees were in the area at the time this accident occurred, the Gleatons argue a jury question exists as to whether reasonable inspection procedures would have led to the timely discovery and removal of this fallen barrel. Under the circumstances of this case, we disagree.

The evidence shows that to monitor its barrels and other warning and traffic control devices on this project, APAC employees had to cover both the northbound and southbound lanes of a ten-mile-long project. APAC employed a “traffic control supervisor” for this purpose, but other employees were instructed to realign any barrels that they saw out of place. Project supervisor Cannington’s testimony is somewhat contradictory, but even construing that testimony in favor of the Gleatons, the evidence shows he inspected the area in question one hour and ten minutes before the accident and saw no barrels out of place. Fooshee, the concrete foreman, testified that as he drove through the area on his way to lunch approximately 25 minutes before the incident, he recalls looking down the line of barrels. Although Fooshee was not actually performing an “inspection,” he saw none of the barrels out of line, and he testified that he would have noticed any misaligned barrels.

This evidence shows the barrel was not in the roadway 25 minutes before or 70 minutes before Deputy Gleaton’s incident. The Gleatons have produced no rebuttal evidence showing how long the barrel lay in the lane of traffic. APAC was not required to constantly patrol every part of the construction project, but was required only to make reasonable, routine inspections to discover hazards. See Johnson v. Autozone, 219 Ga. App. 390, 392 (465 SE2d 463) (1995); Marasco, supra at 151 (placement of signs during highway construction is not “inherently dangerous” work).

In cases involving grocery stores, parking lots, and restaurants, we have found that 15 or 20 minutes was a legally insufficient amount of time for a proprietor to discover a foreign substance on the floor. See, e.g., Jenkins v. Bi-Lo, 223 Ga. App. 735, 736-737 (479 SE2d 14) (1996) (floor inspected ten minutes before plaintiff fell on string bean); Autozone, supra at 393-394 (oil in which plaintiff slipped was in parking lot for no more than fifteen to twenty minutes); Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223, 226 (460 SE2d 838) (1995) (restaurant manager had inspected floor ten to twenty-five minutes before plaintiff fell on foreign substance). In this case, the defendants were not inspecting a small area such as a restaurant or parking lot, but were looking for problems along a ten-mile stretch of crowded interstate highway. Under the circumstances, therefore, we find APAC’s inspection procedures reasonable as a matter of law. The Gleatons have not produced any issue for trial by showing that the barrel lay in the roadway a sufficient amount of time such that a reasonable inspection would have discovered the problem. See Autozone, supra at 393-394; see also Ginn v. Grothere, 220 Ga. App. 661, 663-664 (469 SE2d 876) (1996). Because the Gleatons cannot provide the proof necessary to sustain an essential element of their case, the trial court did not err in granting summary judgment to APAC on this claim.

3. In light of our determination, we need not address APAC’s claim, not raised below, that the Gleatons’ suit is barred by the “fireman’s rule.” But see Martin v. Gaither, 219 Ga. App. 646 (466 SE2d 621) (1995) (applying “fireman’s rule” to police officers).

Decided August 8, 1997

Reynolds & McArthur, W. Carl Reynolds, Bradley J. Survant, for appellants.

Scoggins, Ivy & Goodman, Luke A. Kill, for appellee.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A1078.
    POWELL et al. v. THE STATE.
    (491 SE2d 135)
   Judge Harold R. Banke.

James Allen Powell was charged with three counts of felony murder and one count of aggravated assault. He was convicted of involuntary manslaughter and aggravated assault. His son and business partner, James Lamar Powell, was charged with aggravated assault and criminal trespass. He was convicted of aggravated assault. On appeal, they enumerate six errors.

The evidence, viewed in the light most favorable to the verdict, revealed that the charges arose after the Powells finished bricking the front facade of the Dekalb Collision Center. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996). The day prior to the offenses, the younger Powell learned that he and the Collision Center’s owner, Mark Watkins, disagreed on the amount owed.

On the morning of the offenses, the defendants arrived at the Collision Center in separate trucks while Watkins was pressure washing his new brick wall. After the younger Powell asked Watkins why he had not paid the day before, Watkins replied, “because they doubled the price.” The younger Powell then responded, “Well, I’m going to have to take my brick back.” He retrieved a sledgehammer from his truck, walked toward Watkins, and swung it, breaking the glass door next to Watkins. In the meantime, the older Powell assailed the brick work with an axe and then swung it at Rick Akins, Collision Center’s manager.

At that point, a number of Collision Center employees, including the deceased victim, Henry Foster, converged and entered into the fracas. One employee tried to spray the Powells with the pressure washer. Shortly after Watkins took the axe from the elder Powell, he noticed Foster lying in a flower bed. Eventually, the Collision Center employees subdued the Powells and called the police. Upon discovering that Foster was unconscious, with an injury to his eye, Watkins accused the elder Powell of killing Foster with the axe. After Powell denied the accusation, the employee with the pressure washer stated that he might have struck Foster in the eye with it.

The associate medical examiner listed the cause of death on Henry Foster’s death certificate as blunt head trauma. He theorized that the skull was fractured when struck near the eye with the blunt end of the axe blade. The State maintained that either before or after Powell swung at Akins and hit him in the arm, he also hit Foster in the face with the axe butt. Held:

1. The trial court did not abuse its discretion in admitting State’s Exhibits S-55 through S-63. Stephens v. State, 214 Ga. App. 183, 185 (4) (447 SE2d 26) (1994). These exhibits were photographs of the State’s experiments with a similar pressure washer, a melon and a skull to determine if the water was capable of peeling bone away. The elder Powell contends that the water pressure wand used in the experiment was not sufficiently similar to the one at issue. The wand on the pressure washer at the time of the offenses had broken off, and investigators replaced it with a wand which had the same type tip.

Any dissimilarities between the conditions of a particular experiment and the actual occurrence go to weight rather than the admissibility of the evidence. Id. Moreover, because it appears that Powell failed to challenge the investigator’s testimony as to the results of these experiments, a showing of harm from the photographs’ admission was not established. Goodwin v. State, 208 Ga. App. 707, 709 (2) (431 SE2d 473) (1993).

2. The trial court correctly charged that civil remedies were available to resolve the controversy about the amount owed for the brick work on the facade. State v. Moore, 243 Ga. 594 (2) (255 SE2d 709) (1979). Notwithstanding the Powells’ argument to the contrary, the charge assumed no facts as to what was proved and therefore did not constitute an improper comment on the evidence in violation of OCGA § 17-8-57. Beam v. State, 265 Ga. 853, 857 (5) (463 SE2d 347) (1995). In any event, the instruction related to the property damage and trespass charges, both of which were resolved favorably to the Powells. Thus, any error would have been harmless. Marks v. State, 210 Ga. App. 281, 284 (5) (435 SE2d 703) (1993).

3. The trial court did not commit reversible error by charging on transferred intent. The court gave the pattern jury instruction on transferred intent. Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II, p. 11 (1996). The charge applied solely to the senior Powell, who argues that he lacked an intent to harm anyone. Because the jury convicted Powell of involuntary manslaughter, an inherent rejection of the State’s theory that he acted intentionally with regard to Henry Foster, we fail to see how Powell was harmed by the charge. See Ayers v. City of Atlanta, 221 Ga. App. 381, 382 (2) (471 SE2d 240) (1996).

4. We reject the junior Powell’s challenge to the sufficiency of the evidence of his aggravated assault on Watkins. Powell’s conviction required proof of two essential elements: (1) an assault, as defined in OCGA § 16-5-20, and (2) aggravation by use of a deadly weapon. King v. State, 213 Ga. App. 268 (444 SE2d 381) (1994). The relevant elements of assault under OCGA § 16-5-20 are (1) an attempt to commit a violent injury to the person of another or (2) commission of an act which places another in reasonable apprehension of immediately receiving a violent injury.

Watkins testified that after exchanging words about the cost of the brick work, Powell “came at” him with a sledgehammer and swung it. The sledgehammer hit the door next to Watkins, shattering the glass. We find this evidence sufficient, when viewed in the light most favorable to the verdict, to permit the jury to find all the essential elements of the crime. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). Powell seeks a reweighing of the evidence. This we cannot do. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

5. Nor was the evidence insufficient to support the senior Powell’s involuntary manslaughter conviction. The only disputed question on this count was who delivered the blow that killed Henry Foster. See OCGA § 16-5-3 (a).

The associate medical examiner testified that Foster’s skull was fractured by a blow near his eye from the blunt end of the axe blade. He compared each possible weapon at the scene with the injury and concluded that only the axe blade could have delivered the fatal blow. He also observed that Henry Foster’s shirt was dry, undermining the defense’s pressure washer theory. Testimony of the State’s experiments with the pressure washer, the melon, and the skull also countered that theory. This evidence, viewed in the light most favorable to the verdict, was sufficient to exclude every other reasonable theory so as to justify a finding of guilt beyond a reasonable doubt and to warrant the jury’s rejection of the defense’s experts. See Posey v. State, 215 Ga. App. 565, 566-567 (2) (451 SE2d 463) (1994).

6. We reject the senior Powell’s contention that the evidence was insufficient to support his conviction for the aggravated assault of Akins. Watkins testified that he saw Powell swing an axe at Akins. Akins and several other witnesses corroborated this testimony. The jury was entitled to disregard Powell’s testimony to the contrary. Hopkins v. State, 222 Ga. App. 157 (473 SE2d 267) (1996).

Decided August 8, 1997

Lee Sexton & Associates, Lee Sexton, Robert L. Ferguson, for appellants.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley and Smith, JJ, concur.

       The court charged the jury as follows: “The defendants have a civil remedy for the issue of whether money was owed to them for the work they did at the Dekalb Collision Center.”


author: Birdsong, Presiding Judge.

text:
    A97A1298.
    MARTIN v. THE STATE.
    (491 SE2d 142)
   Birdsong, Presiding Judge.

Appellant Charles Martin appeals his conviction of burglary. He enumerates four errors. Held:

1. Appellant asserts insufficiency of the evidence and that the trial court erred in denying his motion for directed verdict of acquittal. We disagree.

King was the live-in boyfriend of the victim, Walls. Pursuant to a telephone call from Walls, King, accompanied by his cousin, the appellant, went to the victim’s place of work where she gave him $2,600 or $2,700 of her “income tax” money. King, again accompanied by appellant, went to the home he shared with Walls. King entered their bedroom, closed the door, counted the money and stuffed the money into the pocket of a shirt hanging in the closet. There was a total of approximately $6,500 in the shirt pocket after the income tax money was added to the existing stash of cash. The $6,500 was wrapped in two stacks of $3,900 and $2,600, respectively; each stack was wrapped in a rubber band. The combined money cache would make a stack of bills approximately four inches high. Appellant was not in the bedroom when the money was hidden. Appellant and King left the victim’s home, and appellant asked King to drop him off at Hickory Lane. About five hours later, King was driving toward “the club,” when he saw the appellant walking down the street; he honked at the appellant, but appellant pulled his hat over his face like he was trying to hide; King did not think much about it at the time. About ten minutes after arriving at the club, King received a call from Walls who reported that someone had broken into their house. King immediately suspected the appellant as he was the only person who knew the money was there. He drove to the place where he had left appellant, but appellant was not there. He then went to his and Walls’ home where it was ascertained that a forced entry had been made through the bedroom window. After discovering that the money in the shirt was missing, Walls called the police on the advice of King. Appellant admits in his brief that he was arrested two days after the incident. At the time of his arrest, appellant was in possession of a “whole wad” of money. He uttered a spontaneous, voluntary question to his interrogating officer asking where the money was which was seized from him at the time of his arrest; when asked what money he was referring to, appellant replied, “the money that I won on the lottery.” The investigations manager for the security department of the Georgia lottery testified that he had searched Georgia lottery records and found no record of any lottery payment to appellant. Payments could have been made by local retailers of prizes of $599 or less and there would be no record of these payments at the Georgia lottery; however, a check is issued for the payment of any prize above $19, and as to these transactions, there would exist a record showing to whom the check was written and the type of lottery game involved. He does not keep records of Florida lottery winnings. King testified that while appellant might play the lottery he had never seen him do so.

“[T]he proper test when sufficiency of the evidence is challenged by a motion for directed verdict of acquittal is the ‘reasonable doubt’ test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889). This same test applies when insufficiency of the evidence is asserted on direct appeal from the judgment of conviction or the denial of a motion for new trial. See generally Humphrey v. State, 252 Ga. 525, 526 (1) (314 SE2d 436).

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737).

“Although the evidence of recent, unexplained or unsatisfactorily explained possession of stolen goods may be sufficient to give rise to an inference that the defendant committed the burglary, the sufficiency of the evidence to support the conviction must still be adjudged by the totality of the evidence under the reasonable-doubt standard applied in Jackson v. Virginia, [supra]. Once it is shown that goods were stolen in a burglary, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for burglary based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation. What constitutes recent possession is in all cases a jury question, to be determined very largely from the character and nature of the stolen property.” (Citations, punctuation and emphasis omitted.) Funderburk v. State, 195 Ga. App. 441, 442 (2) (393 SE2d 727). In the case sub judice, as in Funderburk, the verdict reflects the jury’s dissatisfaction with appellant’s explanation.

To support the verdict, circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Under this rule, the State is not required to remove every possibility of innocence of the crime charged. Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769). Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt as to the offense of which he was convicted; the jury was authorized by the totality of the evidence presented to exclude other possible hypotheses as unreasonable (id. at 699). Our review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the burglary offense of which convicted. Jackson v. Virginia, supra.

2. Appellant asserts that the charge on circumstantial evidence was rendered insufficient by subsequently giving a charge on recent possession of stolen property, which was not warranted by the evidence, without repeating the circumstantial evidence charge to the jury.

(a) There exists direct evidence that at the time of his arrest, which occurred approximately two days after the burglary, appellant (who was also shown by evidence of record to have knowledge of both the existence and relative location of the stolen funds) was found in possession of a big wad of money. There also exists some evidence from which it could reasonably be inferred that appellant was attempting to conceal himself from King within minutes of the discovery of the break-in of the premises. When there exists “any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue.” (Citation and punctuation omitted.) Stein Enterprises v. Chatham County, 200 Ga. App. 385, 387 (4) (408 SE2d 173). Moreover, “ ‘ “[t]o justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it.” ’ ” (Citation omitted.) Carter v. Central of Ga. R. Co., 149 Ga. App. 867 (256 SE2d 149). A charge on the recent possession of stolen property was warranted by the evidence.

(b) Appellant’s reliance upon McChargue v. State, 209 Ga. App. 612 (434 SE2d 153) is misplaced; it is distinguishable from the case at bar. In McChargue, the trial court’s circumstantial evidence charge was as follows: “ ‘Evidence may also be used to prove a fact by inference. This is referred to as circumstantial evidence. Circumstantial evidence is the proof of facts or circumstances from direct evidence from which you may infer other related or connected facts which are reasonable and justified in the light of your experience.’ ” Id. at 613. A majority of this court in McChargue refused to conclude that the circumstantial evidence charge given was a sufficient restatement of OCGA § 24-4-6 and held that “[t]he jury was not adequately instructed that the State’s circumstantial evidence of guilt should ‘exclude every other reasonable hypothesis save that of the guilt of the accused.’ ” McChargue, supra at 613. In this case, the trial court charged inter alia: “Evidence may be either direct or circumstantial or both. . . . Evidence may ... be used to prove a fact by inference. This is referred to as circumstantial evidence. Circumstantial evidence is the proof of facts or circumstances, by direct evidence, from which you may infer other related or connected facts which are reasonable and justified in the light of your experience. To warrant a conviction on circumstantial evidence alone, the proven facts must not only be consistent with the theory of guilt, hut must exclude every other reasonable theory other than the guilt of the accused. The comparative weight of circumstantial evidence and direct evidence, on any given issue, is a question of fact for you to decide. Facts and circumstances, which merely place upon the defendant a grave suspicion of the crime charged, or which merely [raise] a speculation or conjecture of the defendant’s guilt, are not sufficient to authorize a conviction of the defendant.” (Emphasis supplied.) “ ‘ “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” ’ ” (Citation omitted.) Hambrick v. State, 256 Ga. 688, 690 (3) (353 SE2d 177). The jury clearly and accurately was charged as to the substantive content of OCGA § 24-4-6. Merely because the instruction as to recent possession of stolen property was given after the charge on circumstantial evidence does not raise a likelihood that the jury misunderstood or was confused as to the nature of the circumstantial evidence charge or otherwise denied any benefit arising therefrom. Cf. Hall v. State, 259 Ga. 243, 245 (4) (378 SE2d 860) (particular instruction not rendered nonsensical merely due to its placement within the charge to the jury), overruled on other grounds, Heard v. State, 261 Ga. 262, 263 (3) (403 SE2d 438). Moreover, the charge to the jury is not rendered inconsistent merely because the jury was charged both as to recent possession of stolen property and that facts and circumstances giving rise only to a grave suspicion, speculation or conjecture of guilt are not sufficient to sustain a conviction. Assuming arguendo that the charge may have been slightly inconsistent, which we do not find, when examined as a whole there exists no reasonable likelihood that the jury was confused by or led to misconstrue the legal principles to which they were correctly charged. See Minter v. State, 266 Ga. 73, 75 (3) (463 SE2d 119). Although not dispositive of this issue, standing alone, we note that the record reflects the jury did not request a recharge as to any legal principle contained within the charge and did not request any form of clarification of the charges given. The record does not support appellant’s enumeration of a charging error.

Decided August 8, 1997.

David E. Slemons, for appellant.

Kenneth B. Hodges III, District Attorney, Max G. Factor, Assistant District Attorney, for appellee.

3. Appellant contends the trial court erred in sentencing appellant without having first scheduled a presentence hearing in accordance with OCGA § 17-10-2. OCGA § 17-10-2 (a) pertinently provides that “[ejxcept in cases in which the death penalty or life without parole may be imposed, upon the return of a verdict of ‘guilty’ by the jury in any felony case, the judge shall dismiss the jury and shall conduct a presentence hearing at which the only issue shall be the determination of punishment to be imposed.” The record reveals that after the verdict was returned, the trial court dismissed the jury and then promptly announced sentence without giving appellant or his counsel any affirmative opportunity to present matters or argument in extenuation or mitigation. Although appellant’s counsel did not object to the procedure and the appellant did not speak after the trial court pronounced sentence, there exists no valid waiver of the statutorily mandated presentence hearing provision. “Failure to follow the mandate of § 27-2503 [currently OCGA § 17-10-2] is neither harmless nor waived by failure to object to procedure.” Sprouse v. State, 242 Ga. 831, 834 (5) (252 SE2d 173); Jefferson v. State, 205 Ga. App. 687 (2) (423 SE2d 425). Accordingly, the sentence must be vacated and the case remanded for a presentence hearing conducted in accordance with OCGA § 17-10-2 prior to the pronouncement of a new sentence.

Judgment of conviction affirmed, sentence vacated, and case remanded with direction.

Ruffin and Eldridge, JJ, concur.