text:
    A96A1033.
    RODRIQUEZ v. CITY OF AUGUSTA.
    (474 SE2d 278)
   Judge Harold R. Banke.

Orlando O. Rodriquez, Jr. sued the City of Augusta d/b/a Bush Field (“the City”) for damages allegedly sustained when he slipped and fell in an airport rest room. The trial court granted the City’s motion for summary judgment, and this appeal followed.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence was as follows. In order to obtain a rental car, Rodriquez went to Bush Field Airport which is owned and operated by the City. While at the airport Rodriquez used a rest room where Steve Weber, an airport employee, was present. Weber testified that the rest room floor appeared clean and that there were no foreign objects or spills on it. Shortly after Weber left, Rodriquez allegedly slipped and fell. Rodriquez, who denoted himself as a “floor specialist with chemicals in anti-slip resistant matters,” testified that he tended to pay attention to floors because of the nature of his occupation. Rodriquez conceded that “[t]here was nothing unusual about the floor,” the floor was not wet and no water was on it. He testified that “[tjhere was apparently something on the floor that was not visible to the eye” which was slimy to touch but not visible. Rosevelt Abrarm, the employee in charge of the rest room at issue, testified that five or ten minutes before Rodriquez fell, when he cleaned the rest room he checked the floor and it was dry and free of foreign substances. Held:

1. The trial court properly granted summary judgment. It is undisputed that Rodriquez was an invitee at the time of the incident. Liability for an invitee’s injuries in a slip and fall premises liability case is determined by the relative knowledge possessed by the owner and the invitee of the condition or hazard which resulted in the injury. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305) (1992). To avoid summary judgment on his slip and fall claim, Rodriquez had to show that 1) the City had actual or constructive knowledge of the foreign substance, and 2) that he was without knowledge of it or for some reason attributable to the City was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

No evidence was presented that the City had actual knowledge of the alleged hazard. Constructive knowledge can be established in two ways: first, it may be inferred where there is evidence that an employee of the defendant was in the immediate vicinity of the dangerous condition and could easily have noticed and corrected the hazard; and second, knowledge can be imputed to a defendant if a plaintiff can show the dangerous condition was on the floor for a sufficient length of time. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 809 (406 SE2d 234) (1991).

Attempting to show that the City had constructive knowledge, Rodriquez offered only his own self-contradictory testimony. In his deposition, he testified that there was no water on the floor and that the slimy substance which purportedly caused his fall was not visible. According to his deposition testimony, he could not feel the slippery spot with his foot. In his affidavit, he testified that he noticed there was water on the floor, that the floor had a wet area, that the water concealed the slick spot and that the water did not cause him to fall. According to his affidavit, the slick spot was easy to detect with his foot. Contradictory testimony, where no reasonable explanation for the inconsistencies has been offered, must be eliminated from consideration on motion for summary judgment. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).

Rodriquez’s claim that an employee should have noticed the alleged hazard is not factually supported by any evidence. “Constructive knowledge can only be inferred where there is evidence that an employee was in the immediate vicinity of the dangerous condition and could have easily discovered and removed the hazard. [Cit.]” (Emphasis in original.) Drake v. Kroger Co., 213 Ga. App. 72, 74 (1) (443 SE2d 698) (1994). The fact that Rodriquez admitted that the alleged dangerous substance was not visible precludes finding that the City’s employee could have easily noticed and corrected it. Jester v. Ingles Market, 206 Ga. App. 327, 328 (425 SE2d 323) (1992). Further, Rodriquez failed to show that the substance was on the floor for an appreciable amount of time, and the City offered testimony from two employees that the bathroom floor appeared to be dry and free of foreign substances just prior to the time of the alleged fall. Smith, 199 Ga. App. at 809. The trial court correctly determined that the City had no notice of the alleged hazard. Having successfully pierced an essential element of Rodriquez’s prima facie case, the City was entitled to summary judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp., 261 Ga. at 495.

Decided July 31, 1996.

Calvin A. Rouse, for appellant.

Capers, Dunbar, Sanders & Bruckner, Paul H. Dunbar III, Ziva P. Bruckner, for appellee.

2. In light of our holding in Division 1, we need not reach Rodriquez’s remaining enumeration.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A96A0834.
    HARSHAW v. THE STATE.
    (474 SE2d 226)
   Judge Harold R. Banke.

Milton Harshaw, Jr. was convicted of kidnapping with bodily injury and acquitted of rape and robbery. Following the denial of his motion for new trial, Harshaw enumerates two errors.

On appeal, the evidence must be viewed in the light most favorable to the verdict, and Harshaw no longer enjoys the presumption of innocence. Rigenstrup v. State, 197 Ga. App. 176, 181 (4) (398 SE2d 25) (1990). Viewed in that light, the State’s evidence was as follows. At about 5:00 p.m., the victim walked to Frank Harris’ house for dinner. At about 8:00 p.m. when it was nearly dark, the victim decided to walk home. Although she was only casually acquainted with another guest, Harshaw, he convinced her to accept his offer to escort her down an unfamiliar shortcut through a dense, poorly lit, kudzu-covered area. The victim testified that while on the isolated footpath, Harshaw suddenly pushed her to the ground. Harshaw punched her in the face, threatened to kill her, and then raped her. After Harshaw disappeared, the victim, disheveled and bleeding, sought help at a nearby gas station, telling Knox Tabb, Jr. that she had been raped. Detective Sergeant J. L. Steffel, responding to the rape call, observed that the victim had matted, dirty hair, abrasions, dried blood on the left side of her face, swollen eyes, and appeared borderline hysterical. When police retraced the victim’s course of travel through the kudzu, along a widely scattered area they located various personal items belonging to the victim as well as a pair of wire-rimmed glasses belonging to Harshaw. Police observed that the vegetation was recently disturbed and freshly broken kudzu leaves lay on the ground. A physical examination conducted at a rape crisis center showed injuries consistent with forcible sexual intercourse. Harris testified that Harshaw had told him that he had lost his glasses on the path. Harris further testified that Harshaw claimed that he had shown the victim the closest way to get home and that suddenly the victim “went wacko,” started screaming and that he hurriedly left her. Held:

1. We reject Harshaw’s contention that he was entitled to a directed verdict of acquittal because the State failed to show any evidence of asportation or movement of the victim. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a). Only the slightest movement of the victim is required to constitute the necessary element of asportation. Robinson v. State, 210 Ga. App. 175, 176 (1) (435 SE2d 466) (1993); Love v. State, 190 Ga. App. 264 (1) (378 SE2d 893) (1989) (jerking victim off a concrete block onto dirt sufficient movement). In this case, the evidence that Harshaw shoved the victim to the ground as well as the physical evidence of a struggle in the kudzu were both sufficient to constitute asportation and authorize the verdict of kidnapping. Id.

An abduction or taking by inducement, persuasion, or fraud can also support a finding of asportation. Wright v. State, 209 Ga. App. 128, 129 (2) (433 SE2d 99) (1993); Fredrick v. State, 181 Ga. App. 600, 601 (1) (353 SE2d 41) (1987). Even though the victim initially accepted Harshaw’s offer to show her a shortcut, his subsequent striking her in the face with his fist, pushing her to the ground, and holding her against her will support a finding of asportation. Wright, 209 Ga. App. at 129 (2).

2. Counsel was not ineffective for electing not to request charges on the lesser included offenses of false imprisonment and battery. In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), Harshaw must show not only that his counsel’s performance was deficient but also that the deficient performance prejudiced his defense. Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). Generally, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action by the trial counsel might be considered sound trial strategy. Id. at 121-122. Although the effect of the failure to request charges on the lesser included offenses must be rigorously scrutinized, it does not necessarily constitute ineffectiveness of counsel. Van Alstine v. State, 263 Ga. 1, 4 (426 SE2d 360) (1993).

Decided July 11, 1996

Reconsideration denied August 1, 1996

Steven M. Reilly, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

At the new trial motion hearing, Harshaw’s trial counsel revealed that he had consulted generally with Harshaw about trial strategy and that counsel briefly considered whether to present the lesser included offenses. Because the lesser included offenses were inconsistent with Harshaw’s defense of consensual sexual intercourse inside Harris’ home and an uneventful escort of the victim down the footpath, counsel and Harshaw opted for an all or nothing strategy which would force the jury to believe either Harshaw or the victim and avoid a compromise verdict. The decision was bolstered by counsel and Harshaw’s belief that the victim had been woefully inarticulate and barely credible in the first trial. Counsel’s decision on the lesser included offenses was plainly strategic. “‘Trial strategy and tactics do not equate with ineffective assistance of counsel. . . .’ [Cit.]" Nolan v. State, 204 Ga. App. 170, 172 (3) (419 SE2d 72) (1992). Under these facts, the trial court’s finding that Harshaw was not denied effective assistance of counsel was not clearly erroneous and must be affirmed. Warren v. State, 197 Ga. App. 23, 24 (397 SE2d 484) (1990).

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.

       This is Harshaw’s second trial on these charges. The jury was unable to reach a verdict in the first trial.


text:
    A96A1341.
    BARKER v. SHONEY’S, INC.
    (474 SE2d 284)
   Judge Harold R. Banke.

Palma Jean Barker sued Shoney’s, Inc. (“Shoney’s”) after she slipped on a tablespoonful of pudding or dressing and injured her back while walking down an aisle. The trial court granted Shoney’s motion for summary judgment, and Barker appeals.

To prevail on summary judgment, defendants who will not bear the burden of proof at trial may point out by reference to the record that there is no evidence, viewed in the light most favorable to the non-movant, sufficient to create a genuine jury issue on at least one essential element of plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows that Barker entered Shoney’s around 10:00 p.m. when the restaurant was far from full. She had previously visited the restaurant between 25 and 50 times. After drinking a cup of coffee, she decided to go to the rest room. Although she failed to see the yellowish substance on which she slipped, the area was well lit, and nothing obstructed her view of the floor. Barker testified on deposition that she slipped but did not fall completely down and a customer seated close by reached out to help, but did not touch her. She continued on to the bathroom, and then informed the cashier that she had slipped and someone was going to break their neck if the mess on the floor was not cleaned up. Barker reported seeing only her waitress, the cashier, and two other employees. Held:

Summary judgment was properly granted because Barker failed to prove that: (1) Shoney’s had actual or constructive knowledge of the substance on the floor, and (2) she lacked knowledge of or Shoney’s prevented her from discovering the substance. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 809 (406 SE2d 234) (1991). The basis for Shoney’s liability would be its superior knowledge. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305) (1992).

Because there is no evidence that Shoney’s had actual knowledge, the issue presented is whether it had constructive knowledge of the allegedly hazardous condition. Constructive knowledge can be established with evidence that (1) the substance had been on the floor for such a time that it would have been discovered had Shoney’s exercised reasonable care in inspecting its premises, or (2) an employee was in the immediate vicinity of the hazardous condition and could easily have noticed and corrected it. Jester v. Ingles Market, 206 Ga. App. 327, 328 (425 SE2d 323) (1992); Smith, 199 Ga. App. at 809.

Shoney’s offered evidence that employees had mopped the floor at least once and conducted their usual, constant inspection of the floors during the shift in which Barker slipped. The manager testified that although no designated person was specifically responsible for ensuring the floor’s cleanliness, it was continually monitored by each employee. The assistant manager on duty that night testified that she seated all the customers and, although she did not specifically remember seating Barker, she inspected the floor each time she seated customers. Customers were seated next to the spot where Barker slipped. The assistant manager also attested she tried to conduct hourly inspections of the premises and had continuously monitored the floor on the evening Barker slipped. She reported that she had not noticed the substance on which Barker slipped. This evidence is sufficient to show that Shoney’s had a reasonable inspection program in effect on the day Barker slipped; thus, the burden shifted to Barker to show how long the dangerous condition had remained on the floor. Sheriff v. Hosp. Auth. of Houston County, 221 Ga. App. 14, 15 (471 SE2d 3) (1996).

Decided August 1, 1996.

Hughes & Gibson, Ralph E. Hughes, for appellant.

Drew, Eckl & Farnham, George R. Moody, for appellee.

However, Barker presented no evidence of this essential element of her case. In the absence of such proof, constructive knowledge may not be imputed to Shoney’s because no determination that Shoney’s had a reasonable amount of time to inspect and remove the hazard is possible. Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223, 225 (460 SE2d 838) (1995). “ ‘It is well settled that a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous.’ [Cit.]” Johnson v. Autozone, 219 Ga. App. 390, 392 (465 SE2d 463) (1995). Barker made no such showing.

Nor does the evidence support the theory that Shoney’s employees could easily have noticed the substance and removed it. Barker attested that the substance blended with the floor’s color and was invisible from her perspective. She presented no proof that a Shoney’s employee was in the immediate vicinity of the substance, testifying only that the cashier remained at the front of the restaurant and she had not paid attention to the movements of the other employees. Because Barker failed to present any evidence that Shoney’s had actual or constructive knowledge of the substance on which she slipped, summary judgment was not error.

Judgment affirmed.

Beasley, C. J, and Birdsong, P. J, concur.


author: Blackburn, Judge.

text:
    A96A1359.
    LEE v. THE STATE.
    (474 SE2d 281)
   Blackburn, Judge.

Renata Gunter Lee appeals her conviction, rendered at a bench trial, of driving under the influence of alcohol (DUI) in violation of OCGA § 40-6-391 (a) (l).

Lee was involved in a vehicle collision caused by another driver and was transported to Hamilton Medical Center’s emergency room. At the accident scene, the investigating officer, Trooper Robert Turner, detected the smell of alcoholic beverage in Lee’s vehicle and went to interview her at the hospital. While Lee was lying on a backboard in the emergency room awaiting treatment, Trooper Turner detected the smell of alcoholic beverage on her person and observed her to have “glassy eyes.” Lee admitted she had been drinking earlier that day. A blood test was performed, and it revealed Lee’s blood alcohol content was .10 percent.

1. Lee contends that the trial court did not have jurisdiction over her misdemeanor DUI traffic offense. We disagree. “The superior courts have concurrent jurisdiction over misdemeanors with inferior courts. Ga. Const., Art. VI, Sec. I, Par. IV; OCGA § 15-6-8.” Hall v. State, 200 Ga. App. 585, 588 (409 SE2d 221) (1991).

2. In her second enumeration of error, Lee claims that the trial court erred in denying her motion in limine to suppress blood evidence. Specifically, Lee contends that she was never arrested and that in the absence of an arrest, the blood evidence must be suppressed in accordance with OCGA § 40-5-67.1 (a).

OCGA § 17-4-1 states that “[a]n actual touching of a person with a hand is not essential to constitute a valid arrest. If the person voluntarily submits to being considered under arrest or yields on condition of being allowed his freedom of locomotion, under the discretion of the officer, the arrest is complete.” Clements v. State, 226 Ga. 66, 67 (172 SE2d 600) (1970) (an arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained, no matter how slight such restraint may be). Trooper Turner testified that he placed Lee under arrest prior to reading her the DUI implied consent warning and Lee indicated that she understood.

“When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) State v. Burnett, 220 Ga. App. 133 (469 SE2d 324) (1996). The trial court’s finding that Lee was placed under arrest is supported by the evidence, and therefore, it will not be reversed.

Decided August 1, 1996.

Michael R. McCarthy, for appellant.

Kermit N. McManus, District Attorney, Mark P. Higgins, Jr., Assistant District Attorney, for appellee.

Alternatively, Lee contends that the arrest was lacking probable cause. For an officer to have sufficient probable cause to conduct a valid DUI arrest, he must have “knowledge or reasonably trustworthy information that: (1) defendant was in actual physical control of a moving vehicle; (2) while under the influence of any drug; (3) to a degree which renders defendant incapable of driving safely.” Griggs v. State, 167 Ga. App. 581, 582 (307 SE2d 75) (1983). Lee was driving a motor vehicle at the time the accident occurred. The smell of alcoholic beverage was present in Lee’s car, she displayed the physical symptoms of someone who had been drinking, and she admitted consuming alcohol earlier in the day. This information was reasonably trustworthy and enabled Trooper Turner to conclude that Lee was under the influence of a drug which would prevent her from driving safely. Consequently, Trooper Turner had probable cause to arrest Lee.

Lee further contends that the blood evidence was obtained by Turner in a coercive manner. Specifically, Lee claims Turner told her that if she refused to take the test, he would take her license away. Turner testified that he read the DUI implied consent warning mandated by law which requires a driver to be informed that refusal to submit to the testing may result in suspension of their license. OCGA § 40-5-67.1 (b) (2). Turner was merely complying with the implied consent law when he read the license revocation statement to Lee and was not acting coercively.

3. In her final enumeration of error, Lee contends that the evidence was insufficient to prove her guilt beyond a reasonable doubt. In light of the evidence outlined above, we conclude that a rational trier of fact could have found Lee guilty beyond a reasonable doubt of driving under the influence of alcohol in violation of OCGA §40-6-391 (a) (1). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.

       OCGA § 40-6-391 (a) (1) provides in pertinent part: “A person shall not drive or be in actual physical control of any moving vehicle while .. . [u]nder the influence of alcohol to the extent that it is less safe for the person to drive.”

       OCGA § 40-5-67.1 (a) provides in pertinent part: “The test or tests required . . . shall be administered as soon as possible at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 and the officer has arrested such person for a violation of Code Section 40-6-391, any federal law in conformity with Code Section 40-6-391, or any local ordinance which adopts Code Section 40-6-391.” (Emphasis supplied.)


text:
    A96A1573.
    GRAY et al. v. ARMSTRONG.
    (474 SE2d 280)
   Blackburn, Judge.

Arnold and Elizabeth Gray appeal the trial court’s order granting defendant’s motion to dismiss based upon expiration of the statute of limitation and a lack of jurisdiction incorrectly enumerated as improper venue.

The Grays filed the underlying negligence action in the Superior Court for Catoosa County, Georgia, on April 3, 1995. In the Grays’ complaint, they allege that employees from defendant Armstrong Cleaning Services were negligent in cleaning the floor at the Food-max in Tennessee where Arnold Gray slipped and fell on April 3, 1993. The defendant answered alleging the expiration of the statute of limitation and improper venue.

1. In his motion to dismiss, the defendant asserted that the one-year Tennessee statute of limitation applies, while the Grays contend that Georgia’s two-year statute of limitation applies. Tenn. Code Ann. § 28-3-104 (a) (1) provides that actions for injuries to the person “shall be commenced within one (1) year after the cause of action accrued.”

“Under the rule of lex loci delicti, tort cases are governed by the substantive law of the state where the tort was committed. Under the rule of lex fori, procedural or remedial questions are governed by the law of the forum, the state in which the action is brought.” (Citations omitted.) Fed. Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765 (417 SE2d 671) (1992). The Georgia Supreme Court has held that “[statutes of limitation look only to the remedy and so are procedural.” Hunter v. Johnson, 259 Ga. 21, 22 (376 SE2d 371) (1989).

An exception to this rule exists, however, where the limitation is established as a condition precedent to the action by the statute which creates the cause of action. In such a circumstance, the limitation is substantive in nature, not procedural, and the rule of lex loci delicti applies. Taylor v. Murray, 231 Ga. 852 (204 SE2d 747) (1974).

No such exception applies in the subject case, as the Tennessee statute of limitation is a general statute and the limitation is not included as a condition precedent in the statute which created the cause of action. Therefore, the general Tennessee statute of limitation creates no substantive right in the limitation period and does not preclude the bringing of the action in Georgia, consistent with Georgia’s two-year statute of limitation.

The cases cited by the defendant do not require a different result. In Taylor, supra, the Georgia Supreme Court determined that the two-year Georgia statute of limitation, rather than the six-year South Carolina limitation, applied in a Georgia action for the wrongful death of a guest passenger which occurred in South Carolina. In Taylor, as in this case, the law of the forum applies as to the statute of limitation issue, as neither case involved an exception to that rule.

Decided August 1, 1996.

Larry B. Hill, for appellants.

Brinson, Askew, Berry, Seigler, Richardson & Davis, J. Anderson Davis, for appellee.

Therefore, the trial court erred in applying the Tennessee statute of limitation and in granting defendant’s motion to dismiss based upon the expiration of such statute of limitation.

2. Defendant’s motion to dismiss was also based upon a lack of jurisdiction in Georgia to hear this case which involved an incident which occurred in Tennessee and was incorrectly enumerated as being based upon “improper venue.”

Ga. Const. 1983, Art. VI, Sec. II, Par. VI provides, in pertinent part, that “[a]ll other cases . . . shall be tried in the county where the defendant resides.” In the present case, the defendant, Joe Armstrong, admitted that he was a resident of Catoosa County, Georgia. Therefore, “venue” is proper in Catoosa County, Georgia.

The defendant’s argument that the Georgia court lacked jurisdiction to hear the case solely on the basis that the incident occurred in Tennessee is without merit where the defendant is a Georgia resident. It is unclear whether or not the trial court based its grant of defendant’s motion to dismiss upon defendant’s “venue” argument.

However, the trial court erred in granting defendant’s motion to dismiss.

Judgment reversed.

Beasley, C. J, and Birdsong, P. J., concur.

       The action was filed against Joe Armstrong and Bruno’s, Inc. d/b/a Foodmax (subsequently dismissed). Only defendant Joe Armstrong is involved in this appeal.


text:
    A96A1028.
    HARPER v. THE STATE.
    (474 SE2d 288)
   Judge Harold R. Banke.

Antonio Harper was convicted of armed robbery and aggravated assault. On appeal, Harper challenges the trial court’s limitation on the scope of voir dire. Held:

Harper claims that the trial court abused its discretion in its conduct of voir dire because his trial counsel was not permitted to pose nine questions to prospective jurors. We disagree. Limitation placed on counsel in questioning during voir dire under OCGA § 15-12-133 lies largely within the sound discretion of the trial court, and appellate courts should not interfere with the court’s exercise of that discretion unless it has been manifestly abused. White v. State, 230 Ga. 327, 337 (5) (196 SE2d 849) (1973); Thomas v. State, 217 Ga. App. 720, 721 (2) (458 SE2d 897) (1995).

Decided August 2, 1996.

Donald W. Rogers, for appellant.

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.

It is not within the purview of voir dire to inquire into technical legal questions, such as those ultimately involving the presumption of innocence, issues which are more properly the subject of a legal charge by the trial court. Henderson v. State, 173 Ga. App. 302, 303 (1) (326 SE2d 246) (1985). For this reason, the trial court properly excluded counsel’s questions about the presumption of innocence, the State’s burden of proof on the allegations in the indictment, and the comparative guilt of Harper relative to other persons. Counsel’s questions about the State’s evidentiary burden and proof beyond a reasonable doubt were also properly disallowed. Anderson v. State, 169 Ga. App. 729, 731 (2) (314 SE2d 735) (1984).

Generally, juror examination should be confined to questions designed to elicit the possible prejudice of jurors against the accused or juror bias or interest in the outcome. See Mills v. State, 137 Ga. App. 305, 306 (2) (223 SE2d 498) (1976). In this case, counsel’s other technical questions of a legal nature about an indictment as evidence of guilt, the function of grand jury proceedings, and the role of jurors as factfinders were all subjects for instruction by the court and were not proper subjects for voir dire questioning. Id.

The trial court also properly excluded counsel’s question about magazine subscription preferences. See Henderson v. State, 251 Ga. 398, 401 (306 SE2d 645) (1983). Finally, counsel’s inquiry into whether jurors would ascribe more credibility to a police officer’s testimony was impermissible. Lewis v. State, 186 Ga. App. 349, 352 (3) (a) (367 SE2d 123) (1988).

Harper failed to present any evidence that the trial court “manifestly abused” its discretion in limiting the scope of voir dire. Harper’s counsel was not prevented from determining whether any jurors were biased or partial but was restricted only from asking improper questions. See Thomas, 217 Ga. App. at 721 (2).

Judgment affirmed.

Birdsong, P. J, and Blackburn, J, concur.


text:
    A96A1043.
    POPOVICH v. BEKAERT CORPORATION.
    (474 SE2d 286)
   Judge Harold R. Banke.

After Bekaert Corporation discharged Steve Popovich, he sued alleging, inter alia, that Bekaert breached its company severance policy by denying him $17,307. Popovich’s sole enumeration is that the trial court erred in granting summary judgment to Bekaert.

To prevail at summary judgment under OCGA § 9-11-56, Bekaert, the movant, must demonstrate that there are no genuine issues of material fact and that the undisputed facts, viewed in a light, most favorable to Popovich, the non-movant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record and testimony reflect the following. After Popovich had accumulated ten years’ service and advanced to the position of national sales manager of the Dramix division, Bekaert terminated him, allegedly for poor job performance. At the time of Popovich’s discharge, Bekaert was realigning the responsibilities of his position in the Dramix division, and it is disputed whether Bekaert eliminated his position. Held:

Material issues of disputed fact remain which preclude summary judgment. Popovich claims Bekaert violated Section 8.3 of the “Policies and Procedures Manual” (“the Manual”) which required Bekaert to compensate him for two weeks’ pay for each of his ten years of service. Bekaert contends that a different publication, an employee handbook for salaried employees titled “Benefits Summary and Personnel Policies” (“the Handbook”) controls Popovich’s situation. According to the Handbook, employees receive only two weeks’ pay regardless of their length of service. In spite of its assertion that the Manual did not apply to Popovich, in its statement of undisputed material facts, Bekaert claims it paid Popovich severance pay according to Section 8.2 of the Manual. In the same statement, Bekaert cites Section 8.3 of the Manual, which provides: “[ejmployees terminated because of company needs are paid severance pay in an amount equal to two weeks’ pay for each year or part thereof.” By applying these two sections from the Manual to Popovich, Bekaert contradicts its position that the Handbook not the Manual applied to Popovich.

Moreover, it is a disputed issue of fact as to whether Bekaert terminated Popovich because of unsatisfactory job performance or because of the reorganization/restructuring that occurred. Popovich testified that he had consistently received satisfactory or high performance ratings and that the final ratings were contrived and rewritten so that the company could avoid having to pay him severance pay when Bekaert reorganized and eliminated his position.

We reject Bekaert’s conclusion that Bekaert’s severance pay policy never formed part of Popovich’s employment contract. Notwithstanding Bekaert’s argument to the contrary, the fact that Popovich did not obtain a copy of the policy until his impending discharge and had never seen a copy of the policy is not dispositive. Popovich testified that for some time prior to the time of termination he had known about the company policy of awarding two weeks’ pay for every year or partial year of service. Assuming that a jury determines that Section 8.3 of the Manual is applicable to Popovich, then that policy formed part of Popovich’s contract of employment with Bekaert. See Shannon v. Huntley’s Jiffy Stores, 174 Ga. App. 125, 126 (2) (329 SE2d 208) (1985). “[A]n additional compensation plan offered by an employer and impliedly accepted by an employee, by remaining in employment, constitutes a contract between them, whether the plan is public or private, and whether or not the employee contributes to the plan. [Cits.]” Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49) (1981).

Bekaert argues that even assuming the Manual applied, Popovich’s claims are barred by the doctrines of accord and satisfaction and novation. We disagree. “ A novation or accord and satisfaction is in itself a contract and must have all the elements of a de novo contract. (Cits.) Therefore, there must be a meeting of the minds if the novation or accord and satisfaction is to be valid and binding. (Cits.)’ Mayer v. Turner, 142 Ga. App. 63, 64 [(1)] (234 SE2d 853) (1977).” Ga. Income Property Corp. v. Murphy, 182 Ga. App. 101, 103 (1) (354 SE2d 859) (1987).

The record contains no such evidence. The memorandum from Jeff Barnett to Popovich, which specifies the details of termination including the conditions under which Popovich could conduct closing files and utilize company facilities does not show the elements of a new contract. Nowhere does it indicate a meeting of the minds showing that Popovich agreed to forego any claim to more than $17,000 in severance pay. Nor does the memorandum support the contention that it was an agreement intended to supersede all previous obligations between Bekaert and Popovich, which is a prerequisite to effecting a novation. OCGA § 13-4-5. See Farris v. Pazol, 166 Ga. App. 760, 762 (1) (305 SE2d 472) (1983). Further, the memorandum does not purport to cover the subject matter of the severance pay at issue here, an additional requirement of a novation. Id.

Because material issues of fact remain as to whether the Manual or Handbook applied and whether Popovich was terminated for nondisciplinary reasons or because of company needs, we reverse. See, e.g., Amax, Inc. v. Fletcher, 166 Ga. App. 789 (305 SE2d 601) (1983).

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.

Decided August 2, 1996

William R. Hurst, for appellant.

Ogletree, Deakins, Nash, Smoak & Stewart, Dion Y. Kohler, Thomas E. D. Calender, for appellee.


author: Ruffin, Judge.

text:
    A96A0772.
    CARTER v. THE STATE.
    (474 SE2d 228)
   Ruffin, Judge.

Sally Carter was indicted for misdemeanor obstruction of an officer (OCGA § 16-10-24 (a)). The trial court denied Carter’s motion for directed verdict, and the jury convicted her. Carter appeals the denial of her motion for directed verdict and the trial court’s failure to charge the jury using the language specifically cited in her indictment. For reasons which follow, we affirm.

1. In her first two enumerations of error, Carter contends her motion for directed verdict on the charge of obstructing a law enforcement officer “by making threats and using abusive language” should have been granted because there was no evidence offered at trial of threats made by her or abusive language used by her. We disagree.

“The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. [Cit.]” Garrett v. State, 184 Ga. App. 715, 716 (3) (362 SE2d 423) (1987). The evidence adduced at trial showed that Sergeant Walker of the Upson County Sheriff’s Department was dispatched to a residence to investigate a possible theft. Upon arrival, Walker and the two individuals who had reported the theft began talking in front of the residence. Carter approached from the sidewalk and exclaimed, “I don’t know what in the hell you’re doing over here. We [have not] done a damn thing wrong. What the f— you want me for?” Walker testified that Carter was “[v]ery arrogant, unruly, [and] aggressive.” Walker asked the two individuals who reported the incident if they could enter the residence and speak since the disturbance created by Carter was making it difficult to obtain information.

Once inside, Walker again attempted to obtain information from the reporting individuals when Carter and her daughter entered the residence and began making disruptive statements, including, “[w]e haven’t taken a damn thing. You’re not going to take us any motherf—ing where. We [have not] done a damn thing.” Walker, who was in full uniform, repeatedly asked Carter and her daughter to leave the house, which was not their residence, but they refused. Instead, Carter stated she was “going to get her shit and leave. [I] don’t have to deal with this shit. . . . Don’t even try to take me to jail.” Walker, who still did not know what was stolen because of Carter’s disturbance, asked Carter not to remove items from the residence until it was determined what, if anything, had been taken. Carter refused, continuing to make loud, unruly statements and using profane language. Walker testified he “had no control of the situation. I was unable to . . . find out exactly what had or had not been taken, if anything had been taken.” In fact, Walker testified that due to Carter’s disturbance, he was not able to get a report until after Carter had been arrested for obstruction and transported to the Sheriff’s Department.

The offense of obstructing an officer is committed when “[a] person . . . knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties. . . .” OCGA § 16-10-24 (a). In the present case, Carter argues that although she may have used obscenities and offended the officer, she never made any verbal or physical threat of violence, precluding an essential element. She cites Moccia v. State, 174 Ga. App. 764 (331 SE2d 99) (1985). As we observed in Imperial v. State, 218 Ga. App. 440, 441 (461 SE2d 596) (1995), “[s]uch reliance is misplaced, for Moccia was decided before the enactment of Ga. L. 1986, p. 484, which struck former OCGA § 16-10-24 in its entirety and replaced it with existing OCGA § 16-10-24. Duke v. State, 205 Ga. App. 689 (423 SE2d 427). As currently enacted, ‘the offense of misdemeanor obstruction under existing OCGA § 16-10-24 (a) no longer contains the element of “violence” as does the offense of felony obstruction under existing OCGA § 16-10-24 (b).’. . . [Cit.]” Thus, the mere fact that Carter’s comments were not threats of violence does not preclude conviction under OCGA § 16-10-24 (a).

Whether Carter’s comments were threats that hindered or obstructed the officer and whether Carter’s comments constituted abusive language were for the trier of fact to decide. Sapp v. State, 179 Ga. App. 614 (1) (347 SE2d 354) (1986). Applying the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we find the evidence sufficient to authorize a rational trier of fact to find Carter guilty beyond a reasonable doubt of the offense of misdemeanor obstruction of an officer. The trial court thus properly denied Carter’s motion for directed verdict of acquittal.

2. Carter further enumerates as error the denial of her motion for directed verdict since there was no evidence that she uttered threats and used abusive language while being taken into custody, as the indictment alleges. The record shows that the indictment charged Carter with obstructing a law enforcement officer “by making threats and using abusive language while being taken into custody.”

Contrary to Carter’s assertion, the language “while being taken into custody” is not a material allegation in the indictment which the State is required to prove beyond a reasonable doubt. It is not necessary for the State to prove the time period when the offense was committed; “it is only necessary to prove the elements of the obstruction statute, i.e., that the act constituting obstruction was knowing and wilful, and that the officer was lawfully discharging his official duties. [Cits.]” Whaley v. State, 175 Ga. App. 493, 494 (333 SE2d 691) (1985). Thus, the phrase “while being taken into custody” “might be entirely omitted without affecting the charge and without detriment to the indictment.” Robinson v. State, 76 Ga. App. 313, 314 (45 SE2d 717) (1947). Such phrases “are considered as mere surplusage, and may be disregarded in evidence.” Id. Based on the foregoing, the trial court properly denied Carter’s motion for directed verdict on this ground.

3. In her fourth enumeration of error, Carter asserts the trial court erred in failing to direct a verdict since her statements to the officer constituted speech protected by the First Amendment to the United States Constitution. Carter cites no authority for this assertion, and this enumeration is wholly without merit. OCGA § 16-10-24 clearly covers verbal exchanges. See, e.g., Duke, supra.

4. In her last enumeration of error, Carter contends the trial court erred in failing to charge the jury that she was accused of obstructing a law enforcement officer “by making threats and using abusive language while being taken into custody,” as the indictment alleged. According to Carter, failure to charge the jury as alleged in the indictment misled the jury into believing it could convict her of obstruction by proof of facts not alleged in the indictment. We find this argument lacks merit.

The trial judge did instruct the jury that it must find Carter guilty of obstruction as alleged in the indictment. The trial judge first instructed the jury on obstruction by reading the Code section. Then, the trial judge charged the jury as follows: “if . . . you should find and believe beyond a reasonable doubt . . . that this accused did commit in Upson County the offense of obstruction of an officer as alleged in the indictment, you would be authorized to find the accused guilty.” We conclude the charge as given, considered as a whole, communicated all the elements of misdemeanor obstruction in a manner not likely to mislead the jury. Brown v. State, 197 Ga. App. 365, 366 (2) (398 SE2d 424) (1990). Accordingly, we find this argument to be without merit.

Judgment affirmed.

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

Decided July 15, 1996

Reconsideration denied August 5, 1996

Michael B. King, for appellant.

William T. McBroom III, District Attorney, Chad D. Graddy, Assistant District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A96A0796.
    ROYALS v. GEORGIA PEACE OFFICER STANDARDS & TRAINING COUNCIL et al.
    (474 SE2d 220)
   Birdsong, Presiding Judge.

This is an appeal from a defense verdict in a wrongful death suit. Appellant Pang Y. Royals brought suit under the Georgia Tort Claims Act, individually and as executrix of the estate of Charles E. Royals, against appellees/defendants the Georgia Peace Officer Standards & Training Council and the Board of Regents of the University System of Georgia. This litigation arose following the death of Officer Royals on June 10, 1991, of a heart attack allegedly sustained as a result of the physical exertion and environment experienced during a training exercise sponsored by appellees. Prior to trial appellees filed a motion in limine to exclude evidence of certain alleged remedial measures. Specifically, after the incident, language was changed in course brochures to include warnings of the “very intense physical demands” of the course and that “officers should be in very good physical condition.” Additionally, appellees thereafter required the use of a sign-up sheet or application form containing a release of liability for injury, damage, or death and/or a purported acceptance (by an applicant) of risk and responsibility for any sustained injuries or harm arising from the training course. The trial court granted the motion in limine excluding the evidence unless subsequent testimony “opened the door” for admission. Appellant contends the testimony of Greg Sewell thereafter opened the door for admission of the remedial evidence, but the trial court erroneously continued to exclude it.

Appellant enumerates that “the trial court erred by failing to recognize an exception to the subsequent remedial measure rule where the defendant denied the existence of a duty to warn and instruct their student, denied the existence of any danger requiring remediation, and gave false testimony concerning the need for any remediation.” Appellant asserts the remedial evidence should have been allowed because: (1) it tended to demonstrate the existence of a duty by appellees to screen and warn course applicants, a duty whose existence appellees consistently denied; (2) appellees denied the feasibility of including the additional warning language in the course brochure prior to the incident in direct contradiction to the excluded evidence; and (3) appellees presented direct and unimpeached testimony during trial that applicant screening and warnings were not necessary, had never been done, and would not be done in the future. Held:

1. Evidence of subsequent remedial measures generally is inadmissible in negligence actions, because the admission of such evidence basically conflicts with the public policy of encouraging safety through remedial action, for the instituting of remedial safety measures might be discouraged if such conduct is admissible as evidence of negligence. Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 77 (4) (460 SE2d 532); accord Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 882 (4) (447 SE2d 302). However, “ ‘there are several exceptions to that rule, “such as when the subsequent repair, change, or modification tends to prove some fact of the case on trial (other than belated awareness of negligence, of course), to show contemporary knowledge of the defect, causation, a rebuttal of a contention that it was impossible for the accident to happen in the manner claimed, and so on.” [Cit.] . . . Such evidence may also be admitted where the feasibility of repair or modification is an issue. [Cit.]’ ” Wilson Foods, supra at 77-78 (4). The admission of remedial evidence for purposes of impeachment is controversial, and such an “ ‘exception must be applied with care [and admitted only in conjunction with carefully tailored limiting instructions], since any evidence of subsequent remedial measures might be thought to contradict and so in a sense impeach a party’s testimony that he was using due care at the time of the accident. ... If this counted as “impeachment” [it] would swallow the rule.’” (Citations omitted.) Studard v. Dept. of Transp., 219 Ga. App. 643 (2) (466 SE2d 236) (1995). A trial court must apply this exception most judiciously to preserve continued viability of the strong public policy against the introduction of evidence of remedial measures for purposes of proving negligence; nevertheless, due consideration must be given that the remedial action rule was not designed as a shield for the introduction of perjury or for the intentional or inadvertent introduction of erroneous material facts. See OCGA § 24-1-2 (rules of evidence are framed to facilitate the discovery of truth). In Brooks v. Cellin Mfg. Co., 251 Ga. 395, 397 (306 SE2d 657), it was held that “[t]he door to rebuttal testimony of remedial measures was opened when counsel questioned the witness” in such a manner as to cause misleading testimony as to a material issue to be presented to the jury; specifically, remedial evidence was admitted (that similarly installed insulation was removed from on top of the lights in other buildings after similarly installed insulation in one building caught fire and the building burned) when, as a result of the questioning, the jury was allowed to infer that despite being both similarly constructed and insulated the other buildings had not burned. As with the issue of relevancy, the admission of remedial evidence under an impeachment exception lies in the sound discretion of the trial court (Studard, supra) and will not be reversed absent manifest abuse. Further, a trial court in its discretion can exclude remedial evidence, though otherwise admissible under an impeachment exception, if “ ‘its probative value is substantially outweighed by the risk that its admission will unduly prejudice or mislead the jury or confuse the issues being tried.’ ” (Citations omitted.) Id. at 645 (2).

2. Appellant contends that exclusion of the remedial evidence was error as it “tends to demonstrate the existence of appellees’ duty to screen and warn course applicants,” and thus serves as “critical proof” of a duty which appellees consistently denied existed. Assuming without deciding that the remedial evidence in question would have been relevant to demonstrate the existence of appellees’ duty “to screen and warn,” the issue remains whether the probative value of such evidence was substantially outweighed by its potential for prejudice.

The trial court charged the jury, inter alia: ‘You must determine if the defendants owed a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm. . . . There exists a general duty of ordinary care, which duty applies to schools and universities. ... I further charge you that one who undertakes to do an act or perform a service for another has the duty to exercise care and is liable for injury resulting from his failure to do so, even though he was not under any obligation to do such an act or perform such a service.” Appellant does not enumerate any error in the charging of this instruction or in regard to any failure to charge adequately on a duty to screen and warn. As the jury was adequately charged that one who undertakes to do an act or perform a service incurs a duty to exercise care, the introduction of the remedial evidence was not critical in this instance to establish the scope of the duty of ordinary care owed by appellees.

Additionally, the probative value of the remedial evidence at issue (for purposes of proving a duty to screen and warn officers or of proving a general duty to exercise due care) was substantially outweighed in this instance by its potential for prejudice that such evidence would be viewed by the jury primarily as a recognition by and admission of the appellees of their negligence. “Evidence of a subsequent modification should not be admitted if ‘the potential for prejudice in the admission of (the) evidence substantially outweighs its probative value.’ ” Ratliff v. CSX Transp., 219 Ga. App. 53, 55 (1) (b) (464 SE2d 1), citing West v. Nodvin, 196 Ga. App. 825, 828 (3) (b) (397 SE2d 567). We will not reverse the correct ruling of a trial court regardless of the reason therefor. Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557).

3. Appellant contends the trial court erred by failing to recognize an exception to the subsequent remedial measure rule where the defendant denied the existence of a duty to warn and instruct its student, denied the existence of any danger requiring remediation, and gave false testimony concerning the need for any remediation. The issue thus before us is whether the trial court erred in failing to admit the remedial evidence for purposes of rebuttal or impeachment of the testimony of appellees’ witnesses regarding any of these specifically enumerated evidentiary areas.

Appellees did not deny having any duty to warn course applicants as to the physical rigors of the course; rather, appellees contended that course applicants adequately were warned the course would be physically rigorous by registration prerequisites limiting course participation to “full time officers who are full duty status.” The director expressly testified there were “warnings” given to course participants; however, he maintained he would not change the course “registration” policy. The director clarified that he believed he had a reasonable basis to conclude that a course participant who was in a full duty status with his department would not have a heart attack while taking the course. In his opinion, full duty status meant that the officer’s department “sees them physically and mentally capable of assuming full time law enforcement duties.” Further, tbe course instructor asks the participants in the morning how they are feeling and whether anyone has any physical condition that might cause a problem in successfully completing the course. This was, “at the minimum,” what the director was willing to do to make sure a course participant did not have a heart attack. The director testified in the negative when asked the broad question whether he was “willing to change the way you’re doing business [in running the course].” However, he subsequently agreed it was a plausible alternative to cause an officer with known heart problems to sit out for six months until the next course to allow time to obtain a medical opinion as to his fitness from the student’s doctor, but the director noted that perhaps in the six-month interim, the officer also might need the survival information which the course offered. The director also considered it a viable option to let an officer sit out the physical part of the training and would make that an option if he were aware of the officer’s condition.

In adhering to its ruling on the motion in limine excluding the remedial evidence, the trial court concluded the remedial evidence would not rebut the testimony that the criteria for enrolling in the course, being a full time, full duty, regularly employed officer, would not be changed and that the question leading to the director’s testimony regarding how far he would now go to protect an officer from dying from a heart attack, which "inevitably bleeds” over into how far appellees subsequently went in giving warnings, could not be answered without violating the ruling on the motion in limine. We agree that the remedial evidence would not rebut testimony that the criteria for enrolling in the course would not be changed. We further find that it is in the trial court’s sound discretion whether to admit evidence under the rebuttal exception to the remedial evidence rule when the door, if opened at all, is opened by the skillful crafting of a question that cannot be answered either negatively or positively by a witness without forcing the door ajar. To hold otherwise would render ineffective the ruling granting the motion in limine; such a procedure clearly violates the spirit and intent of the ruling. This holding is consistent with the general rule that "[a] party may not question a witness concerning inadmissible matter and then elicit testimony thereafter to be impeached with evidence inadmissible in the case-in-chief.” State v. Rocco, 259 Ga. 463, 467 (1) (384 SE2d 183) and cases therein cited. Further, "[ajdmission of evidence lies in the sound discretion of the trial court, and we will not reverse in the absence of a showing of abuse of discretion.” Schill v. A. G. Spanos Dev., 217 Ga. App. 260, 262 (457 SE2d 204). "Heeding the warning in [Studard, supra] and deferring to the discretion the trial judge has in deciding such evidentiary matters, we find no abuse of discretion.” Id. at 645 (2). The answers given by the director to appellant’s questions on cross-examination were not of such a nature that if allowed to go unrebutted left the jury with an unfair impression. Doster v. Central of Ga. R. Co., 177 Ga. App. 393, 401 (339 SE2d 619), where unrebutted testimony would have left the jury with an unfair impression, is distinguishable from the facts in this case; likewise distinguishable is Gunter v. Jackson Elec. Membership Corp., 198 Ga. App. 629, 631 (2) (402 SE2d 309) where the witness opened the door by giving non-responsive answers to questions during his subsequent direct examination.

Decided July 10, 1996

Reconsideration denied August 5, 1996

Adams & Ellis, James R. Gardner, Ronald C. Berry, James K. Lange, for appellant.

Additionally, the probative value of the remedial evidence, under the attendant circumstances, was substantially outweighed by its potential for prejudice of the jury. Ratliff, supra. We will not reverse the correct ruling of the trial court regardless of the reason therefor. Tony, supra.

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.

Michael J. Bowers, Attorney General, Beckmann & Pinson, Walter W. Ballew III, for appellees.


author: Johnson, Judge.

text:
    A96A1400.
    POSEY v. THE STATE.
    (474 SE2d 206)
   Johnson, Judge.

Anthony Merit Posey was tried on charges of rape, aggravated sodomy, false imprisonment and two counts of aggravated assault involving his former girl friend. He appeals from his conviction of false imprisonment and one count of aggravated assault.

1. Posey contends that the trial court erred in allowing the state to introduce evidence of a previous aggravated assault conviction involving another former girl friend as a similar transaction. “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 state 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). The record indicates that before the trial court allowed the state to introduce evidence regarding the prior offenses, it held a pre-trial hearing in accordance with Uniform Superior Court Rule 31.3 (B). At the hearing, the state introduced a certified copy of Posey’s guilty plea to charges of aggravated assault and criminal trespass in the earlier case. In the previous incident, Posey went to an apartment he had formerly shared with the victim, armed with a knife, and attempted to force her to leave with him. The trial court concluded that the previous incident was admissible in connection to the aggravated assault charges in this case and instructed the jury to consider the evidence only as it may illustrate the mental state, identity or intent of Posey and for no other purpose. The court further charged the jury that it could consider the evidence in that light only with regard to those particular counts of the indictment. See Ramirez v. State, 217 Ga. App. 120, 123 (2) (456 SE2d 657) (1995).

The purpose for the introduction of the evidence was to show Posey’s course of conduct in dealing with deteriorating relationships with women, thus satisfying the first prong of the requirements of Williams v. State, supra. The introduction of the guilty plea identifying Posey as the perpetrator in the first offense obviates any further proof regarding identity. Finally, the trial court did not err in concluding that there was sufficient similarity between the prior offenses and the crimes charged in this case such that the proof of the former tended to prove the latter. See Parker v. State, 220 Ga. App. 303, 305 (4) (469 SE2d 410) (1996). Interestingly, Posey testified at trial that he was trying to rescue the first victim from an unhealthy environment where drugs were present. In this case the incident followed Posey’s accusation that the victim had smoked marijuana. All three prongs of the Williams v. State, supra, inquiry having been satisfied, we find no error in the admission of the similar transaction evidence in this case. N

2. The trial court’s decision to allow a witness to testify whose name appeared on the list of witnesses for the similar transactions hearing, but not on the original list of witnesses for trial, was not error. “The purpose of OCGA § 17-7-110 is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had an opportunity to interview prior to trial. The proper remedy when a witness is called whose name was not on the list is to request a continuance, not the exclusion of the witness’ testimony.” (Citations and punctuation omitted.) Walton v. State, 217 Ga. App. 11, 12 (3) (456 SE2d 289) (1995). Although Posey’s counsel objected to the witness’ testimony, he did not request a continuance. Counsel interviewed the witness during a lunch recess in the trial, after which the trial judge asked if counsel needed more time with the witness. Counsel conceded that nothing more could be gained by more time with the witness, but renewed his motion to exclude her testimony. “The purpose of OCGA § 17-7-110 . . . may be satisfied if the defendant is given a satisfactory opportunity to interview such a witness before the witness’ testimony is taken. [Cit.] The trial court provided [Posey] such an opportunity.” Thomason v. State, 215 Ga. App. 189, 190 (3) (450 SE2d 283) (1994). This enumeration does not require reversal.

3. Finally, Posey asserts that the trial court erred in refusing to disqualify the entire jury panel after he sought, and was granted, permission to address everyone in the courtroom prior to jury selection. In his speech, Posey apologized to the victim for anything which he may have done wrong in their relationship, challenged the constitutionality of the charges against him, claiming they are the result of the institutionalized violation of the principle of separation of powers, and complained about his attorney, the trial court, and the corrupt bureaucracy of the judicial system in general. Posey was clearly attempting to contaminate the jury panel by his actions, and manipulate the system he disdains. There could have been no other purpose for this highly irregular display. This Court has repeatedly held that one cannot complain of error which his own conduct aided in causing. See, e.g., Patterson v. State, 202 Ga. App. 440, 441 (2) (414 SE2d 895) (1992). We will not countenance Posey’s behavior by reversing the trial court’s denial of the motion to disqualify the panel.

Decided July 9, 1996

Reconsideration denied August 5, 1996

Krontz & Bowen, Kenneth W. Krontz, for appellant.

Anthony M. Posey, pro se.

Peter J. Skandalakis, District Attorney, Dennis T. Blackmon, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Ruffin, J., concurs in judgment only.


author: Birdsong, Presiding Judge. Blackburn, Judge,

text:
    A96A1486.
    SLADE v. THE STATE.
    (474 SE2d 204)
   Birdsong, Presiding Judge.

James Daniel Slade, Sr., appeals his conviction of possessing cocaine in violation of the Georgia Controlled Substances Act. He enumerates two errors. Held:

1. In his first enumeration of error, appellant contends that the trial court erred in overruling appellant’s motion for directed verdict on the charge of possession of cocaine because the chain of custody was not proven and no cocaine was produced at trial. This contention is without merit.

Testimony shows that after receiving consent from appellant’s wife, police officers searched the apartment in which appellant lived. This search revealed a briefcase labeled with appellant’s name. Inside the briefcase were five individually bagged “rocks” of crack cocaine enclosed in a larger bag and various other drug paraphernalia. Officers found appellant in the apartment’s bathroom beside a .38 caliber gun. No one else was in the apartment.

Officer Mike Deaver of the Paulding County Sheriff’s office took the bagged substance into custody and kept it in his continuous care until he relinquished it to Donny Scott. Officer Donny Scott then took the substance to the GBI Crime Lab, where it was received by Charles Bevel, forensic chemist. Bevel performed three tests on the substance which indicated it was freebase, or crack, cocaine. As evidence such as this is destroyed after a two-year holding period, the cocaine found in appellant’s apartment no longer existed at the time of trial.

Despite appellant’s assertions that the chain of custody of the cocaine was not proven and that no cocaine was produced at trial, we find there was sufficient evidence within the record to warrant the denial of a directed verdict. A defendant is entitled to a directed verdict only where there is no conflict in the evidence and the evidence introduced at trial with all reasonable deductions and inferences therefrom demands a verdict of not guilty as the only legal finding possible. Keenan v. State, 168 Ga. App. 51, 52 (308 SE2d 26).

“In order to show the chain of custody adequate to preserve the identity of fungible evidence, the State has the burden of proving with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. However, the State need not foreclose every possibility of tampering, and need only show ‘reasonable assurance’ of the identity of the evidence.” Mosely v. State, 217 Ga. App. 507 (458 SE2d 165), citing Quinn v. State, 209 Ga. App. 480, 482 (3) (433 SE2d 592).

A review of the record reveals that the State sufficiently has met its burden. The State, through the testimony of Charles Bevel, Donny Scott and Mike Deaver, traced the travels of the cocaine found in appellant’s briefcase from appellant’s apartment to the GBI Crime Lab. Accordingly, the State has given reasonable assurance of the identity of the evidence. Mosely, supra. That the cocaine found in appellant’s briefcase was not produced at trial is of no significance as the State is not required to introduce the illegal drug itself into evidence. Davis v. State, 135 Ga. App. 203, 205 (217 SE2d 343).

2. In his second enumeration of error, appellant asserts that the evidence was insufficient to support the verdict. We disagree.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Testimony demonstrates that appellant was found alone in a private apartment, with five “rocks” of crack cocaine in his briefcase. Considering this information and after reviewing the transcript in a light most favorable to the jury’s verdict, we find there was ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of possessing cocaine in violation of the Georgia Controlled Substances Act. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Beasley, C. J., concurs. Blackburn, J., concurs fully and specially.

Blackburn, Judge,

concurring specially.

I concur fully in the judgment reached by the majority but write to point out the following.

Decided July 9, 1996

Reconsideration dismissed August 5, 1996.

Gale & Henley, Teddy L. Henley, for appellant.

James R. Osborne, District Attorney, for appellee.

The majority’s reliance on Davis v. State, 135 Ga. App. 203, 205 (217 SE2d 343) (1975) with regard to the State’s burden of introducing the illegal drug itself into evidence is appropriate here, because the defendant herein did not invoke the discovery provisions of OCGA § 17-16-1 et seq.

OCGA § 17-16-4 (a) (3), effective January 1, 1995, provides in pertinent part: “The prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect. . . tangible objects . . . which are within the possession, custody, or control of the state or prosecution and . . . were obtained from or belong to the defendant.”

The defendant must elect by written notice to the prosecuting attorney to have this article apply to his case. OCGA § 17-16-2. No discovery invocation was made by the defendant herein, and therefore the majority appropriately does not address any affirmative duty which the State might have in regard to the preservation of evidence where the provisions of OCGA § 17-16-1 et seq. have been invoked by the defendant.


text:
    A96A0873.
    INGRAM et al. v. TOCCOA TRIPLE CINEMA, INC.
    (474 SE2d 293)
   Judge Harold R. Banke.

Phillip Ingram sued Toccoa Triple Cinema, Inc. (“the Cinema”) for personal injuries allegedly sustained when he slipped and fell on ice as he left the theater on January 22, 1994. Ingram’s wife brought a loss of consortium claim. The Ingrams appeal the summary judgment in favor of the Cinema.

To prevail at summary judgment under OCGA § 9-11-56, the Cinema as the movant must demonstrate that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to Ingram, the non-movant, warrant summary judgment as a matter of law. OCGA § 9-11-56 (c). Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence was as follows.

A winter storm had passed through the Toccoa area about a week before the incident at issue. Weather conditions improved, and the Cinema was closed for only one day. Ingram, who resided in Carnesville, 25-30 miles southeast of Toccoa, testified that the effects of the winter storm had largely disappeared in his area, having lasted mostly for a day. Ingram and his wife, along with a friend, drove to the Cinema to see a movie. Upon their arrival, he disembarked near the Cinema’s front door and did not traverse the parking lot. A Cinema employee, Clayton Leverett, testified that the whole parking lot was wet and that it was generally wet in Toccoa that day. Leverett further testified that although no snow had fallen for several days, there was ice outside on the sidewalk and in the parking lot. Winston Panter, manager and co-owner of the Cinema,1 testified that it was mostly “wet out front . . . just wet, not frozen” out in front of the building. Although no additional precipitation had fallen for several days, slush appeared each day on the Cinema’s front sidewalk as ice or snow melted from the Cinema’s awning. Both Leverett and Panter testified that on a daily basis, Leverett swept slush and mess off the sidewalk as it fell from the awning. After slush fell from the awning during the day, it refroze at night. Despite being unable to remove all of the ice and water from the front sidewalk, neither man placed any sand or warning signs, ropes, or barricades on that sidewalk until after Ingram fell.

After the matinee concluded, Ingram exited using a different route from the way he entered the Cinema. As Ingram started down the Cinema’s sidewalk, he noticed some ice next to the building and about a foot of ice on the edge of the section of sidewalk contiguous with the parking lot. Attempting to avoid visible ice, Ingram stepped onto what he thought was just a wet area in between the icy sections. As he did so, he slipped, slid, and broke his femur, necessitating the insertion of a metal plate in his leg.

The trial court granted summary judgment determining that Ingram could not recover because he assumed the risk of slipping when he chose to walk on a wet sidewalk adjacent to a patch of ice under cold weather conditions. Held:

Ingram contends that the trial court erred in granting summary judgment because material issues of disputed fact remain as to whether he knew of the specific hazard and whether he failed to exercise ordinary care for his own safety. As a general rule, although a proprietor is liable in damages to an invitee for injuries caused by the proprietor’s failure to exercise ordinary care in keeping his premises and approaches safe, a plaintiff cannot recover if the plaintiff by exercising ordinary care for his own safety could have avoided the consequences of the proprietor’s negligence. See OCGA §§ 51-3-1 and 51-11-7. A finding that a plaintiff is precluded from recovering because of his equal or superior knowledge is essentially a finding that the plaintiff’s negligence preponderated in causing the injury. Jackson v. Camilla Trading Post, 218 Ga. App. 164, 168 (460 SE2d 849) (1995).

To establish the Cinema’s liability, Ingram had to show that the Cinema had actual or constructive knowledge of the hazard and that he was without knowledge of the hazard or was prevented by the Cinema from discovering it. See Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). The Cinema’s knowledge of the presence of some ice on the sidewalk was evidenced by the testimony of Leverett and Panter. Therefore, the case turns on Ingram’s knowledge of the risk and whether based on that knowledge he failed to exercise reasonable care for his own safety. “[I]t is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids.” Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (2) (288 SE2d 846) (1982). In this case, Ingram testified that he was looking where he was going when he slipped and that he had not traversed that route prior to entering the theater. Believing he had discovered a safe place to step, he apparently slipped on an invisible patch of ice. Unbeknownst to Ingram, the hazard inherent in the apparently “safe” route was not discoverable until he had already slipped and fallen. See id. at 17 (2) (summary judgment precluded by evidence of the appellee’s constructive knowledge combined with appellant’s lack of knowledge). These facts fail to demonstrate as a matter of law that Ingram had knowledge of the specific hazard which caused him to fall. Id. at 16; see Piggly Wiggly Southern v. Brown, 219 Ga. App. 614, 617 (468 SE2d 387) (1995).

Because at the very least the Cinema had constructive knowledge of the hazard and Ingram lacked knowledge of the specific hazard, it follows that the trial court erroneously granted summary judgment to the Cinema. Telligman, 161 Ga. App. at 17. Compare Bloch v. Herman’s Sporting Goods, 208 Ga. App. 280 (430 SE2d 86) (1993), where plaintiff assumed the risk when she deliberately elected to step into a puddle of what appeared to be water in the midst of ice accumulations despite knowing about local business and school closings due to inclement weather, below freezing temperatures for several days and a light freezing rain falling that particular morning. Id. at 280-281.

Questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s protection ordinarily are for jury determination except in plain and indisputable cases. Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 295 (322 SE2d 737) (1984). This is not such a case.

Judgment reversed and remanded for trial.

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

Decided August 5, 1996

Blasingame, Burch, Garrard, Bryant & Ashley, E. Davison Burch, Kim T. Stephens, for appellants.

Barnes, Browning, Tanksley & Casurella, Michael K. Jablonski, for appellee.


text:
    A96A1238.
    SMITH v. THE STATE.
    (474 SE2d 291)
   Judge Harold R. Banke.

Vernita Michelle Smith was convicted of manslaughter after she shot her husband. On appeal, she challenges the sufficiency of the evidence and the trial court’s refusal to charge the jury on the battered person syndrome, her sole defense.

The evidence supporting the verdict shows that Smith and her husband had been fighting on the day the shooting occurred. He hit her in the mouth, which caused her to inadvertently break a bottle of medicine she was retrieving for her sick child. After Smith went to her bedroom to get the child’s Medicaid card, her husband struck her in the head a second time and threatened to kill her. As Smith retrieved a gun from a cabinet, her husband turned away and walked down the hall. At that point, Smith fired one shot into his arm and chest. Smith gave the foregoing statement to police officers shortly after her arrest. Detectives found a shell casing in the hallway and a bag containing the husband’s clothing by the front door which Smith admitted her husband had packed, intending to leave. The State also presented evidence that Smith ordinarily kept the gun in her car. According to Smith, her husband was approximately five and one-half feet away when she fired. Held:

1. The evidence, viewed in the light most favorable to the verdict, is sufficient for a rational trier of fact to find all the essential elements of the crime. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The elements of manslaughter are satisfied with proof the accused caused the death of another under circumstances which would otherwise be murder but for the fact that she acted “solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2 (a); Thomas v. State, 184 Ga. App. 131, 132 (2) (361 SE2d 21) (1987). “The distinguishing characteristic between voluntary manslaughter and justifiable homicide is that the accused was so influenced and excited that [s]he reacted passionately rather than simply to defend [her]self. (Cit.)’ . . . The fear of some danger can be sufficient provocation to excite the passion necessary for voluntary manslaughter. [Cit.]’ ” Mitchell v. State, 199 Ga. App. 159,160-161 (404 SE2d 329) (1991). The evidence that Smith shot her husband after he hit her and was walking away is sufficient to support the verdict.

Decided August 5, 1996

Lettie E. Lane, for appellant.

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.

2. The trial court did not commit reversible error by refusing to give Smith’s requested jury charges on the battered person syndrome. Our cases construing the battered person syndrome consistently hold that it is not a separate defense, but falls within the ambit of the justification defense. Pugh v. State, 260 Ga. 874, 876 (3) (401 SE2d 270) (1991). This construction is not universally embraced. It has been noted that the standard charge on justification cannot adequately permit a jury to consider a properly asserted defense of battered person syndrome because such a charge instructs that the accused must reasonably believe that the force used was necessary to protect herself from imminent bodily harm while the battered person syndrome defense can turn on the fact that the accused has become so deeply troubled that she cannot objectively determine whether harm is “imminent.” Chester v. State, 267 Ga. 9 (471 SE2d 836) (1996) (Sears, J., concurring specially). However, because the trial court gave a complete charge on justification, binding authority compels us to find that a charge on the battered person syndrome was not required. Pugh v. State, 260 Ga. at 876.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A96A1267.
    COX v. ADVONI et al.
    (474 SE2d 290)
   Judge Harold R. Banke.

This workers’ compensation case arose after Deborah Lee Cox fractured her ankle while moving a carpet in the course of her employment at Travel Host Inn, owned by Bagwan Advoni. After an administrative law judge (“ALJ”) awarded Cox total disability benefits and an appellate panel affirmed, the superior court summarily reversed. We granted Cox’s application for discretionary appeal to consider her challenge to the superior court’s reversal of her award.

The ALJ’s award was premised on findings that (1) Cox was an employee of Travel Host Inn; (2) her injury arose in the course of her employment; and (3) Travel Host Inn employed three employees, a number sufficient to subject it to the workers’ compensation laws under OCGA § 34-9-2. The employer raised only the latter issue before the superior court, arguing that the award should be reversed in the absence of evidence sufficient to establish that Gayla Lawson, the requisite third employee, worked for Travel Host Inn. Held:

Decided August 5, 1996.

Merlyn D. Hall, for appellant.

J. Edwin Peavy, for appellees.

“In reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division.” South Ga. Timber Co. v. Petty, 218 Ga. App. 497, 498 (462 SE2d 176) (1995). When supported by any evidence, the findings of the State Board of Workers’ Compensation are conclusive and binding. Id.

The superior court erred in implicitly holding that no evidence supported the Board’s affirmance of the ALJ’s finding that Travel Host Inn employed the requisite number of workers to subject it to the workers’ compensation law. In so doing, the superior court improperly substituted itself as a factfinding body in lieu of the Board. Id.

It is undisputed that at the time of the injury Travel Host Inn employed both Cox, who supplied janitorial services, and Carl Jenkins, the night manager. The record also shows that Advoni testified that Gayla Lawson was his secretary. She worked nine to five, five days per week in her office, which was located at Travel Host Inn. In Advoni’s absence, Lawson rented rooms to the Inn’s guests and kept an eye on the front desk. She also kept Travel Host Inn’s books. Notwithstanding Advoni’s claim that he paid Lawson through a separate corporation, this evidence, properly viewed in the light most favorable to the party prevailing before the Board, is sufficient to support the finding that Lawson was Travel Host Inn’s employee. Id.; see Harris v. Seaboard Farms &c., 207 Ga. App. 147, 150 (427 SE2d 524) (1993). In light of this analysis, we need not reach Advoni’s remaining enumerations.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.

       In the absence of any indication of the issue on which its rejection of the award was based, we must assume the superior court limited its ruling to the sole issue presented to it on appeal.


author: McMurray, Presiding Judge.

text:
    A96A0977.
    SAPP v. THE STATE.
    (474 SE2d 233)
   McMurray, Presiding Judge.

Defendant Charles Sapp, also known as Charlie Allen Sapp, was charged in an indictment with “CRIMINAL ATTEMPT AT THEFT BY TAKING (AUTO),” “OBSTRUCTION [OF A LAW ENFORCEMENT OFFICER] BY GIVING FALSE NAME,” “THEFT BY RECEIVING STOLEN PROPERTY,” and “CRIMINAL DAMAGE TO PROPERTY IN THE SECOND DEGREE.” A fifth count alleged that defendant was a recidivist, for having been convicted of “FORGERY (SEVEN COUNTS),” “POSSESSION OF CONTROLLED SUBSTANCE,” and “ROBBERY BY INTIMIDATION.” At defendant’s jury trial, Eunice Arkwright Bonaparte testified that her 1982 Grand Prix was stolen from outside of her apartment sometime after 8:00 p.m. on January 10, 1995. Randy J. Holcomb testified that he was awakened “between two and two-thirty,” on the morning of January 11, 1995. He “looked out the window and . . . saw somebody moving [his] car, [a 1984 Parisienne,] so [he] turned on the porch light, and a couple of people got out and ran and jumped in another car and drove off.” Randy J. Holcomb “noticed that the steering column [on his car] was broken so [he] went back inside and called the police.” At approximately 3:15 a.m. January 11, 1995, Corporal Terry Shoop of the Savannah Police Department observed a vehicle with two male occupants, “just sitting stopped in the middle of the street,” with its four-way hazard lights operating. “It was a ‘82 Pontiac Grand Prix bearing Georgia license plate Charles George Tom 275, had a Chatham County ‘94 Georgia plate on it.” “After [Corporal Shoop] pulled up behind the vehicle, the subject sitting on the driver’s side . . . exited . . . and took off running east . . ., [while] the other subject exited the vehicle but did not run.” Corporal Shoop identified defendant as that other subject, i.e., the passenger. Corporal Shoop “noticed there [were] no keys in the ignition.” He walked around to the driver’s side and “noticed the steering column was spiked and that the back window had been busted out on the left side. . . . And there was also a screwdriver laying in the seat, in the front seat.” Defendant gave his name to Corporal Shoop as Johnny E. Sapp and a date of birth of 3/21/63, and he stated he lived at 2104 Gable Street.” Although Corporal Shoop “ran the tags, ran the V.I.N., [and] checked the glove box,” he was unable to determine the identity of the owner, so he “wrote the report up as an abandoned vehicle since the driver fled and towed it in.” Defendant was then released at the scene. “About 5:00 the next morning, the police department received a call that the vehicle had been stolen, and [Corporal Shoop] heard it go out, and [. . . so he] spoke with Ms. BonaparteL]” When Corporal Shoop attempted to interview defendant again, “a phone call was made to Mr. Sapp’s residence and ... we spoke with his father, and we asked for Johnny. . . .” There is a Johnny E. Sapp, but that is defendant’s brother. “[H]is father brought him down to the Detectives’ Office that morning, and [Corporal Shoop realized], this is not the same man [he] spoke with that night.” Corporal Shoop subsequently “identified [defendant] through a photograph as being the person [he] spoke with that morning.” Judging from defendant’s position as a passenger in the stolen vehicle, he “could have seen that the car had no keys to it[, . . . and] could have seen the window busted out in the back.” Corporal Franz Flavian of the Savannah Police Department Identification Section lifted fingerprints from the passenger front door handle and inside the passenger window of Randy J. Holcomb’s ¶19]84 Pontiac [Parisienne], blue in color.” Corporal William L. Schaeffer, also with the Identification Section of the Savannah Police Department was stipulated to be an “expert in the area of identification.” Corporal Schaeffer explained that “[i]n the ridge detail of a fingerprint are . . . minutia points, and we use those minutia points on the inked fingerprint and on the latent fingerprint in order to make an identification. You use the minutia points themselves in a relative positioning on one card [to] examine against the other. If you come up with a certain number of . . . points of commonality, then you have in fact effectuated a match between the two.” Corporal Schaeffer “use[s] ten minutia points of commonality to effect a fingerprint match. However, [he has also] been taught by the F[ederal] B[ureau of] I[nvestigation] that nine is sufficient.” Corporal Schaeffer found 11 points of commonality between the latent fingerprint on the front passenger door handle of Randy J. Holcomb’s vehicle and the inked fingerprint card for Charles A. Sapp, and concluded that “the inked fingerprint and the latent fingerprint were made by one and the same person.” Michael Jackson saw defendant driving a Grand Prix on Treat Street in east Savannah about 9:00 or 10:00 on the night of January 10, 1995. Defendant told Michael Jackson “first it was his [defendant’s] father’s car, then he told [Michael Jackson] later on in the conversation that the car was stolen.” Specifically, “he just said the car was hot.” Defendant subsequently asked for Michael Jackson’s “help to pop the steering wheel. . .” of a Parisienne defendant planned to steal and sell for parts. “When you pop a steering wheel, you [pop] the lock off the steering wheel so you can . . . drive the car away without using a key.” Michael Jackson observed as defendant “got in the car. He was in there for a minute. He put his feet on the brake lights. That’s to signal me [Michael Jackson] to come and help him pop the steering wheel. . . .” As Michael Jackson approached, defendant “slid over to the passenger side. . . .” The noise of breaking into the steering column aroused someone. “[L]ights came on and the man came out.” Michael Jackson and defendant fled, with Michael Jackson driving the Grand Prix in which defendant had arrived. Michael Jackson was driving to his home when “the car turn[ed] off.” Michael Jackson “was trying to crank the car up . . . when the police came.” Defendant testified on his own behalf, contending that he had no knowledge that the Grand Prix had been stolen and that he had only accepted a ride from Michael Jackson, when the car ran out of gas.

At the close of the evidence, the trial court directed a verdict of acquittal as to Count 4, criminal damage to property in the second degree. The jury acquitted defendant of theft by receiving but found him guilty of criminal attempt at theft by taking (auto) and obstruction of a law enforcement officer by giving a false name. Defendant’s motion for new trial was denied and this appeal followed. Held:

1. Defendant’s first enumeration of error urges the general grounds. The evidence of defendant’s accomplice is corroborated in material respects and is, therefore, sufficient under OCGA § 24-4-8 and the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, as a party to the crime of attempted theft by taking as alleged in the indictment. Walker v. State, 142 Ga. App. 799, 801 (237 SE2d 205). The evidence was also sufficient to authorize the jury’s verdict that defendant gave Corporal Shoop a false name with the intent to mislead that law enforcement officer in the discharge of his lawful duties, as alleged in the indictment. Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427). The enumeration of the general grounds is without merit.

2. Next, defendant contends the trial court erred in admitting State’s Exhibit 2, the file card of defendant’s ink fingerprints, over his objection as to lack of foundation. Review of the transcript, however, reveals that, after the State offered to redact information with a prior arrest, defense counsel stipulated to this exhibit’s admissibility, stating to the trial court: “That being the case, I’m satisfied. . . . We can admit that.” Thus, if any error was committed, it was self-induced and provides no basis for reversal. McKibbons v. State, 216 Ga. App. 389, 391 (3), 392 (455 SE2d 293).

3. In his third enumeration, defendant contends the trial court erred in permitting a juror to remain on the panel despite knowing one of the victims, Eunice A. Bonaparte. He argues he would have struck Mr. King for cause.

After Ms. Bonaparte was sworn in as the State’s first witness, but before she testified, Juror King informed the trial court: “I know Ms. Bonaparte. I didn’t know her last name had changed when they [the attorneys] were questioning at the onset [during voir dire].” When asked by the trial court, Juror King testified that any prior contact or acquaintance “would not [affect his decision]. It’s just that when that was asked whether we knew any of the witnesses] at the onset, I knew her. She and I went to the same home church together. We sung in the choir together. That was about twelve years ago. We haven’t been in contact. I didn’t know her name had changed.” Defense counsel informed the trial court that, had he known of Juror King’s relationship, he would have struck him. The trial court “[found] him acceptable, unless [defendant could] show . . . something ... to [indicate] he couldn’t be fair and impartial.”

“A challenge for cause should be so made as to show clearly whether it is a challenge for principal cause or a challenge to the favor. Turner v. State, 114 Ga. 421, 424 (40 SE 308)” Hagans v. State, 77 Ga. App. 513 (hn. 3) (48 SE2d 700). “Challenges for favor are based on admissions of the juror or facts and circumstances raising a suspicion that the juror is actually biased for or against one of the parties. [Cits.]” Jordan v. State, 247 Ga. 328, 338 (6) (276 SE2d 224). “Where a prospective juror is not impartial and free from prejudice or bias, that juror is subject to being excused for cause. Cade v. State, 207 Ga. 135, 140 (60 SE2d 763) (1950). The decision as to whether or not to discharge the prospective juror is within the discretion of the [trial] court. Wells v. State, 261 Ga. 282 (404 SE2d 106) (1991).” Perry v. State, 264 Ga. 524 (2), 525 (448 SE2d 444).

We agree with defendant that the prospective juror’s view of his own impartiality is not necessarily determinative. Lively v. State, 262 Ga. 510 (1), 511 (421 SE2d 528). In the case sub judice, however, the circumstances brought to the trial court’s attention by the juror’s complete candor about a casual social acquaintance from 12 years earlier indicate that juror’s sincere desire to be entirely fair. “There is nothing in the record raising any suspicion that [this individual was] biased against [defendant]. Consequently, the trial court did not err in overruling the challenge.” Cargill v. State, 255 Ga. 616, 625 (6), 626 (340 SE2d 891).

4. Defendant further complains of State’s Exhibit 2, the card with his fingerprints, arguing that his character was impermissibly placed in issue. “The fact that a copy of one’s fingerprints is on record is not indicative of prior criminal activity and it alone does not introduce the issue of a defendant’s character into issue. See, e.g., OCGA §§ 3-3-2 (c); 16-11-129 (c); 43-38-7 (d); 49-5-62.” Weldon v. State, 175 Ga. App. 172, 173 (2) (333 SE2d 23). See also Cooper v. State, 182 Ga. 42 (2) (184 SE 716). Moreover, in the case sub judice, this exhibit was redacted to remove any reference to prior charges.

5. In his fifth enumeration, defendant contends the trial court erred in imposing a felony sentence of ten years to serve, when no proof regarding the value of the property taken was offered at trial. He argues that he should have been sentenced as a misdemeanant under OCGA § 16-8-12 (a) (1). See also OCGA § 16-4-6 (c).

Decided July 15, 1996

Reconsideration denied August 6, 1996

Caeser J. Burch, for appellant.

Charlie Sapp, pro se.

Spencer Lawton, Jr., District Attorney, Barbara G. Parker, Assistant District Attorney, for appellee.

“Value is not an element of the crime of theft by taking as proscribed by Code Ann. § 26-1802 (a) [now OCGA § 16-8-2 (a)]. . . . Thus, the value of stolen items is [generally] relevant only for purposes of distinguishing between a misdemeanor and a felony. Code Ann. § 26-1812 [now OCGA § 16-8-12].” Stancell v. State, 146 Ga. App. 773 (2) (247 SE2d 587). But the property subjected to defendant’s attempted theft in the case sub judice was a motor vehicle, and so the applicable sentencing provision is OCGA § 16-8-12 (a) (4) (A): “The provisions of [OCGA § 16-8-12 (a)] (1) . . . notwithstanding, if the property which was the subject of the theft was a motor vehicle or was a motor vehicle part or component which exceeded $100.00 in value, [the punishment shall be] by imprisonment for not less than one nor more than 20 years or, in the discretion of the trial judge, as a misdemeanor.” “We read [this] statute as permitting felony punishment for the [attempted] theft of a motor vehicle, regardless of value, and requiring evidence of value exceeding $100 only where a motor vehicle part or component was the subject of the [attempted] theft. Our reading of the statute comports with OCGA § 16-8-18, which defines as a felony the entry of a person into a motor vehicle with intent to commit a theft.” Preston v. State, 183 Ga. App. 20, 23 (7) (357 SE2d 825). In the case sub judice, the trial court committed no error in imposing a felony sentence for defendant’s attempted theft of a motor vehicle.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.