text:
    A93A0715.
    WHITE v. THE STATE.
    (432 SE2d 562)
   Beasley, Presiding Judge.

White was convicted of three counts of forgery in the first degree. OCGA § 16-9-1 (a). His motion for new trial was denied.

1. White enumerates the general grounds.

The evidence showed that White approached the head cashier in the office of a supermarket in Brunswick at approximately 9:30 p.m. and sought to cash an Anheuser-Busch, Inc. payroll check in the amount of $325 made out to him. The head cashier was not authorized to approve checks over $300, and called the manager to approve the check. The head cashier testified that she was suspicious of White since, after asking her to cash the check because he needed to leave the state unexpectedly and had no money, he then asked her to change some large bills. Because of her suspicion she asked a cashier who happened to be in the office to remain with her. After the manager approved the check, White went through a checkout line and left the store with a cart containing groceries.

As White was crossing the parking lot, Police Officer Rodney Fulks was approaching the store on an unrelated police matter. He observed White and returned his wave. When Fulks entered the store the cashier was looking out at the parking lot because she was waiting for a ride. She saw White run off across the parking lot, leaving his groceries in the cart. She shouted: “Go get him, he’s running.” The cashier then remarked to Fulks: “I bet you he cashed a bad check.”

Fulks consulted the head cashier, who stated she would investigate the check, and Fulks told her he would see if he could catch White “so we can ask him about it whether he did or not.” He testified that he was suspicious because White left a cart of groceries in the parking lot. Fulks rode around in the area and located White nearby, hiding under an abandoned car near some bushes. He ordered White to get up. White stood, raised his arms, and stated he was an FBI agent working undercover. Fulks called for assistance and transported White back to the store. When he arrived with White, other units had already arrived. The head cashier verified that the check was not genuine and identified White as the person who had cashed it. White was arrested for forgery, his pockets were emptied and placed in a bag for safekeeping, and after he asked to speak with a detective he was taken to the police station.

Detective Stewart testified that he advised White of his Miranda rights and interviewed him at the Brunswick police station that evening. White initially asked for an attorney, and questioning ceased immediately. Shortly thereafter, however, despite Stewart’s protestations White demanded to be allowed to talk, rescinded his request for counsel, signed a waiver of his Miranda rights, and insisted on making a statement, which was recorded. White repeatedly asked that FBI Agent Egan in Jacksonville be contacted and Stewart called him in White’s presence and left a message.

The transcript of the recorded statement was introduced into evidence at trial. In the statement, White admitted previous convictions for forgery and informed Stewart that he was currently participating in a forgery ring that was creating and passing checks in several states. White identified locations at which he had passed forged checks locally. Personnel from two other markets in Brunswick at which White had passed forged Anheuser-Busch payroll checks on the same day testified at trial as to those incidents. All three checks, which were identical except for the amounts, were admitted into evidence. A senior accountant at Anheuser-Busch testified that the checks passed by White did not originate at her company, were drawn on the wrong bank, were printed on different paper than that used by the company, contained an unauthorized payor signature, and bore incorrect check numbers and routing information.

FBI Agent Egan of the white collar crime squad in Jacksonville, Florida testified that White had called him and informed him that he was working as a driver for a forgery ring. Egan acknowledged speaking with White several times on the telephone and making appointments for White to come in to be interviewed, but testified that White never kept the appointments for interviews or for a polygraph test, which had been suggested by White. He testified that White was not working and had never worked undercover for the FBI, and that he had informed White that if he participated in the ring’s activities, he was committing a crime and could be arrested.

White presented no evidence in his defense.

The evidence was sufficient to authorize the jury to convict White of three counts of forgery in the first degree under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. White moved to suppress his incriminating statement on the ground that no probable cause existed for his arrest. He contends the court erred in denying his motion.

The initial stop was lawful. Fulks had personally observed White leave a cart containing groceries in the parking lot of the market. Even without any additional factors this act was sufficient to raise an articulable suspicion authorizing Fulks to try to find White and question him briefly under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). In addition to his observation, however, Fulks had the additional information provided by the store employees that they suspected that White had cashed a bad check. Although Fulks had no personal knowledge of that check, the information was provided by identifiable citizens who observed White’s behavior and had no reason to be anything but honest about the information they gave Fulks. See State v. McFarland, 201 Ga. App. 495, 496 (429 SE2d 258) (1991); State v. Ball, 207 Ga. App. 729 (429 SE2d 130) (1993). Compare Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992); Swanson v. State, 201 Ga. App. 896 (412 SE2d 630) (1991), and Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990), in which the initial stops were based only on anonymous tips with no detailed information, and no additional factors were present. In these cases, we found the stops unlawful. Fulks, on the other hand, was authorized to pursue White for brief questioning.

He found White under circumstances which contributed further to his suspicions: hiding under an abandoned car, under cover of bushes. A patdown was conducted and no apparent weapons were found. Fulks called for assistance, handcuffed White for Fulks’ safety, placed White in the back of the police car, and returned to the store to complete his questioning. Terry carefully notes that the limitations placed upon a brief investigatory stop depended on the facts and circumstances. They would have to be developed on a case-by-case basis, with the touchstone being always the reasonableness of the officer’s conduct. Noting that the officer remains particularly vulnerable during such a stop precisely because a full custodial arrest has not been effected, the officer must make quick decisions as to how to protect himself and others from possible danger. Hayes v. State, 202 Ga. App. 204, 206-207 (414 SE2d 321) (1991). In determining whether an officer’s conduct during an investigatory stop was proper, the inquiry is not whether the officer could validly have acted similarly but whether under the same circumstances a reasonable officer would have done so. Tarwid v. State, 184 Ga. App. 853, 854 (363 SE2d 63) (1987). Given that Fulks was alone in the dark with White, whose actions were suspicious at best, that he noted White’s pockets were full and believed it possible White was armed despite the cursory patdown, and that the store was but moments away, we find Fulks’ actions reasonable under the circumstances, and therefore lawful as part of the investigatory stop.

When Fulks returned to the store with White, the manager confirmed that the check was forged, giving Fulks probable cause to arrest White. The court properly denied the motion to suppress.

3. White also contends the court erred by considering hearsay evidence in denying the motion to suppress. This contention is directed at Fulks’ testimony that he pursued White partly because of what the cashier and head cashier, who did not testify at the motion hearing, had told him about White’s actions and about the check.

“The testimony that a witness received certain information upon which he acted is admissible not as independent evidence to establish the truth of such information, but as an inducement and explanation by the witness that, acting on such information, he discovered other facts connecting the accused with the crime in question. [Cit.] Hearsay testimony may be admitted for the purpose of explaining conduct. [Cit.]” Lloyd v. State, 139 Ga. App. 625, 626 (2) (229 SE2d 106) (1976). At trial, “only in rare instances will the ‘conduct’ of an investigating officer need to be ‘explained,’ as in practically every case, the motive, intent, or state of mind of such an officer will not be ‘matters concerning which the truth must be found.’ ” Teague v. State, 252 Ga. 534, 536 (314 SE2d 910) (1984).

The reverse is true at a hearing on a motion to suppress held outside the presence of the jury. The inquiry is whether probable cause existed for the officer’s actions, so the truth concerning the officer’s motive, intent, or state of mind must be discerned. See Jones v. State, 131 Ga. App. 699, 700 (1) (206 SE2d 601) (1974). Consideration of the hearsay testimony was not improper.

4. White maintains the court erred in allowing a witness for the State to testify despite the State’s having failed to properly notify him of the witness’ correct address. USCR 30.3 requires the State to provide the defendant with a list, including addresses and telephone numbers, of its witnesses. Under OCGA § 17-7-110, a witness whose name does not appear on the list may not testify without the defendant’s consent. The State’s failure to meet this requirement “can be cured in many situations, however, if defendant is granted a continuance or allowed to interview the witness before the testimony is given. [Cits.]” Rogers v. State, 261 Ga. 649 (1) (409 SE2d 655) (1991).

The State furnished White with a witness list and provided the only address it had for the witness. The same address was provided to the sheriff for the purpose of serving a subpoena, and the sheriff located her. Even if White could not locate her, however, upon hearing White’s objection the court recessed and offered White the opportunity to interview the witness during the recess before she was allowed to testify, thereby distinguishing this case from Rogers.

5. White contends the court erred in denying his motion for a directed verdict of acquittal on Counts 1 to 3. White argues that the State failed to prove that the checks were written with a fictitious name, as alleged in the indictment.

The Anheuser-Busch senior accountant, who had been employed at the company for 17 years and was responsible for payroll and ordering checks, testified that the payor’s signature on the checks was not familiar to her and was not an authorized signature. This testimony established that the signature was “fictitious.” Moreover, although the appellant’s name is John White, the Anheuser-Busch employee John White named as payee on the payroll check was also a fictitious person. The defendant was not and had never been an Anheuser-Busch employee and, although Anheuser-Busch did have an employee named John White, he was not appellant.

A motion for a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence, with all reasonable deductions and inferences therefrom, demands a verdict of “not guilty” as a matter of law. OCGA § 17-9-1 (a). The evidence as to the forgery counts did not demand such a verdict, which was properly denied.

6. White asserts error in the court’s failure to grant his motion for a mistrial following two instances of improper argument by the State to the jury.

The first instance is the State’s “golden rule” argument. “In a classic ‘golden rule’ argument, jurors are invited to place themselves in the victim’s place in regard to the crime itself. [Cit.] However, any argument, regardless of nomenclature, which importunes the jury to place itself in the position of the victim for any purpose must be carefully scrutinized to ensure that no infringement of the accused’s fair trial rights has occurred.” Horne v. State, 192 Ga. App. 528, 529 (2) (385 SE2d 704) (1989).

In its argument, the State stressed that the jurors alone were the judges of the credibility of the witnesses. She pointed out that many of those witnesses were citizens like the jurors and that the witnesses, “if you found yourself in that place,” would not want to be there. When defendant objected, the court instructed counsel not to make such argument.

The second instance involves a claim that the State impermissibly vouched for its witnesses. The State argued to the jury that its various witnesses “had to come tell what happened” because they knew about it but that they told nothing “that was not the truth.” The court overruled defendant’s objection.

The prohibitions against “golden rule” arguments and bolstering the testimony of witnesses serve to prevent the introduction of extraneous matters not in evidence, which may be prejudicial, and which the jury may consider along with the properly admitted evidence. Of course, counsel’s opinion as to credibility is irrelevant. Counsel are permitted to make reasonable deductions from the evidence, and upon these deductions “ ‘an attorney may make almost any form of argument he desires.’ ” Walker v. State, 232 Ga. 33, 37 (205 SE2d 260) (1974). After careful examination of the closing argument in its éntirety, we are satisfied that the import of the prosecutor’s statements during argument were not cause for mistrial. As in Horne, supra, the court did not manifestly abuse its discretion in denying the motions for mistrial.

7. Relying on Lumpkin v. State, 249 Ga. 834, 835-837 (2) (295 SE2d 86) (1982), White contends the court erred by charging the jury the entirety of OCGA § 16-9-1 (a) when the indictment charged him only with committing forgery in one specific manner of the several enumerated in the statute.

“ ‘The well established rule is that a charge on a code section in its entirety is not error where a part thereof is applicable and it does not appear that the inapplicable part misled the jury or erroneously affected the verdict. (Cits.)’ [Cit.]” Boscaino v. State, 186 Ga. App. 133, 134 (366 SE2d 789) (1988). The court also instructed the jury that in order to find White guilty of any of the three counts they must believe beyond a reasonable doubt that he was guilty of the allegations as contained in the appropriate count of the indictment, which the jury could consult during its deliberations. Taken as a whole, this charge could not have confused the jury. See Ross v. State, 192 Ga. App. 65, 66 (2) (383 SE2d 627) (1989).

Decided May 19, 1993 —

Reconsideration denied June 9, 1993.

James A. Yancey, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Carol L. Stokes, Assistant District Attorney, for appellee

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

       The court did so as to a fourth count: printing fictitious checks. OCGA § 16-9-21 (a).


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A93A0737, A93A0738.
    MABRY et al. v. PELTON; and vice versa.
    (432 SE2d 588)
   Johnson, Judge.

Gary and Susan Mabry sued John D. Pelton, Sr., d/b/a Pinnacle Farms, claiming that he breached an oral partnership agreement to purchase property suitable for breeding cattle, that he fraudulently induced them to enter into a written contract for the purchase of a one-half embryo interest in an Angus donor cow, that he was unjustly enriched by that contract and that he has been stubbornly litigious. Pelton filed a motion for summary judgment as to all the claims. The trial court granted Pelton’s motion as to the claims that he breached an oral partnership agreement and denied the motion as to the remaining claims. The Mabrys appeal from the court’s partial grant of summary judgment to Pelton and he cross-appeals from the court’s denial of summary judgment to him on the remaining claims.

Case No. A93A0737

1. The Mabrys contend that the trial court’s grant of summary judgment to Pelton on their claims that he breached an oral partnership agreement is erroneous because the court incorrectly found that the parties had not formed a partnership. The Mabrys claim that they formed a partnership with Pelton and that the written contract by which they purchased the one-half embryo interest in the cow from Pelton was the first act of the partnership. The written contract, however, explicitly states, “Nothing herein shall be construed as constituting Seller [Pelton] and the Purchaser [the Mabrys] as a partnership, joint venture, unincorporated association or other legal entity.” The Mabrys may not now vary the plain, unambiguous language of the written contract by their parol claims that it constitutes evidence of a partnership. Paige v. Jurgensen, 204 Ga. App. 524, 525 (1) (419 SE2d 722) (1992). The evidence in the record, construed most strongly in favor of the Mabrys, shows that the parties discussed forming a partnership and purchasing property suitable for breeding cattle, but they never actually reached a final partnership agreement.

“A promise, to be enforceable, must be sufficiently definite as to both time and subject matter. [Cit.]” Farmer v. Argenta, 174 Ga. App. 682, 683 (331 SE2d 60) (1985). Here, the alleged oral partnership agreement to purchase property suitable for breeding cattle is incomplete; it is not sufficiently definite as to any of its terms. The Mabrys have not stated and the evidence does not show what property was to be bought, when it was to be bought, the size of the property to be bought, how the purchase was to be financed, the respective monetary or service contributions of the parties or the number of cattle to be bred on the property. The trial court did not err in granting summary judgment to Pelton as to the Mabrys’ claims that he breached an oral partnership agreement to purchase property. See generally Bagwell-Hughes, Inc. v. McConnell, 224 Ga. 659 (164 SE2d 229) (1968); Green v. Zaring, 222 Ga. 195 (149 SE2d 115) (1966).

Case No. A93A0738

2. Pelton asserts that the court erred in denying his motion for summary judgment as to the Mabrys’ claims that he fraudulently induced them into purchasing the one-half embryo interest in the donor cow. We agree.

“One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relation of trust or confidence exists. Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud.” (Citations and punctuation omitted.) Moran v. NAV Svcs., 189 Ga. App. 825, 826-827 (3) (377 SE2d 909) (1989). The Mabrys claim that Pelton failed to disclose that the donor cow’s show career was almost over and that its best breeding years were over. As discussed in Division 1 of this opinion, the parties did not have a partnership and there is no evidence of any relationship between them other than that of buyer and seller of property. “The vendor and vendee of property are not, by virtue of such fact, placed in a confidential relationship to each other, but on the contrary are presumed to be dealing at arm’s length.” (Citations and punctuation omitted.) Gardiner v. McDaniel, 202 Ga. App. 663, 664 (1) (415 SE2d 303) (1992). The cow’s show career and breeding years were matters equally open to the observation of the parties. The Mabrys, if they were concerned about such matters, had an obligation to exercise ordinary diligence by investigating them prior to entering into the contract. The trial court erred in denying Pelton’s motion for summary judgment as to these fraud claims.

The trial court also erred in denying Pelton’s motion for summary judgment as to the Mabrys’ claim that Pelton furnished incorrect projections as to calf and embryo production of the donor cow because “fraud cannot consist of mere broken promises, unfulfilled predictions or erroneous conjectures as to future events.” (Citation and punctuation omitted.) Demer v. Capital City Cable, 190 Ga. App. 40, 44 (3) (378 SE2d 162) (1989).

The Mabrys further claim that Pelton committed fraud by misrepresenting that they had formed a partnership. Whether the parties formed a partnership is a question of law. “Misrepresentations as to a question of law cannot constitute remediable fraud, as such representations are ordinarily regarded as mere expressions of opinion. This is especially true where there is no confidential relationship between the parties.” (Citations and punctuation omitted.) Stephens v. C & S Nat. Bank, 170 Ga. App. 793, 794 (2) (318 SE2d 216) (1984). Pelton is entitled to summary judgment as to this claim of fraud.

Finally, the Mabrys claim that Pelton defrauded them by failing to disclose his reason for originally purchasing the donor cow. “Suppression of a material fact which a party is under an obligation to communicate constitutes fraud.” (Emphasis supplied.) OCGA § 23-2-53. Pelton’s reason for purchasing the cow, before he ever sold an embryo interest in it to the Mabrys, is not a material fact. It has no bearing on the terms of their contract. The trial court erred in denying Pelton’s motion for summary judgment as to all of the Mabrys’ fraud claims.

3. Pelton correctly asserts that the trial court erred in denying his motion for summary judgment as to the Mabrys’ unjust enrichment claim. The Mabrys claim that Pelton was unjustly enriched by the money they paid him pursuant to their written contract to purchase a one-half embryo interest in the donor cow. “The theory of unjust enrichment applies when as a matter of fact there is no legal contract, but where the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefited party equitably ought to return or compensate for.” (Citations and punctuation omitted; emphasis supplied.) Ga. Tile Distrib. v. Zumpano Enterprises, 205 Ga. App. 487, 488 (1) (422 SE2d 906) (1992). In the instant case, the theory of unjust enrichment does not apply because there is a legal written contract between the parties. The court therefore erred in denying Pelton’s motion for summary judgment as to the unjust enrichment claim.

4. Because of our holdings in Divisions 1, 2, and 3 of this opinion, Pelton is entitled to summary judgment as to the Mabrys’ claim that he has been stubbornly litigious. See generally Ginsberg v. Termotto, 175 Ga. App. 265, 267 (3) (333 SE2d 120) (1985).

Judgment affirmed in Case No. A93A0737. Judgment reversed in Case No. A93A0738.

Decided May 27, 1993 —

Reconsiderations denied June 9, 1993.

M. Windle Davis, Jr., for appellants.

Zachary & Segraves, William E. Zachary, Jr., for appellee.

Blackburn and Smith, JJ., concur.


author: Blackburn, Judge.

text:
    A93A0923.
    LUTZ v. CSX TRANSPORTATION, INC.
    (432 SE2d 569)
   Blackburn, Judge.

On June 4, 1991, the appellant, B. E. Lutz, commenced the instant action against his employer, CSX Transportation, Inc., for damages under and by virtue of the provisions of the Federal Employers’ Liability Act (FELA), 45 USC § 51, for a hearing loss that he sustained during the performance of his duties as a railroad worker for CSX. CSX answered the complaint, denying liability and asserting, inter alia, a statute of limitation defense. Following discovery, CSX moved for summary judgment. The trial court granted CSX’s motion, concluding that the appellant knew or should have known as a matter of law of his work-related hearing injury long before June 4, 1988, three years prior to the filing of the action. This appeal followed.

In the complaint filed in the instant action, the appellant readily admits that he had been exposed to excessive and dangerous occupational noise levels throughout the 20 years of his employment with CSX as an engineer. Also, in a similar complaint filed in Alabama against CSX in 1989, the appellant maintained that he had a long history of exposure to loud and damaging industrial noise. The appellant has indicated that his history of exposure to noise in the work place began as early as 1973. On August 17, 1988, the appellant answered a hearing loss questionnaire by stating that he experienced (1) a ringing in his ears in the early 1980s “but paid hardly any attention to it, because it was not a regular thing, until later on it became . . . [an] ever[y] day [occurrence],” (2) a hard time understanding words spoken by the men at work as early as 1984, (3) the muffling of familiar sounds in 1986, and (4) a need to watch a person speak to understand the words. In the questionnaire, the appellant also asserted that he was informed of his hearing loss several years before he completed the questionnaire. This information was essentially corroborated by the appellant’s deposition testimony of September 4, 1991.

In his sole enumeration, the appellant contends that the trial court erred in finding that he was aware of his hearing loss more than three years prior to the filing of his suit for damages and erred in granting summary judgment in favor of CSX. We disagree.

Section 56 of Title 45, United States Code, provides that “(n)o action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.” See also Robb v. CSX Transp., 204 Ga. App. 690, 692 (420 SE2d 370) (1992). “Accrual is defined in terms of two components, the injury and its cause, for statute of limitations purposes.” Fries v. Chicago & Northwestern Transp. Co., 909 F2d 1092, 1094 (7th Cir. 1990). “When it comes to an occupational illness which is not immediately apparent ... it is hard to pinpoint the date of accrual.” Robb, supra at 693. In Urie v. Thompson, 337 U. S. 163, 170 (69 SC 1018, 93 LE 1282) (1949), the Supreme Court concluded that an employee inflicted with a gradual injury “ ‘can be held to be “injured” only when the accumulated effects of the deleterious substances manifest themselves.’ [Cit.]” Consequently, “ ‘a plaintiff cannot avoid the statute of limitation by choosing to ignore the early signs and symptoms of his disease ... a plaintiff has a duty to investigate an injury and the cause of the injury when he experiences symptoms of an injury. Thus, it has been held that a claim accrues under FELA when the plaintiff possesses sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known.’ (Citations and punctuation omitted.)” Bowles v. CSX Transp., 206 Ga. App. 6, 8 (424 SE2d 313) (1992).

The appellant filed his claim for damages on June 4, 1991, and under the terms of 45 USC § 56, the trial court could not entertain the appellant’s cause of action if the “cause of action” accrued before June 4, 1988. “Whether the injury is caused by a discrete, discernible act or inflicted over time with an unknowable onset date does affect a court’s evaluation of the accrual date in terms of the injury.” Fries, supra, 909 F2d at 1095. Pretermitting a determination of the specific day on which the appellant’s cause of action accrued, the appellant admits that he was informed of the work-relatedness of his ear condition in 1984 and several years prior to the completion of the questionnaire in 1988. He further admitted that he experienced symptoms associated with hearing loss as early as 1973 as a result of the exposure to dangerous noise levels while working for CSX. Although the appellant avers in his deposition and acknowledges in the questionnaire that he did not go to a physician until June 1988 for the purpose of obtaining a hearing test, “ ‘[t]he accrual of a claim under FELA, however, does not require that the plaintiff be disabled . . . [W]hether or not plaintiff’s condition was bad enough to cause him to go to the doctor is irrelevant, if, as the evidence here shows, he knew of his condition and its cause.’ ” Robb, supra at 694. The record undisputably shows that the appellant was aware of the symptoms associated with his hearing loss and the causal connection between those symptoms and the exposure to various noise levels at work prior to June 4, 1988. Inasmuch as this action was filed outside of the three-year time period provided for the commencement of such actions under FELA, and the appellant has not presented evidence giving rise to a triable issue on the accrual of his cause of action, Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), we find that summary judgment adjudication was proper.

Decided May 20, 1993 —

Reconsideration denied June 9, 1993

Burge & Wettermark, Michael J. Warshauer, for appellant.

Hunter, Maclean, Exley & Dunn, Theodore T. Carelios, F. Saunders Aldridge III, for appellee.

Moreover, the appellant’s claim for hearing loss is based solely on his testimony and the appellant has not provided any expert evidence linking his deteriorating ear condition to any actions or inactions on behalf of CSX. Accordingly, his claim for damages must further fail. “Expert testimony is required where the disposition of a ‘medical question’ controls the resolution of a case. [Cits.]” Bowles, supra at 7.

Consequently, we conclude that the decision of the trial court is without error.

Judgment affirmed.

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


text:
    A93A0937.
    A93A0938.
    CLARK v. THE STATE. DANIEL v. THE STATE.
    (432 SE2d 220)
   Blackburn, Judge.

Appellants were jointly indicted with the offenses of trafficking in cocaine, possession of less than one ounce of marijuana and possession of a firearm during the commission of a felony. After evidentiary hearings, appellants’ motions to suppress were denied by the Bibb County trial court. Appellants’ applications for interlocutory appeal were granted. On appeal, both appellants contend that the trial court erred in denying their motions to suppress. We agree, as this was clearly a pretextual stop of a rental vehicle and a constitutionally impermissible search of appellant Clark, a black man, neither of which this court will condone.

On August 30, 1992, at about 10:40 p.m., Sergeant Boney, a Macon city police officer assigned to the Macon Drug Interdiction Unit, a special drug unit consisting of Sergeant Boney, another unit, and a dog unit, entered 1-75 traveling north. Unrelated to any criminal investigation Sergeant Boney had previously contacted the auto leasing agencies in the Macon area concerning the disposition of vehicles involved in drug stops. Sergeant Boney noticed that a 1992 Ford Thunderbird, approximately 300 feet in front of his vehicle traveling north in the right lane, merged onto the Mercer University Boulevard exit ramp without the use of a turn signal at a point where 1-75 curves sharply to the left and the defendant simply continued straight ahead in the right-hand lane. No other vehicles were traveling northbound on 1-75 within sight of Sergeant Boney and the Thunderbird. Sergeant Boney followed the Thunderbird onto the exit ramp and increased his speed in order to close the distance between himself and the Thunderbird. Sergeant Boney also observed that the defendant was driving a leased vehicle and decided to stop the Thunderbird, purportedly to “investigate” the improper lane change violation, which had just occurred in his view and was a completed act.

1. Both appellants assert that Sergeant Boney’s stop of the Thunderbird was made without a valid independent reason and, therefore, was pretextual. Appellants base their contention on the wording of OCGA § 40-6-123 and argue that it does not require the use of a turn signal in the present circumstances. The statute provides, in pertinent part: “(a) No person shall. . . turn a vehicle from a direct course or change lanes or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate and timely signal in the manner provided in this Code section, (b) A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.” (Emphasis supplied.)

The trial court determined that a violation of OCGA § 40-6-123 had occurred because the driver of the Thunderbird failed to give a turn signal when exiting. This determination was erroneous. It is clear from the face of the statute that the legislature anticipated occasions when a signal was not required. A lane change must be made with “reasonable safety” and, in some instances, reasonable safety requires giving a turn signal. OCGA § 40-6-123 (a). Subsection (b) sets forth the manner and purpose of signaling one’s intention to change lanes at times when such a signal is required. The legislature’s concern was plainly the preservation of the safety of others by requiring sufficient notice of the driver’s intent to turn or change lanes. Their use of the terms “when required” in subsection (b), clearly indicates that they anticipated times when use of a signal was not required for the safety of others. There is no question that the facts before us present such a situation.

The Mercer University Boulevard exit ramp begins where 1-75 curves to the left, thereby enabling a car to enter the exit ramp with only a minor shift to the right. This type of interstate exit ramp is designed to emerge from the outside traffic lane and allows vehicles to enter safely from that lane without the use of a turn signal when no other vehicles are in the area. This situation is different from one in which a vehicle is changing lanes on an interstate, rather than entering an exit ramp, or when traveling on a road or street other than an interstate. It was undisputed that no other vehicles were in the vicinity of the Thunderbird. Additionally, Sergeant Boney was far enough away that he would have been unable to see any hand signal, if given, as authorized by OCGA § 40-6-124 (a).

Sergeant Boney admitted that the action of the Thunderbird did not endanger the safety of anyone and that he had to speed up in order catch the Thunderbird on the long exit ramp. He also admitted that the Thunderbird was traveling within the speed limit and did not weave upon the roadway or exit ramp. However, Sergeant Boney further testified that although he had pulled hundreds of vehicles over for such a violation, he had issued very few tickets for this offense. Sergeant Boney was aware that a license plate containing four numbers followed, by a letter, as secured to the bumper of the Thunderbird, usually indicated a rental vehicle. Under the present facts, notice of intent to change lanes was not necessary.

The state argues that the present stop is no different than the one upheld by this court in Huff v. State, 205 Ga. App. 557 (422 SE2d 664) (1992). We disagree. In Huff, the officer saw the “defendant weave across the lines bounding defendant’s lane on two occasions.” Id. at 557. Thereafter, when the officer “pulled behind defendant’s automobile to stop him for the traffic violation, defendant moved to another lane without signalling before pulling off the road. The officer testified he habitually pulled over the drivers of vehicles he observed weaving on the roads because often it was an indication the driver was under the influence of alcohol or falling asleep at the wheel.” Id. It is clear from the opinion in Huff that the officer pulled the defendant over due to the car’s weaving. Furthermore, the officer in Huff was directly behind the defendant when the defendant changed lanes without a turn signal. In the case sub judice, Sergeant Boney was approximately 300 feet behind the Thunderbird when it merged onto the exit ramp and no other vehicles were in the vicinity.

The trial court ruled that the violation of OCGA § 40-6-123 gave Sergeant Boney an “independent valid reason” to stop the Thunderbird. However, because this court finds that OCGA § 40-6-123 was not violated, Sergeant Boney’s stop of the Thunderbird was invalid unless supported by specific and articulable facts sufficient to give rise to a reasonable suspicion that the occupants of the Thunderbird were, or were about to be, engaged in criminal activity. Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968); Evans v. State, 183 Ga. App. 436 (2) (359 SE2d 174) (1987). “ ‘Investigative stops of vehicles are analogous to Terry-stops, Terry, supra, and are invalid if based upon only “unparticularized suspicion or ‘hunch,’ ” 392 U. S. at 27 (88 SC at 1883, 20 LE2d at 909).’ [Cit.]” Evans, 183 Ga. App. at 438.

In the case sub judice, Sergeant Boney admitted that he observed no violations other than the alleged improper lane change. He also admitted that the Thunderbird was traveling at the posted speed limit and that it did not weave. The only other fact of which Sergeant Boney was aware prior to the stop was that the car was a rental car. The court is required to look “to what a reasonable officer would do rather thán to what an officer validly could do. . . .” (Citation and punctuation omitted.) Tarwid v. State, 184 Ga. App. 853, 855 (363 SE2d 63) (1987). “ ‘If officers were permitted to conduct Terry-stops based on what conceivably could give rise to reasonable suspicion of minor violations, the necessary connection between a seizure’s justification and its scope would inevitably unravel. [Cit.]’ ” Id. The facts before us do not create any basis for a reasonable suspicion of criminal conduct, therefore, Sergeant Boney’s stop of the Thunderbird cannot be upheld.

2. Because of our holding in Division 1, supra, it is unnecessary for us to consider appellants’ additional grounds for reversing the denial of their motions to suppress. However, assuming arguendo that Sergeant Boney did conduct a valid stop of the Thunderbird, this court finds that Sergeant Boney’s search of the driver, appellant Clark, exceeded the permissible scope of Terry, supra. The trial court ruled that Sergeant Boney, after he stopped the Thunderbird, conducted a valid Terry-type stop and frisk of Clark. When Sergeant Boney turned on his blue lights, a video camera was activated which recorded the search and arrest of Clark. This court has reviewed the tape recording in its entirety and finds that Sergeant Boney’s search of Clark was unlawful.

The recording revealed that Clark exited the vehicle upon Sergeant Boney’s request. In response to Sergeant Boney’s request for a driver’s license, Clark produced a traffic citation, which substituted for his driver’s license and authorized him to drive. Upon Sergeant Boney’s request for the rental agreement, Clark walked to the passenger side of the Thunderbird and reached in to retrieve it. After reviewing the rental agreement, Sergeant Boney concluded that it showed that the car was rented in the name of Tim Britt and that no other drivers were listed as authorized. Sergeant Boney told Clark not to put his hands in his pockets. Clark immediately obeyed and folded his arms across his chest.

Thereafter, backup units arrived on the scene. Sergeant Boney then asked Clark, “You don’t have any weapons on you, do you?” Simultaneously, Sergeant Boney shined his flashlight on the front pockets of Clark’s shorts. Clark’s shorts were partially covered by his T-shirt, but a large bulge in his shorts’ pocket was apparent. Sergeant Boney reached over and squeezed the bulge in Clark’s pocket. Upon questioning, Clark responded that the bulge was money. Sergeant Boney admitted that the bulge felt like money; however, he instructed Clark to remove it from his pocket and place it on the hood of the car. Clark immediately complied. Sergeant Boney continued to grab at and feel the contents of the pockets to Clark’s shorts, which now appeared flat. Sergeant Boney then put his hand into Clark’s right front pocket and removed cigarette rolling papers. Sergeant Boney then reached into Clark’s left front pocket, the pocket from which Clark had removed the money, and removed what appeared to be two marijuana cigarettes. Sergeant Boney then arrested Clark for possession of marijuana.

An officer who has lawfully detained a citizen must have and be able to articulate a reasonable belief that the person is armed and presents a danger in order to be authorized to conduct a pat-down of the person for weapons. Terry, 392 U. S. at 24; Brown v. State, 181 Ga. App. 768 (353 SE2d 572) (1987). This court agrees with the trial court that Sergeant Boney was authorized to conduct a pat-down search; however, this court finds that Sergeant Boney’s conduct of putting his hand inside Clark’s pockets went beyond the permissible scope of a pat-down search.

“A frisk involves the patting-down of a person’s outer clothing by a police officer. Unlike a full search, a frisk is conducted solely for the purpose of insuring the safety of the officer and of others nearby, not to procure evidence for use at a subsequent trial. . . . [I]t must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. In other words, an extended search, exceeding the purpose of the frisk, would be constitutionally unreasonable, and any evidence thereby obtained must be excluded. In Terry v. Ohio, supra, the court’s emphasis upon the procedures followed by the officer indicates that a two-step process must ordinarily be followed: (1) The officer must pat down first, and (2) then intrude beneath the surface only if he comes upon something which feels like a weapon. ... An officer who exceeds a pat-down without first discovering an object which feels reasonably like a knife, gun, or club must be able to point to specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down.” (Citations and punctuation omitted.) Brown v. State, 181 Ga. App. at 770-771.

Decided May 19, 1993 —

Reconsideration denied June 9, 1993

Steven T. Maples, for appellant (case no. A93A0937).

Brown, Katz, Flatau & Hasty, Fred M. Hasty, Franklin J. Hogue, for appellant (case no. A93A0938).

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Thomas J. Matthews, Assistant District Attorneys, for appellee.

The record herein is completely devoid of testimony or facts showing that Sergeant Boney found something that felt like a weapon before he intruded into the pockets of Clark’s shorts, after Clark had already removed the bulge caused by a large sum of money. Such an intrusion, which revealed only cigarette rolling papers and two marijuana cigarettes was not supported by a reasonable suspicion that these items were some atypical weapon. “Since the weapons search was not conducted within constitutionally permissible bounds, the seizure of the drugs cannot be justified on this basis.” (Citations and punctuation omitted.) Id.

3. Based upon this court’s findings above, the remaining contentions argued by appellants need not be reached.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur in the judgment only.

       The court must construe statutes according to their terms when the plain language is susceptible of but one natural and reasonable construction. State Farm Mut. Auto. Ins. Co. v. Ainsworth, 198 Ga. App. 740 (402 SE2d 759) (1991).


text:
    A93A1100.
    SPIRES v. GLENCASTLE, INC.
    (432 SE2d 567)
   Blackburn, Judge.

The appellee, Glencastle, Inc., brought a dispossessory action against the appellant, Loretta Spires, for remaining on the premises of an apartment unit owned by the appellee after the termination of the lease entered into between the parties. The appellant responded, asserting that the appellee did not provide her with 60 days’ notice of its intent to terminate the lease and asserting a counterclaim challenging the constitutionality of the lease. The magistrate judge sitting without a jury, found that the appellee was entitled to a writ of possession and judgment against the appellant, for $202.26, in addition to court costs, as the appellee was entitled to terminate the appellant’s lease upon 30 days’ written notice pursuant to the terms of the lease agreement. The magistrate judge dismissed the appellant’s counterclaim with prejudice. The appellant subsequently appealed the action to the State Court of Fulton County, which essentially affirmed the decision of the magistrate court, and this appeal followed.

In its order, the trial court found that the appellant entered into a lease with the appellee for a leasehold period of December 6, 1991, through January 4, 1992. Thereafter, the lease continued on a month-to-month basis and was subject to termination by either party upon 30 days’ written notice. On May 14, 1992, the appellee notified the appellant of its intention to exercise its right to terminate the lease as of June 30, 1992. However, at that time, the appellee provided the appellant with the option to renew the rental agreement at an increased monthly rate. As a result of the appellant’s refusal to sign a new lease, the appellee demanded possession of the apartment unit.

In her five enumerations of error, the appellant contends that the trial court erred as to the term of the lease and the identity of the appellant, erred in stating that notice of the termination of the lease was properly given, erred in concluding that the appellee was entitled to a writ of possession, erred in failing to conclude that the appellant was a tenant at will, and erred in increasing the rental amount during the pendency of the appeal. However, “ ‘(t)he burden is on the party alleging error to show it affirmatively by the record, and that when the burden is not met, the judgment complained of is assumed to be' correct and must be affirmed. (Cits.) . . . “(W)here the transcript is necessary for review and appellant omits it from the record on appeal,, the appellate court must assume the judgment below was correct and affirm. (Cits.) . . .” (Cit.)’ (Cit.)” In re Holly, 188 Ga. App. 202, 203 (372 SE2d 479) (1988).

Review of four of the appellant’s five enumerations of error requires the consideration of all the evidence submitted before the trial court in connection with the appellant’s claim, including the lease at issue and the testimony of any witnesses. “Since in the absence of a transcript or other appropriate substitute, OCGA § 5-6-41 (g), an appellate court is bound to assume that the trial court’s findings are supported by sufficient competent evidence for there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction, [cit.], we are constrained to affirm the [trial] court’s order” as to those four enumerations of error. Id. at 203. However, inasmuch as the trial court’s order contains a clerical mistake and substitutes the name of an individual in a related case for that of the appellant, we must remand the action solely for the correction of the mistake in the trial court’s order and the issuance of an order identifying the appellant as the party from whom the appellee can recover judgment in the amount of the rent that had been deposited in the court’s registry. See OCGA § 9-11-60 (g).

Judgment affirmed and case remanded with direction.

McMur ray, P. J., and Johnson, J., concur.

Decided May 20, 1993 —

Reconsideration denied June 9, 1993.

Janise L. Miller, for appellant.

Loretta Spires, pro se.

Lynch & Powell, Gene E. Massafra, for appellee.


text:
    A93A1118.
    REMBERT v. ARTHUR SCHNEIDER SALES, INC.
    (432 SE2d 809)
   Blackburn, Judge.

Appellant. Ernestine Rembert appeals the trial court’s grant of summary judgment to appellee Arthur Schneider Sales, Inc. In her amended complaint, Rembert averred that Arthur Schneider Sales, Inc., operated as AJS Shoe Warehouse. She further averred that two police officers, Whitaker and Stanberry, were agents or employees of Arthur Schneider Sales, Inc. d/b/a AJS Shoe Warehouse (AJS). Essentially, Rembert sought damages for injuries she received as a result of Officer Whitaker’s and Officer Stanberry’s alleged “wilful, wanton and/or negligent” conduct, and for their false imprisonment of her person. Rembert sought to hold AJS liable for the conduct of its alleged employees. AJS filed a motion for summary judgment asserting that Officers Whitaker and Stanberry were independent contractors, not employees, and that any actions which the officers took with respect to Rembert were in their official capacities as officers of the City of Atlanta Police Department. The trial court granted AJS’ motion and this appeal followed.

On May 4, 1990, Rembert and her daughter traveled to AJS for the purpose of returning a pair of shoes which Rembert claimed to be defective. Upon their entrance into the AJS showroom, Rembert sought the assistance of Arthur Schneider regarding her return and her daughter proceeded to walk to the back of the sales floor to look at the sandals on display. Rembert deposed that she recognized Mr. Schneider as someone whom she had seen working in the store on previous occasions and that she thought he might be the manager. The exact discussion between Mr. Schneider and Rembert is disputed; however, it is undisputed that he declined to accept the shoes Rembert was trying to return, citing AJS’ no return policy posted on the wall behind the cash registers. It is also undisputed that Mr. Schneider requested that his wife, Victoria Schneider, handle the situation as it was apparent that Rembert was unsatisfied with his explanation. Mr. Schneider then left the area.

Mrs. Schneider testified that Rembert continued to voice her displeasure with the situation in a very loud and boisterous manner. Mrs. Schneider then requested that Officer Whitaker attempt to “finesse” Rembert out the door. Officer Whitaker discussed the situation with Rembert. The exact discussion at this point between Officer Whitaker and Rembert is somewhat in dispute. Thereafter, Mrs. Schneider requested that Officer Whitaker ask Rembert to leave the premises. Officer Whitaker asked if Mrs. Schneider was directing Rembert to leave. Officer Whitaker’s testimony was very specific on this point, he testified, “I said, Vickie, why don’t you ask this lady in our presence to leave the premises, which she did. I said, Ma’am, this right here is the owner. And Vickie asked her to leave the premises. I said, Ma’am, you’ve been asked by the owner to leave the premises. I said, you fail to do that and we could put you in jail for, number one, disorderly conduct and also criminal trespassing. She looked at us very angry like and walked away.” Rembert’s testimony did not dispute Officer Whitaker’s on this point. She testified, “Officer Whitaker said, Ma’am, you’ve been told to leave the store . . . you’ve got to go, would you leave . . . [he] told me that I have been told to leave the store. He slammed — after he slammed the phone down and took the stance, I was trying to make preparation to go home.”

Rather than leaving, Rembert walked toward the interior of the store to find her daughter. It is undisputed that she did not inform anyone why she was walking toward the interior of the store after she had been directed to leave. At this point, a scuffle ensued in which Rembert claims to have been injured and which ended with Rembert being handcuffed and taken away in a police car. The exact nature of the scuffle and conduct of the parties during the scuffle is disputed; however, because of our holding below, a consideration of this disputed evidence is unnecessary.

On appeal, Rembert enumerates that the trial court erred in granting AJS’ motion for summary judgment in two respects. In Rembert’s first enumeration of error she argues that the trial court erred in finding that Officers Whitaker and Stanberry were independent contractors rather than employees. In her second enumeration of error Rembert asserts that the trial court erred in finding that Officers Whitaker and Stanberry were not acting in their capacities as servants of AJS, but as police officers during all relevant times.

“Whether the relationship of the parties under the contract for performance is that of master and servant or that of employer and independent contractor lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity with the contract. In cases involving police officers working for private interests, yet another element must be considered. If at the time the alleged tort was committed the police officer was performing public duties, not at the direction of the private master, the master is not liable.” (Citations and punctuation omitted.) Beck v. Paideia School, 191 Ga. App. 183 (1) (381 SE2d 132), cert. den., 191 Ga. App. 921 (1989).

Decided May 19, 1993 —

Reconsideration denied June 9, 1993

Carter & Ansley, Ben Kingree III, Keith L. Lindsay, for appellant.

In the case sub judice, Mrs. Schneider brought the situation to the attention of Officer Whitaker and requested that he “finesse” Rembert out of the building. His actions to do so were within the scope of his duties whether he was an employee or an independent contractor. Officer Whitaker’s attempts to “finesse” Rembert were unsuccessful. Officer Whitaker testified that at this point, Mrs. Schneider “asked, can y’all do anything with her . . . [and I told her] Vickie, advise the lady, ask the lady in our presence to leave. We don’t have authority to make anybody do anything. . . .” It is clear that during this exchange Officer Whitaker took control as a police officer and not an employee or independent contractor. Even Rembert testified that, at this point, Officer Whitaker “took some kind of a stance” with her.

Officer Whitaker told Mrs. Schneider what to do before he could take any action to make “anybody do anything.” Thereafter, Officer Whitaker informed Rembert of possible criminal charges if she did not comply with Mrs. Schneider’s request to leave. It was his plan to give Rembert a reasonable time to leave and if she did not leave, he would arrest her. Mrs. Schneider had not directed Officer Whitaker to arrest Rembert. Officer Whitaker knew as a police officer that he could not make Rembert leave unless she was committing a crime. Once Rembert refused to leave after being told to go by the owner, she became a criminal trespasser. OCGA § 16-7-21 (b) (3). He was a police officer authorized by law, not by employment with AJS, to arrest Rembert.

It thus was immaterial whether Officers Whitaker and Stanberry were employees or independent contractors of AJS, because their conduct in arresting Rembert was a discharge of their functions as police officers. Pounds v. Central of Ga. R. Co., 142 Ga. 415 (83 SE 96) (1914). The trial court was correct in granting AJS’ motion for summary judgment.

Judgment affirmed.

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

Irwin, Bladen, Baker & Russell, R. Chris Irwin, Freeman & Hawkins, Barry S. Noeltner, for appellee.


text:
    A93A1168.
    ATLANTA AIRMOTIVE, INC. v. NEWNAN-COWETA AIRPORT AUTHORITY.
    (432 SE2d 571)
   Blackburn, Judge.

The Coweta County Superior Court denied Atlanta Airmotive’s plea in abatement and motion to dismiss and this court granted Atlanta Airmotive’s interlocutory appeal. On August 28, 1992, Atlanta Airmotive filed a civil action in Coweta County against Newnan-Coweta Airport Authority (the Airport Authority) and others. On October 27, 1992, the Airport Authority filed this dispossessory action against Atlanta Airmotive. Both actions arise out of a dispute regarding compliance with the terms of a lease executed between Atlanta Airmotive and the Airport Authority on April 6, 1972. The lease expires, by its terms, on April 10, 1997.

Atlanta Airmotive’s action sought a declaration of the respective rights and responsibilities of the parties to the lease. Atlanta Airmotive asserted that the Airport Authority was not entitled to demand termination of its leasehold interest. Atlanta Airmotive claimed damages, actual and punitive, due to the Airport Authority’s alleged malicious interference with Atlanta Airmotive’s business. Additionally, Atlanta Airmotive requested that the Airport Authority be restrained from instituting any action adverse to its interests and moved for an injunction to be issued to such effect. The motion for injunctive relief was denied by the trial court’s order on September 10, 1992. Thereafter, the Airport Authority filed this action for dispossessory alleging that Atlanta Airmotive was a tenant holding possession of the premises beyond the term for which it was rented.

1. On appeal, Atlanta Airmotive asserts that the trial court erred in denying its plea in abatement and motion to dismiss. Atlanta Air-motive argues that OCGA § 9-2-44 (a) requires the dismissal of the Airport Authority’s action because it raises the same issues as Atlanta Airmotive’s previously filed action. OCGA § 9-2-44 (a) provides, in part, that “the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement.”

“The requirement that the two cases be of ‘the same cause of action’ is founded on the doctrine that ‘no one should be twice harassed, if it appear to the Court that it is for one and the same cause.’ (Emphasis supplied.) [Cit.]” Schoen v. Home Federal &c. Assn., 154 Ga. App. 68, 69 (267 SE2d 466) (1980). “The plea in abatement has been held good even where the causes of action are, technically speaking, legally disparate and rest in opposite parties, if they arise out of the same transaction and if the second suit would resolve the same issues as the first pending suit and would therefore be ‘unnecessary, and consequently oppressive.’ [Cits.]” Id. Compare with Williams-East, Inc. v. Weeks, 156 Ga. App. 861 (275 SE2d 801) (1981) (Suit for declaratory and injunctive relief filed on the same day as dispossessory suit was properly dismissed as complete relief to both parties could be more thoroughly obtained in dispossessory action.).

Decided May 24, 1993 —

Reconsideration denied June 9, 1993

Fanning & Hudson, Steven E. Fanning, for appellant.

Glover & Davis, Asa M. Powell, Jr., Freeman & Hawkins, H. Lane Young II, Robert R. Elarbee, for appellee.

The Airport Authority emphasizes that the court in Schoen stated, “[s]o, for the same reasons, a pending suit ‘for the same property’ will, on a plea in abatement, bar a later inconsistent action in ejectment. . . .” (Emphasis supplied.) Id. at 70. The Airport Authority then argues that its dispossessory action is not a “later inconsistent action” because Atlanta Airmotive’s motion for injunction was denied. Basically, Airport Authority concludes that because the trial court (in Atlanta Airmotive’s action) determined that an injunction against its future actions was not necessary, its filing of a dispossessory action was somehow judicially approved. This contention is completely without merit. The Airport Authority’s dispossessory action is a “later inconsistent action” unless and until Atlanta Airmotive loses its previously filed action.

In granting the Schoens’ plea in abatement, we reasoned that “[i]f the Schoens win their case . . . the judgment will be a bar to any dispossessory proceedings against the Schoens. It is manifest, therefore, that the state court action involves the same cause of action as that in the [superior court]. The ‘cause of action’ in each suit is title and possession of the same land, as against the other party.” Schoen, 154 Ga. App. at 71. The case sub judice is controlled by our holding in Schoen, supra. It is abundantly clear that if Atlanta Airmotive wins its case, the Airport Authority’s dispossessory proceeding will be barred. Therefore, the trial court erred in denying Atlanta Airmotive’s plea in abatement.

Judgment reversed.

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


text:
    A93A0029.
    THOMPSON v. REGENCY MALL ASSOCIATES et al.
    (432 SE2d 230)
   Blackburn, Judge.

This appeal arises from the filing of motions for summary judgment by defendants, Regency Mall Associates and J. B. White & Company, and the apparent grant of same to all defendants by the trial court in a negligence action brought by plaintiff for injuries she sustained when she tripped and fell in Regency Mall at the entrance to the J. B. White & Company store. Plaintiff testified at her deposition and by way of affidavit that her toe got caught in a loose, warped portion of the molding which held the carpet in place at the entrance way to J. B. White’s from the common mall area. The record also indicates that the heavy rubber molding was cracked along the raised portion which was some evidence of the age of the condition. The common mall area is covered with maroon carpet and the molding strip is a darker shade of maroon. Although plaintiff testified that she had entered the store on prior occasions, it is undisputed that the entrance way is eighteen to twenty feet wide and that the defective portion of the molding was three to four inches wide and there was no evidence that plaintiff had previously traversed the defective area.

Defendant J. B. White & Company presented the affidavit of Mike Manos, operation manager for J. B. White, who testified that the company had no knowledge of any defect at the entrance to its leased premises. Defendant Regency Mall presented the affidavit of Todd Maurin, maintenance manager for Regency Mall, who testified that prior to plaintiff’s injury, Regency Mall had no knowledge of any defect at the entrance to the J. B. White & Company store. Neither defendant presented any evidence showing they had met their duty to inspect their subject premises and to make it safe for their customers. There was no evidence regarding customary inspection procedures, nor did they present evidence regarding actual inspections of the area in question.

T. The occupier of a premises is charged with the duty of keeping the approaches and premises safe for its customers, who are invitees. OCGA § 51-3-1. An invitee is entitled to rely on the possessor of the premises to exercise reasonable care to make the land safe for her entry. Begin v. Ga. Championship Wrestling, 172 Ga. App. 293 (322 SE2d 737) (1984). It is also true that an invitee must exercise ordinary care for her safety. McGrew v. S. S. Kresge Co., 140 Ga. App. 149, 151 (230 SE2d 119) (1976). However, “[l]ooking continuously for defects, without interruption, is not required of an invitee. [Cit.] ” Begin, supra at 294.

Defendants argue that the alleged defect was in plain view and that the plaintiff could have avoided her injury if she had been exercising reasonable care for her safety, but do not address why the defect would not have been obvious to them had they met their duty to inspect and maintain a safe premise prior to the plaintiff’s fall. Defendants support their argument with the testimony of plaintiff’s sister, who testified in her deposition that she saw the defect after plaintiff’s fall and that she could see it from a standing position. The fact that one who is inspecting a post-fall scene can observe a hazardous defect from a standing position is not dispositive of whether or not the injured party was exercising ordinary care for her own safety prior to the fall, with the attendant circumstances and a jury question exists as to such issue.

It is clear that the possessor’s duty of inspecting its premises demands a higher awareness of defects than is imposed on a casual invitee who has no such duty. Additionally, evidence was presented that a temporary watch display was set up approximately four feet inside the entrance to J. B. White’s. The record contained testimony that several people were standing around the display. Plaintiff testified by way of affidavit that she was distracted by this display when entering the store. “Where a proprietor owes a duty to its invitees to keep the premises in a safe condition for their passage, the setting up of a distraction, by a sign or conduct, which will so divert the customer’s attention as to be the proximate cause of his injury . . . may constitute actionable negligence on the part of the defendant.” (Citations and punctuation omitted.) Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

In their motions for summary judgment, defendants dispute plaintiff’s use of the distraction theory; however, it is well-settled law that except in cases where only one conclusion is permissible, issues such as these should be decided by a jury. Ellington v. Tolar Constr. Co., 237 Ga. 235, 236 (227 SE2d 336) (1976); Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 156 (256 SE2d 916) (1979); Tanner v. Ayer, 150 Ga. App. 709, 710 (258 SE2d 545) (1979). This court cannot say as a matter of law that plaintiff failed to exercise ordinary care for her safety.

Whether defendants are entitled to summary judgment depends upon whether defendants presented sufficient evidence to show they had neither actual nor superior constructive knowledge of the alleged hazard. Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) (1991). “The evidence of record would appear to be sufficient to show that [defendants] lacked actual knowledge of the [defect] prior to [plaintiff’s] fall. Thus, the ultimate issue to be resolved is whether that evidence would also be sufficient to show that [defendants] had no constructive knowledge of the [defect].” Food Giant v. Cooke, 186 Ga. App. 253, 254 (366 SE2d 781) (1988).

“ ‘Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed . the hazard. (Cit.) Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. (Cits.)’ (Emphasis supplied.) [Cit.]” Food Giant v. Cooke, 186 Ga. App. at 254.

Plaintiff contends that defendants failed to inspect the premises to discover the alleged defective condition prior to her fall. This theory is “premised upon defendant^’] failure to exercise reasonable care in inspecting and keeping the premises in a safe condition. The issue thus becomes whether the affidavit^] executed by defendant^] [negate] recovery of that theory.” (Citations and punctuation omitted.) Flood v. Camp Oil, 201 Ga. App. at 453.

The affidavits presented on behalf of the defendants in the case before us, do not allege any practice to inspect the premises at all, let alone to inspect on a routine basis that would allow for the discovery of defective conditions. Furthermore, a jury could find that the deteriorated condition of the heavy rubber molding indicated that the defect had existed for a period of time sufficient to be discovered and repaired. A genuine issue of material fact also exists as to which defendant, according to the terms of the lease, bore the burden of maintaining the strip upon which plaintiff fell.

Decided May 25, 1993 —

Reconsideration denied June 10, 1993.

Hunter & Hunter, Hugh T. Hunter, for appellant.

Glover & Blount, Percy J. Blount, Fulcher, Hagler, Reed, Hanks & Harper, James W. Purcell, Mark C. Wilby, for appellees.

“The burden was, of course, on defendants] as movant[s] on motion for summary judgment to negate this theory of liability by presenting evidence that it had in fact exercised reasonable care in inspecting the premises. Inasmuch as the evidence submitted by defendant [s] on this issue failed to establish that any inspection at all had been made on the day in question, we must conclude that this burden of proof was not met. Thus, the burden never shifted to plaintiff to produce evidence that the [defective condition] had been present. . . for a period of time sufficient to have been discovered by a reasonable inspection procedure. Although the burden would be on plaintiff to present such evidence at trial in order to establish a prima facie case based on the constructive knowledge theory, on a motion for summary judgment, the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party . . . even as to issues upon which the opposing party would have the trial burden. . . . Therefore, we hold that the trial court erred in granting defendant^’] motion[s] for summary judgment.” (Citations and punctuation omitted.) Id.

2. Plaintiff further asserts that the trial court erred in granting summary judgment to defendant Mercantile Properties in the absence of a motion for summary judgment on their behalf. Such an action by the trial court would not necessarily be erroneous, if summary judgment was otherwise proper. See Cruce v. Randall, 152 Ga. App. 183 (262 SE2d 488) (1979) aff’d 245 Ga. 669 (266 SE2d 486) (1980). However, for the reasons outlined above, the grant of summary judgment must be reversed and the case remanded to the trial court for further proceedings as to all defendants.

3. Plaintiff’s remaining enumerations of error are moot as they relate to procedural issues surrounding the grant of defendants’ motions for summary judgment.

Judgment reversed and remanded.

Johnson and Smith, JJ., concur.

       The underlying case contains three defendants: Regency Mall Associates, the owner of the common mall area; J. B. White & Company, the apparent lessee of the J. B. White location in Regency Mall; and Mercantile Properties, Inc., the owner of the J. B. White location at Regency Mall.


text:
    A93A0184.
    LOWERY v. THE STATE.
    (432 SE2d 576)
   Blackburn, Judge.

The appellant, Charles Lowery, was charged with aggravated assault, armed robbery, habitual violator, and possession of a firearm by a convicted felon, all stemming from an incident in which he shot his sister. He pleaded guilty to the possession of a firearm charge, and was convicted by a jury of the three other charges. The trial court denied Lowery’s motion for new trial, and this appeal followed.

On October 27, 1990, Lowery and his sister started the day by selling some scrap aluminum and using the proceeds to buy beer. Part of the day was spent drinking beer at their mobile home, and then driving around the countryside, culminating with Lowery shooting his sister in the back with a .22 caliber rifle. Exactly how the shooting happened, and what transpired subsequently, was disputed.

Lowery’s sister testified that at some point Lowery stopped the car, removed a rifle from the vehicle, and walked through the woods. When he returned, Lowery was irate and told her to do something. She refused, and when she began walking away from the car, Lowery first warned her and then shot her in the back. The bullet entered near her shoulder blade and exited her body at the collarbone.

The sister pleaded with Lowery for him to take her to a doctor, but he refused. Instead, he put her in the hatchback area of the car, covered her with a bedspread, and drove her to a cemetery. He then put her on a bench under a covered shelter on the cemetery grounds, and encouraged her to die. Lowery walked around the cemetery for awhile, and the sister decided to pretend to be dead, hoping that he would leave. However, Lowery approached her, pulled down her pants, “took his hand and done what he wanted to do,” and “then masturbated right there.” He also reached into her pocket and took a little over $32, saying “you nasty bitch, you won’t need this.” Lowery then left, and his sister got up and staggered down the road where eventually she was found by a church group on a hay ride.

Lowery testified that he accidentally shot his sister as he attempted to get the rifle from the back floorboard of the car, so that he could shoot at a deer from the driver’s side window. The rifle had discharged somehow and struck his sister in the back as she was exiting the car to use the bathroom. He claimed that after his sister finished relieving herself, he helped her get into the hatchback area of the car. He started driving her to his brother’s house nearby, but when his sister went into a rage and began trying to choke him and pull his hair from behind, he dropped her off at the covered shelter and then went to look for help. He went straight to the sheriff’s department and reported the accidental shooting and his sister’s whereabouts so that an ambulance could find her.

Statements given by Lowery to the police after he reported the incident conflicted with portions of his trial testimony. In one statement, he recalled the deer being visible from the passenger side window, that he had accidentally shot his sister as she looked at the deer from inside the car, and that she had not exited the vehicle until after she was shot. He also stated that he tried to help her in the car, but his sister had told him to leave her alone and instead go get help. At trial, Lowery denied having any money when he went to the sheriff’s department other than some loose change, but the jailer recalled that he had an undetermined quantity of paper money on his person at the time.

Search of Lowery’s vehicle revealed no bullet hole, blood splatter, or spent bullet shell in the interior that would be expected if the shooting had occurred while the sister was a passenger in the vehicle. Blood, however, was found on a pillow and bedspread in the hatchback area.

A firearms examiner with the state crime lab testified that muzzle to target tests on the rifle determined that the weapon had a maximum range of unburned gunpowder spray of two feet; since no gunpowder residue was found on the sister’s clothing, the rifle must have been two feet or more from her at the time of the shooting. He estimated that if the shooting had occurred at such short range as claimed by Lowery, there would have been an unburned gunpowder pattern of approximately four inches in diameter on the sister’s clothing.

1. Lowery contends that the evidence was insufficient to support the conviction for armed robbery, because of the time span between the use of the weapon and the theft of the sister’s money. This contention is without merit.

Under OCGA § 16-8-41 (a), “[a] person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” “ ‘[T]he force or intimidation essential to robbery must either precede or be contemporaneous with, and not subsequent to, the taking.’ ” Young v. State, 251 Ga. 153, 157 (303 SE2d 431) (1983).

In the instant case, Lowery first shot his sister and then, several minutes later, took her money, with the rifle still in his possession. Without the shooting, which left the sister in fear of being shot again, Lowery’s taking of his sister’s money could not have been accomplished. The relatively brief passage of time between the shooting and the taking in this case does not sever that connection between the two acts. Viewing this evidence in the light most favorable to the verdict, we find that the evidence authorized a rational trier of fact to find Lowery guilty beyond a reasonable doubt of the offense of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Testimony was adduced at trial that when Lowery’s sister was rescued, she exclaimed that her brother had shot and raped her. At trial, the sister was reluctant to talk about the matter, but when prodded, she explained that Lowery had inserted his hand into her private area while he masturbated himself. Lowery was never charged with any sexual offense, and he contends that this evidence that tended to show that he committed another crime impermissibly placed his character into issue.

However, during the trial, Lowery never objected to this testimony. In fact, although during its opening statement, the state made some reference to the victim’s utterances at the time of her rescue, it was Lowery’s own attorney who first elicited testimony about the sister’s exclamation about Lowery having “raped” her. It was also Lowery’s attorney who asked the sister on cross-examination if she had accused Lowery of raping her, and that line of questioning was abandoned only upon the state’s objection to it. Under these circumstances, Lowery either waived any objection to the admission of that evidence, or induced it himself. Heard v. State, 204 Ga. App. 757, 759 (4) (420 SE2d 639) (1992).

3. Lowery also contends that the trial court erred in not allowing him to introduce evidence that his sister had falsely accused another man of rape on a previous occasion. He relies upon Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989), in which the Supreme Court held that the rape-shield law codified at OCGA § 24-2-3 does not prohibit evidence that the victim had previously lied about sexual misconduct by men other than the defendant. However, Smith is inapposite here, because Lowery was not on trial for any sexual offense.

“Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” OCGA § 24-2-1. Inasmuch as Lowery was not charged with committing a sexual offense against his sister, and particularly in light of the fact that the sister eventually explained that no rape occurred, any evidence that Lowery’s sister may have falsely accused another individual of rape on a previous occasion would have no bearing on the issues at trial in this case, i.e., armed robbery, aggravated assault, and habitual violator, and the trial court properly disallowed that inquiry.

4. Lowery next contends that his conviction for aggravated assault should have merged with his conviction for armed robbery as a matter of fact, because the evidence of the same shooting was used to prove both offenses. We are compelled to agree, under the particular facts of this case.

In Cherry v. State, 178 Ga. App. 483, 485 (4) (343 SE2d 510) (1986), where the indictments for armed robbery and aggravated assault alleged precisely the same shooting, we held that “[ujnder the indictments as drawn, the aggravated assault conviction must merge with the robbery conviction. [Cit.]” (Emphasis supplied.) In the instant case, the indictment charged Lowery with having committed an aggravated assault “with a certain .22 caliber rifle, a deadly weapon, by shooting [the victim] in the neck with said rifle. . . .” The indictment’s charge of armed robbery alleged that Lowery took money from the victim “by the use of an offensive weapon, to-wit: a certain .22 caliber rifle and in the course of said robbery intentionally inflicted serious bodily injury to [the victim] by shooting [her] in the neck with said rifle. . . .” Because the same shooting was used to prove both offenses under the indictment as drawn in this case, as in Cherry v. State, supra, the aggravated assault merged with the armed robbery, requiring vacating the conviction for aggravated assault.

We emphasize that aggravated assault is not a lesser included offense of armed robbery as a matter of law, and the two offenses rarely merge as a matter of fact. See State v. Hightower, 252 Ga. 220 (312 SE2d 610) (1984); Evans v. State, 173 Ga. App. 655 (327 SE2d 784) (1985). In fact, in Evans, this court found no merger where the same shooting was used to prove both an aggravated assault and an armed robbery. However, Evans did not address the manner in which the two crimes were charged in the indictment.

The evidence in the instant case would have supported separate convictions for both aggravated assault and armed robbery, given a properly drawn indictment. The aggravated assault, of course, was shown by the evidence of the shooting itself. With regard to the charge of armed robbery, the requisite element of use of an offensive weapon would have been satisfied by the evidence of Lowery’s continued possession of the rifle at the time he took the money from his sister’s pocket subsequent to the aggravated assault. However, with the subject indictment, use of that evidence as proof of the armed robbery would have created a material variance between the specific allegations contained in the inartfully drawn indictment and the proof. As discussed above, because of the very specific manner in which the indictments were drawn in this case, we are compelled to follow Cherry v. State, supra, and find that the aggravated assault merged with the armed robbery. Accordingly, the conviction and sentence imposed for the aggravated assault must be vacated.

5. Lowery also asserts that a material and fatal variance existed between the indictment and the evidence adduced at trial regarding the armed robbery. “ ‘The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.’ (Citations omitted.) Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314) [(1934)].” De Palma v. State, 225 Ga. 465, 469-470 (169 SE2d 801) (1969).

Decided May 26, 1993 —

Reconsideration denied June 10, 1993.

David M. Rosenberg, William L. Reilly, for appellant.

Roger G. Queen, District Attorney, for appellee.

' In the instant case, we reject Lowery’s contention that the time span between the shooting of the victim and the actual taking of the victim’s money created a fatal variance between the proof and the indictment. It cannot reasonably be found that the indictment failed to inform Lowery of the charges against him, or that the relatively brief passage of time between the shooting and the taking surprised Lowery, or subjected him to a risk of another prosecution for the same offense.

Judgment affirmed in part and vacated in part in accordance with Division 4.

Johnson and Smith, JJ., concur.


text:
    A93A0359.
    CONEY v. THE STATE.
    (432 SE2d 812)
   Blackburn, Judge.

The appellant, Demetrius Coney, was convicted of armed robbery and aggravated assault, for which he was sentenced to ten years’ imprisonment on each count. This appeal follows the denial of his motion for new trial.

At the trial, the victim testified that she and Coney had attended the same local college, and that during the 1990 school year they had developed a relationship. About one week before the incident in question, she informed Coney that she wanted to end the relationship but remain friends. Two days before the incident, she refused to lend Coney money to pay a traffic fine.

On March 18, 1991, Coney offered to drive the victim home from school, and the victim accepted the invitation. (The victim used canes to assist her walking, because of residual effects of a long-standing kidney dysfunction.) When they arrived at the victim’s house, Coney professed his continuing love for her and gave her a necklace. He then asked for money, claiming that the victim owed him for his having taken her to a movie one year earlier. When the victim refused to give him money, and instead attempted to return the necklace, Coney sprayed paint in her face and pushed her into the house.

As the victim managed to get up onto a sofa, Coney went into the kitchen and retrieved a knife. He brandished the knife and demanded that the victim give him her jewelry, but the victim refused to comply. Coney then reiterated his demand for money, and the victim gave him about $4 from her purse. When the victim reached down to pick up one of her canes, Coney stepped on her hand, pushed her back onto the floor, sprayed more paint in her face, and tried to stab her in the back with the knife. He then hit the victim in the head with her cane. When Coney suddenly left the room, the victim ran out of the house and yelled for help, and a neighbor called the police on her behalf. Coney later ran from the house and drove away in his car.

After his arrest, Coney gave an inculpatory statement, in which he acknowledged that spray paint ended up on the victim’s face, and that the victim gave him $4. He explained that he had not “meant for this to happen, but my emotions was in the way.”

1. Coney contends that the trial court erred in denying his motion for new trial based upon his claim that his trial counsel provided ineffective assistance. Specific alleged deficiencies in the trial counsel’s performance included the failure to conduct a reasonable investigation prior to the trial, failure to file defensive and discovery motions, failure to cross-examine certain witnesses adequately, and objecting to the trial court’s declaring a mistrial.

At the hearing on this issue, Coney’s trial counsel testified that he had more than sufficient time to prepare adequately for trial in the matter. Three months prior to the trial, he had also represented Coney in a probation revocation hearing, arising out of the same offenses for which he was convicted. During that hearing, he was able to cross-examine the victim and one of the police detectives who investigated the case, who were the two main witnesses for the state during the trial. Because of the information he obtained at the probation revocation hearing, the trial counsel felt it unnecessary to contact those witnesses again or to view the crime scene, which was the victim’s home.

With regard to defensive and discovery motions, the trial counsel stated that he had received a list of witnesses at the arraignment, and that the district attorney’s office had voluntarily advised him of all the evidence against Coney without his filing motions. He emphasized that he had always enjoyed a good working relationship with the district attorney’s office, and he harbored no suspicions that the district attorney had concealed anything. Although Coney contends that filing appropriate motions is the only way a defense attorney can be assured that he has all the information to which he is entitled, he does not even suggest what motions would have been appropriate or beneficial in this case.

Coney also asserts that his trial counsel did not adequately cross-examine a crime scene technician about fingerprints found on the knife at the victim’s house, and the victim about inconsistencies in her account of the attack. The crime scene technician testified that she found latent fingerprints on the knife’s blade, and Coney claims that his trial counsel was deficient in not inquiring upon cross-examination whether those fingerprints matched Coney’s. However, the crime scene technician merely lifted the fingerprints and would not have been competent to identify the prints. Further, this evidence was before the jury, as the state and Coney’s trial counsel stipulated that the crime lab report showed that the latent fingerprints on the knife did not match Coney’s.

Concerning the inconsistencies in the victim’s accounts of what transpired, Coney points out that at the trial, the victim testified that Coney first retrieved the knife from the kitchen and then beat her with the cane, whereas the investigating officer recalled that the victim stated that Coney beat her with the cane first, and then got the knife. This inconsistency was minor, and explained by the victim’s distressed state of mind when she told the investigating officer what happened to her.

During the trial, a detective testified that Coney made a verbal statement that he “robbed” the victim to pay a traffic fine. The trial court considered that testimony to be a deliberate alteration of the officer’s prior statement that Coney admitted that he “took” the money of the victim, and announced his intention to declare a mistrial. Both the prosecutor and defense counsel objected to a mistrial, and the trial court allowed the proceeding to continue. Defense counsel explained that he thought the detective’s inconsistency, exposed upon cross-examination, could be helpful in establishing reasonable doubt as to Coney’s guilt, and preferred to carry on with the trial because on retrial the detective would correct his testimony.

In order to establish a claim of ineffective assistance of counsel, a defendant must show that the trial counsel’s performance was deficient, and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Perkins v. State, 260 Ga. 292 (2) (392 SE2d 872) (1990). “ ‘Trial strategy and tactics do not equate with ineffective assistance of counsel. . . . The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.’ ” Nolan v. State, 204 Ga. App. 170, 172 (419 SE2d 72) (1992). A trial court’s finding that a defendant has been afforded effective assistance of counsel will not be disturbed on appeal unless clearly erroneous, Cribbs v. State, 204 Ga. App. 109 (418 SE2d 405) (1992), and considering the circumstances discussed above, we are unable to find the trial court’s ruling on this matter clearly erroneous in the instant case.

Decided May 25, 1993 —

Reconsideration denied June 10, 1993 —

Melvin S. Nash, James H. Williams, for appellant.

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

2. Coney next contends that the misconduct of the detective in testifying that Coney stated that he robbed the victim was so prejudicial that the trial court should have persisted in declaring a mistrial, over the objections of both the prosecutor and the defense counsel. In response to the detective’s testimony, the trial court instructed the jury to disregard the detective’s conclusory opinion, and, sua sponte, declared mistrial. As noted above, however, defense counsel objected to a mistrial because he thought that the detective’s inconsistency made him look so bad that it might create some reasonable doubt in the minds of the jurors. Under these circumstances, we find no manifest necessity to terminate the trial by declaring mistrial over the defense counsel’s objection. See Jones v. State, 232 Ga. 324 (206 SE2d 481) (1974).

3. Lastly, Coney contends that the evidence was insufficient to support his convictions. Specifically, he asserts that inasmuch as the fingerprints found on the knife did not match his, the state failed to prove the element of use of an offensive weapon necessary to show an armed robbery. Further, he argues that the state’s evidence that Coney beat the victim with a cane did not satisfy the element of use of a deadly weapon or other object in a manner likely to result in serious bodily injury, necessary to prove aggravated assault.

However, the victim’s testimony about Coney’s use of the knife was sufficient to establish the element of use of an offensive weapon. “The fact that there is a fingerprint at a crime scene which does not belong to the accused is neither exculpatory nor inculpatory.” Batton v. State, 260 Ga. 127, 131 (4) (391 SE2d 914) (1990). Similarly, the victim’s testimony, as well as that of her physician, regarding Coney’s beating her head with her metal canes, sufficiently showed the use of an instrumentality in a way that was likely to cause serious injury, even though fortunately it did not.

Viewing the evidence in the light most favorable to uphold the jury’s verdict, we find that the evidence authorized a rational trier of fact to find Coney guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0045.
    THE STATE v. TWEEDELL.
    (432 SE2d 619)
   Johnson, Judge.

John Allen Tweedell was charged by accusation with driving under the influence of alcohol to the extent it was less safe for him to drive. The trial court, sitting without a jury, found Tweedell guilty not of the crime charged in the accusation but of the offense of public drunkenness. The State appeals, contending that the court’s judgment is void because public drunkenness is not a lesser included offense of driving under the influence of alcohol.

OCGA § 16-1-6 provides two alternative tests for determining whether one crime is included in another as a matter of fact or as a matter of law. Shuler v. State, 195 Ga. App. 849 (1) (395 SE2d 26) (1990); Weaver v. State, 176 Ga. App. 639, 640-641 (3) (337 SE2d 420) (1985). A crime is included in another as a matter of fact when it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; a crime is included in another as a matter of law when it differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission. OCGA § 16-1-6.

Public drunkenness requires proof that a person is and appears to be in an intoxicated condition, which is manifested by boisterousness, indecent condition or act, or by vulgar, profane, loud or unbecoming language. OCGA § 16-11-41 (a). The offense of driving under the influence of alcohol to the extent it is less safe to drive does not require that any of these facts be alleged and proved. OCGA § 40-6-391 (a) (1). Furthermore, the accusation in the instant case does not allege that Tweedell appeared to be in an intoxicated condition, made manifest by boisterousness, indecent condition or act, or by vulgar, profane, loud or unbecoming language. Public drunkenness therefore is not, as a matter of fact or law, a lesser included offense of driving under the influence of alcohol to the extent it is less safe to drive. See generally Cooney v. State, 205 Ga. App. 385, 386 (422 SE2d 286) (1992); Whiteley v. State, 188 Ga. App. 129, 132-133 (5) (372 SE2d 296) (1988).

“We acknowledge that one crime may be changed into another by adding or subtracting elements which distinguish them. However, where the defendant is charged by a narrowly drawn [accusation] with a specific crime it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, separate offense. Criminal [accusations] are not deemed amendable to conform to the evidence.” (Citations and punctuation omitted.) Bowers v. State, 177 Ga. App. 36, 37 (1) (338 SE2d 457) (1985). Tweedell was charged by a narrowly drawn accusation with the specific crime of driving under the influence of alcohol to the extent it was less safe for him to drive. The judge did not have the power to interpret the facts presented at trial to support the separate offense of public drunkenness. “ ‘One can not be tried and convicted of an offense different from that for which he is prosecuted or called upon to answer.’ [Cit.]” Dickson v. State, 167 Ga. App. 685, 687 (2) (307 SE2d 267) (1983). The trial court’s judgment that Tweedell was guilty of public drunkenness is void.

Decided June 10, 1993.

Keith C. Martin, Solicitor, Leigh A. Moore, Assistant Solicitor, for appellant.

John A. Tweedell, pro se.

We note that Tweedell has filed no brief and the record does not contain either a transcript of the trial or a stipulation of the facts. Consequently, we cannot determine from the record whether the trial court’s void judgment amounted to an implied acquittal of the DUI offense charged, thereby creating a double jeopardy bar against a retrial on that charge. See Rowe v. State, 181 Ga. App. 492 (2) (352 SE2d 813) (1987). We are therefore limited to holding that the judgment of the trial court is void and must be reversed.

Judgment reversed.

Blackburn and Smith, JJ., concur.

       “Notwithstanding the provisions of OCGA § 5-7-1, the State may appeal directly an illegal judgment. [Cits.]” State v. Bilal, 192 Ga. App. 185 (384 SE2d 253) (1989).


author: McMurray, Presiding Judge.

text:
    A93A0144.
    GREESON HOMES CORPORATION v. VOSS et al. REDMAN HOMES, INC. v. VOSS et al.
    A93A0145.
    (432 SE2d 271)
   McMurray, Presiding Judge.

Plaintiffs Jerry Voss and Sherry Voss brought suit against Redman Homes, Inc. (“Redman”), and Greeson Homes Corporation (“Greeson”) seeking damages stemming from the purchase of a mobile home built by Redman and sold by Greeson. The case proceeded to trial and plaintiffs rested their case. Thereupon, defendants moved for a directed verdict. The trial court denied defendant Greeson’s motion for a directed verdict and granted defendant Redman’s motion for a directed verdict. Thereupon, plaintiffs stated they wished to reopen their case to present additional evidence and the trial court gave plaintiffs permission to do so. However, instead of presenting additional evidence, plaintiffs filed a “dismissal without prejudice” and thereby “move[d] to dismiss . . . without prejudice.” These appeals followed. Nearly four months later, the trial court entered a nunc pro tunc order which reads: “As reflected by the transcript of trial, the Court has made the following orders during the course of trial: (1) The motion for directed verdict by [Greeson] was denied. (2) The motion for directed verdict by [Redman] was granted. (3) The Court vacated its order granting directed verdict to [Redman]. (4) The Court permitted plaintiffs Jerry Voss and Sherry Voss to reopen the evidence.” Held:

Decided June 10, 1993.

Russell, Adamson & Stell, Robert W. Adamson, John E. Stell, Jr., Michael C. Pruett, for appellant (case no. A93A0144).

Blasingame, Burch, Garrard & Bryant, E. Davison Burch, Milton F. Eisenberg II, for appellant (case no. A93A0145).

William C. Bushnell, Edward M. Broussard, for appellees.

OCGA § 9-11-41 (a) provides, in pertinent part: “[A]n action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case. After the plaintiff rests his case, permission and an order of the court must be obtained before dismissal.” This Code section makes plain that after a plaintiff rests his case, he cannot voluntarily dismiss unless he obtains the trial court’s permission and an order.

In the cases sub judice, the record does not reflect the entry of an order permitting the voluntary dismissal of this case. See generally In the Interest of J. B., 195 Ga. App. 520 (394 SE2d 143) (absence of written order presents nothing for review). It follows that these appeals are premature and must be dismissed. Dowdy v. White, 119 Ga. App. 793 (168 SE2d 595).

Appeals dismissed.

Beasley, P. J., and Cooper, J., concur.