author: Beasley, Judge. Andrews, Judge,

text:
    A92A1416.
    J. B. HUNT TRANSPORT, INC. et al. v. BENTLEY et al.
    (427 SE2d 499)
   Beasley, Judge.

J. B. Hunt Transport, Inc. (“Hunt”) and Protective Insurance Co. (“Protective”), its insurer, appeal from the judgment entered on the jury’s verdict, awarding compensatory and punitive damages resulting from an automobile accident caused when a truck driven by Hunt’s employee, Lutter, collided with Bentley’s parked automobile.

In 1989, Hunt was the largest trucking company in the country and had 4,500 drivers in its employ. Hunt operated on a “forced dispatch” system, meaning that a driver could not refuse a load. To do so resulted in termination. Hunt’s trucks averaged 135,000 miles per truck per year, 25 percent more miles per year than the industry average.

On August 29, 1989, Lutter was driving a 1989 tractor trailer rig for Hunt. He was being accompanied by his wife, with Hunt’s permission. He had been hired in June 1989. Upon arriving at Hunt’s Jonesboro terminal, Lutter completed a Vehicle Condition Report requesting service which indicated problems with the brakes and a “wobble” in the front end of the tractor. The tractor was taken off the road and put in for service at 2:30 a.m. on August 29. It was placed back on the road on the morning of August 30. Although there was evidence that Hunt’s practice was to put drivers in a motel when the trucks were off the road for service, there was no specific evidence as to Lutter’s whereabouts for that period.

Lutter, accompanied by his wife, took the tractor and a fully loaded trailer and headed north on Interstate 85 before noon. For approximately 10 to 20 miles, the Gallups and Brownlees followed the truck. They were afraid to pass because the truck was driving very erratically, swinging from left to right, going well off into the emergency lane across the solid white line and then veering back to the left across the center white broken line.

Near Jackson County, Georgia, the state Department of Transportation (“DOT”) was involved in utility construction. For one-and-one-half miles before that construction there were three signs and orange cones on the right white line indicating that fact. Bentley, sitting in his DOT pickup truck, was parked behind a deputy sheriff’s car. The deputy had his blue strobe lights on and the yellow flashing warning light on top of Bentley’s truck was on. Bentley’s truck was parked seven feet off the highway in the emergency lane.

Lutter veered to the left, then back to the right, hitting the deputy’s car and Bentley’s pickup truck. Lutter did not slow down when he entered the construction area, although he was not exceeding the 65 mph speed limit. Hunt’s trucks were equipped with governors that were supposed to limit speed to. 58 mph, but no records regarding the governor on this tractor were introduced. No brake lights were seen before the impact and no skid marks appeared before the crash, although there were about 30 to 35 feet of skid marks in front of Bentley’s truck where the tractor trailer rig turned over after making contact.

Bentley suffered broken bones as well as a concussion. The concussion resulted in three hematomas which left him with organic brain damage. He suffered cardiac arrest during one of the three craniotomies which he had. He is unemployable and permanently disabled.

A suit against Lutter, Hunt and Protective, seeking both compensatory and punitive damages, was filed on October 31, 1990, by Bentley for his injuries, and by his wife on a cause of action for loss of consortium. The complaint alleged that Lutter’s conduct within the scope of his employment for Hunt was the cause of the accident, and that Hunt was derivatively liable for the actions of its employee. Although the complaint alleged that Hunt’s liability was derivative of Lutter’s conduct, as tried by the parties, the case also raised the issue of whether Hunt was independently liable based on its own conduct. See OCGA § 9-11-15 (b).

Lutter remained a Hunt employee until October 30, 1989, when he was terminated because he was unable to return after a 60-day medical leave. No disciplinary action was taken against him by Hunt as a result of the accident.

Lutter was served under the provisions of OCGA § 40-12-1 et seq., the Nonresident Motorists Act. Hunt and Protective filed an answer for Lutter on his behalf, which was allowed after plaintiffs withdrew their objection, so the factual allegations in the complaint are not deemed true by default. He did not file an answer or make any appearance in the case. Hunt acknowledged liability for the acts of its employee Lutter, but contested punitive damages. The jury awarded Mason Bentley $2,975,000 in compensatory damages, and awarded his wife $575,000 in compensatory damages on her cause of action for loss of consortium. Utilizing a special verdict form, the jury also awarded Mason Bentley $1,250,000 in punitive damages against Lutter based on evidence of his conduct in the scope of his employment, and $250,001 in punitive damages directly against Hunt for its conduct independent of Lutter.

On her cause of action, Ms. Bentley similarly received punitive damages of $1,250,000 against Lutter for his conduct and $250,001 directly against Hunt. See Stapleton v. Palmore, 250 Ga. 259 (297 SE2d 270) (1982); White v. Hubbard, 203 Ga. App. 255, 256 (416 SE2d 568) (1992) (although an action by a wife for loss of consortium brought in the same suit with her husband’s action for personal injuries is a derivative claim precluding inconsistent verdicts by the same jury, it is nevertheless a separate and distinct claim for relief).

During the trial, Hunt’s corporate representative, B. J. Keller, director of casualty claims, testified that in February 1990, the company’s copy of the driver’s daily log, required by federal law to be maintained for six months, was destroyed in the normal course of business. This log would have shown the movements of the truck, as well as the activities of Lutter during the time the tractor was in the shop and whether he had violated the federal limits on length of time a driver could drive. The company copy of the log had been destroyed even though Hunt had retained the services of Equifax to conduct an investigation of the Bentleys in anticipation of litigation in January before the log was destroyed in February. Evidence also showed that Hunt drivers had a history of repeated violations of the federal driving time limitations, but there was no direct evidence that Lutter was violating the time limitations when the accident occurred.

1. We consider first Hunt and Protective’s fifth enumeration, that the court erred in qualifying the jury as to Protective since 100 percent of its stock is owned by Barton & Lyons and therefore, no juror could own stock in Protective.

A stipulation was entered into by the parties that Protective would remain a party to the case, bound by any judgment, but the jury would not be informed that it was a party and the bond and insurance policy would not be introduced into evidence. Appellants additionally objected to qualification as to Protective, contending that would improperly inject insurance into the suit. The premise for such an objection has, however, been resolved adversely to appellants in Grissom v. Gleason, 262 Ga. 374 (418 SE2d 27) (1992), by the Supreme Court’s determination that the joinder provisions of OCGA § 46-7-12 (e) were not subject to the constitutional challenge there made. Hunt admitted in its answer that it was “a motor common carrier engaged in interstate commerce ... [and] maintains the appropriate certificates of authority as required by the Georgia Public Service Commission.” Since, absent the stipulation, it would have been permissible to leave the insurance company joined as a party, there is no error in merely qualifying the jury as to it. See Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828 (1) (360 SE2d 280) (1987).

As stated in Grissom, “[t]he differential treatment of motor carriers and other insured defendants is based on a rational distinction directly related to the purpose of the Motor Carrier Act. The statute’s purpose is to protect the public against injuries caused by the motor carrier’s negligence. . . . OCGA § 46-7-12 (b), (c), and (d). The carrier’s insurance policy ‘is not one of indemnity against loss as that term is generally understoodQ but is a direct and primary obligation to any person who shall sustain actionable injury or loss.’ [Cit.] The injured person may sue the insurer directly on the insurance contract, as in an action against a surety on a surety bond. [Cits.]” Grissom, supra at 377.

2. Hunt and Protective moved for a directed verdict on the issue of punitive damages, on the ground that the evidence supported only a finding of mere negligence, even though gross, which would not support the submission of the issue to the jury.

OCGA § 51-12-5.1 (b) provides that “[p]unitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Subsections (f) and (g) state that “[i]n a tort case in which the cause of action does not arise from product liability, if it is found that the defendant acted, or failed to act, with the specific intent to cause harm, there shall be no limitation regarding the amount which may be awarded as punitive damages. For any tort action not provided for by subsection . . . (f) of this Code section in which the trier of fact has determined that punitive damages are to be awarded, the amount which may be awarded in the case shall be limited to a maximum of $250,000.00.”

The first and third enumerations of error deal with punitive damages awarded against Lutter, who was a co-defendant along with Hunt and Protective, but who is not a party to this appeal. Nevertheless, based on the allegations and evidence presented, the plaintiffs sought to impose derivative liability on Hunt and Protective for the punitive damages assessed against Hunt’s employee, Lutter. See Harris, Inc. v. Black, 130 Ga. App. 867, 868 (204 SE2d 779) (1974) (employer is subject to derivative liability for punitive damages assessed as a result of actions taken by an employee in the scope of employment). Whether Lutter’s actions justified an award of punitive damages, and the amount of such damages, were issues on which the plaintiffs carried the burden of proof at trial in seeking to impose derivative liability for these damages against Hunt and Protective. Avis Rent A Car System v. Rice, 132 Ga. App. 857, 858 (209 SE2d 270) (1974). The jury reached a verdict awarding punitive damages against Lutter based on evidence of his actions taken within the scope of his employment by Hunt. The trial court subsequently entered judgment on this verdict against Lutter and against Hunt on its derivative liability — a judgment also payable by Protective to the extent of its contractual obligation to pay such damages under the insurance policy issued to Hunt. Accordingly, Hunt and Protective have standing to appeal from the judgment.

“ ‘(O)n appeal, we must construe the evidence most strongly to support the jury verdict and the judgment’ [cit.]; likewise, in considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion. [Cit.] The standard for review of a directed verdict and a judgment n.o.v. are the same: ‘Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.’ [Cit.]” Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d 267) (1991); Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983). Our review is the “any evidence” standard. Mattox, supra. It is important to remember that this court does not consider the weight of the evidence. Moultrie Farm Center v. Sparkman, 171 Ga. App. 736, 738 (2) (320 SE2d 863) (1984).

As to the punitive damages assessed for Lutter’s conduct within the scope of his employment by Hunt, enumerations 1 and 3 allege error in the court’s denial of Hunt’s motion for judgment n.o.v., because: (1) there was no clear and convincing evidence to support any award of punitive damages, and (2) in any event, there was no evidence of specific intent on which to base the jury’s award of punitive damages for each plaintiff in excess of $250,000.

Viewed under the principles set out above, there was evidence from which the jury could have determined that, notwithstanding either a serious mechanical problem or serious physical problem or both, Lutter continued on the highway for at least 10 or 20 miles, veered off the roadway without braking, and struck Bentley’s truck. Evidence of such “conscious indifference to consequences” supported the submission of the issue of punitive damages to the jury to determine according to the “clear and convincing” standard.

More difficult is the issue of whether such evidence supported the submission of the issue of “specific intent to cause harm” to the jury. This was not alleged in the complaint, although an unspecified amount of punitive damages was sought. Bentley relies on the rebut-table presumption that “[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts. . . .” OCGA § 16-2-5. This court implicitly rejected that theory in Viau v. Fred Dean, Inc., 203 Ga. App. 801 (418 SE2d 604) (1992), and we explicitly reject it here.

As was stated in Viau, supra at 805, “Dean intended to drink, he intended to drive after he had done so and, while driving, he intended to exceed the speed limit. This would certainly be evidence of his general conscious indifference to the consequences of driving while intoxicated and would certainly authorize a finding that he was liable for punitive damages. However, it would not be evidence of his specific intent that driving in his intoxicated condition cause harm. Intent is defined in Restatement, Torts 2d, § 8A (1965) to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it. On the other hand, the mere knowledge and appreciation of a risk, short of a substantial certainty, is not the equivalent of intent. Eubanks v. Nationwide &c. Ins. Co., 195 Ga. App. 359, 364 (4) (393 SE2d 452) (1990).” (Emphasis in original; citations and punctuation omitted.)

Given the present facts, we conclude there was no evidence that Lutter acted with specific intent to cause harm. In the absence of sufficient evidence to show that Lutter acted with specific intent, there was no basis to award Mason Bentley more than $250,000 in punitive damages on his claim, and no basis to award his wife more than $250,000 in punitive damages on her separate cause of action for loss of consortium. The punitive damages awarded against Lutter in favor of Mason Bentley in the sum of $1,250,000 must be reduced to $250,000; likewise, the punitive damages awarded against Lutter in favor of Ms. Bentley in the sum of $1,250,000 must be reduced to $250,000.

3. The second and fourth enumerations of error address punitive damages awarded against Hunt, not on the basis of derivative liability for Lutter’s conduct, but because of Hunt’s independent actions. Appellants contend that the evidence with respect to the independent actions of Hunt was not only insufficient to show that Hunt acted or failed to act with specific intent to cause harm, but failed to support an award of punitive damages in any amount.

As in the case of Lutter, the jury assessed these damages “because of aggravating circumstances in order to penalize, punish, or deter [Hunt].” OCGA § 51-12-5.1 (a). The jury was charged the standard which it was required to employ in considering whether such damages were authorized, and in its estimation there was “clear and convincing evidence that [Hunt’s] actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b).

“Under OCGA § 51-12-5.1 (b) . . . it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. . . .” (Citations and punctuation omitted.) Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811) (1991). “Mere negligence, although gross, will not alone [support] the recovery of punitive damages.” (Citations and punctuation omitted.) Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 861 (1) (389 SE2d 355) (1989).

The practices of Hunt showed that it did not abide by required safety regulations. It was a “habitual violator” of the hours-in-service requirements of the Georgia Public Service Commission for its vehicles. Commission inspection of 236 of its vehicles over 3 years showed one-third (76) in logbook violations which were penalized because of driver excessive driving. It operated a “forced dispatch” system, under which drivers could be fired for refusing a load. The driver’s logbook was destroyed by Hunt after its investigation of the incident had already begun. It would have given information concerning his hours of driving and his hours of non-driving and off-duty time, which would show whether he exceeded the permitted driving time. It would also show speed. Considering its destruction by Hunt, it was a reasonable presumption that the logbook showed that the driver was compelled by Hunt to drive with insufficient rest. OCGA § 24-4-22. This would be a contributing factor, or the cause, of his sustained weaving from lane to lane, failing to slow the fully loaded tractor-trailer from 65 mph despite the warnings of construction ahead and, without braking to avert collision, plowing into a readily visible vehicle parked off the roadway.

The pre-trip and post-trip vehicle inspection report was also destroyed by Hunt. It shows the condition of the vehicle, according to an inspection by the driver of the tires, brakes, lights, steering, etc. Considering its destruction, and the fact that the vehicle was taken off the road the day before because of operational defects, and the absence of testimony by those mechanics who had worked on it before it was returned to the road, it was a reasonable presumption that the report would have shown that the tractor-trailer was not in safe condition to be driven on the interstate highway. OCGA § 24-4-22. This, too, would be a contributing factor, or the cause, of the erratic driving which resulted in the collision.

Hunt also failed to produce the driver or the passenger as witnesses to explain the manner of driving, including the continuous swerving for 10-20 miles, raising a presumption that their testimony would have been adverse to Hunt’s interest in avoiding liability for punitive damages.

From these circumstances, the jury could find, by applying the clear and convincing evidence standard, that Hunt exhibited a conscious indifference to the consequences of putting a tired driver, at the risk of losing his job if he did not comply, and/or a defective tractor-trailer out on the highway, with a schedule for delivery which prompted maintaining the maximum allowable speed even in construction areas. This constituted a sufficient basis for the “aggravating circumstances” which the jury found as the predicate for punitive damages against Hunt.

The trial court did not err in denying the motion for judgment n.o.v. as to the amount of $250,000. However, we find no evidence of “specific intent to harm” which would support the $2 in punitive damages for that factor.

4. Since the evidence with respect to the conduct of Lutter and Hunt failed to authorize a finding of specific intent to cause harm, it follows that the trial court erred in giving plaintiffs’ requests to charge numbers 46 and 47 (enumerations 7 and 8) regarding specific intent under OCGA § 51-12-5.1 (f), (g). See OCGA § 5-5-24 (c).

5. Admission of the 1990 Financial Report of Hunt and its Form 10K submission to the Securities & Exchange Commission is objected to in the sixth enumeration.

The consideration of the financial documents occurred during the second phase of the trial, after the jury had determined that punitive damages should be assessed. Appellants contend that to allow receipt of evidence of Hunt’s financial worth would be violative of equal protection under the plurality analysis of Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991). That rationale is discounted, however, by Grissom, supra, at least with regard to differential treatment of motor carriers and other insured defendants. Moreover, that such financial information is at least discoverable with regard to punitive damages is no longer open to question. Floyd v. First Union Nat. Bank, 203 Ga. App. 788, 791 (2), (3) (417 SE2d 725) (1992).

The extensive argument presented here based upon Pacific Mutual Life Ins. Co. v. Haslip,_U. S._(111 SC 1032, 113 LE2d 1) (1991), was not made at all during the trial of the case, and the case was first cited to the trial court in the brief on the motion for j.n.o.v. That argument was that “[t]here was no instruction to the jury in Phase II that the imposition of punitive damages is not compulsory, as required by Pacific Mutual ... , in order for punitive damages to be constitutional. Instead, the jury was directed to find some amount as punitive damages in Phase II.”

That argument is not well taken. Reading the entire instructions of the court on the issue of punitive damages, as we must when evaluating the charge, Joiner v. State, 204 Ga. App. 592, 593 (2) (420 SE2d 73) (1992), the jury was told that it had the option of imposing punitive damages. The charge was not subject to that objection.

That financial evidence is relevant and admissible was recognized by Hospital Auth. of Gwinnett County v. Jones, 259 Ga. 759, 764, fn. 13 (386 SE2d 120) (1989), cert. granted and judgment vacated (111 SC 1298, 113 LE2d 234) (1991), judgment aff’d and reinstated on remand, 261 Ga. 613 (409 SE2d 501) (1991). Cf. Floyd, supra at 791.

6. In light of our disposition of the case, enumeration of error 9 is moot and need not be addressed.

Judgment affirmed with direction that punitive damages against Lutter and against Hunt in excess of $250,000 for specific intent to harm be written off. Carley, P. J., Pope, Cooper and Johnson, JJ., concur. Sognier, C. J., Birdsong, P. J., and Andrews, J., concur in part and dissent in part. McMurray, P. J., not participating.

Andrews, Judge,

concurring in part and dissenting in part.

I concur in the judgment and opinion with the exception of Division 3, to which I respectfully dissent.

Appellants contend that the evidence with respect to the independent actions of Hunt was not only insufficient to show that Hunt acted or failed to act with specific intent to cause harm, but failed to support an award of punitive damages in any amount. In support of their claim, the plaintiffs presented evidence that Hunt was a habitual violator of federal limits placed on driver’s hours; that Hunt used a “forced dispatch” system, which allegedly required drivers, such as Lutter, to accept loads even though they may have been too tired to drive, and that the driver’s log destroyed by Hunt would have shown whether or not Lutter was violating the federal time limits for driving at the time of the accident.

Even if the failure of Hunt to produce the driver’s log raised a presumption against Hunt pursuant to OCGA § 24-4-22, I conclude that this, along with the other evidence of Hunt’s independent conduct was not clear and convincing evidence required by OCGA § 51-12-5.1 (b) for the award of punitive damages. “Under OCGA § 51-12-5.1 (b) . . . it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. . . .” (Punctuation omitted.) Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811) (1991). “Mere negligence, although gross, will not alone [support] the recovery of punitive damages.” (Citations and punctuation omitted.) Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 861 (1) (389 SE2d 355) (1989). Although the “any evidence” rule cited by the majority as the standard of review on appeal from a directed verdict or judgment n.o.v. is technically correct and supported by authority, it is potentially misleading in that it may imply the appellate court will defer to the trial judge’s determination. In reviewing a motion for directed verdict or judgment n.o.v., both the trial judge and the appellate court determine as a matter of law whether the evidence was sufficient under the same standard: “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). The only question asked by the appellate court is whether the trial judge was right or wrong in applying this standard. See Gregory, Ga. Civil Practice, § 6-17, p. 505 (1990). Of course, under OCGA § 51-12-5.1 (b), if a material issue exists, it must be with respect to clear and convincing evidence.

The plaintiffs’ theory was that the factual circumstances of the accident support the inference that Lutter must have been asleep or barely awake when, after weaving down the interstate, he slammed into Bentley’s truck in broad daylight without hitting the brakes. To shift the blame for this conduct to Hunt, plaintiffs pointed to Hunt’s “forced dispatch” system and history of repeated violations by other Hunt drivers of the federal driving time limits. The plaintiffs contend that this is evidence Lutter was asleep or too tired to drive; that the destroyed logbook would have shown Lutter had been driving too long, and that Hunt’s policies were the cause of these conditions, which in turn were the cause of the accident. There was no direct evidence that Lutter was tired or asleep, or that if he was, this condition was the result of conduct by Hunt. I cannot conclude on the present facts that these inferences and the circumstantial evidence from which they were drawn are sufficient to create a material issue with respect to the clear and convincing evidence necessary to support the award of punitive damages.

Decided December 18, 1992

Reconsideration denied February 5, 1993

Hurt, Richardson, Garner, Todd & Cadenhead, Harold N. Hill, Jr., for appellants.

Bondurant, Mixson & Elmore, Emmett J. Bondurant, George W. Fryhofer III, Michael A. Sullivan, Fortson, Bentley & Griffin, J. Edward Allen, for appellees.

The trial court erred by allowing the assessment of punitive damages directly against Hunt for its conduct independent of Lutter in favor of Mason Bentley in the sum of $250,001, and in favor of Ms. Bentley in the sum of $250,001. These sums should be written from the judgment in their entirety.

I am authorized to state that Chief Judge Sognier and Presiding Judge Birdsong join in this dissent.

       That both Hunt and Lutter were subject to the imposition of punitive damages in some amount was determined in the first phase of the trial.

       The Pacific Mutual opinion was issued by the Supreme Court on March 4, 1991, before the August 1991 trial of this case.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A92A1961.
    WITTENBERG v. 450 CAPITOL ASSOCIATES.
    (427 SE2d 547)
   Blackburn, Judge.

The appellant, Morton Wittenberg, commenced this action against the appellee, 450 Capitol Associates, to recover for injuries he sustained when he walked into a glass panel in the lobby of a hotel owned by the appellee. The trial court granted summary judgment for the appellee, and this appeal followed.

The record shows that on the morning of September 10, 1989, the appellant parked at the Ramada Hotel on Capitol Avenue and ate breakfast at the hotel restaurant prior to attending an Atlanta Falcons football game. It was routine for the appellant to do so; as a season ticket holder for several years, he had parked at the hotel six to eight times and had eaten breakfast there four to five times. On this particular occasion, he met his son and two nephews at the hotel for the pre-game meal. As they left the hotel to go to the stadium, the appellant’s son led the way through the glass doors of the hotel’s front entrance. The appellant and his two nephews followed, “walking and talking and enjoying each other’s company,” according to the appellant. The appellant then walked into the glass panel situated to the left of the glass door, shattering the glass and cutting his left hand in the process.

The hotel entrance consisted of two glass doors separated by a 45-inch-wide glass panel. Other glass panels, measuring slightly greater than four feet wide by nine feet high, were situated on either side of the glass doors. The glass used in the doors and the panels was tempered, and was tinted a dark brown or bronze color. The panels were framed by a metal casing. This configuration had existed at least since the appellee purchased the hotel in 1982, and perhaps since the construction of the hotel in 1972. The appellee was unaware of any other lawsuit or complaint arising from any incident similar to the appellant’s experience. Approximately three to four years prior to the appellant’s injury, another individual had walked into the right glass panel and had broken the glass; however, he was not injured, and actually apologized to the hotel personnel. Planters frequently were placed in front of the glass panels for decorative purposes, but on the day in question none was present in front of the left panel. After the appellant’s incident, horizontal rails were installed across the glass panels at a cost of about $75.

During all his previous visits to the hotel, the appellant had walked through this same doorway without any incident. The appellant’s son frequently accompanied him to the pre-game brunch and football game, and he had never had any difficulty distinguishing between the doors and the glass panels.

It is uncontroverted that the appellant was an invitee at the time of his injury. Owners or occupiers of land have a duty to exercise ordinary care to keep the premises and approaches safe for invitees. OCGA § 51-3-1; Zellers v. Theater of the Stars, 171 Ga. App. 406 (1) (319 SE2d 553) (1984). A proprietor is not the insurer of the invitee’s safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which the proprietor has superior knowledge. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

A defendant may prevail in its own motion for summary judgment by showing that “there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.” Lau’s Corp. v. Haskins, supra at 491. In the instant case, the appellant’s theory of liability is composed of three elements: (1) the appellee maintained a dangerous condition on its premises; (2) the appellant was injured by this condition; and (3) the appellee possessed superior knowledge of the dangerous condition. There is no dispute over the fact of the appellant’s injury, and the appellant contends that issues of fact existed with regard to the other two elements, so that summary adjudication was inappropriate.

The appellant first notes that OCGA § 8-2-90 includes, in its list of hazardous locations for the purpose of glazing, large glass panels that are adjacent to doors, and then suggests that this statute served to give the appellee notice of the dangers posed by the glass panels to either side of the hotel’s entrance. However, in Zellers v. Theater of the Stars, supra at 408, this court held that a lessee of premises was not put on notice, statutory or otherwise, that a plate glass door constituted a dangerous location by virtue of § OCGA 8-2-90 et seq. That same principle applies in this case.

The appellant relies upon an affidavit from an architect who opined that the large unprotected glass panels at the appellee’s hotel lobby created a hazard. Specifically, that expert witness explained that because of the high quality of glass resulting from modern production techniques, it can be difficult to observe glass even when one looks directly at it, and especially when one is walking and talking to others. Also, the presence of a second wall of glass beyond the doorway could create some confusion as to which glass panel one perceived. However, those allegations are conclusory, essentially a reargument of the appellant’s claim, and are insufficient to avoid summary judgment. Abrahamsen v. McDonald’s Corp., 193 Ga. App. 868 (389 SE2d 386) (1989); see also Morton v. Stewart, 153 Ga. App. 636, 643 (266 SE2d 230) (1980).

The appellant contends that the installation of protective railing after the incident supports finding the appellee’s failure to do so earlier to be negligence which created a dangerous condition. However, “evidence of repairs, change of conditions, or precautions taken after an injury is not admissible as proof of negligence of the defendant in not having made the repairs, changed the conditions, or taken the precautions prior to the injury. ...” King Cotton, Ltd. v. Powers, 190 Ga. App. 845, 849-850 (380 SE2d 481) (1989). Although the costs of providing safeguards may be shown on the questions of their feasibility for removing or minimizing danger, Moody v. Southland Investment Corp., 126 Ga. App. 225 (190 SE2d 578) (1972), the appellee’s subsequent installation of the protective railing in front of the glass panels may not be used to show negligence on the appellee’s part and create an issue of fact as to the existence of a dangerous condition.

The mere fact that about three to four years before the appellant’s injury, another individual walked into and broke the right glass panel does not serve as notice to the appellee of the existence of a dangerous condition or bestow the appellee with superior knowledge of a danger. No other circumstances associated with that prior incident were known, other than the individual was not injured, and, rather than complaining about the situation, he apologized for breaking the panel. There is no evidence supporting the appellant’s description of this prior incident as “virtually identical” to the appellant’s own mishap. “While the relevancy of other occurrences is ordinarily within the sound discretion of the court, ‘it is necessary that the conditions of the things compared be substantially similar.’ [Cit.] Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court’s discretion can operate. [Cits.]” Carlton Co. v. Poss, 124 Ga. App. 154, 155 (183 SE2d 231) (1971), aff’d 228 Ga. 402 (185 SE2d 803) (1971).

It must be reiterated that the true ground of liability is the proprietor’s superior knowledge of the danger or condition. “[T]here is no obligation to protect the invitee against dangers or hazards which are known to him or which are so obvious and apparent he may reasonably be expected to discover them.” Amear v. Hall, 164 Ga. App. 163, 169 (296 SE2d 611) (1982).

In the instant case, it was undisputed that the glass panel was tinted a dark color and framed by a metal casing. The incident occurred around 11:00 a.m. and the lighting in the hotel lobby was adequate. The glass panel was easily discernible merely by looking at it. The appellant had walked through the entrance on several other occasions without incident, and although there may have been a planter placed in front of the panel on previous visits, he at least had several opportunities to notice the general configuration of the hotel entrance and, in particular, the glass panels. There were no other exigencies created by the appellee on this occasion that could have caused the appellant to walk into the glass panel. Rather, the appellant stated that he walked into the glass panel because he “just didn’t see it.” He also acknowledged that as he was walking through the lobby towards the doorway, he was talking with his nephews.

“An invitee is under an equal duty with the owner to use [his] sight to discover any defect or dangers. [Cits.] . . . [W]here an obstruction is in some way hidden, camouflaged or intrinsically unsafe, the question of ordinary care should be one for the jury. But where the evidence shows that the object is most obvious and apparent to sight, so that one looking ahead would necessarily see it, the fact that a plaintiff merely failed to look will not relieve him from responsibility for his own misadventure.” Forde v. C & S Ga. Corp., 178 Ga. App. 400, 403 (343 SE2d 164) (1986).

The appellant contends that an issue of fact may still exist over whether he exercised ordinary care for his own safety because of the distraction presented by the crowded and noisy hotel lobby. However, the appellant’s own deposition testimony, and the deposition testimony of his son, indicate that the only distraction of his awareness at the time of the incident consisted of his own conversation with his nephews. Where the distraction is self-induced, it may not excuse one’s failure to exercise ordinary care for one’s own safety. Federated Dept. Stores v. Clum, 205 Ga. App. 798 (423 SE2d 716) (1992); Simone v. Hancock Textile Co., 175 Ga. App. 191 (2) (332 SE2d 669) (1985).

Decided January 22, 1993

Reconsideration denied February 5, 1993

Stephen E. Shepard, for appellant.

Neely & Player, David C. Marshall, for appellee.

In summary, the uncontroverted evidence shows that no dangerous condition existed on the appellee’s premises. However, even if the glass panel in this case did present a danger, the appellant failed to exercise ordinary care for his own safety, and the trial court did not err in granting summary judgment for the appellee. See Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234) (1991); Sinclair v. Orozco, 205 Ga. App. 498 (423 SE2d 25) (1992).

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


author: McMurray, Presiding Judge.

text:
    A92A2148.
    MOZIER v. THE STATE.
    (427 SE2d 551)
   McMurray, Presiding Judge.

Defendant was convicted of rape (two counts), aggravated sodomy (two counts), armed robbery and false imprisonment. The trial court denied defendant’s motion for a new trial and he appeals. Held:

1. Defendant argues that the trial court erroneously permitted the State to introduce evidence of similar crimes. We disagree.

The crimes in question occurred on June 27, 1990. The evidence demonstrated that the victim, a young woman, left work around midnight and started driving home. When she came to a stop sign, she was bumped by a car which had been following her. The victim did not stop; but the car sped up, pulled in front of her and blocked the road. Defendant emerged from the car, approached the victim, and pulled her out of her automobile. The victim screamed for help and defendant punched her in the face. He told the victim that he had a knife and he would kill her if she did not cooperate. Then, he pulled the victim by the hair and pushed her into his car. Defendant drove off, calling the victim vile names. He obtained the victim’s driver’s license, spoke to her by name and asked her about her children. Ultimately, defendant drove the victim to a vacant apartment; he forced her to crawl into it through a broken window. Inside, defendant ordered the victim to remove her clothes; he removed the victim’s jewelry; he put duct tape over the victim’s eyes and taped her hands behind her back. Defendant told the victim to act like this was the last time she would ever “f_” again. Then, he raped her, sodomized her orally, raped her again, and sodomized her anally. After the victim pleaded for her life, defendant made her climb into a bathtub; he put a gag in her mouth and tied her up with clothing. Then, defendant left. After about 30 minutes, the victim was able to free herself and run for help.

The State introduced evidence of two similar crimes committed by defendant. One crime occurred in 1982; the other occurred less than one month before defendant committed the crimes in this case. The victims in the earlier crimes were young women, too. They, too, were kidnapped by defendant at knifepoint and driven to other, desolate locations (in one case, an abandoned residence) where they were raped (and, in one case, sodomized). They, too, were abducted from, or as they approached, their cars. (In one case, the modus operandi was identical to the case sub judice. Defendant bumped the victim and when she got out of her car to inspect the damage, defendant assaulted her.) They, too, were asked about their children. They, too, were bound and gagged (albeit, in one case, only temporarily).

The State demonstrated that defendant was the perpetrator of the prior crimes. The prior crimes were remarkably similar to the crimes in this case: They shed light on defendant’s identity, motive, plan, scheme, bent of mind and course of conduct. The relevance of the evidence outweighed any prejudice that may have resulted from admitting it. We find no error. Childs v. State, 202 Ga. App. 488 (1) (414 SE2d 714).

(a) Defendant asserts the trial court erred in refusing to suppress evidence seized by the police pursuant to a warrant because the warrant was based on “false statements” in the affidavit. In this regard, defendant points to a portion of the affidavit in which the affiantofficer deposed that an investigator of the 1982 crime said that that victim was “kidnapped, raped, tied up, and left in a bathtub the same as” the victim in this case. He also points to a part of the affidavit in which the affiant-officer deposed that a witness “observed” the victim’s abduction in a car.

Defendant’s assertion “extends beyond the boundaries of defendant’s motion to suppress. . . . OCGA § 17-5-30 (b) requires that a motion to suppress evidence ‘state facts showing that the search and seizure were unlawful.’ Unless defendant has satisfied this requirement the State is under no duty to present evidence in rebuttal. Smith v. Hopper, 240 Ga. 93, 95 (3) (239 SE2d 510).” Wilson v. State, 197 Ga. App. 181, 183 (397 SE2d 744). It follows that we need not consider defendant’s “false statements” assertion. But even if defendant’s “false statements” assertion had been raised below, we would find it to be without merit.

Concerning the “bathtub” statement, defendant contends the victim of the 1982 crime was not left in a bathtub but was simply left in an abandoned residence. Concerning the “observed” statement, defendant contends that although the witness heard a woman scream, saw an automobile pull away, and saw another automobile abandoned, he did not “observe,” i.e., actually “see,” anyone put the victim in a car.

Because the “false statements” issue was not raised below, we do not know the source of the affiant-officer’s “misstatements.” Was the misstatement about the bathtub a result of a miscommunication between the 1982 investigator and the affiant-officer? Or was it the result of a failure of memory on the part of the 1982 investigator? Was the misstatement about what the witness “observed” a deliberate exaggeration or a matter of semantics? We do not know.

What we do know is that leaving the “misstatements” aside, the affidavit was more than sufficient to establish probable cause. “ ‘The fact there is an immaterial factual inaccuracy is not fatal to an otherwise adequate showing of probable cause.’ Geiger v. State, 129 Ga. App. 488, 492 (199 SE2d 861) (1974). Factual inaccuracies that are only of ‘peripheral relevancy to the showing of probable cause’ do not go to the integrity of the affidavit. Summerville v. State, 226 Ga. 854, 858 (178 SE2d 162) (1970).” Lee v. State, 239 Ga. 769, 773 (3), 774 (238 SE2d 852).

(b) Defendant also contends the evidence seized pursuant to the warrant should have been suppressed because the affidavit did not show how the items to be seized pertained to the crime. In this connection, defendant points out that the affidavit describes the crimes as kidnapping, rape, and sodomy and that the items to be seized (a ladies watch, diamond ring, gold necklace, driver’s license, duct tape, head and body hair and a pocketknife) are described in the affidavit as “fruits” of the crimes. Completing the argument, defendant contends that none of the items can be described as “fruits” of the crimes since (1) “robbery” is not listed as one of the crimes and (2) some of the items are “instrumentalities” of the crimes. We find this argument to be without merit.

“ ‘(T)he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. . . . [A]ffidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.... Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’ United States v. Ventresca, 380 U. S. 102, 108 (85 SC 741, 13 LE2d 684). Accord, Driscoll v. State, 129 Ga. App. 702 (201 SE2d 11).” State v. Babb, 134 Ga. App. 302, 303 (1) (214 SE2d 397).

Although the affidavit does not list “robbery” as a crime, the affiant-officer states that he has “probable cause to believe that the items taken from [the victim] are at [defendant’s] residence or in his vehicle. ...” (Emphasis supplied.) Moreover, the affidavit states that duct tape was used to subjugate the victim. It is obvious, therefore, that the items to be seized were either fruits (jewelry, driver’s license), instrumentalities (duct tape, pocketknife) or evidence (head and body hair) of the crimes. A “practical, common sense” reading of the affidavit revealed probable cause to believe that the described items would be found in a particular place, i.e., defendant’s residence or vehicle. See Keller v. State, 169 Ga. App. 596 (314 SE2d 255).

(c) Defendant asserts the trial court erred in failing to suppress evidence that was not listed in the warrant but that the officers seized nonetheless, to wit: brass knuckles, a pair of black pants and a typewritten, semi-autobiographical manuscript. In this regard, defendant argues that the incriminating nature of those three items was not immediately apparent. See Whittington v. State, 165 Ga. App. 763, 764 (302 SE2d 617); Stone v. State, 162 Ga. App. 654 (292 SE2d 525); Cook v. State, 134 Ga. App. 712, 715 (4) (215 SE2d 728). We find no error.

In the affidavit, the affiant-officer deposed that the victim was “beaten” by her assailant. Given that testimony, we think the officers executing the warrant were justified in seizing the brass knuckles — the incriminating nature of such a weapon was readily apparent. See Whittington v. State, 165 Ga. App. 763, 764, supra. (In fact, the brass knuckles were used by defendant in connection with a similar crime in which the victim was beaten severely. They were introduced by the State to prove that defendant was the perpetrator of that crime.)

The officers seized the black pants because the victim stated that her assailant wore such pants. In any event, the pants were not placed in evidence by the State.

Although the manuscript was not put in evidence, an agent of the Georgia Bureau of Investigation identified the manuscript, describing it as an “unusual” “book” which appeared to be an autobiography and featured a “murder.” Defendant objected to the agent’s testimony, asserting the manuscript should have been suppressed. However, defendant gave a duplicate copy of the manuscript to his brother. (Defendant’s brother gave the manuscript to the Georgia Bureau of Investigation; it, too, was identified and discussed at trial.) Thus, it cannot be said that the manuscript was the subject of Fourth Amendment protection. See State v. Scott, 159 Ga. App. 869, 870 (2), 871-872 (285 SE2d 599).

The trial court did not err in failing to grant defendant’s motion to suppress evidence for any of the reasons asserted by defendant.

2. Defendant contends the trial court erred in refusing to permit him to present evidence at the hearing upon the motion for a new trial. In this connection, defendant asserts he was not permitted to subpoena a number of witnesses (including his father, brother, a former assistant district attorney who was originally assigned to handle this case, a secretary at the Macon Police Department who transcribed the victim’s statement, the magistrate who issued the search warrants, various police officers, an ex-girl friend and the girl friend’s sister) to compel them to attend and testify at the hearing.

It is axiomatic that reversible error does not exist without harm. Hurston v. State, 194 Ga. App. 226, 227 (390 SE2d 119). Defendant did not demonstrate what relevant, pertinent testimony the proposed witnesses would offer at. the hearing on the motion for a new trial. Thus, defendant failed to show how he was harmed by the trial court’s ruling and we find no reversible error.

3. Defendant also contends the police prejudiced his ability to garner exculpatory evidence from his automobile because they permitted a bank to repossess it. This contention is wholly meritless. Defendant failed to show what, if any, exculpatory evidence could have been obtained from his automobile. Besides, defendant had ample opportunity to inspect the automobile before it was repossessed and sold by the bank.

4. Next, defendant asserts that a lineup in which he participated was suggestive and tainted the victim’s in-court identification. We disagree. “The evidence was sufficient to show that this line-up was not impermissibly suggestive. Head v. State, 235 Ga. 677, 678 (221 SE2d 435); Payne v. State, 233 Ga. 294 (210 SE2d 775). Furthermore, the trial court also was warranted in accepting the victim’s in-court identification of [defendant], as one based upon a source independent of the line-up, i.e., the physical encounter at the time of the [crimes]. Yancey v. State, 232 Ga. 167 (205 SE2d 282).” Smith v. State, 137 Ga. App. 845 (2), 846 (225 SE2d 93).

5. Finally defendant asserts that the trial court erred in failing to find ineffective assistance on the part of his trial lawyer. This assertion is without merit. “ ‘A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless the finding is clearly erroneous.’ ” Harris v. State, 198 Ga. App. 503 (402 SE2d 62), rev’d on other grounds, 261 Ga. 386 (405 SE2d 482). The trial court’s finding is supported by the record. There is no evidence whatsoever to demonstrate that defense counsel’s performance was ineffective.

Decided January 22, 1993

Reconsideration denied February 5, 1993

Floyd M. Buford, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Graham A. Thorpe, Assistant District Attorneys, for appellee.

Judgment affirmed. Cooper and Blackburn, JJ., concur.


text:
    A92A1910.
    MARLOW v. THE STATE.
    (427 SE2d 600)
   Blackburn, Judge.

The appellant, Jeneile Marlow, was convicted of armed robbery and sentenced to serve five years in prison. On appeal, she contends that the trial court erred in denying her motion to sever, and that the evidence was insufficient tc support her conviction.

At the trial, Melissa Bigham testified that around 11:15 p.m. on June 17, 1991, she stopped at a convenience store on Riverdale Road on her way home from work. After making her purchase, as she attempted to enter her car (a white 1991 Ford Mustang), two black males wearing red bandannas over their faces approached her and told her to get out and leave everything. One of the men held a long chrome pistol. As they got in her car and drove away, a Jeep Cherokee, which had been parked next to her car, followed; although she was unable to see the driver of the Jeep, she observed a white male occupant in the vehicle. Bigham’s purse, containing her wallet, driver’s license, Social Security card, and charge cards, was in her car. When the police recovered her car a few days later, the vehicle’s tag had been changed.

Late in the evening on June 20, 1991, a Roswell police officer stopped a white 1991 Ford Mustang that was occupied by Marcus Johnson, Paul Johnson, Daniel Belcher, and the appellant. Belcher was the only Caucasian in the group. The vehicle was determined to be that stolen from Melissa Bigham three days earlier. A search of the vehicle uncovered a .22 caliber chrome revolver under the driver’s seat, and Bigham’s purse on the front passenger floorboard. Paul Johnson was driving the car at the time of the stop, and Belcher was sitting behind the driver’s seat.

The appellant gave a custodial statement in which she admitted being in the Jeep Cherokee when the victim’s Ford Mustang was taken. She recalled the victim coming out of the convenience store and walking away from her car when Marcus Johnson got in the car. As Johnson drove away in the Mustang, the appellant followed him driving the Jeep Cherokee. They ended up at her apartment, where she went through the victim’s purse that was in the car. She found credit cards and a checkbook, and threw away some papers, pictures, and a wallet. Also, someone put a Ford dealer drive-out tag on the car. The appellant indicated that the Jeep Cherokee could be found parked in front of her apartment, and the police found it there.

Marcus Johnson also gave a custodial statement, in which he admitted his participation in the robbery. On the evening in question, they had been driving around discussing “thieving,” when they stopped at the convenience store where the Ford Mustang was parked. As the victim started to enter her car, he and Paul Johnson had taken her car. Paul wore a bandanna and had a gun, but it was owned by Daniel Belcher. He stated that the appellant’s involvement in the act consisted only of her driving the Jeep Cherokee after they took the Ford Mustang. However, he also stated that the appellant had kept some of the credit cards and driver’s license found in the purse.

The appellant was indicted along with Marcus Johnson, Paul Johnson, and Daniel Belcher. The day before the scheduled trial, Marcus Johnson pleaded guilty. Originally, the District Attorney had intended to try the defendants separately, but after Johnson’s guilty plea, the remaining defendants were tried jointly.

Marcus Johnson testified at the trial and contradicted portions of his custodial statement. He denied ever discussing “thieving” or stealing a car in the appellant’s presence; stealing the victim’s car had actually been a spontaneous decision. When he had taken the car, the keys were in the vehicle and the owner was not present. He also denied anyone using a gun or wearing a bandanna during the theft. He stated further that the appellant had not known he and Paul Johnson were stealing the Ford Mustang at the time it happened.

The appellant also testified at trial and likewise contradicted portions of her custodial statement. During the early evening hours of June 17, 1991, while it was still daylight, she had accompanied Marcus Johnson and the two co-defendants to go pick up a car which she thought belonged to Marcus Johnson. When they spotted the Ford Mustang at a convenience store, they parked beside it and Marcus and Paul Johnson got the car. A woman was the only other person in the general vicinity of the car, but she was not really near it. She did not recognize the victim who testified at trial as that woman. She had driven the Jeep, following Marcus and Paul Johnson in the Mustang to her apartment. She went in first, and the others stayed outside for a while. When they came in, Marcus gave her the purse, which he claimed he had found. She accepted the purse without concern, because it was not unusual to find things in Roswell. She had not seen anyone go through the purse, and had not seen a gun until the night they were arrested. The appellant admitted that she had used the purse afterwards, and had not realized that the victim’s cards were in a zippered side compartment. When asked about the discrepancies between her custodial statement and her trial testimony, she explained that in making the custodial statement, she had merely recounted what the interrogating officer had told her to say.

1. The appellant contends that the trial court erred in denying her motion for severance, because the joint trial made it impossible for the jury to separate the evidence as to each defendant. More specifically, she asserts that the corroborating evidence did not show her to be a participant in the armed robbery.

“The grant or denial of a motion to sever is within the discretion of the trial court; and absent an abuse of discretion, the denial of a motion to sever will not be reversed.” Ledbetter v. State, 202 Ga. App. 524, 525 (414 SE2d 737) (1992). “The trial court in exercising its discretion is to consider three elements: Whether a joint trial will create confusion of evidence and law; whether there is danger that evidence implicating one defendant will be considered against the other, despite cautionary instructions to the contrary; and whether the co-defendants will press antagonistic defenses.” Harrell v. State, 253 Ga. 474, 475 (321 SE2d 739) (1984).

In the instant case, the state took great efforts to organize the presentation of evidence in a manner to show each defendant’s individual role in the armed robbery. With regard to the appellant, the state attempted to prove that she facilitated the armed robbery by driving the Jeep Cherokee away from the scene, and that she shared in the fruits of the robbery. The joint trial could not have created any confusion as to the appellant’s participation as a driver, because that fact was undisputed. The other evidence most strongly demonstrating the appellant’s knowing participation in the crime, i.e., her emptying and use of the victim’s purse and her knowledge of the changing of the tag on the stolen car, was supplied primarily by the appellant’s own statements, and not the evidence against the co-defendants. The trial court emphasized in its charge to the jury that each defendant must be considered individually.

Further, the defenses raised by the defendants were not antagonistic. Daniel Belcher and Paul Johnson did not testify or present any other evidence, but neither attempted to implicate the appellant. In his trial testimony, Marcus Johnson actually attempted to bolster the appellant’s defense that she was not a knowing participant in the robbery. Under these circumstances, there was ample evidence to show that the appellant was a party to the crime, and she has failed to demonstrate any prejudice that would have been avoided by a separate trial. Harrell v. State, supra.

2. The appellant also contends that the evidence was insufficient to support her conviction, because there was no showing that she had been aware of any unlawful activity, and the corroboration of the accomplice’s testimony failed to connect her with the crime.

“ ‘The rule is well established that, to sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty, and more than sufficient to merely cast on the defendant a grave suspicion of guilt.’ [Cits.]” Harrison v. State, 259 Ga. 486, 488 (384 SE2d 643) (1989). The sufficiency of the corroboration evidence is a matter for the jury to determine; only slight corroboration connecting the defendant to the crime is required; and evidence of a defendant’s conduct before and after the commission of a crime may support an inference that she participated in the crime. Id.

The custodial statement and testimony of Marcus Johnson, particularly as to how the crime occurred, was corroborated in large part by the testimony of the victim, although this corroboration did not connect the appellant to the event. However, the appellant’s own custodial statement, in which she admitted to driving the Jeep Cherokee away from the scene of the robbery, emptying and sorting out the contents of the victim’s purse, and knowing about the replacement of the stolen vehicle’s tag with a Ford dealer drive-out tag, served both to corroborate the custodial statement of Marcus Johnson and to connect the appellant with the crime.

OCGA § 16-2-20 (a) provides that “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” Under OCGA § 16-2-20 (b) (3), a person is concerned in the commission of a crime if she “[i]ntentionally aids or abets in the commission of the crime. . . .” The evidence presented by the state against the appellant established her culpability for the armed robbery of the victim’s automobile at least upon this basis. Viewing that evidence in the light most favorable to uphold the jury’s verdict, we conclude that the evidence was sufficient to authorize a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the armed robbery with which she was charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the trial court properly denied the appellant’s motion for directed verdict of acquittal.

Decided February 5, 1993.

Lillian L. Neal, for appellant.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellee.

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


author: Johnson, Judge.

text:
    A92A2035.
    TIBBS v. THE STATE.
    (427 SE2d 603)
   Johnson, Judge.

Peggy Tibbs appeals from her convictions of driving under the influence of alcohol, driving without a license on her person and improper use of a lane.

1. Tibbs contends that the court erred in denying her motion to suppress a statement she made at a traffic stop without having been advised of her rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). “Only in-custody statements by the accused give rise to the issues of voluntariness and the Miranda warnings. The test for determining whether a person is in custody at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. Police officers at the scene of a traffic stop may conduct a general on-the-scene investigation, which may even require that persons be temporarily detained, without such being classified as custodial interrogation.” (Punctuation omitted.) Carroll v. State, 203 Ga. App. 22, 23 (416 SE2d 354) (1992). The officer in the instant case stopped a pickup truck after seeing it swerve across the centerline and onto the shoulder of a two-lane road. Tibbs got out of the driver’s side of the truck and approached the officer. She walked unsteadily, smelled of alcohol and told the officer that she did not have her driver’s license with her. The officer asked Tibbs how many drinks she had consumed and she said “a few drinks.” Under these circumstances, the trial court’s finding that Tibbs’ statement was not the result of a custodial interrogation, but was merely part of a general on-the-scene investigation, is not clearly erroneous and therefore will not be disturbed. Crum v. State, 194 Ga. App. 271 (390 SE2d 295) (1990); Lipscomb v. State, 188 Ga. App. 322 (372 SE2d 853) (1988).

2. Tibbs avers that the court erred in allowing the officer to testify that she failed an “alco-sensor” test administered at the scene of the traffic stop. The officer, however, did not testify as to the amount of alcohol in Tibbs’ blood as shown by the alco-sensor test and the State did not attempt to use the officer’s testimony concerning this test to establish Tibbs’ degree of intoxication. The trial court therefore did not err by allowing such testimony, and the field test was not governed by the limitations set forth in OCGA § 40-6-392 (a). Riley v. State, 175 Ga. App. 810 (1) (334 SE2d 863) (1985); Magher v. State, 199 Ga. App. 508, 509 (3) (405 SE2d 327) (1991).

3. Tibbs claims that the court erred in admitting evidence of her intoximeter test results, showing that her blood-alcohol level was .16 grams percent, because the State failed to present competent evidence that the officer who administered the test was certified to operate the intoximeter machine. The officer testified that he used intoximeter machine IR3000 to administer the test and that he was certified by the Georgia Bureau of Investigation (GBI) to operate such a machine. The State introduced into evidence a copy of his certification from the GBI. Tibbs claims that this copy was barred by the best evidence rule and that the State should have been required to introduce the original document of certification. The officer’s testimony and the copy of his certification were admissible and sufficient to establish that he had been issued a permit to operate the machine. Williamson v. State, 194 Ga. App. 439, 441 (5) (390 SE2d 658) (1990); Drayton v. State, 175 Ga. App. 803, 805-806 (5) (334 SE2d 720) (1985); Clarke v. State, 170 Ga. App. 852 (319 SE2d 16) (1984). Accordingly, the court did not err in admitting evidence of the intoximeter test results.

4. Tibbs argues that the court, by questioning the officer, improperly expressed its opinion as to the reliability, and unduly emphásized the results of the intoximeter test taken by Tibbs. No such objection was made at trial and therefore this issue may not be raised for the first time on appeal. Williams v. State, 201 Ga. App. 383, 384 (411 SE2d 118) (1991).

5. Tibbs enumerates that it was improper for the jury to disregard her explanation that she was driving because of an emergency. To the extent that this enumeration can be considered a challenge to the sufficiency of the evidence, it is without merit. The jury was not required to accept Tibbs’ explanation and, having reviewed the evidence in the light most favorable to the jury’s verdict, we find that a rational trier of fact could have found Tibbs guilty of the charges beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See generally Cape v. State, 165 Ga. App. 825 (303 SE2d 77) (1983).

In support of this enumeration, Tibbs also claims that the court erred in giving the State’s fifth requested jury charge that driving under the influence of alcohol is prohibited regardless of the distance actually driven. “[S]uch claim may not be considered because enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration.” (Citations and punctuation omitted.) Loyd v. State, 202 Ga. App. 1, 2 (1) (c) (413 SE2d 222) (1991). Furthermore, the record does not show that such an objection was properly preserved for appellate review. Rodriguez v. State, 202 Ga. App. 550 (1) (415 SE2d 41) (1992).

Decided February 5, 1993.

William 0. Cox, for appellant.

Spencer Lawton, Jr., District Attorney, James J. Cairns III, Assistant District Attorney, for appellee.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


text:
    A92A2092.
    FLOYD v. THE STATE.
    (427 SE2d 605)
   Blackburn, Judge.

Keith Bernard Floyd was convicted by a jury of burglary and theft by receiving stolen property. On appeal he contends that the evidence was insufficient to support both convictions. For the following reasons, we affirm both convictions.

Floyd was indicted for the May 17, 1991, burglary of the WalMart store at 2496 Wesley Chapel Road in DeKalb County and theft by receiving a stolen Ryder Truck Rental truck. He represented himself at trial, but at the direction of the trial court a public defender was available to assist him.

State’s witness Officer P. M. Johnstone of the DeKalb County Police Department testified that on the evening that Floyd was arrested he (Johnstone) had under surveillance the shopping center in which the Wal-Mart was located. He said that “[b]etween 1:00 and 1:15 a.m. I made a circle around the Wal-Mart complex to make sure there were no other vehicles back there.” According to Johnstone, at around 1:28 a.m. he and another officer, Officer Gravitt, were watching the shopping center with binoculars and “observed a Ryder rental truck pass in front of our location driving from west to east toward the rear of the Wal-Mart. ... We watched to see in which direction it drove. It pulled to the rear driveway entrance to the back of WalMart, and we lost sight of it as it went around the fenced area. We watched the north end of Wal-Mart to make sure it just didn’t make a complete circle of the complex and leave the area, but it. . . didn’t show again at the north end, so we knew it had to be behind the WalMart in . . . some location. ... We waited approximately three minutes . .., and then we drove to the back of the Wal-Mart... . We . .. saw . . . the rental truck that we observed driving past us backed up to a fenced area with the rear overhead door to the van opened all the way and a loading ramp extended and pulled down to the ground. We also saw approximately a four by four hole cut into the chain link fence at the garden center at the rear of the Wal-Mart.” Johnstone admitted that, as he had watched the truck drive past, “I couldn’t tell who was driving the truck,” and that he had not seen how many people were in the truck.

After testifying that the chain link fence was “approximately 12 feet” high and that the garden center had a covering over its top, Johnstone said that he noticed that “there was several cement blocks that were removed from the inside of the fenced area to the outside.” According to Johnstone, during his previous inspection of the area between 1:00 and 1:15 a.m. no hole was in the fence and the concrete blocks had not been moved.

Johnstone further testified that “[a]s I looked to my left, I observed a black male subject running toward the west side of the garden center, which would be the front of the store, and he skirted the top of the fence and ran north along the front of the Wal-Mart.”

After replying affirmatively to a question whether there was “an opening to get over the fence between the covering and the . . . fence itself,” he said that after the subject started running along the front of the Wal-Mart, “I stayed in my unit, advised the other unit in the area, along with Officer Gravitt, that I had a subject on the ground, backed up and drove as quickly as I could to the front.” He temporarily lost sight of the suspect but, assisted by some employees of WalMart who had observed the suspect’s flight, he “took a right-hand turn around the north end [of the Wal-Mart] and saw no one. All that I found back there was a dumpster. That being the only logical hiding place, ... I pointed my vehicle toward the dumpster, illuminated it with my headlights, and ordered the person to come out, and I saw a shadow behind the dumpster. The person that was behind there did not comply. And as I approached, he began running again in an easterly direction toward another fenced area that enclosed the Wal-Mart complex.” He said that he chased the subject on foot 250 to 300 feet, until he was apprehended by Johnstone and three other officers at “another 12-foot fence to the back of Wal-Mart and he was attempting to scale that also when he was caught.”

It was stipulated that the subject who was arrested was Floyd, and it was undisputed that Floyd gave no statement to the police.

Johnstone said that sifter Floyd was arrested, “[i]nside the, the rental truck, I found a pair of bolt cutters behind the driver’s seat, and ... on top of the passenger’s seat was a plastic water nozzle.” [sic] He later testified that the nozzle was the “only property that we found as identified that was taken from the garden center.” When Johnstone was asked whether he had seen “anyone else in the area at the time that you were pursuing the defendant,” he replied that he had not. Johnstone also said that the key to the truck had been found “[i]nside the defendant’s pocket.”

On cross-examination Johnstone had the following exchange of questions and answers with Floyd, who was representing himself at trial with the assistance of counsel from the public defender’s office: “Q. Let me ask you this, could you tell when you saw the truck, was there more than one person in that truck? A. There were indications at the scene that there had been more than one person there at the scene. Q. Is this, was this a deliberate attempt for you to try to cover yourself just in case that, that you had made a mistake, to say that someone else was at that scene? A. No, sir. There were footprints and tracks in the wet grass beside the garden center.”

On redirect examination Johnstone testified that the lighting around the Wal-Mart was “bright,” emanating from “poles [which] are approximately 50 to 70 feet above the pavement, probably 6 to 8 individual lamps, multi-wattage. They’re very bright, bright enough to light the entire shopping center.” When asked about the tracks in the grass that had led him to think someone else had been at the scene, he said that “[t]his area here (indicating) is a grassy area. This would be the driveway here. All this is grass and it leads to a sidewalk, a cement sidewalk. After we had the one subject in custody we went back and there were tracks leading from the cement sidewalk area leading to the road and to the street. That’s where we lost the tracks.” Johnstone said that Floyd had not fled in the same direction as those tracks.

On recross-examination Johnstone was asked whether he thought there was “enough time to go down there and, and for one person to cut that fence, let up the door, let down the ramp, back up to the fence, and go in, move stuff around, come back out and put stuff back in the truck and then come back inside the fence again.” Johnstone said that there had not been enough time for one person, but that “[f]or more than one person, it would be. That’s why we said there was additional people there at the scene, because of the tracks leading in the wet grass.”

Another state’s witness, Floyd Penn, testified that he was an employee of Wal-Mart and had been on duty the evening that Floyd was apprehended. He said that he was familiar with the merchandise that was kept in the garden center, and that lawnmowers were kept in the front of the garden center. He said that after a previous burglary Wal-Mart employees had kept all lawnmowers at the front because it had better lighting and made them “more difficult to get out.” He said that as an additional precaution he had placed the concrete bricks around the inside perimeter of the fence. Penn testified that after the burglary he noticed that one of the mowers had been pushed toward the back of the center.

The operations assistant manager of the store, Glenn L. Murph, testified that no member of the public had been authorized to be in the Wal-Mart, including the garden center, when Floyd was apprehended.

Detective J. M. Carroll of the DeKalb County Police Department testified that he had investigated the scene at the Wal-Mart. According to him, as part of his investigation he determined that the “truck was originated from a Ryder Rental Truck leasing center off of Jimmy Carter Boulevard and 1-85,” having been “rented out to an individual by the name of Lonvell Pullin. It was rented from the Dealership out in Gwinnett County on April 24th and it was to be returned on April 25th. The truck had not been returned. It was reported stolen to Gwinnett County police on May the 2nd.” Carroll testified that he had seen the Ryder “truck . . . started from the keys that were taken” from Floyd’s pocket. During cross-examination Carroll testified that the rental contract for the truck had been “inside the truck.”

Floyd did not testify at trial. Although he represented himself at trial, he is represented on appeal. Floyd’s sole enumeration of error on appeal is that the evidence of his guilt of burglary and theft by receiving stolen property was insufficient under the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

1. With respect to his burglary conviction, Floyd contends that the garden center is not a “building” within the meaning of the burglary statute, OCGA § 16-7-1, and therefore that the evidence is insufficient to' meet the requirements of Jackson v. Virginia because the State has failed to prove an element of the crime charged. Section 16-7-1 provides that a “person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof.” (Emphasis supplied.)

It appears from the trial transcript and photographs that were introduced into evidence that the garden center was contiguous to the main, walled, building of the Wal-Mart; that it had a roof; that it was enclosed by a twelve-foot-high chain-link fence that did not extend to the roof, and that for extra security concrete blocks were stacked five-high in an unmortared wall along the inside of the fence; that a door provided access from the main building of the Wal-Mart to the garden center; and that during the hours that the Wal-Mart was open to the public the garden center was used as part of the retail space for the Wal-Mart, but that during the hours that the Wal-Mart was closed the garden center was locked and no member of the public was authorized to enter it.

Floyd contends that the “question to be addressed is whether an area that is merely fenced in and covered by a light metal roof constitutes a building or part of a building for the purpose of prosecution under § 16-7-1.” He asserts that the garden center was merely a fenced-in area, not a building, and that entry of the garden center could not form the basis of a conviction for burglary. The state responds that “a secured, fenced-in area that also has a ceiling, attached to a retail establishment is a part of the building.”

The word “building” was not found in the burglary statute as it existed before the 1968 Criminal Code. Before that enactment, the Code of 1933, § 26-2401, defined “burglary” as “the breaking and entering into the dwelling, mansion, or storehouse, or other place of business of another, where valuable goods, wares, produce, or any other article of value are contained or stored, with intent to commit a felony or larceny. All outhouses contiguous to or within the curtilage or protection of the mansion or dwelling house shall be considered as parts of the same.”

The present burglary statute, § 16-7-1, does not define the term “any other building ... or any room or any part thereof’ for purposes of application of that statute, nor is the term defined elsewhere in Title 16. See also OCGA §§ 16-7-60 (a) (2-5) (arson in the first degree); 16-7-61 (a) (arson in the second degree); and 16-11-106 (b) (2, 3) (possession of firearm or knife during commission of or attempt to commit certain crimes), all of which refer to “any building” or “a building” but provide no definition of those terms.

However, the question of the meaning of the term “any other building ... or any room or any part thereof’ has received judicial construction in the case of Dixon v. State, 165 Ga. App. 133, 135 (2) (299 SE2d 608) (1983). In Dixon the structure in question was “a small enclosure (room) located in the front of [a] grocery store. The enclosure was surrounded by four walls (but without ceiling) and sat on a platform so that the enclosure was elevated above the general floor level of the store. A door to this ‘front office’ automatically latched when the door was closed. One could reach over the top of the door and unlatch the door from the outside to gain entrance.” Dixon at 133. The room contained a cabinet in which cash for the operation of that store and other stores was kept. The defendant in that case contended on appeal that “there were fatal variances in the allegata and the probata[,]” arguing that the “ ‘front office’ was not an area or space subject to being burglarized.” Id. at 135 (2). This Court held that “[w]e reject this contention out of hand. Burglary is committed when one, without authority, enters any building or room or part thereof. [Cits.] The evidence in this case shows that the room, though small, was a room for the exclusive use of limited authorized persons and was wholly enclosed and secured as a room. This portion of the enumeration is without merit.” (Emphasis supplied.) Id.

The State contends that, like the room in Dixon, the garden center in the present case was part of the main building, and we agree. Like the Dixon room, the enclosure in question “was [during the hours the store was closed] a room for the exclusive use of limited authorized persons [,]” as well as “wholly enclosed and secured as a room.” Dixon, supra, 165 Ga. App. at 135. During the hours the WalMart was open to the public it served as retail space, and functionally was part of the store’s retail operations. It was contiguous to the main building, and could be reached from that building through a door that opened into the center. After the store was closed for the day, the garden center was secured and no member of the public was authorized to be there.

The chief distinction between the Dixon room and the garden center is that the Dixon room was walled, whereas the garden center was only fenced and partly walled with unmortared blocks. However, we find no significance in this distinction, as under all the circumstances the use of a fence rather than a wall to enclose the center made it no less a part of the main Wal-Mart building.

We find support for this conclusion in Williams v. State, 105 Ga. 814 (32 SE 129) (1898), which was a case decided under § 179 of the 1895 Penal Code (Section 179 subsequently became 1933 Georgia Code § 26-2630, but was not carried forward into the 1968 Criminal Code). In Williams the defendant was charged with taking pigeons from a chicken house which “was about eight feet high, stationary, inclosed with wire and covered with shingles.” Id. at 815. Section 179 prohibited stealing money or anything else under the value of $50 from “any dwelling-house, store, shop, warehouse, or any other building. . . .” Section 179 of the 1895 Penal Code, quoted in Williams, 105 Ga. at 815. The Georgia Supreme Court held that the structure in question fell within the purview of § 179, since the “language of this section is very broad; and a punishment is not only prescribed for a larceny from the dwelling-house, store, shop or warehouse, but from any other building. A building is defined to be ‘an edifice for any use; that which is built, as a dwelling-house, barn, etc.’ [Cit.] . . . The fact that [the chicken house] was [e]nclosed with wire instead of other material, in our judgment, makes no difference; and it comes plainly under the definition of a house, as used in our statute.” Williams, 105 Ga. at 815.

We similarly find that the fact that the garden center was enclosed with chain link fence and partly enclosed with an unmortared block wall, instead of other material, makes no difference, and the garden center is a room or part of a building within the meaning of § 16-7-1.

We have noted Floyd’s argument that an opinion by this court in an unrelated case, Floyd v. State, 186 Ga. App. 777 (2) (368 SE2d 541) (1988), indicates that a fenced structure is not a “building” within the meaning of the burglary statute, but we find that Floyd is factually distinguishable. The defendant in that case had been convicted of the burglary of a country club and the “theft by taking of a golf cart from the cart barn, which was used to transport the items stolen from the kitchen and pro shop in the main building on the same date. . . . The golf cart was removed from a fenced area on the [club grounds which was not contiguous to the clubhouse, and] not from the inside of the burglarized clubhouse.” (Emphasis supplied.) Id. at 778. The defendant contended that theft by taking of the golf cart was a lesser included offense of the burglary of the clubhouse, and therefore that he should not have been convicted of the lesser offense. This court disagreed, holding that the theft by taking “was a separate offense and not included in the burglary offense.” Id.

In the present case, appellant contends that the “only reasonable explanation for this finding is that this Court believed that a fenced-in area is not a ‘building’ for purposes of applying the burglary statute.” However, this argument has no merit, as there is no indication in the Floyd opinion that this court considered the question of the nature of the enclosure surrounding the golf cart as part of its determination that the theft by taking was not a lesser included offense.

2. Floyd’s remaining contention pertains to his conviction under the theft by receiving stolen property statute, OCGA § 16-8-7, which provides that a “person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control. ...” Floyd was indicted for “retaining” the Ryder truck.

Floyd argues that the evidence was insufficient to support his conviction, in that “there was no testimony given and no evidence taken as to how and when the appellant came to have possession, if he did have possession, of the truck, or of whether he knew or should have known that the truck was stolen.” Floyd “grant[s] that the keys to the truck were found in his trousers,” but he asserts that that fact “is not dispositive of a charge of theft by receiving stolen property because it does not address the appellant’s scienter.”

(a) As to Floyd’s contention that “there was no testimony given and no evidence taken as to how and when the appellant came to have possession, if he did have possession,” it was not necessary for the State to show how and when Floyd came to have possession, so long as there was sufficient evidence that he retained the truck with guilty knowledge. “ ‘(R)etention of stolen property which a person knows or should know is stolen without intent to restore it to the owner will sustain the conviction even where guilty knowledge at the time of the acquisition of the stolen property is not shown. (Cit.)’ [Cit.] ‘ “After the fact knowledge” . . . will sustain a conviction.’ [Cit.]” Pruiett v. State, 159 Ga. App. 396, 397-398 (1) (283 SE2d 625) (1981).

The evidence, viewed in the light most favorable to the verdict, was that the truck was observed being driven past officers who had the Wal-Mart under surveillance and then out of sight to the rear of the Wal-Mart. Officer Johnstone did not see who was in the truck, but after approximately three minutes he proceeded to the garden center, where he found the truck, backed-up to the fence of the garden center in furtherance of the burglary of the center. A suspect later identified as Floyd was pursued and apprehended, and the key to the rental truck was found in his pocket.

This evidence was sufficient to authorize a trier of fact to find that Floyd retained the rental truck within the meaning of § 16-8-7.

(b) We further find no merit in Floyd’s contention that there was insufficient evidence of his guilty knowledge.

“ ‘ “(G)uilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent man. (Cits.)” [Cit.]’ [Cit.]” Abner v. State, 196 Ga. App. 752, 753 (1) (397 SE2d 36) (1990). Here, Detective Carroll testified that a copy of the rental contract “was inside the truck.” Since the contract indicated that as of May 17, 1991, the truck was more than three weeks overdue to be returned to the rental dealership, anyone who read it would have had reason to suspect that it was stolen. See James v. State, 150 Ga. App. 357, 358 (2) (258 SE2d 40) (1979) (new car stolen from dealership had no license tag or inspection sticker, and still had price sticker and dealership paper when recovered from defendant). There was evidence that Floyd was the driver of the truck since he had possession of the truck key when he was apprehended. It is a reasonable inference that, as the driver, he was in control of the vehicle and had knowledge of its contents, including the rental contract contained therein which indicated it was two weeks overdue for return to the leasing company. It is clear Floyd had not obtained the vehicle from the leasing company as they had reported it stolen.

We hold that the circumstances of this case were sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Floyd knew or should have known that the truck was stolen. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 5, 1993.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Nancy B. Allstrom, Barbara B. Conroy, Elizabeth W. Morn, Assistant District Attorneys, for appellee.

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


author: Johnson, Judge. Pope, Chief Judge,

text:
    A92A2123.
    BAILEY v. THE STATE.
    (427 SE2d 612)
   Johnson, Judge.

Hilliard Bailey was convicted of aggravated assault. On appeal, his sole enumeration of error is the trial court’s admission of similar transaction evidence.

Bailey believed that the victim, Harold Hall, was having an affair with his wife. The evidence presented at trial reveals that on the night of the assault, Bailey was waiting for the victim, Harold Hall, in the parking lot of the post office where Hall worked the evening shift. Bailey had threatened Hall on numerous occasions. Earlier that evening, Hall had received a call at work warning him that Bailey might be waiting for him. Hall notified his superintendent, who checked the parking lot and confirmed that someone was sitting in a gray Horizon, a car which matched the description of the car Bailey was driving. Hall and two of his co-workers left work about midnight.

The co-workers observed a Horizon pull behind Hall’s truck as it left the parking lot and witnessed gunfire followed by a high-speed chase. Hall eluded the car and pulled into a nearby restaurant parking lot, as did his co-workers. The Horizon appeared again and Hall drove off. Several more shots were fired and Hall’s vehicle stopped in the middle of the road. The co-workers approached Hall’s truck, observed a bullet hole through the windshield and saw that Hall had been shot in the shoulder. Both co-workers identified Bailey as the person sitting in the back seat of the Horizon holding what appeared to be a weapon. Hall testified that he was able to identify Bailey in the Horizon after seeing him in his rear-view mirror.

After conducting a hearing pursuant to Uniform Superior Court Rule 31.3, the trial court allowed the State to introduce evidence of a prior incident in which Bailey pled guilty to simple battery after beating his wife. Evidence of prior crimes committed by the defendant is generally inadmissible. Exceptions to this rule have developed which permit the introduction of evidence of other crimes committed by a defendant to be admitted for limited purposes such as to show identity, plan, scheme, bent of mind, and course of conduct. State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980). Additionally, the proffered similar transaction evidence must satisfy the tests set forth in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), that is: (1) that the State intends to introduce evidence of the independent act for an appropriate purpose; (2) there is sufficient evidence to establish that the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

The State clearly intended the evidence to establish Bailey’s state of mind, an appropriate purpose satisfying the first prong of the Williams test. The second element of the Williams test is clearly met, in that Bailey pled guilty to the prior crime. We must determine, then, if there was sufficient connection or similarity between the offenses to establish that the commission of the battery of his wife tends to prove the aggravated assault of Hall. We find it does not.

Bailey’s previous conviction involved a different offense, a different victim, was committed at a different time and in a different manner. In the first instance, Bailey did not use a weapon and was acting while enraged. In the present case, the act was clearly premeditated and a gun was used. The only similarity between the offenses is that in both instances Bailey was motivated by his belief that his wife and Harold Hall were having an affair. Even if we argue that both acts were provoked by Bailey’s jealousy, this alone does not render the conviction on a completely dissimilar offense admissible. Its admission was error.

In light of the overwhelming evidence presented in this case regarding Bailey’s guilt, however, we find the introduction of the previous conviction to be harmless error. “[Assuming there was error . . . where, as here, the evidence was overwhelming, it is highly probable that the error did not contribute to the judgment. Therefore, the error, if any, is harmless. [Cit.]” Mims v. State, 180 Ga. App. 3, 5 (2) (348 SE2d 498) (1986).

Judgment affirmed. Carley, P. J., concurs. Pope, C. J., concurs specially.

Pope, Chief Judge,

concurring specially.

I agree that the evidence of the independent offense in this case was harmless error but for a reason different than that relied upon in the majority opinion. For an independent offense to be admissible, the evidence must show “a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” (Emphasis supplied.) Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). “The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. . . .” (Emphasis supplied; citations and punctuation omitted.) Smith v. State, 203 Ga. App. 3, 4 (416 SE2d 129) (1992).

The majority opinion focuses only on the lack of similarity between the two offenses but does not address the issue of the connection between the defendant’s aggravated assault of Harold Hall, at issue in this case, and the independent act of defendant’s beating his wife. The evidence shows the independent act involving defendant’s wife, like the assault at issue in this trial, arose out of defendant’s belief that Hall was having an affair with his wife. Thus, the independent act clearly is connected to the offense at issue in this case and is relevant to show plan, scheme, bent of mind and course of conduct. Dissimilar but connected acts have frequently been held admissible to prove motive for the act at issue in the trial. See, e.g., Johnson v. State, 260 Ga. 457, 458 (2) (396 SE2d 888) (1990) (in which evidence that defendant was a drug dealer and had sold drugs to the victim was relevant to prove motive for killing the victim); Armfield v. State, 259 Ga. 43, 44 (2) (376 SE2d 369) (1989) (in which evidence of prior criminal charges for selling drugs was admissible to show motive for the murder of an undercover informant with the drug-suppression team); Tucker v. State, 249 Ga. 323, 329 (6) (290 SE2d 97) (1982) (in which evidence concerning the defendant’s prior illicit sexual relationship with the murder victim was admissible to show motive or intent). Likewise, in this case, the defendant’s beating of his wife because of his belief she was having an affair with the victim of the assault at issue in this case is dissimilar, but connected, to the crime charged and is admissible to show plan, bent of mind and course of conduct.

At the hearing on the admissibility of the independent offense held prior to the commencement of the trial, the State neglected to prove the connection between the beating of defendant’s wife and the assault of the victim. No evidence was presented that both offenses arose out of defendant’s belief that his wife and the victim were having an affair. Evidence of the connection was presented at trial, however, before the indictment containing defendant’s guilty plea was introduced into evidence when defendant’s wife testified defendant beat her after discovering she had called the victim on the telephone. Moreover, the defendant testified and admitted that he struck his wife after discovering a tape of the wife’s telephone conversation with the victim in which she told him she loved him. Thus, even though no connection between the two offenses was shown at the hearing on admissibility as required by Williams and the trial court erred in ruling the evidence to be admissible at the conclusion of the hearing, the required connection was established at trial and the admission of the evidence, even if erroneous, was harmless.

Decided February 5, 1993.

Xavier C. Dicks, for appellant.

Lewis R. Slaton, District Attorney, Vivian D. Hoard, Sylvia A. Martin, Assistant District Attorneys, for appellee.