text:
    A98A0305.
    COOKE v. THE STATE.
    (496 SE2d 337)
   Birdsong, Presiding Judge.

James Randolph Cooke appeals from an order denying his motion for discharge and acquittal and plea in bar based on double jeopardy grounds.

Appellant was brought to trial for two counts of DUI; a jury was impaneled and sworn. A videotape was made of appellant’s arrest; this tape in part showed appellant’s fiance, who was a passenger in appellant’s vehicle, in an apparent intoxicated condition. Prior to trial, the trial court granted appellant’s motion in limine in part to “exclude anything on the videotape past whatever point there is where the conduct of [appellant’s] fiance becomes the essential focal point of this videotape as opposed to anything the [appellant] did.” The trial court made this ruling to preclude getting “into a situation of vicarious criminal responsibility and having that assessed against [appellant] for something that his fiance may have done.” During trial, the State showed a videotape of the incident investigation. During the viewing, the trial judge was seated two chairs to the left of the bailiff and an alternate juror was seated immediately on the other side of the bailiff. When the tape showed appellant’s fiance prior to appellant’s arrest, the bailiff remarked, “she sure looks intoxicated.” The trial court overheard this comment and declared a mistrial sua sponte. Appellant subsequently was brought to trial and entered a motion for discharge and acquittal. In denying the motion the trial court pertinently held: “[T]he Court granted [a mistrial] sua sponte based on information immediately available to the Court for conduct occurring in the direct presence of the Court. During discussions outside the presence of the jury, Counsel for the parties were informed that a mistrial would be declared based on what had transpired in Court. Counsel for Defendant asked only that, if a mistrial were declared, the same be done with prejudice. Subsequent to the declaring of the mistrial, Counsel for .Defendant stated his objection to the mistrial without prejudice for the purpose of perfecting the record.” The hearing transcript reveals that after asking the court that any mistrial to be granted be done so with prejudice, appellant’s counsel further stated: “And we were all in there when you gave strict instructions to witnesses not to testify among each other or make any comments. The jurors are not supposed to discuss this amongst each other, and now we’ve got an officer of the Court who has done this. . . .” The transcript also reveals appellant’s mistrial objection was made only after the mistrial had been declared and the jury dismissed. Held:

“Once the jury has been impaneled and sworn, jeopardy attaches.” Dotson v. State, 213 Ga. App. 7, 8 (1) (443 SE2d 650). Once jeopardy attaches, “[i]f a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a ‘manifest necessity for the mistrial.” Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483).

“Recognizing the constitutional right of a criminally accused to have his or her trial proceed to an acquittal or conviction once a jury has been impaneled, ‘the power of the trial judge to interrupt the proceedings on his own or the prosecutor’s motion by declaring a mistrial is subject to stringent limitations. . . . (R)etrial is permissible only if a . . . “manifest necessity” is to be determined by weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances. (Cits.)’ ” Reed v. State, 267 Ga. 482, 483-484 (1) (480 SE2d 27). The decision whether any unauthorized statement, communicated to the jury either individually or as a group, is so prejudicial as to warrant a mistrial is in the discretion of the trial court. Roberts v. State, 267 Ga. 669, 674 (8) (482 SE2d 245). “Some of the factors and circumstances to be reviewed in determining whether the trial court abused its discretion in denying the motion for mistrial include the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.” Id. Examining the surrounding circumstances in their totality, we are satisfied that a “manifest necessity” existed for the declaration of a mistrial. At the commencement of this trial, defense had exhibited its grave and warranted concern that appellant’s fair trial rights might be tainted by the jury’s viewing of evidence revealing that appellant’s passenger, a female companion, was laboring under the influence of alcohol. Equally concerned, the trial court attempted to fashion a balanced remedy which allowed the government to present that relevant evidence which was not substantially outweighed by its potential for prejudice of the jury. The statement at issue brought attention to the very type of collateral evidence that the trial court was concerned might bring irreparable harm to appellant and influence the jury to convict him based on a guilt by association analysis. To compound the error, the remark was made during the course of the proceedings in the presence of the jury by the bailiff — an officer of the court designated, by virtue of his courtroom duties, as an unbiased administrative attendant who has charge of a court session in the manner of keeping order, custody of the jury, and custody of prisoners while in the court. See generally Black’s Law Dictionary (5th ed.). The nature of the bailiff’s position served to heighten the prejudicial potential his intemperate remark could have on the jury. In fact, OCGA § 15-12-140 (oath of bailiffs) pertinently provides: ‘You shall make no communication with [the jury] yourself nor permit anyone to communicate with them, except by leave of the court.” Further, the appellate record fails to reveal adequately the volume or inflection with which the bailiff’s remark was made, the facial reaction of any juror who was in a position to hear the remark, or the expression on the face of the bailiff when he made the remark. The trial judge, being present in the courtroom, was better equipped than this appellate court to observe and gauge the impact of some or all of these important factors. As an appellate court, we are compelled to give the trial court’s ruling great deference, as the court was charged with preservation of the accused’s right of fair trial and was in a far better position to determine the prejudicial impact which the bailiff’s intemperate remarks could have had on one or more potential jurors. Moreover, as in Burleson v. State, 259 Ga. 498, 500 (384 SE2d 659), “[n]o prosecutorial misconduct is involved,” and this is a significant factor for appellate consideration. We also note that appellant’s counsel did not immediately object to the trial court’s announcement of its intent to grant a mistrial; neither did appellate counsel propose any lesser alternative which would serve to negate the existing prejudice. These latter factors support tacitly the trial court’s assessment of the degree of harm flowing from the bailiff’s conduct.

The record discloses that the trial court elected not to reopen voir dire to determine the scope and degree of impact which the remark may have had on individual jurors. While such a procedure can in certain situations constitute a wise practice, “[w]hen a trial court determines that a juror has received an improper communication it may, but is not required to, determine whether the communication had in fact prejudiced the juror before granting a mistrial.” Reed, supra at 484 (1). In fact, polling the jury can pose a distinct risk if the trial court is considering the giving of a cautionary instruction, for the very act of jury polling can spread the scope of the unauthorized remark and increase the degree of its prejudicial impact. Moreover, discovery by the trial court of the harmful communication “in itself may support a finding that there was manifest necessity to grant a mistrial” (id.); the case at bar poses such a situation.

Finally, a “trial court’s decision to reject alternatives to granting a mistrial is given great deference, and the availability of another alternative without more does not mean the mistrial was not necessary.” Id. In this case, “It is apparent from the exchange between court and counsel . . . that the defendant was afforded an opportunity to object and to suggest alternatives to the mistrial.” Burleson, supra at 500. In fact, during the out-of-court hearing prior to the mistrial declaration, appellant’s counsel affirmatively voiced his view that any mistrial should be declared with prejudice. The trial judge in the case at bar interjected himself sua sponte to protect the fair trial rights of the accused, rather than the fair trial rights of the State. We recognize that, under the totality of the attendant circumstances, a situation is here created whereby reasonable judges could differ as to the type of disposition required to protect appellant’s fair trial rights. “A trial judge has acted within his sound discretion in rejecting possible alternatives and in granting a mistrial, if reasonable judges could differ about the proper disposition, even though in a strict, literal sense, the mistrial is not necessary. This great deference means that the availability of another alternative does not without more render a mistrial order an abuse of sound discretion. Deference to the judge’s sound discretion also precludes a reviewing court from assuming, in the absence of record evidence, that the trial judge deprived a defendant of constitutional rights.” (Citations and punctuation omitted.) Burleson, supra at 501. This record in its totality reveals that the trial court both at the motion in limine hearing and later at the out-of-court hearing on the mistrial motion carefully analyzed the prejudicial potential of the passenger’s on-the-scene conduct and the seriousness of the bailiff’s intemperate expression of opinion in the jury’s presence regarding the state of the passenger’s sobriety. That the trial court failed to state affirmatively on the record the alternatives, if any, it had considered and rejected in its analysis of the need for mistrial, does not, standing alone, render the trial court’s declaration of a mistrial so unwarranted, under the existing circumstances, as to preclude appellant’s retrial on grounds of double jeopardy.

Decided January 23, 1998

Jamie S. Wingler, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

Under the totality of the circumstances, the trial court did not err in denying appellant’s motion for discharge and acquittal and plea in bar.

Judgment affirmed.

Johnson and Smith, JJ, concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A0358.
    GRANT v. THE STATE.
    (496 SE2d 325)
   Eldridge, Judge.

The defendant, Stanley Grant, Jr., was indicted for selling cocaine in violation of the Georgia Controlled Substances Act. The defendant was found guilty by a jury and sentenced to life in prison. He filed a motion for new trial which was denied. It is from this order that the defendant appeals. Finding no error, we affirm.

1. In his first enumeration of error, the defendant alleges that the trial court erred by refusing to require the State to reveal the identity of the confidential informant (“Cl”). The defendant filed a pre-trial motion requesting, among other things, Brady material and the names of any persons who may have some knowledge of the present case or were participants-witnesses to the events.

At trial, the State called Deputy Steven Singleton of the Bryan County Sheriff’s Department, who was employed as a special agent for the Tri-Circuit Drug Task Force. Deputy Singleton testified that, on October 28, 1994, at approximately 4:25 p.m., he was driving down Martin Luther King Drive in Glennville, Georgia. The Cl was a passenger in his car. As they drove down the street, they passed the defendant. The defendant waved at Deputy Singleton and the Cl. The Cl identified the defendant as “Stanley Grant.” Deputy Singleton turned his car around and stopped at the curb near the defendant. The defendant came over to the passenger side of the car where the Cl was seated, bent down, looked in the passenger window, and asked “What are y’all looking for.” Deputy Singleton responded that he was looking for a “40,” i.e., $40 worth of crack cocaine. The defendant reached into his pocket and pulled out two rocks of crack cocaine and handed it to the deputy. Deputy Singleton gave the defendant two $20 bills. Deputy Singleton testified that, even though the defendant was on the passenger side of the car, he had a clear view of the defendant’s face. The location where the drug buy took place was a hang-out spot for young men, and there were several other young men nearby.

On cross-examination, defendant’s counsel asked Deputy Singleton to reveal the name of the Cl who was in the car with him. The State objected to defense counsel’s question on the grounds that the Cl was still being used and that to reveal his identity “might subject him to danger and/or harm.” Defense counsel stated that the Cl was either an informer-witness or informer-participant whose identity could be material to the defense. The trial court sustained the State’s objection.

“In Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) [(1957)], [which was embraced by our Supreme Court in Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977),] the United States Supreme Court held that the government’s privilege to withhold from disclosure the identity of a confidential informant is limited by the underlying purpose of the privilege itself and ‘the fundamental requirements of fairness.’ Thus, the court concluded that ‘(w)here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.’ The Supreme Court declined to adopt a fixed rule of disclosure, opting instead for a balancing test which would balance ‘the public interest in protecting the flow of information against the individual’s right to prepare his defense.’ The resolution of each case, accordingly, depends on the particular circumstances involved, ‘taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” (Citations omitted; emphasis in original.) Moore v. State, 187 Ga. App. 387, 388-389 (370 SE2d 511) (1988). “The fact that an informant’s possible testimony was highly relevant and might have been helpful to the defense can be established by the circumstances of the case.” (Citations and punctuation omitted; emphasis supplied.) Id. at 390; Roviaro v. United States, supra at 63-64. “The court may consider any factor operative in the particular case before it which is relevant to the application of this balancing test, and all relevant evidence contained in any pretrial, trial and post-trial proceedings.” (Citation omitted.) Bannister v. State, 202 Ga. App. 762, 763 (415 SE2d 912) (1992).

In determining if the Cl’s identity should be revealed by the State, the trial court must conduct a two-step hearing. Initially, the trial court should hear evidence to determine: (a) that the confidential informant is an alleged informer-witness or informer-participant whose testimony appears to be material to the defense on the issue of guilt or punishment; (b) that the testimony for the prosecution and the defense is or will be in conflict; and (c) that the Cl was the only available witness who could amplify or contradict the testimony of these witnesses. Once this threshold has been met, the trial court must conduct an in camera hearing of the Cl’s testimony under the mandates set forth in Thornton, supra, and Moore, supra.

In this case, the defendant testified and admitted being in the area with several other young men at the time of the drug sale; however, he denied selling the cocaine to the deputy. The defendant testified that his younger brother, Joseph Grant, waved the deputy down and sold him the cocaine. The defendant’s testimony was corroborated by the testimony of his younger brother, Joseph Grant, and by Lee Murphy. Joseph Grant admitted waving Deputy Singleton down and selling him the cocaine. Lee Murphy testified that, on the day in question, he was standing on the street with defendant, defendant’s younger brother, and two other individuals, and that defendant’s younger brother was the individual who sold Deputy Singleton the cocaine. Therefore, while there was evidence that the Cl was either an informer-witness or informer-participant and that the testimony of the prosecution and the defense was in conflict, the Cl was not the only witness in a position to amplify or contradict the testimony of the defendant and the police officer. The Cl’s testimony would only be cumulative of the testimony of the other witnesses to the crime. The threshold requirements of the first step of the balancing test were not met, and there was no error in the trial court’s refusal to require the State to reveal the identity of the Cl.

2. Next, defendant alleges that the trial court erred in failing to grant his motion for mistrial, asserting that his character was impermissibly placed into evidence.

In this case, the State introduced evidence of prior drug convictions of the defendant as similar transactions. On direct examination, the defendant’s counsel questioned the defendant about his prior convictions. During this examination, the defendant made an unresponsive answer that he had not sold any crack since the prior convictions. Upon cross-examination of the defendant, the State asked defendant if it was his testimony that he had not been involved with crack cocaine since the 1991 conviction. The defendant answered, “Well, yes ma’am. Besides” before defense counsel objected. The basis for defense counsel’s objection was that the question impermissibly placed the defendant’s character in issue, without the defendant having first placed his character in issue. Defense counsel then moved for a mistrial. The trial court held that the State’s question was impermissible, but denied the motion for mistrial. Instead, the trial court gave curative instructions, advising the jury to disregard the State’s question and the defendant’s answer and not to let the question and answer influence the jury’s verdict in any way. Following the curative instructions, defense counsel renewed his motion for mistrial.

Assuming arguendo, that defendant’s testimony on direct examination regarding his prior convictions had not already placed his character in issue, the instructions given to the jury were an adequate corrective measure, and the trial court did not abuse its discretion by denying the motion for a mistrial. Williams v. State, 262 Ga. 422 (420 SE2d 301) (1992); Mitchell v. State, 222 Ga. App. 866 (476 SE2d 639) (1996).

3. In his final enumeration of error, defendant contends that the trial court erred by permitting the State to introduce into evidence the defendant’s prior convictions for sale of cocaine as similar transactions.

“ Although evidence of independent misconduct is not generally admissible, it may be admissible, after notice and a hearing, pursuant to Uniform Superior Court Rule 31.3, if the [S]tate makes three showings: (1) that the evidence is offered, not to raise an improper inference regarding the character of the defendant, but for a proper purpose; (2) that there is sufficient evidence that the defendant committed the independent act; and (3) that there is sufficient similarity between the independent act and the charged offense to demonstrate that the independent act is logically relevant to a material issue in dispute in the trial. See Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991) Mitchell v. State, 265 Ga. 71, 72 (2) (453 SE2d 731) (1995).” Posey v. State, 222 Ga. App. 405 (474 SE2d 206) (1996).

At the hearing, the State sought to introduce two prior convictions for the sale of cocaine to show plan, scheme, bent of mind, and identity. Although the offenses were indicted under separate case numbers, the conduct occurred on the same day, March 2, 1991. Both cases were consolidated for a plea of guilty by the defendant. A certified copy of the guilty plea was introduced into evidence.

The investigating officer for both of these cases was Agent Woodrow Boyd. Agent Boyd testified that he and a Cl went to a club located on Martin Luther King Drive in Glennville, Georgia. The Cl asked an unidentified male if Stanley Grant was around. The unidentified male went into the club, and the defendant, Stanley Grant, came out to the vehicle. When the Cl asked defendant for some cocaine, defendant went back into the club, came back to the car and all three left the club. Agent Boyd stopped the car on Laura Street, and defendant sold them $100 worth of crack cocaine. The defendant advised the agent that he would have two big $50 rocks later on, and the agent stated that he would be back later the same day.

Agent Boyd further testified that when he and the Cl returned to the same nightclub later that day, the Cl again asked a male, identified as Chris Stokes, who was standing outside, if the defendant was still around. Stokes went into the nightclub and again the defendant came back out and got into the vehicle with Agent Boyd and the Cl. The defendant did not have the two big $50 rocks, but had some crack cocaine. The defendant was unsure how to sell the crack cocaine. The defendant summoned another individual from the nightclub, and the transaction between the defendant and the agent was completed.

The trial court did not err in concluding that the two prior offenses were similar enough to the instant offense so that the former tends to prove the latter.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided January 23, 1998.

Cheney, Waters & McCullough, Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A98A0375.
    PRUITT v. THE STATE.
    (496 SE2d 324)
   Birdsong, Presiding Judge.

Harold E. Pruitt appeals his judgment of conviction of arson in the first degree. He enumerates three errors. Held:

1. Appellant contends the trial court erred in failing to consider all required statutory factors in imposing restitution. We agree. OCGA § 17-14-10 requires the ordering authority to consider the factors therein listed “[i]n determining the nature and amount of restitution,” if any, to be ordered as a condition to relief as to sentence. See Slater v. State, 209 Ga. App. 723, 725 (4) (434 SE2d 547). (Note: OCGA § 17-14-2 (5) and (6) define the terms “ordering authority” and “relief,” respectively.) OCGA § 17-14-10 (1) requires the ordering authority, in this instance the trial court, to consider “[t]he present financial condition of the offender and his dependents.” The record reveals that the trial court considered as controlling the financial condition of appellant at the time the original defective sentence was imposed; and, regarding appellant’s present financial condition at the time of resentencing, the trial court affirmatively stated on the record that “I don’t think I have to take into consideration anything that has occurred since that time in order to impose sentence.” As the appellate record reflects that the trial court did not consider all of the OCGA § 17-14-10 factors, particularly, but not limited to appellant’s present financial condition at the time of resentencing, the sentence must again be vacated and the case remanded with direction. Dukes v. State, 213 Ga. App. 701, 703 (5) (446 SE2d 190), rev’d in part on other grounds, 265 Ga. 422 (457 SE2d 556).

2. “ We find that (OCGA §§ 17-14-8 through 17-14-10) contemplate a hearing and specific written findings by the court in determining whether it will order restitution and, if so, the amount thereof.’ ” Bridges v. State, 208 Ga. App. 555 (1) (431 SE2d 164); compare Gaskin v. State, 221 Ga. App. 142, 144 (3) (a) (470 SE2d 531) (OCGA § 17-14-10 requires the ordering authority to make a record regarding consideration of certain enumerated factors; the trial court failed to enter written findings as required by law). “If the trial court again imposes restitution as a condition of probation on remand, it (and the State) should ensure that a hearing is [again] held, the necessary factors are considered, and the necessary [written] findings are made — on the record.” Jones v. State, 224 Ga. App. 340, 341 (2) (480 SE2d 618); Slater, supra at 726 (4); Dukes, supra at 704 (5), citing Garrett v. State, 175 Ga. App. 400 (1) (333 SE2d 432) (written findings of fact relating to the factors set forth in OCGA § 17-14-10 should be made upon remand and rehearing in the event restitution is again ordered). Westmoreland, v. State, 192 Ga. App. 173, 176 (2) (b) (384 SE2d 249), which involved a situation of induced error, is distinguishable and not controlling in this case.

Decided January 23, 1998.

George E. Argo, for appellant.

3. We note that the $10,000 fine was not imposed as a condition of restitution (see generally OCGA § 17-14-2 (7)); the statutory provision pertaining to restitution is not applicable to that portion of the sentence.

4. In view of our holding in Divisions 1 and 2, above, we do not here address appellant’s remaining contentions; however, in the interest of judicial economy, we find that in order for the court to award restitution to appellant’s former wife, the trial court must find and the record must support the finding that she was a “victim” within the meaning of OCGA § 17-14-2 (7) and (8). We further note appellant’s contention that “[t]o include the enforcement of a civil judgment in a criminal judgment is imprisonment for debt and is prohibited by [Art. I, Sec. I, Par. XXIII of] the Constitution of this State.” Appellant has failed to cite any cases directly in point with this contention, and we are unaware of any cases in which our appellate courts have interpreted this constitutional provision under the circumstances of restitution here attendant. Compare Maurier v. State, 112 Ga. App. 297 (144 SE2d 918); Curtis v. State, 102 Ga. App. 790 (118 SE2d 264). In this regard, this Court lacks jurisdiction to construe, particularly as to questions of first impression, the scope of the Georgia Constitution of 1983 and its application to the facts of this case. Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1); Kolker v. State, 193 Ga. App. 306, 307 (1) (387 SE2d 597), aff’d, 260 Ga. 240 (391 SE2d 391); Phillips v. MacDougald, 219 Ga. App. 152, 155 (2) (e) (464 SE2d 390); see In the Interest of T. A. W., 214 Ga. App. 1, 2, 5 (447 SE2d 136), rev’d on other grounds, 265 Ga. 106 (454 SE2d 134).

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

Johnson and Smith, JJ, concur.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.


text:
    A98A0377.
    SERCHION v. STATE OF GEORGIA.
    (496 SE2d 333)
   Birdsong, Presiding Judge.

William Serchion appeals the final order of forfeiture entered by the superior court directing the forfeiture and sale of his 1989 conversion van, which had been seized by the Atlanta Police Department pursuant to OCGA § 16-13-49. Appellant enumerates two errors. Held-.

1. The trial court did not err by failing to dismiss the State’s notice of seizure on the grounds the notice failed to comply with OCGA § 16-13-49 (n) (1) and (2). Appellant contends that the State’s notice was deficient as it failed to expressly inform appellant, in accordance with the provisions of OCGA § 16-13-49 (n) (1) and (2), of the 30-day period within which a claim must be submitted. Pretermitting the questions whether the notice was in substantial compliance with the forfeiture statute (see generally McMichen v. State of Ga., 209 Ga. App. 169, 170 (1) (433 SE2d 92)), and whether the notice is deficient is the question whether any error would require case reversal under the attendant circumstances.

Although OCGA § 16-13-49 (n) (1) and (2) provide that the notice shall inform the owner of the seized property that he has 30 days in which to file a claim, OCGA § 16-13-49 (n) (3) and (6) clarify that the owner or interest holder may file a timely claim within 30 days after the second publication of the notice of forfeiture. See Roberts v. State of Ga., 226 Ga. App. 824, 825 (2), n. 1 (487 SE2d 667). Any claim duly filed in accordance with the 30-day period specified in OCGA § 16-13-49 (n) (3) would be timely. The State’s notice was filed on July 22, 1996; notice of forfeiture was published for three consecutive weeks commencing on August 1, 1996, and ending on August 15, 1996. Appellant filed his claim on August 22,1996. On September 23,1996, the State filed a motion for judgment of forfeiture and disposition of property and to stay further proceedings contending that appellant’s answer failed to satisfy the pleading requirements of OCGA § 16-13-49 (n) (4). In granting the State’s motion for judgment of forfeiture the trial court tacitly found that appellant’s initial answer was timely filed; but it expressly found the answer was deficient in that it failed to comply with the strict pleading requirements of OCGA § 16-13-49 (n) (4) (D). The trial court correctly concluded that appellant’s initial answer on August 22, 1996, was timely, it having been duly submitted within 30 days of the second publication of the State’s forfeiture notice. Appellant’s claim was not held untimely, and the contents of his initial answer were considered by the trial court in determining whether it complied with the requirements of OCGA § 16-13-49 (n) (4). Thus, appellant has failed to show how he has been harmed by any error resulting from the State’s mere recitation in its forfeiture notice of the applicable Code section for filing answers, without also expressly informing appellant of the 30-day period contained within that same Code section for the submission of claims. Cf. Tant v. State, 247 Ga. 264, 266 (275 SE2d 312) (the fact that the owner had adequate notice and opportunity for hearing was apparent from his timely filing of a response to the automobile condemnation proceedings and his oral testimony at the hearing). To obtain reversal on appeal both error and harm must be shown (see generally Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901)); this appellant has failed to do.

On October 24, 1996, claimant filed an amendment to answer of claimant. The trial court correctly concluded that appellant’s amendment to answer, filed long after the statutory 30-day period had expired for the submission of claims, did not relate back to cure deficiencies in the claim submitted in the initial answer. See Roberts, supra at 825 (2), n. 2; Jarrett v. State of Ga., 220 Ga. App. 559, 561 (2) (472 SE2d 315); but compare Lee v. State of Ga., 225 Ga. App. 733 (484 SE2d 777) (an amendment merely to correct a mistake should be allowed). As appellant has failed to contend on appeal that failure to notify him expressly of the 30-day claim period caused his amendment to answer to be submitted untimely or that it was error not to consider this amendment in determining whether his initial answer was deficient, these issues are abandoned and not preserved for appellate review. Moore v. Winn-Dixie Stores, 214 Ga. App. 157, 158 (1) (447 SE2d 122).

2. Appellant contends the trial court erred by holding appellant’s answer did not comply with OCGA § 16-13-49 (n) (4) (D). Failure to comply with the strict pleading requirements prescribed in OCGA § 16-13-49 (n) (4) “ ‘when answering an in rem forfeiture petition is equivalent to filing no answer at all.’ ” Tuggle v. State of Ga., 224 Ga. App. 353, 355 (1) (480 SE2d 353). OCGA § 16-13-49 (n) (4) pertinently provides: “The claim must be signed by the owner or interest holder under penalty of perjury and must set forth:. . . (D) The date, identity of the transferor, and circumstances of the claimant’s acquisition of the interest in the property.” In holding that appellant’s answer failed to comply with the pleading requirements of OCGA § 16-13-49 (n) (4) (D), the trial court concluded: “[Appellant] does not provide an exact date of his alleged purchase of the van, but merely states that he acquired the vehicle in ‘approximately October 1995.’ More significantly, he does not identify the transferor, as required by the statute. Instead, he alludes vaguely to a ‘car lot on Thornton Road.’ Finally [appellant] completely ignores the statutory command to set forth ‘the circumstances of the claimant’s acquisition of the interest in the property.’ [Appellant] does not provide any facts concerning the circumstances of the acquisition of his van, such as purchase price, whether the vehicle was financed, or the purpose for which it was purchased. [Appellant’s] [a]nswer simply does not constitute a reasonable attempt to comply with the statute.”

“[T]he pleadings and procedure under OCGA § 16-13-49 (n) are analogous to the procedure in OCGA § 16-13-49 (o),” Roberts, supra at 825 (2), n. 2, and, contrary to appellant’s contention, the weight to be given to deficiencies in pleadings under the former statutory provision is no less than the weight given to deficiencies under the latter. Thus, the sufficiency of pleadings under OCGA § 16-13-49 (n), like pleadings submitted under OCGA § 16-13-49 (o), “must be judged in light of the specific statutory requirements” pertaining thereto. See State of Ga. v. Alford, 264 Ga. 243, 245 (2) (a) (444 SE2d 76). Forfeiture proceedings under OCGA § 16-13-49 constitute a legitimate civil sanction; while it is true that the statute has punitive aspects, its purposes are remedial by its express terms. Murphy v. State, 267 Ga. 120, 121 (475 SE2d 907). In this regard, the statute serves various nonpunitive goals, among them, rendering illegal behavior nonprofitable and ensuring that persons do not profit from their illegal acts. Id. Other nonpunitive goals include the removal from circulation of forbidden merchandise and firearms unlawfully used or intended for illegal use (id.), and all property declared to be contraband pursuant to OCGA § 16-13-49 (d). In fulfilling these broad nonpunitive goals, it was the legislative intent to enact a forfeiture statute which would “provide for the prompt disposition of property subject to forfeiture” and would “protect the interests of innocent property owners.” Alford, supra at 245 (2) (b). To fulfill this intent, a balance was struck whereby the burden would not be placed upon the State of conducting time-consuming discovery “to determine not only the claimant’s standing and interest in the property but also that of any other interested party.” Id. at 246. Rather, the burden was “placed upon a claimant to make specific legal and factual assertions in support of and ultimately to prove [the] required elements of innocent ownership.” Id. Thus, not only must the claimant provide enough information to assure some degree of legitimacy to the claim, he must strictly comply with and provide, with the required particularity, each of the elements of OCGA § 16-13-49 (n) (4), thereby giving the State the statutorily required information necessary to expedite the forfeiture proceedings. See Tuggle, supra at 355 (1). Accordingly, if a claimant fails to state with the required particularity each of the strict pleading requirements of OCGA § 16-13-49 (n) (4) (D), such failure would support a trial court’s ruling that appellant’s answer was deficient. Compare Tuggle, supra at 354 (1). Examining appellant’s answer in this light, we find that it did not, on its face, comply with each and every strict pleading requirement of OCGA § 16-13-49 (n) (4). We will not reverse the correct holding of a trial court regardless of the reason therefore. Krebsbach v. State, 209 Ga. App. 474 (1) (433 SE2d 649).

Decided January 23, 1998.

M. P. Schildmeyer, for appellant.

J. Tom Morgan, District Attorney, Stephen D. Sencer, Assistant District Attorney, for appellee.

3. Appellant’s contention that none of the factual allegations in the State’s pleadings should be taken as true, because they were not verified or sworn as required for a complaint filed under OCGA § 16-13-49 (o), is not reasonably contained within the scope of appellant’s enumerations of error; thus, the issue is not preserved for appellate review. Krebsbach, supra at 475 (2); Jones v. Sauls, 213 Ga. App. 55, 58 (3) (c) (443 SE2d 693).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A98A0437.
    DUDLEY v. THE STATE.
    (496 SE2d 341)
   Eldridge, Judge.

The defendant, Robert H. Dudley, appeals from an order of the Wilcox County Superior Court which granted him supersedeas bond pending action on his motion for new trial. The defendant was convicted of three misdemeanor counts of simple battery on September 4, 1997. The charges arose when the defendant, who was the Chief of Police of Pineview in Wilcox County, used pepper spray on four individuals during an arrest.

The defendant was sentenced to three consecutive twelve-month sentences, with eight months to serve in prison and the balance to be served on intensive probation. The probation was conditioned upon the following requirements: “The defendant is to have no activity in law enforcement, bail bonding, dog training, private investigation while on probation. The defendant is to have no contact with [the victims]. The defendant [is] to be supervised on the Intensive level. The defendant is banished from Wilcox [County, Georgia].” Further, as part of the intensive supervision requirements, the defendant had to abide by a curfew and obtain prior approval for any travel outside of his county of residence, Troup County.

Following sentencing, the defendant moved for a new trial and for supersedeas bond pending action on his motion and his anticipated appeal. The trial court granted the defendant’s bond motion and set his bond at $10,000, subject to the intensive probation requirements and special conditions of the defendant’s sentence. It is from this order that the defendant appeals.

In his sole enumeration of error, the defendant asserts that, because he is entitled to supersedeas bond pending appeal as a matter of law under OCGA § 17-6-1 (b) (1), the imposition of these bond conditions resulted in an excessive bond and, thus, a denial of such bond in violation of his statutory and constitutional rights. See Jones v. Grimes, 219 Ga. 585, 587 (134 SE2d 790) (1964). Specifically, the defendant asserts that the bond conditions prohibit him from working in his chosen profession, law enforcement, as well as several related professions. He notes that the conditions, along with the curfew and travel restrictions, effectively prevent him from earning a living in any field for which he is licensed or trained.

In reviewing the trial court’s grant of supersedeas bond, we note that the amount of bond to be assessed rests within the discretion of the trial court and will not be disturbed absent an abuse of such discretion. Id. at 587; see also OCGA § 5-6-45 (a); Goodine v. Griffin, 309 FSupp. 590, 591 (S.D. Ga. 1970); Clarke v. State, 228 Ga. App. 219 (491 SE2d 450) (1997). The principal consideration in setting such bond is ensuring that the defendant will appear to serve his sentence upon conclusion of the appellate proceedings, while protecting the public’s safety interests. Birge v. State, 238 Ga. 88, 90 (230 SE2d 895) (1976); Jones v. Grimes, supra at 587; Clarke v. State, supra.

"There are no hard and fast rules for determining what is reasonable [bond] and what is excessive [bond]. The question must be determined according to the circumstances of each case.” Jones v. Grimes, supra at 587 (2). Factors to be considered in setting the amount of bond include, inter alia, the ability of the defendant to pay, the seriousness of the offense, the length of sentence imposed, the character and reputation of the accused, and whether there has been a forfeiture of other bonds. Id. Further, the trial court must consider whether or not there is a substantial risk that the defendant “ ‘will not appear to answer the judgment following conclusion of the appellate proceedings^ whether the defendant is] likely to commit a serious crime, intimidate witnesses or otherwise interfere with the administration of justice, and [whether the appeal is] frivolous or taken for delay.’ ” Birge v. State, supra at 90; see also OCGA § 17-6-1 (e).

“However, in lieu of setting a higher [bond], which may preclude a defendant from being released at all [pending appeal], a trial court may choose to impose reasonable restrictions on a defendant’s behavior.” Clarke v. State, supra at 220. Even though OCGA § 17-6-1 (b) (1) requires the trial court to set bond pending appeal for misdemeanor offenses, such bond does not have to be unconditional, as long as the conditions are reasonable under the facts and circumstances of the case. Id.; see also Jones v. Grimes, supra at 587. Such approach “bridges the gap between two seemingly inconsistent statutory provisions: (1) the absolute requirement of bail for committing misdemeanor offenses under OCGA § 17-6-1 (b) (1), and (2) the trial court’s limited authorization to release a person on bail if the court finds that the person poses no significant threat or danger to any person, to the community, or to any property in the community, under OCGA § 17-6-1 (e) (2).” (Citations and punctuation omitted.) Clarke v. State, supra at 220.

In this case, however, we find that the trial court abused its discretion in setting overly broad and oppressive conditions on the defendant’s bond. The defendant was convicted of simple battery after spraying four people with pepper spray while attempting to make an arrest as a law enforcement officer in Wilcox County. Under the circumstances, a total prohibition on working in law enforcement during the post-trial motion and appeal process is an unreasonable and excessive restriction that amounts to an abuse of the trial court’s discretion. Such limitations should be imposed, if at all, by the defendant’s employer or by the agencies which certify law enforcement personnel. Further, there is nothing in the record which would support the other restrictions on the defendant’s employment during the appeal process, including prohibitions against bail bonding, dog training, and private investigations; the imposition of a curfew; travel restrictions; and total banishment from Wilcox County. In fact, such restrictions appear to be totally unrelated to the offense for which the defendant was convicted and are, therefore, unreasonable as a matter of law. Accordingly, to the extent that these restrictions are imposed on the defendant’s supersedeas bond, the order must be vacated and remanded with directions to issue a new order that is consistent with this opinion.

Decided January 23, 1998.

Franklin H. Thornton, for appellant.

John C. Pridgen, District Attorney, Patrick J. McDonough, Assistant District Attorney, for appellee.

Although the defendant does not specifically challenge the prohibitions against contact with the victims, we find that such prohibitions are reasonable under the circumstances of this case. See Clarke v. State, supra at 221. As such, these restrictions are affirmed.

Order affirmed in part, vacated in part and remanded for bond determination in accordance with this opinion.

McMurray, P. J., and Blackburn, J., concur.

       As there is no constitutional right to bond following a conviction, the only constitutional issue for this Court to decide is whether the trial court’s bond restrictions amounted to an excessive bond. See Jones v. Grimes, 219 Ga. 585, 586 (134 SE2d 790) (1964); see also Ga. Const. of 1983, Art. I, Sec. I, Par. XVII.

       The defendant is certified as a law enforcement officer in Georgia, South Carolina, and Florida.

       As no bond hearing was held on the defendant’s motion and no factual findings were included in the trial court’s order, this Court will not assume that the restrictions were supported by evidence beyond that in the record. But see Moore v. State, 151 Ga. App. 413 (260 SE2d 350) (1979).


author: Judge Harold R. Banke.

text:
    A97A2349.
    KIM v. THE STATE.
    (496 SE2d 272)
   Judge Harold R. Banke.

Susan Marie Kim was convicted of masturbation for hire. She challenges the sufficiency of the evidence on appeal.

This case arose after law enforcement authorities received a complaint from a woman whose husband purportedly had paid for a sexual act at a local health spa. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). A detective arranged for a confidential informant who had previously received sexual stimulation at the spa to investigate. The confidential informant made an appointment for a massage and obtained a wire tap and funds from the authorities.

During the confidential informant’s massage, the detective listened from a surveillance van outside the spa. After the confidential informant disrobed and paid Kim $60, she also undressed and massaged him for 15 to 20 minutes. Then Kim told him to turn over, began fondling his genitalia, and asked if he wanted “what else he usually got.” At that point, the confidential informant signaled the detective, who immediately entered to discover Kim, naked, straddling the confidential informant with his genitalia in her hand. The detective ordered Kim to dress and arrested her. Held:

Whether the evidence, viewed in the light most favorable to the State, is sufficient to permit the jury to find each essential element of the crime presents a close question. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). “[T]he crime is committed when a person for hire . . . erotically stimulates the genital organs of another by (a) manual contact, (b) other bodily contact, or (c) instrumental manipulation. . . .” Harwell v. State, 237 Ga. 226 (227 SE2d 344) (1976).

Decided January 8, 1998

Reconsideration denied January 26, 1998

Germano, Kimmey & Cheatwood, John L. Kimmey III, for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Maurice Bennett, Assistant Solicitors, for appellee.

Kim maintains that no evidence supported the element that she acted “for hire” because the arrest occurred before any discussion of payment or any money for the sexual service exchanged hands. The primary evidence supporting the “for hire” element is the confidential informant’s testimony that Kim had massaged and masturbated him at least five times previously and had usually allowed him to “tip” her for the service at its conclusion (which was interrupted by Kim’s arrest here).

Masturbation for hire, like prostitution, is defined in terms of commercialization. Pak v. State, 206 Ga. App. 78, 79 (424 SE2d 292) (1992). Thus, notwithstanding Kim’s argument, this offense does not require proof that money actually exchanged hands or that the defendant was paid an exact amount of money. The State was simply required to show that the act was performed “for hire,” as part of a business transaction. Id.; Harwell, 237 Ga. at 226.

The confidential informant’s unobjected-to testimony about the prior transactions spoke to that issue. Furthermore, Kim’s own question to the confidential informant at the massage’s conclusion, when she asked if he wanted “what else he usually got,” bolstered his testimony. We believe this evidence was sufficient to present a jury question on whether the act was committed for money. See Bailess v. State, 168 Ga. App. 56, 57 (308 SE2d 61) (1983).

Judgment affirmed.

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

       This evidence is, in effect, unobjected-to similar transaction testimony which was admitted without prior notice or a hearing as contemplated by Uniform Superior Court Rule 31.3. Although this Court has held that the admission of similar transaction evidence without a'Rule 31.3 hearing is not waivable error despite a failure to object, our Supreme Court has raised questions about this rule’s validity. Stirrat v. State, 226 Ga. App. 350, 351-352 (2) (a) (486 SE2d 640) (1997). In Williams v. State, 267 Ga. 308, 309-310 (3) (477 SE2d 570) (1996), the court held that the issue could not be raised for the first time on appeal. Here, Kim failed to raise the issue at trial or on appeal. Thus, any error was waived.


text:
    A98A0169.
    JORDAN v. THE STATE.
    (496 SE2d 486)
   Judge Harold R. Banke.

Tremaine Jordan was convicted of aggravated battery and aggravated assault. In his single enumeration, he challenges the effectiveness of his trial counsel.

This case arose after Jordan’s former girl friend called him, seeking a ride to the house of the victim, her new boyfriend. Jordan obliged and dropped her off; then, professing to have car trouble, he returned to use the phone. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). Jordan called several friends, who, upon their arrival, surrounded the victim and frightened him. The victim, in turn, called a friend to join him. Eventually, Jordan got out of his car, holding a boxcutter behind his back, approached the unarmed victim, and slashed his face, arms and back, puncturing his lung. Jordan then ran to his car and drove off. Held:

To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and but for the deficiency there was a reasonable probability the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). Review of counsel’s performance must be highly deferential. Rogers v. State, 195 Ga. App. 446, 448 (2) (394 SE2d 116) (1990). Tactical errors do not constitute ineffective assistance. Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790) (1994). Moreover, we need not inquire into counsel’s alleged deficiency, absent a showing of prejudice. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995).

(a) Jordan alleges that trial counsel failed to adequately prepare him to testify. The record shows that in the eleven months between the time counsel was retained and trial, he met with Jordan on numerous occasions, including at the jail, during the preliminary hearing, twice at his office, during two school board meetings concerning the incident, at arraignment, and at each of the four or five calendar calls. Counsel testified that he discussed the case with Jordan, reviewing the facts and Jordan’s potential testimony. Because Jordan was an articulate young man with vivid recollections of the incident, counsel felt no need to tell Jordan what to say beyond instructing him to tell the truth, be polite, and avoid getting angry on cross-examination.

None of Jordan’s testimony could be deemed sufficiently prejudicial to satisfy the requisites of an ineffectiveness analysis. Nor does the evidence support a finding that trial counsel was deficient. These facts preclude a finding that the trial court’s resolution of this issue was clearly erroneous. Morgan v. State, 226 Ga. App. 624, 625 (3) (487 SE2d 420) (1997).

Decided January 26, 1998.

Paige A. Pastor, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

(b) We reject Jordan’s contention that trial counsel failed to adequately prepare defense witnesses. The record shows that two of the three friends Jordan called prior to the incident testified. Counsel interviewed both prior to trial. Consistent with their interviews, these young men testified that the victim was the aggressor, which undermines Jordan’s nebulous assertion that counsel’s purported failure to prepare these witnesses somehow prejudiced him. Counsel’s tactical decision not to interview the third witness after learning of his criminal history likewise will not support an ineffectiveness claim, particularly when the witness was incarcerated at the time of trial for a probation violation and his testimony would have been cumulative. Evidence that trial counsel cross-examined several of the State’s witnesses at the school board hearing and obtained their statements to police undermines Jordan’s claim that counsel only interviewed one of the State’s witnesses prior to trial. Absent a showing of deficiency or prejudice, we must affirm the trial court’s ruling on this issue.

(c) Finally, Jordan argues that trial counsel was deficient for failing to subpoena a number of character witnesses. When the trial progressed more quickly than trial counsel had anticipated, only three of Jordan’s character witnesses were present to testify. When the court denied his request for a continuance, trial counsel rested. Counsel testified that he did not subpoena the absent witnesses because they wanted to attend and assist Jordan. Having considered their testimony during the motion for new trial hearing and that of the character witnesses presented at trial, we conclude that the absent witnesses’ testimony was cumulative. The exclusion of such evidence was not deficient. See Pilcher v. State, 170 Ga. App. 869, 871 (4) (318 SE2d 640) (1984). Accordingly, the trial court’s rejection of Jordan’s claims of ineffectiveness was not clearly erroneous. Morgan, 226 Ga. App. at 625 (3).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       The counts were merged for sentencing purposes.


text:
    A98A0338.
    SPARTI v. JOSLIN.
    (496 SE2d 490)
   Birdsong, Presiding Judge.

Appellant Dr. John G. Sparti appeals from an order confirming a foreclosure sale of property. He enumerates four errors. Held:

1. Appellant contends the trial court erred in allowing appellee/ plaintiff Dennis Joslin to proceed in this action without admissible proof that he had been assigned the rights to confirm the sale and seek a deficiency judgment. An application for confirmation of a foreclosure sale of subject property initially was filed by FDIC. The trial court entered an order filing the confirmation and appellant/defendant timely answered. Subsequently, appellee filed a motion for substitution of party on the grounds that he had purchased this account from FDIC and that the claim had been assigned to him. The record reflects that the motion for substitution was unopposed; the trial court granted the motion.

OCGA § 44-14-161 (a) places the responsibility for commencement of the confirmation proceeding upon the person instituting the foreclosure proceedings. FDIC commenced this proceeding as required by statute. A petition for confirmation is not a civil suit in the ordinary meaning of that term but only an application to the judge of the superior court. Vlass v. Security Pacific &c. Bank, 263 Ga. 296 (1) (430 SE2d 732). The issue whether appellee was a real party in interest is not relevant to this confirmation proceeding, which was commenced in accordance with OCGA § 44-14-161 (a) by the person instituting the foreclosure proceedings. “The only purpose of the confirmation statute is to subject the creditor’s potential deficiency claim To the condition that the foreclosure sale under power be given by judicial approval.’ [Cit.]” Vlass, supra at 297 (1). “The confirmation proceeding is a statutory proceeding which by law determines only that the sale was properly advertised and brought the fair market value of the land.” Harris & Tilley, Inc. v. First Nat. Bank &c., 157 Ga. App. 88, 91 (5) (276 SE2d 137); compare Guthrie v. Bank South &c., 195 Ga. App. 123, 126-127 (393 SE2d 60) (two judge special concurrence in a panel case) (contention that lack of proof of assignment of security deed to appellee could not be considered in a confirmation proceeding); but compare Guthrie, supra at 124 (2) (one judge majority; physical precedent only) (even if failure to prove assignment of security deed were a proper issue for confirmation proceeding, issue was waived by failure to raise in a timely and proper manner). Appellant’s enumeration, as crafted, is without merit.

Assuming arguendo that the issue of assignment had been a proper matter for judicial resolution at a confirmation hearing, appellant waived that issue by failing to timely file opposition in proper form to the motion for substitution of appellee as party plaintiff. Compare Guthrie, supra at 124 (2) (physical precedent only). In this State, “ ‘[a] party cannot during the trial ignore what he thinks to be an injustice, taking his chance on a favorable verdict, and complain later.’ ” Bolden v. Carroll, 239 Ga. 188, 189 (1) (236 SE2d 270).

2. Appellant’s contention that the trial court erred in finding that the notice was properly advertised because the last advertisement was not distributed to the public as a whole is without merit. The parties duly stipulated that: “ ‘The F.D.I.C. advertised the sale of the property in [T]he Dallas News Era as published on June 10, 17, 24 and July 1, 1993.’” An attorney for FDIC testified that FDIC advertised the sale of the property in the manner authorized by the power of sale and that the advertisement was published in The Dallas News Era on the above dates. The attorney further testified that he had personal knowledge of these facts and that he caused the advertisement to be placed and published. Plaintiff’s Exhibit 5 contains an affidavit of publication and that the referenced advertisement ran for four weeks in The Dallas News Era, on said dates, and that The Dallas News Era is the official legal organ of Paulding County, and appellant does not contest this fact. Further, the page in the record cited in appellant’s brief does not support his contention that the July publication in The Dallas News Era was not distributed to the public as a whole. Although the question was posed to an FDIC witness whether the last advertisement in the paper was delivered only, simply mailed out, and not distributed to the public on the street, no answer was obtained to that question. We are unaware of any place in the trial transcript or record where this particular issue was addressed and any affirmative evidence attained thereto. “ ‘ “The burden is upon the party alleging error to show it affirmatively by the record.” ’ ” Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (1) (386 SE2d 709). Moreover, it is not the function of an appellate court to cull the record in search of error on behalf of a party (Manderson &c. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251)) and we decline to depart from this sage practice now. Nór can appellant establish the facts necessary to support his contention merely by recitation of factual allegations in his brief that are unsupported by the record. Behar v. Aero Med. Intl., 185 Ga. App. 845 (1) (366 SE2d 223).

Additionally, OCGA § 9-13-140 does not require that the advertisement be circulated to the public “as a whole.” In fact, OCGA § 9-13-142 provides inter alia that a journal or newspaper cannot be made the official organ of any county for publication of official or legal advertising “unless the newspaper shall have been continuously published and mailed or delivered to a list of paid bona fide subscribers in that county . . . and unless 85 percent of the circulation of the newspaper or journal is paid circulation.” (Emphasis supplied.) Construing these two in pari materia statutes, we find there exists no requirement that a journal or newspaper must in fact be distributed to the public “as a whole,” in the context here asserted by appellant, in order for the advertisement to be deemed sufficiently and legally published. This enumeration of error is without merit.

3. Appellant asserts the trial court considered matters outside the record to support its finding that the property was sold at fair market value, and that there exists insufficient competent and credible evidence of record to support the finding.

(a) On appeal the evidence must be viewed in the light most favorable to support a judgment or verdict. In the Interest of E. P. N., 193 Ga. App. 742, 747 (2) (388 SE2d 903). Determining witness credibility and weighing evidence are not appellate court functions (Horney v. Lawrence, 189 Ga. App. 376, 378 (3) (375 SE2d 629)); it is our function to test for evidence sufficiency. There exists sufficient evidence to support the findings of the trial court that the property sold for its fair market value of $71,700. The evidence as to the fair market value of this property was, as would be expected, in conflict. Evidence exists that on behalf of FDIC a state licensed appraiser appraised the property on June 26, 1993 for $71,700 and reappraised the property as having a value of only $64,000 as of July 1, 1993 (This appraiser gave detailed testimony as to the deteriorated condition of the interior of both the house and the building). Appellant’s state licensed appraiser, who had not been inside the building and house but had taken pictures through the windows of these structures, appraised the property as having a value, as of July 6, 1993, in the amount of $158,000. Value on the date of sale is a factual question to be resolved by the trior of fact. Thompson v. Maslia, 127 Ga. App. 758, 764 (195 SE2d 238). In a proceeding for confirmation of a foreclosure sale of real property, “[t]he judge sits as a trior of fact, and his findings and conclusions have the effect of a jury verdict. ‘Where the trial judge, sitting as the trior of the facts, hears the evidence, his finding based upon conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. [Cits.]’ [Cit.] What value is, or may have been, is a question of fact to be resolved as others are. In so doing the trior of fact (here the judge) is the judge of the credibility of the witnesses and of the weight to be given the evidence.” Id. at 764.

(b) Appellant also contends the following findings in the trial court’s order, signed and filed on August 6,1997, were based on information outside the trial record: “For many years, both the building and house have been mainly vacant. The building was last occupied several years ago as a restaurant. The house was last used as a residence even longer ago.” Appellant asserts that the only evidence as to the vacancy of these premises was obtained from the appellee’s appraiser who testified that the property had only been vacant for several months before the appraisal; this fact is also contained in the November 30, 1995 appraisal of the appellee’s appraiser, admitted in evidence at Exhibit P-13, which determined the fair market value of the property as of July 1, 1993. The exhibit further reveals that the building was designed as a small community hospital but had last been used as a restaurant. Additionally, appellant contends there exists no evidence of record to support the trial court’s finding that “West Memorial Drive ceased being a major highway when U.S. 278 was rerouted to a four lane highway half a mile away.” In this regard, appraisal Exhibit P-13, states: “The subject [property] is not in a high volume traffic area suitable for new commercial development.” The same information as to property vacancy, last use of the property and that the property was not located in a high volume traffic area also was contained in another appraisal by the same appraiser, appraising the fair market value of the property as of June 1992. An appraiser for appellant testified that the building was last used as a restaurant. Appellant’s appraiser also identified pictures, which he had taken of the property in February 1994; pictures of the interior of the building, Exhibit D-4, reveal a condition therein from which it could reasonably be inferred that the building was vacant at that time.

It is clear from the record that there exists affirmative evidence of record that the building and the house both were vacant, the house had last been used as a residence, the building had last been used as a restaurant, and that these properties were not situated by a high volume traffic area. Further, the trial court, as finder of fact, was entitled to rely and utilize the presumption of continuity (see generally Esco v. Jackson, 185 Ga. App. 901, 906 (366 SE2d 309) and progeny) in its conclusion that the braiding and house both had remained vacant for several years. The dates the vacant property was examined, as reflected in the various appraisal reports and the date the appellant’s appraiser took pictures of the interior of the building, establish that the property was vacant on those occasions; the trial court could properly apply the rebuttable presumption of continuity to conclude that both the house and the building had remained vacant from the first known period of vacancy to the date of his order.

The record, however, does not support the trial court’s findings that the house had been vacant longer than the building or that West Memorial Drive had ceased to be a major highway upon the rerouting of U. S. 278. Applying the applicable test for judicial notice found in Cole v. Cates, 110 Ga. App. 820, 823 (1) (c) (140 SE2d 36), we conclude these particular facts are not subject to proof by judicial notice. Thus, it must be concluded that the trial court relied on information outside the record regarding these two matters. However, as the trial record does support the findings that the property was not situated in a high volume traffic area and that both properties had been vacant for a number of years, we find it highly probable that this error did not contribute to the judgment of the trial court and that the error therefore was harmless. To obtain reversal on appeal both error and harm arising therefrom must be shown. Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510). Further, if prejudicial error had occurred, as here enumerated, the proper remedy would only have been to vacate the trial court’s order and remand the case for its reconsideration without resort to matters outside the record. See, e.g., Sizemore v. State, 262 Ga. 214, 217 (416 SE2d 500).

Decided January 26, 1998.

Jack F. Witcher, for appellant.

Donald B. Kuperman, for appellee.

Judgment affirmed.

Johnson and Smith, JJ, concur.


text:
    A97A2204.
    HASKINS v. PIGGLY WIGGLY SOUTHERN, INC.
    (496 SE2d 471)
   Judge Harold R. Banke.

Doreatha Haskins sued Piggly Wiggly Southern, Inc. d/b/a Piggly Wiggly Food Store and Bruno’s Inc. (“Piggly Wiggly”) to recover for personal injuries allegedly sustained in an incident occurring in a Piggly Wiggly store. Enumerating two errors, Haskins appeals the summary judgment awarded to Piggly Wiggly.

The evidence, when viewed in a light most favorable to Haskins, the non-movant, showed that nearly immediately after entering a Piggly Wiggly store, as Haskins was proceeding between two registers, she suddenly slipped on a small puddle of water and twisted her right ankle. Haskins was able to halt her fall by grabbing a candy rack. Haskins admitted that she was very familiar with this particular store and had shopped there on numerous occasions. Haskins testified that had she been looking down at the floor when she slipped she would not have been able to see the water. She testified that the water could not be seen from a standing position and that she had to “get down” to see it.

Leroy Davis, an assistant manager, testified that he did not witness the incident and did not learn about it until the next day. According to Davis, who was familiar with store cleaning procedures, a cleaning crew cleaned the floors each night. Davis testified that although Piggly Wiggly had no specific set times for checking the floors, Piggly Wiggly had a store policy requiring that the management and employees maintain a continuous lookout for spills, so that corrective action could be taken. According to Davis, managers checked the store for hazards periodically during the day.

Piggly Wiggly moved for summary judgment contending that Haskins failed to show that it had superior knowledge of the allegedly hazardous condition. The trial court granted summary judgment to Piggly Wiggly. Held:

Haskins contends that genuine issues of material fact precluded summary judgment. We disagree. The mere showing of the occurrence of an injury does not create a presumption of negligence. Rather the true ground of liability is the owner or occupier’s superior knowledge of the hazard and the danger therefrom. Cook v. Home Depot, 214 Ga. App. 133, 134 (1) (447 SE2d 35) (1994). “[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997). See Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980).

Thus, to avert summary judgment, Haskins had to present sufficient evidence to satisfy both knowledge requirements set forth in Robinson, supra. This she failed to do. It is undisputed that Haskins did not offer any evidence that Piggly Wiggly had actual knowledge of the alleged hazard. Nor did Haskins sustain her burden of showing that Piggly Wiggly had constructive knowledge of the foreign substance. See Alterman Foods, 246 Ga. at 622-623.

Constructive knowledge of a foreign substance may be shown by evidence that the foreign substance had been on the floor for a sufficient period of time that in the exercise of ordinary care, the defendant should have noticed and removed the hazard or by evidence that the defendant had an employee in the immediate area of the hazard who could have easily seen and removed the hazard before the plaintiff’s fall. Jester v. Ingles Market, 206 Ga. App. 327, 328 (425 SE2d 323) (1992).

In this case, Haskins did not establish the length of time the water had been on the floor and, in fact, admitted that she had no idea how long it had been there. Haskins failed to offer any evidence even suggesting that the foreign substance was present for a sufficient time for knowledge of its presence to be imputed to Piggly Wiggly. Moore v. Kroger Co., 221 Ga. App. 520, 521 (471 SE2d 916) (1996). Moreover, Haskins testified that she would not have been able to have seen the water before she fell even if she had been looking down at the floor. Inasmuch as the purported hazard was not readily visible to Haskins, she did not establish that a Piggly Wiggly employee could have easily seen and removed it. See id.; Jester, 206 Ga. App. at 328. Showing that an “employee [was] merely working in the immediate area of a foreign substance is not enough; the employee must have been in a position to have easily seen the substance and removed it.” Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 828 (2) (482 SE2d 720) (1997). Here, Haskins conceded that the water was difficult to discern and that the only employee in the immediate area was busy with customers at her register. Haskins made no claim that Piggly Wiggly obstructed her view or distracted her from observing the alleged danger. Compare Barentine v. Kroger, 264 Ga. 224 (443 SE2d 485) (1994).

Decided January 14, 1998

Reconsideration denied January 27, 1998.

Dozier, Lee, Graham & Sikes, Cheryl A. Sikes, for appellant.

Jones, Cork & Miller, Timothy Harden III, for appellee.

Because Haskins failed to sustain her evidentiary burden of showing that Piggly Wiggly had actual or constructive knowledge of the alleged hazard and that such knowledge exceeded hers, Piggly Wiggly was entitled to summary judgment as a matter of law. Johnson v. Autozone, 219 Ga. App. 390, 394 (465 SE2d 463) (1995). See Winn-Dixie Stores v. Carroll, 212 Ga. App. 234 (441 SE2d 432) (1994) (summary judgment appropriate where plaintiff fails to satisfy either element of the Alterman test).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Andrews, Chief Judge.

text:
    A97A2138.
    MITCHELL v. W. S. BADCOCK CORPORATION.
    (496 SE2d 502)
   Andrews, Chief Judge.

Lymon Mitchell and W. S. Badcock Corporation entered into a contract setting forth the terms under which Mitchell operated a Badcock home furnishings dealership in Warner Robins. Badcock exercised rights under the contract to terminate the dealership and sued Mitchell to recover consigned merchandise and money claimed due under the contract. Mitchell counterclaimed for money he claimed Badcock owed him under the Warner Robins dealership contract and for money he claimed Badcock owed him as a result of the prior sale of his interest in a Badcock dealership located in Macon. He also sought punitive damages and attorney fees on the basis that Badcock fraudulently terminated the contract and withheld sums due to him. The trial court granted summary judgment in favor of Badcock on its claim against Mitchell and on Mitchell’s counterclaims.

The trial court correctly granted summary judgment on Badcock’s claim against Mitchell because the evidence shows that Badcock was entitled to the money it claimed under the contract. As to Mitchell’s counterclaims, the trial court correctly granted summary judgment to Badcock on all but one of these claims. Mitchell’s claims for money due to him over the course of the Warner Robins dealership prior to its termination and his claims for money due from the sale of the Macon dealership are precluded by either a lack of evidence in the record to support the claims or by accord and satisfaction between the parties. There is no evidence to support Mitchell’s claim that Badcock defrauded him. The trial court erred, however, in granting summary judgment to Badcock on Mitchell’s counterclaim based on Paragraph 11 of the Warner Robins dealership contract for commissions earned but not yet remitted upon termination of the contract. The record reflects that the contract was not terminated by Badcock for a reason which would constitute a forfeiture by Mitchell of earned but unremitted commissions under Paragraph 11.

1. Mitchell claims the trial court erred by granting summary judgment to Badcock on its claim that Mitchell owed it $6,004.28 plus interest under the terms of the Warner Robins dealership contract.

The contract provided that Badcock would consign home furnishings to Mitchell for display and sale in Mitchell’s store. Under Paragraphs 3 and 6 of the contract, title to all consigned merchandise and proceeds from the sale of merchandise remained in Badcock, and Mitchell was required to deposit all sales proceeds in a bank account designated by Badcock. The $6,004.28 at issue was sales proceeds to which Badcock was entitled under the terms of the contract.

Mitchell’s sole contention on appeal as to this issue is that he has a claim for set-off against the $6,004.28. The set-off claim is not a defense to Badcock’s claim for the sales proceeds, but may be a basis for Mitchell’s counterclaim upon remittitur for commissions due under Paragraph 11 of the contract. Russell v. KDA, Inc., 206 Ga. App. 397, 400 (425 SE2d 406) (1992). The trial court did not err by granting summary judgment to Badcock on this claim.

2. Mitchell contends the trial court erred by finding that he breached the terms of the Warner Robins dealership contract and that this terminated his right to receive commissions under Paragraph 11 of the contract.

The trial court correctly found that Mitchell breached the terms of the contract. The contract provided that it could be terminated by either party, without cause, upon 30 days written notice. On June 24, 1994, Badcock’s regional manager, Dennis Wilkerson, delivered notice to Mitchell that Badcock intended to terminate the contract in 30 days. On the same day, Wilkerson also requested pursuant to provisions of the contract that Mitchell allow a Badcock representative to remain on the premises to monitor the consigned merchandise during the 30-day period. In violation of the inspection provisions of the contract, Mitchell refused this request and instructed Wilkerson to leave the store. Because Mitchell refused to allow a Badcock representative in the store, Badcock stopped a delivery to the store of consigned merchandise scheduled to be made that day. From June 24, 1994, to July 2, 1994, Mitchell also violated other provisions of the contract by failing to deposit proceeds from the sale of consigned merchandise into Badcock’s account. Instead, Mitchell deposited the proceeds in a bank account maintained in his wife’s name. On June 24, 1994, in violation of the contract, Mitchell quit sending Badcock the sales contracts on consigned merchandise sold each day. On June 27, 1994, Mitchell refused to allow a Badcock representative to examine the store’s records of account in violation of the contract.

The record clearly shows that Mitchell breached numerous provisions of the contract. The. contract further provided that Mitchell’s failure to comply with its terms rendered him in default and that, in the event of such default, Badcock was entitled to immediately terminate the contract by giving written notice. Pursuant to these provisions, Badcock furnished Mitchell written notice on July 1,1994, that the contract was immediately terminated. The trial court did not err by finding that Badcock properly terminated the contract based on Mitchell’s default. There is no evidence to support Mitchell’s contention that Badcock fraudulently contrived the termination.

The trial court erred, however, by finding, as a matter of law, that Mitchell’s misconduct precluded his recovery of earned but unremitted commissions under Paragraph 11 of the contract. Paragraph 11 of the contract provided that, upon termination of the contract for any reason, Mitchell was entitled to compensation for commissions on the sale of consigned merchandise earned by him but not yet remitted. Paragraph 11 further provided that, “[notwithstanding anything herein to the contrary, if this Agreement terminates by reason of the Dealer’s [Mitchell’s] dishonesty, misrepresentation, misconduct or similar cause, the earned but unremitted commissions of the Dealer shall be automatically assigned upon such termination, without further action of the Dealer, to the Owner [Badcock] as minimum liquidated damages. . . .” The termination provisions of the contract provided that the contract may be immediately terminated "in the event of the Dealer’s dishonesty, misrepresentation, misconduct, or similar cause, or in the event of a default under this Agreement. ...” A default is defined elsewhere as “[t]he failure of the Dealer to comply with any of the terms of this Agreement.”

Although Paragraph 11 provided for Mitchell’s forfeiture of earned but unremitted commissions in the event the contract was terminated by reason of his dishonesty, misrepresentation, misconduct or similar cause, it did not provide for forfeiture if the contract was terminated for his default. Badcock immediately terminated the contract by notifying Mitchell in writing that he had failed to comply with various provisions of Paragraph 6 of the contract. Since failure to comply with any terms of the agreement is defined as a default under Paragraph 12, the record reflects that the contract was terminated by reason of Mitchell’s default. Even if some of Mitchell’s actions constituting a default could also be characterized as misconduct, that was not the basis upon which the contract was terminated by Badcock. Accordingly, the trial court erred by ruling that Mitchell forfeited the right to commissions under Paragraph 11 by virtue of his misconduct. Compare Russell, supra at 399.

3. Mitchell claims the trial court erred by failing to address his counterclaim seeking to set aside the covenant not to compete in the Warner Robins dealership contract on the basis that it is unreasonable, arbitrary and overbroad.

In effect, Mitchell sought a declaratory judgment on the validity of the covenant without any demonstration that an actual or justiciable controversy existed between the parties as to the enforceability of the covenant. This issue was not raised in Badcock’s motion for summary judgment, nor was it addressed by the trial court in its order granting summary judgment. Nevertheless, in granting total summary judgment in favor of Badcock, this claim was dismissed by the trial court along with Mitchell’s other counterclaims. Since there was no actual or justiciable controversy as to the covenant, the trial court’s grant of summary judgment as to this counterclaim was an erroneous advisory declaratory judgment which ruled in Badcock’s favor as to any future litigation over the covenant. Business Software v. Information Assoc., 201 Ga. App. 565, 566 (411 SE2d 565) (1991). To the extent the trial court’s summary judgment order ruled on this issue, it is nugatory and must be vacated. Id.

4. Mitchell contends the trial court erred by finding that there was an accord and satisfaction between him and Badcock as to amounts claimed by him under the Warner Robins dealership contract.

The contract provided that Mitchell was to receive commissions equal to 25 percent of the sales price, insurance premiums, and finance charges collected by Mitchell attributable to the sale of consigned merchandise. Each month that Mitchell operated the dealership, he received a settlement statement from Badcock. Each settlement statement contained the statement that it was settlement in full for the prior month, and it showed the collections made on the sales, all adjustments made for any charges against the commissions, and the total amount of commissions to which Mitchell was entitled. Each settlement statement was accompanied by a check for the amount of the commissions due to Mitchell as calculated by Badcock. Mitchell reviewed each of the settlement statements and accepted and deposited.the commission checks.

Mitchell, nevertheless, contends that certain amounts shown as deductions from the commissions on the settlement statements should not have been deducted. He claims that an item called factory labor charges assessed on appliances and electronic merchandise to cover warranty charges should not have been deducted because he does not believe Badcock pays the deducted fee to the manufacturers. He admits, however, that he knew of the existence of the charges at the time he became a Badcock dealer and that he decided to accept the charges and remain a dealer. There was also evidence that Mitchell had incurred no expense related to warranty claims, despite obligations imposed on dealers under the contract, and that Badcock had assumed some obligations relating to warranty claims. Mitchell also claims that Badcock wrongfully deducted amounts from his commission for insurance and advertising without proof that it had purchased these items. These deductions were shown on each monthly settlement statement accepted by Mitchell. The evidence shows that, under the terms of the contract, Badcock was authorized to deduct the cost of the insurance and advertising it purchased for the benefit of Mitchell’s store and that the deductions on each settlement statement were for the purchased amounts. There is no evidence to support Mitchell’s claim that Badcock fraudulently deducted these sums from his commissions.

Moreover, the trial court correctly concluded that these claims were precluded by accord and satisfaction between the parties occurring when Mitchell accepted, without protest, the monthly commission checks and the itemized monthly settlement statements showing the deductions from the commission in full satisfaction of the commission due. OCGA §§ 13-4-101; 13-4-103 (b); Chrietzberg v. Kris topher Woods, Ltd., 162 Ga. App. 517 (292 SE2d 100) (1982); compare Lewis v. Alfred L. Simpson & Co., 183 Ga. App. 166 (358 SE2d 262) (1987).

Decided January 27, 1998.

Kenneth E. Lucas, Alex H. Morrow, for appellant.

Martin, Snow, Grant & Napier, John T. McGoldrick, Jr., for appellee.

5. Mitchell claims the trial court erred by finding that there was an accord and satisfaction as to amounts claimed by him under the Macon dealership contract.

Mitchell testified in his deposition that his sole claim for amounts due under the Macon dealership contract arose from his contention that, when he sold his interest in the Macon dealership to another dealer, Badcock erroneously reduced the amount of accounts receivable to which he was entitled. To facilitate the sale, Badcock prepared a “sale of earned commission summary” which set forth the reductions to the accounts receivable. Although Mitchell was aware of the reductions and disagreed with the calculation, he accepted them and signed the transfer documents closing the sale on those terms. After the sale, Badcock informed Mitchell that it believed his accounts receivable had been erroneously overstated in the sale, but Mitchell refused any further reduction stating that the parties had a final settlement. For the reasons stated in Division 4, supra, there was no error in the trial court’s conclusion that Mitchell’s claim was precluded by an accord and satisfaction pursuant to the sale.

6. Mitchell contends the trial court erred by granting summary judgment to Badcock on his claims for punitive damages and attorney fees. Since the claims for these damages were dependent upon the counterclaims properly dismissed by the trial court, there was no error in the grant of summary judgment. We find no basis for the award of punitive damages or attorney fees on Mitchell’s surviving counterclaim for commissions due under Paragraph 11 of the Warner Robins dealership contract.

Judgment affirmed in part, reversed in part, and vacated in part.

Pope, P. J., and Johnson, J., concur.

       The merchandise consigned to Mitchell by Badcock was not an issue on summary judgment. Badcock took possession of the merchandise pursuant to a prior court order.

       Although the contract provides that it shall be governed by Florida law, neither of the parties has pleaded or relied upon Florida law in this case. Accordingly, we will presume that any applicable Florida law is not contrary to Georgia law. Bennett v. Union Nat. Bank &c. Co., 169 Ga. App. 904, 905 (315 SE2d 431) (1984).

       Mitchell also claims that Badcock violated a confidential relationship between the parties, and that the contract was voidable because of duress. There is no basis for either of these claims.


text:
    A98A0234.
    SPIRES v. HALL.
    (496 SE2d 501)
   Judge Harold R. Banke.

James W. Spires sued C. L. Hall, Jr. and Dodge County to recover for injuries sustained in a four-wheeler accident. Dodge County (“County”) successfully asserted a sovereign immunity defense. Spires appeals the verdict directed in favor of Hall.

This case arose after Spires collided with a gate positioned across a portion of dirt road while he was operating his four-wheel all terrain vehicle. Spires claimed that Hall had illegally placed this gate across a public road belonging to and maintained by the County. It is undisputed that the site of the wreck had at some point been a County road. According to the trial evidence, in the early 1980s, the adjoining landowners entered into a verbal agreement with the former sole County Commissioner. According to Hall, he and another landowner gave the County an easement in exchange for an agreement to close off certain roads the County no longer needed. Relying on that agreement, about ten years before Spires’ wreck, Hall had placed a section of pipe across the roadway. The present County Road Superintendent testified that crews customarily stopped their grading work about 50 feet short of the gate and that the County had not maintained this particular site for about 14 years.

Notwithstanding his assertion that the roadway was a public street, at the time of the wreck, Spires’ vehicle was not “street legal,” had no license tag, no speedometer, nor was he wearing a helmet, Spires conceded that he knew about the presence of the gate, and, in fact, had gone through this very gate on at least three or four prior occasions a few years earlier while a member of a hunting club that leased some adjacent land. Spires also admitted that he knew that this gate restricted access to the adjacent hunting land and that the hunting club had installed a cable in response to the unwanted entry by non-members onto the leased land.

At the time of his mishap, the daylight was bright with clear visibility, and there was no fog or smoke. Although Spires was no longer a member of the hunting club, he was intending to go onto the leased land “to see some friends that were out there.” According to Spires, he was driving at an estimated 30 to 40 mph and saw the gate when he was only 17 or 18 feet away. Despite braking, he was unable to stop in time. Held:

1. Spires contends that the trial court erred in directing a verdict based on its conclusion that the County abandoned the road. He asserts that because the transfer of ownership from the County was not conducted in full compliance with the requirements of OCGA § 32-7-2 (b) (1), the County still owned the portion of roadway at issue, thus making Hall’s placement of the gate illegal.

Pretermitting any consideration of the issue of ownership or abandonment, we cannot agree that this case turns on whether this section of roadway was public or private. Rather, the undisputed evidence shows that the purported hazard was open and obvious and that Spires knew the gate was there and knew that it restricted access to the adjacent hunting land, his destination. Spires admitted that there was nothing to obstruct or interfere with his ability to see the obstruction. See McCrary v. Bruno’s, Inc., 219 Ga. App. 206, 209 (464 SE2d 645) (1995).

Decided January 27, 1998.

Solomon & Edgar, William J. Edgar, for appellant.

John T. Croley, Jr., for appellee.

Where a person, as here, has successfully negotiated an allegedly dangerous condition on previous occasions, that person is presumed to have knowledge of it and cannot recover for a subsequent injury therefrom. Wiley v. Family Dollar Store &c., 208 Ga. App. 461, 462 (430 SE2d 839) (1993). See Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379) (1992); Rossano v. Am. Legion Post No. 29, 189 Ga. App. 610, 612 (3) (376 SE2d 698) (1988). Here, the evidence that Spires knew about the long-existing gate bolsters that presumption. As in Glass v. Bell, 190 Ga. App. 159, 161 (378 SE2d 385) (1989), we cannot escape the fact that Spires unquestionably knew about the obstruction and that this knowledge foreclosed his recovery as a matter of law. See id. Accordingly, the directed verdict was appropriate. See Griffin v. Kangaroo, Inc., 208 Ga. App. 190, 191 (1) (430 SE2d 82) (1993).

2. In light of the above holding, we need not reach Spires’ remaining enumerations of error which challenge the validity of the agreement permitting the property transfer and the reasonableness of Hall’s reliance upon a verbal understanding to close the road.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       As a courtesy to Hall and so that Georgia Power Company could service a substation, the County did periodically perform maintenance on the road.


text:
    A98A0495.
    KEY v. THE STATE.
    (496 SE2d 497)
   Judge Harold R. Banke.

Michael Key was convicted of the offenses of trafficking in cocaine, possession of cocaine with intent to distribute, and possession of a firearm by a convicted felon. At sentencing, the possession count merged with the trafficking count. Following the denial of his motion for new trial, Key enumerates three errors.

When agents of the East Metro Drug Enforcement Team executed a search warrant at Key’s home, they found 42.6 grams of crack cocaine in a furnace located directly across the hall from Key’s bedroom. Investigators also found a plastic bag with white chunky material, a razor blade in a zip-lock bag, and a set of electronic scales, commonly used in the distribution of cocaine, on top of a china cabinet in the dining room. Officers discovered a handgun and another plastic bag with white chunky material on top of the refrigerator in the kitchen. In the attic, police found a zippered money bag containing several small plastic bags of the kind commonly used in the packaging of cocaine. About two hours before obtaining the search warrant, police had arranged for a confidential informant to call Key to set up a drug purchase. This telephone conversation was recorded and played for the jury at trial. The State presented similar transaction evidence of Key’s conviction from a few years earlier in which Key sold crack cocaine from the same residence to an undercover drug agent. Held:

1. Key contends that his trial counsel was ineffective for failing to move in limine for the redaction of his name from the transcript of the taped telephone conversation with the informant. To meet his burden of establishing ineffectiveness, Key had to show not only that his trial counsel’s performance was deficient but also that but for counsel’s deficient performance the outcome of his trial would likely have been different. See Hightower v. State, 227 Ga. App. 74, 80 (487 SE2d 646) (1997) (physical precedent only). This Key failed to do.

Key claims that he was unfairly prejudiced by his counsel’s failure to object to the State’s insertion of his name on the printed transcript of the taped phone conversation without proving that he was, in fact, the person speaking. However, the officer who taped the conversation identified it as the one overheard in his presence and he authenticated the recording as true and accurate. On the tape, the informant asked for the appellant by “Mike” which is Key’s first name. The call was made to Key’s home telephone number.

At the motion hearing, Key’s counsel explained that he had utilized two defense theories, equal access, and the State’s failure to prove that it was Key’s voice on the recording. Based on that strategy, and believing that the voice on the tape was his client’s, he advised Key not to testify. Counsel opted not to dispute the identity issue so that he could argue the point in his closing. Trial tactics and strategy do not equate with ineffectiveness. Gentry v. State, 226 Ga. App. 216, 219 (3) (485 SE2d 824) (1997). Under these circumstances, Key failed to show the requisite deficiency and prejudice needed for reversal. Brewer v. State, 224 Ga. App. 656, 658 (2) (481 SE2d 608) (1997). The trial court’s finding that Key was not denied effective assistance of counsel was not clearly erroneous and must be affirmed. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

Decided January 27, 1998.

Lambros & Lambros, Michael G. Lambros, for appellant.

Alan A. Cook, District Attorney, William K. Wynne, Jr., Assistant District Attorney, for appellee.

2. Key contends that the trial court improperly restricted his defense counsel’s cross-examination of the State’s forensic chemist concerning the quantity of cocaine he analyzed. Although Key claims that the trial court unduly limited his counsel’s cross-examination, the record shows otherwise. After initially restricting counsel’s inquiry, the court subsequently reconsidered its position and allowed defense counsel to pursue that line of questioning. On further cross-examination, counsel was able to establish the fact that the forensic chemist conducted testing on only a small quantity of the cocaine, a 15 milligram representative sample, from the net total of 51.2 grams. Under these circumstances, we cannot find any abuse of discretion. Bryant v. State, 226 Ga. App. 135, 137 (2) (486 SE2d 374) (1997).

3. Key contends that the evidence was insufficient to sustain his convictions. Key claims that the State failed to prove that the voice on the tape belonged to him. Key further contends that four other persons had equal access to the items found in his home. On appeal, the evidence must be viewed in a light most favorable to the verdict and Key no longer enjoys the presumption of innocence. Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995). In essence, Key seeks to have this Court retry his case and weigh the evidence, which we cannot do. Dismuke v. State, 261 Ga. 254 (1) (403 SE2d 812) (1991).

The record shows that Key agreed to sell cocaine from his home on the night of the search and had previously conducted a similar residential sale. Pursuant to the execution of the search warrant, officers recovered in excess of 28 grams of cocaine, small plastic baggies, a set of scales, a razor blade, and several bags containing a white chunky substance. A nine mm. pistol was discovered in Key’s kitchen. In light of this evidence, a rational trier of fact could have found Key guilty of the offenses of trafficking in cocaine, possession of cocaine with intent to distribute, and possession of a firearm by a convicted felon within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Riden v. State, 226 Ga. App. 245, 246 (1) (486 SE2d 198) (1997).

Judgment affirmed.

Pope, P. J, and Ruffin, J., concur.