text:
    A95A2689.
    BROGDON v. THE STATE.
    (467 SE2d 598)
   Blackburn, Judge.

Vincent Colin Brogdon appeals his convictions for burglary, OCGA § 16-7-1; criminal damage to property, OCGA § 16-7-23; and one felony and one misdemeanor count of obstruction of an officer, OCGA § 16-10-24. He enumerates nine errors, most of which relate to his competence to stand trial.

The evidence at trial revealed the following. Brogdon and the burglary victim had dated for almost one year before she broke up with him. During the month before the burglary, Brogdon had visited the victim’s apartment, but she refused to let him enter. When the burglary occurred, the victim was in the process of moving with the assistance of a male friend. When the victim returned from an errand, she found three windows broken on her friend’s truck and the window broken on the sliding glass door to her apartment. Some of her belongings, including a vacuum cleaner, a cordless telephone, and an overnight bag containing jewelry and a camera, were missing. The victim testified that the broken glass door to her apartment had been locked when she left and was locked when she returned. Brogdon’s family subsequently returned some of the items to her. On cross-examination, a police officer testified that a neighbor reported that Brogdon, whom he recognized as the victim’s former boyfriend, had done the damage.

An arrest warrant was subsequently issued and police officers attempted to arrest Brogdon after observing his car in a parking lot, but Brogdon ran into nearby woods. More officers, police tracking dogs, and a helicopter with a spotlight and an infrared tracking system assisted the officers. An officer called to Brogdon to stop, but he kept running. At one point, Brogdon picked up a tree limb, swung it at one of the pursuing officers and ran. These actions provided the basis for the obstruction charges.

Shortly after his arrest, Brogdon gave a statement indicating he felt the victim had been unfaithful to him with the male friend who helped her move. He stated that on the day of the incident, he let himself into the victim’s apartment through the unlocked sliding glass door, heard a man’s voice on her answering machine, and noticed she had thrown a card he sent her in the trash. He admitted he became extremely angry, walked outside, and threw a concrete block through the glass door, then reentered and left with the victim’s belongings. He also admitted he smashed the male friend’s pickup truck with a portion of the block and took a large box from the back.

Brogdon whs subsequently evaluated for competence to stand trial. The evaluation concluded that, despite his paranoid delusions and severe mental illness, Brogdon understood the proceedings and could distinguish right from wrong. The evaluation also noted that Brogdon was a danger to society without the use of medication to treat his paranoid schizophrenia. Brogdon informed the trial court that he disagreed with these findings and did not wish to use the evaluation in his defense.

At trial, Brogdon denied committing the charged offenses or giving the confession and gave rambling and disjointed testimony about a conspiracy to frame him. He testified that the Navy Seals, the Green Beret, and the Marine Recon had conspired with his family to frame him for the charged offenses because he would not “take the number 666.” Brogdon stated he was afraid to discuss the conspiracy in the jury’s presence. He claimed the arresting officers threatened him with a stun gun attached to a cigarette lighter which emitted a V-shaped flame about three inches wide and poured something in his wounds which burned and caused his hand to swell up for a month. He testified that the Green Beret wanted the others to let Brogdon go so the Navy Seal could shoot him. During redirect, defense counsel moved for a mistrial and requested the appointment of a guardian for Brogdon, stating his character had been placed in issue during cross-examination. The court denied the motion, stating “I don’t think in the middle of trial we can turn it into a competency hearing when he [Brogdon] insists he is perfectly competent. And you do insist, don’t you, that you are perfectly competent?” Brogdon answered in the affirmative.

Just as closing argument was about to commence, while the jury was entering the courtroom, Brogdon announced that he wanted to address the jury and introduce evidence. After the court motioned for the jury to go back to the jury room and stated that the evidence was closed, Brogdon again demanded to address the jury, asked for his counsel’s birth certificate, and then pointed to the spectators, stating “I want to know who these people are, okay?” He also demanded to know why he was not present for his indictment after “being poisoned, being sodomized and putting people in my mouth” during his incarceration. Brogdon then jumped up and had to be restrained by deputies, who removed him from the courtroom. The jury was not in the courtroom when this occurred. The court subsequently instructed the jury not to hold Brogdon’s absence against him. While in the holding cell, Brogdon took a swing at a deputy. Defense counsel again unsuccessfully moved for a mistrial, arguing Brogdon was incompetent and needed further evaluation.

After the jury returned a guilty verdict, the court sentenced Brogdon to twenty years on the burglary count, five consecutive years on the criminal damage to property count, five consecutive years on the felony obstruction count, and twelve concurrent months on the misdemeanor obstruction charge. The trial court ordered that after service of ten years imprisonment, the remaining twenty years could be served on probation. In addition, the court recommended that Brogdon be offered mental health treatment.

1. Initially, we must address the procedural requisites mandated when evidence presented during trial raises the issue of a criminal defendant’s competence to stand trial. Brogdon’s third, fourth, fifth, and sixth enumerations of error challenge the trial court’s actions relating to his competence to stand trial. Brogdon’s counsel raised the issue in a second motion for mistrial, two requests for further mental evaluation, and after Brogdon was expelled from the courtroom prior to closing argument.

Criminal defendants have a constitutional right not to be tried while incompetent. Pate v. Robinson, 383 U. S. 375 (86 SC 836, 15 LE2d 815) (1966); Baker v. State, 250 Ga. 187, 190 (297 SE2d 9) (1982). Courts therefore must inquire into competency and hold a hearing on the issue, even during trial, if evidence raising the issue of incompetence becomes apparent. Baker, 250 Ga. at 190. Factors such as a history of irrational behavior, the defendant’s demeanor at trial, and prior medical opinions are relevant to deciding whether this inquiry is necessary. Drope v. Missouri, 420 U. S. 162, 180 (95 SC 896, 43 LE2d 103) (1975). Upon receiving information which, objectively considered, should reasonably raise a doubt about the defendant’s competence, trial courts should conduct a civil proceeding before a special jury, even where state procedures for raising the issue are not followed. Id. The proceeding should focus on the determinative factors of competence: whether the defendant (1) understands the nature and object of the proceedings against him; (2) comprehends his own position in relation to the proceedings; and (3) is capable of assisting in his defense. Holloway v. State, 257 Ga. 620, 621 (361 SE2d 794) (1987).

The record is replete with evidence raising the issue of Brogdon’s incompetence. The record shows Brogdon had previous treatment for mental illness and the psychiatric evaluation done prior to trial stated he had “severe mental illness that appears to be paranoid schizophrenia.” Moreover, his demeanor at trial raised the issue of his competence. For example, Brogdon claimed he ran on the night of his arrest because his mother and aunt gave him a pill that horrified him and they intended to kill him. He also testified that the burglary charge was fabricated to cover up corruption by government military agencies and his family dealing with his refusal to take the number 666. He had to be physically restrained and removed from the courtroom. The general tenor of both his direct and cross-examination was confused and not grounded in reality and raised the question of whether he could assist in his defense. Under these circumstances, the court was constitutionally required to make an inquiry into Brogdon’s competence. Merely asking Brogdon whether he was competent was not a constitutionally adequate inquiry.

To remedy this harmful error, remand for a hearing to determine Brogdon’s competence to stand trial is required. Baker, 250 Ga. at 193 (1). The State bears the initial burden of showing that the evidence is sufficient to permit a meaningful competency determination. Sizemore v. State, 262 Ga. 214, 217 (416 SE2d 500) (1992). Should the court decide that such a determination is not now possible, then Brogdon is entitled to a new trial on the offenses charged and he may again raise the issue of incompetence by special plea pursuant to OCGA § 17-7-130. Id. If the court finds that a determination of competence is feasible based on the available evidence, the issue must be tried to a jury. Baker, 250 Ga. at 193. Brogdon will bear the burden of proving incompetency by a preponderance of the evidence. Id. Should this proceeding result in a finding of incompetence, the verdict must be set aside. Id.

We address the remaining issues in the event that Brogdon is found to have been competent at the time of trial.

2. Brogdon argues that the court erred by refusing to grant his first motion for mistrial and his request for appointment of a guardian.

During Brogdon’s redirect examination, his counsel moved for mistrial, arguing that the prosecutor had placed Brogdon’s character into issue by asking questions he knew would confuse and arouse Brogdon. This argument was not directed to any specific question asked by the prosecutor. No objections or motions were made on that ground during cross-examination. Nor has Brogdon identified any specific question or answer which brought his character into issue and we have found none. The record shows that the prosecutor’s questions did not exceed the scope of the matters raised on direct examination and provides no support for Brogdon’s claim that the prosecutor placed his character in issue. See Touchton v. State, 210 Ga. App. 700, 702 (3) (437 SE2d 370) (1993). Further, the trial court properly denied Brogdon’s counsel’s verbal request to appoint a guardian during trial because the request did not satisfy the statutory requirements for such appointments. OCGA § 29-5-6.

3. Brogdon argues that, because the evidence was insufficient to prove his intent to commit the offenses or the illegality of his entry at the scene of the burglary, the trial court erred in denying his motion for directed verdict.

Directed verdicts of acquittal are appropriate only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 311) (1984). Intent may be found upon consideration of the “words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. Brogdon’s confession provided evidence of his intent to commit criminal damage to property and burglary. As to the obstruction charges, the evidence clearly showed that Brogdon ran from officers and attempted to strike an officer with a tree limb. The evidence of illegal entry was not uncontradicted because the female victim testified that she locked her apartment before the offense occurred. This evidence, viewed in the light most favorable to the verdict, did not demand a directed verdict. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) (1984).

4. Brogdon argues that the trial court erred in recharging the jury that (1) intent to commit a theft is an essential element to the offense of burglary; and (2) the intent to steal may be inferred if the evidence shows unlawful entry into the building of another. He maintains that these charges gave the jury the incorrect impression that they must conclude that he entered with the intent to steal.

The trial court’s instructions were correct statements of the law. Brooks v. State, 146 Ga. App. 519 (246 SE2d 506) (1978) (intent essential element of burglary); Prothro v. State, 186 Ga. App. 836 (368 SE2d 793) (1988) (inference of intent). Therefore this enumeration is without merit.

5. Brogdon argues that the trial court erred by instructing the jury that it was not to concern itself with any matters concerning punishment or treatment.

Brogdon fails to explain the basis for this contention and provides no legal authority in support. In any event, the charge, viewed in context, was not improper. Slaughter v. State, 217 Ga. App. 449, 451 (3) (459 SE2d 168) (1995).

6. Brogdon contends his sentence constituted cruel and unusual punishment for a first offender with obvious mental problems.

Decided January 26, 1996.

Wayne L. Burnaine, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

Although the sentences are lengthy, they are within the statutory limits and are not so disproportionate as to shock the conscience. Lambeth v. State, 257 Ga. 15, 16 (354 SE2d 144) (1987). Thus, this enumeration lacks merit. King v. State, 265 Ga. 440 (2) (458 SE2d 98) (1995).

This case is remanded for proceedings consistent with this opinion. Should it be determined that Brogdon was competent to stand trial, the conviction stands affirmed. See Baker, 250 Ga. at 193.

Judgment affirmed in part, reversed in part, and case remanded with direction.

McMurray, P. J., and Andrews, J., concur.

       Brogdon’s admission that he reentered the apartment after breaking the window and took the victim’s belongings is particularly notable as proof of intent.

       Brogdon also argues that the trial court incorrectly charged that intent to steal could be inferred “where there is no other apparent nature for the entry.” Brogdon misquotes the instruction. The trial court’s charge correctly used the word “motive” rather than “nature.”


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A95A2243.
    CWIEK v. THE STATE.
    (467 SE2d 608)
   Johnson, Judge.

A jury found Jeffrey Cwiek guilty of driving under the influence of alcohol to the extent it was less safe for him to drive, driving with a blood-alcohol concentration of .10 grams or higher, underage possession of alcohol and leaving the scene of an accident. He appeals from the convictions entered on the verdict.

1. Cwiek argues that the trial court erred in denying his motion in limine to suppress the intoximeter test results when he was allegedly denied the opportunity to have an independent test conducted. This enumeration presents nothing for review. The hearing on Cwiek’s motion was not transcribed, “and where the record is incomplete, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). In the absence of a transcript, we must assume as a matter of law that the evidence adduced at the hearing supported the trial court’s findings.” (Citations omitted.) Koulianos v. State, 192 Ga. App. 90 (1) (383 SE2d 642) (1989); see Jones v. State, 187 Ga. App. 25, 26 (1) (369 SE2d 314) (1988).

2. Cwiek contends that the trial court erred in permitting a police officer to testify that Cwiek told him at the time of his arrest that he had not been drinking during the two-hour period since the accident. Cwiek claims that the statement was hearsay and that there was no proof that he had waived his right to counsel or to remain silent before giving the alleged statement. The statement is significant because Cwiek claimed at trial that he only had a beer or two before the accident, but did consume a significant amount of alcohol after he returned home and before officers arrived and tested him. First, “the statement was not inadmissible as hearsay because it was at least implicitly an admission against interest. [Cit.]” Toledo v. State, 216 Ga. App. 480, 482 (4) (455 SE2d 595) (1995). Second, before admitting the statement, the trial court held, outside of the jury’s presence, a Jackson v. Denno hearing and found that the statement was freely and voluntarily made after Cwiek was advised of his Miranda rights. “A voluntary incriminating statement or confession by a criminal defendant is admissible as an exception to the hearsay rule. (Cit.) [Cit.]” (Punctuation omitted.) Summerour v. State, 211 Ga. App. 65 (1) (438 SE2d 176) (1993); see generally Ross v. State, 206 Ga. App. 1, 2 (1) (424 SE2d 308) (1992). We find no error.

Decided January 30, 1996.

Susan P. Tate, for appellant.

Kenneth W. Mauldin, Solicitor, Kelley M. Matthews, Ethelyn N. Simpson, Assistant Solicitors, for appellee.

3. In two separate enumerations, Cwiek contends that he was denied effective assistance of counsel. New counsel filed a notice of appeal within 30 days after judgment was entered but did not file a motion for new trial. Thus, this is the first time an ineffectiveness of counsel claim has been raised in this case. Previously, we were required under these circumstances to remand the case to the trial court for a resolution of the ineffectiveness issue. Dozier v. State, 217 Ga. App. 835, 836 (3) (459 SE2d 463) (1995). On January 22, 1996, however, the Georgia Supreme Court overruled the line of cases requiring a remand and held that a defendant’s failure to raise a claim of ineffectiveness before appeal when the opportunity to do so was available bars raising the issue on appeal. Glover v. State, 266 Ga. 183 (465 SE2d 659) (1996). In its holding, the Supreme Court recognized that applying the new rule to the appellant in Glover would be unfair given prior decisions of Georgia’s appellate courts. For the same reason, we decline to apply the Glover decision in this case. The case is therefore remanded to the trial court for a hearing on Cwiek’s ineffectiveness claim. As to all other issues raised in this appeal, we affirm the judgment of the trial court.

Judgment affirmed and case remanded with direction.

Birdsong, P. J., and Smith, J., concur.

         Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).


author: Birdsong, Presiding Judge.

text:
    A95A2402.
    CELTIC LIFE INSURANCE COMPANY v. MONROE.
    (467 SE2d 360)
   Birdsong, Presiding Judge.

Pursuant to our grant of an interlocutory appeal, Celtic Life appeals the denial of its motion for summary judgment in an action brought by Patsy A. Monroe to recover payments for medical treatment under a policy of health insurance issued to her by Celtic Life. Celtic Life contends it is not liable under the policy because Monroe’s application for insurance misstated her health history by omitting and falsely stating medical treatment she received and which Celtic Life contends was material to the risk being underwritten and, if known, would have caused Celtic Life not to issue the policy.

Celtic Life’s application for insurance contains a section that Monroe was required to complete if she responded affirmatively to a question asking whether she had received any recent medical treatment. According to Celtic Life, Monroe truthfully stated that she had received recent medical treatment, but did not answer truthfully about medical advice, consultation, or treatment she received. Celtic Life states that Monroe only stated that she had undergone a routine examination by a particular physician and that the degree of recovery was “All great — results norm.”

Although Celtic Life had the name and address of this physician, it apparently did not verify this information, but issued a policy of insurance to Monroe with two riders: one excluding coverage for allergies and the other excluding coverage for emotional disorders. After the policy was issued, Monroe incurred medical expenses in excess of $11,000 for gall bladder surgery. Celtic Life then conducted a more thorough review of Monroe’s medical history and discovered that Monroe had, in fact, consulted with this physician on several occasions and that her recovery was neither great nor normal. Instead, the physician’s records showed that Monroe suffered from hyperlipidemia, low back pain, degenerative disc disease leading to a herniated disc, and spondylosis.

Finding that Monroe’s statement regarding her medical treatment was purposefully misleading, Celtic Life rescinded the policy and returned all paid premiums to Monroe. Thereafter, Monroe sued on the policy for payment of her medical expenses and Celtic Life moved for summary judgment relying on OCGA § 33-24-7, which allows rescission of an insurance policy if an applicant for insurance fraudulently misrepresented, omitted, concealed, or incorrectly stated facts that were material to the acceptance of the risk or hazard to be assumed by the issuer; or if the insurer, in good faith, either would not have issued the policy or would not have issued a policy in as large an amount or at the premium charged, or would not have provided coverage with respect to the hazard resulting in the loss if the true facts had been known to the insurer. Finding genuine issues of material fact existed, the trial court denied the motion. This appeal followed. Held:

1. Celtic Life contends the trial court erred by applying the contradictory testimony rule in this case. Monroe contends, however, that the denial of Celtic Life’s motion for summary judgment was warranted under this rule because Celtic Life twice moved for summary judgment and supported the motions with affidavits from the same underwriter that were mutually contradictory. The first motion was supported by an affidavit which stated that if the true facts had been known Celtic Life would not have issued a policy without a policy rider which excluded coverage for the conditions Monroe had concealed. Then, after this motion was denied, Celtic Life filed a second motion, supported by an affidavit from the same underwriter, which stated that because Celtic Life’s rules prohibited more than two riders on a policy, Celtic Life would not have issued a policy to Monroe. Considering the affidavits in this case, we find any application of the contradictory testimony rule unwarranted because these affidavits were not mutually contradictory. See Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680). In one affidavit, the underwriter stated one reason for not issuing a policy and in the other affidavit he added an additional reason for not issuing the policy, but neither reason conflicted with the other. Under these circumstances it was error to apply the self-contradictory testimony rule to these affidavits. Gentile v. Miller &c., Inc., supra; Prophecy Corp. v. Charles Rossignol, Inc., supra.

2. Celtic Life further contends the trial court erred by misapplying OCGA § 33-24-7. Monroe contends, however, that the trial court properly denied the motions for summary judgment because no information concerning her gall bladder condition was concealed. Monroe’s argument is without merit. The record shows that she concealed information relevant to Celtic Life’s decision whether to assume the risk of her medical condition and Celtic Life produced evidence showing it would not have issued the policy if the actual facts were known. Therefore, Celtic Life was entitled to summary judgment. OCGA § 33-24-7 (b); Davis v. John Hancock &c. Ins. Co., 202 Ga. App. 3 (413 SE2d 224). Moreover, application of OCGA § 33-24-7 (b) does not require that the information concealed be connected to the ultimate cause of the loss. Hopkins v. Life Ins. Co. of Ga., 218 Ga. App. 591, 593 (462 SE2d 467); Jessup v. Franklin Life Ins. Co., 117 Ga. App. 389 (160 SE2d 612). Accordingly, the fact that Monroe did not conceal information about her gall bladder condition is not significant.

Decided January 30, 1996.

Smith, Gambrell & Russell, David A. Handley, Glen P. Brock III, for appellant.

Robert A. Burnett, for appellee.

As the facts in the record show that Celtic Life demonstrated that there is no genuine, issue of material fact and that the undisputed facts, viewed in the light most favorable to Monroe, warranted judgment for Celtic Life as a matter of law (OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)), the judgment of the trial court must be reversed and the case remanded with direction to enter summary judgment in favor of Celtic Life.

Judgment reversed and remanded with direction.

Johnson and Smith, JJ., concur.


author: Blackburn, Judge.

text:
    A95A2759.
    ASBERRY v. THE STATE.
    (467 SE2d 225)
   Blackburn, Judge.

Cedric Asberry’s appeal of his conviction for possession of a firearm during the commission of a crime presents the first impression issue of whether marijuana is a controlled substance under OCGA § 16-13-30 for the purpose of a prosecution under OCGA § 16-11-106 (b) (4).

During the execution of a search warrant, police found 11 bags of marijuana and a handgun in Asberry’s possession in his hotel room. Asberry was convicted of possession of a firearm during the commission of a crime as well as possession of a firearm by a convicted felon.

OCGA § 16-11-106 (b) (4) provides that “[a]ny person who shall have on or within arm’s reach of his person a firearm . . . during the commission of. . . [a]ny crime involving the possession, manufacture, delivery, distribution, dispensing, administering, selling, or possession with intent to distribute any controlled substance as provided in Code Section 16-13-30 . . . and which crime is a felony, commits a felony.” (Emphasis supplied.)

While the possession, manufacture, delivery, distribution, purchase or sale of marijuana does constitute a crime under OCGA § 16-13-30 (j), a review of OCGA § 16-13-30 indicates that, within the statute, the legislature distinguishes between controlled substances and marijuana, and OCGA § 16-11-106 (b) (4) limits prosecutions to cases involving controlled substances. In particular, the legislature provided separate and distinct paragraphs and punishments for those offenses involving controlled substances and those involving marijuana. Compare OCGA § 16-13-30 (c), (d), (e), (f), (g), and (h) with OCGA § 16-13-30 (j). The legislature’s intent to distinguish controlled substances from marijuana is evident in other respects. The one time the two terms are used within the same subparagraph of the statute, they are used in the disjunctive. See OCGA § 16-13-30 (k) (“It shall be unlawful for any person to hire ... an individual under the age of 17 years ... for the purpose of manufacturing, distributing, or dispensing, on behalf of the solicitor, any controlled substance, counterfeit substance, or marijuana”). (Emphasis supplied.)

In response to Asberry’s claims that marijuana is not a controlled substance for purposes of OCGA § 16-11-106 (b) (4), the State argues that the Georgia Controlled Substances Act, OCGA §§ 16-13-20 through 16-13-56, contains proscriptions against marijuana, and, thus, marijuana should be considered a controlled substance. OCGA § 16-11-106 (b) (4), however, does not refer to acts which constitute a violation of the Georgia Controlled Substances Act, OCGA §§ 16-13-20 through 16-13-56, but rather limits prosecutions to acts involving controlled substances as provided in OCGA § 16-13-30.

The State’s interpretation also ignores several cardinal rules of statutory construction. ‘“[I]t is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it.’ ” Buice v. Dixon, 223 Ga. 645, 647 (157 SE2d 481) (1967). Accordingly, statutes “are to be construed in connection and in harmony with the existing law.” Id. Following this precept, we must presume that in adopting OCGA § 16-11-106 (b) (4), the legislature was well aware that the drug statute it chose to specify, OCGA § 16-13-30, used the terms “controlled substance” and “marijuana” distinctly and separately. The very title of OCGA § 16-13-30, “Purchase, possession, manufacture, distribution, or sale of controlled substances or marijuana; penalties” reflects that the terms are distinctive.

“ ‘Controlled substance’ means a drug, substance, or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29 and Schedules I through V of 21 C.F.R. Part 1308.” OCGA § 16-13-21 (4). Marijuana is not listed within any of the schedules contained in this definition.

Decided January 30, 1996.

Timothy T. Herring, for appellant.

Lewis R. Slaton, District Attorney, John M. Turner, Jr., Rebecca A. Keel, Assistant District Attorneys, for appellee.

“ ‘Marijuana’ means all parts of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include samples as described in subparagraph (P) of paragraph (3) of Code Section 16-13-25 and shall include the completely defoliated mature stalks of such plant, fiber produced from such stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination.” OCGA § 16-13-21 (16).

Consequently, when the legislature expressly incorporated only those provisions of OCGA § 16-13-30 that concerned “controlled substances,” it excluded those provisions of OCGA § 16-13-30 that concern “marijuana.”

The legislature’s limitation of OCGA § 16-11-106 (b) to cases involving controlled substances is consistent with their prior determination that crimes involving the possession, manufacture, delivery, distribution, dispensing, administering, selling, or possession with intent to distribute certain controlled substances merit harsher punishment than the same crimes involving marijuana. Compare OCGA § 16-13-30 (c), (d), (e), and (f) with OCGA § 16-13-30 (j); see also OCGA § 16-11-106 (b) (5) (statute expressly provides that possession of a firearm by someone trafficking in marijuana is unlawful). Furthermore, “[w]hen a criminal statute fairly and reasonably is subject to two constructions, one which would render an act criminal, the other which would not, the statute must be construed strictly against the State and in favor of the accused.” (Punctuation omitted.) State v. Crane, 247 Ga. 779, 780 (279 SE2d 695) (1981).

The trial court erred in charging the jury that marijuana was a controlled substance for purposes of OCGA § 16-11-106 (b) (4), and Asberry’s conviction under that statute is hereby reversed. No error having been enumerated with regard to Asberry’s other conviction, it is unaffected by this opinion.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.

       The only other authority cited by the State, Jones v. State, 184 Ga. App. 4 (360 SE2d 599) (1987), is factually inapposite as it addressed the issue of whether the defendant was in possession of the firearm — not whether marijuana was a controlled substance. Moreover, contrary to the State’s assertion, in Jones the defendant’s conviction on the firearm charge was reversed, not affirmed.


author: McMurray, Presiding Judge.

text:
    A96A0778.
    SALAAM v. NASHEED.
    (469 SE2d 245)
    Decided January 30, 1996.
    Nuri A. Salaam, pro se.

    Hakeem Nasheed, pro se.

   McMurray, Presiding Judge.

Defendant Nuri A. Salaam filed a direct appeal from the state court’s judgment awarding plaintiff $5,000 following defendant’s appeal to the state court from the magistrate court’s judgment entered in plaintiffs favor. This Court must determine whether we have jurisdiction to entertain this appeal. Held:

“Because the appeal to this Court is taken from the decision of a state court reviewing a decision of a magistrate court by a de novo proceeding involving a subject matter not otherwise subject to a right of direct appeal, the discretionary appeal procedures of OCGA § 5-6-35 were required and this appeal must be dismissed. Handler v. Hulsey, 199 Ga. App. 751 (406 SE2d 225); OCGA § 5-6-35 (a) (11).” Lewis v. Barclays American/Mortgage Corp., 204 Ga. App. 227 (419 SE2d 538).

This direct appeal should also have been filed by application in that the state court’s judgment is for less than $10,000. OCGA § 5-6-35 (a) (6) requires that all appeals in actions for damages in which the judgment is $10,000 or less, an application for discretionary appeal must be made to this Court. See Orgertrice v. Nash, 215 Ga. App. 119 (450 SE2d 708); Crimminger v. Habif, 174 Ga. App. 440 (330 SE2d 164).

As the defendant has not complied with the discretionary appeal procedures, this Court lacks jurisdiction to consider this appeal. This direct appeal must be dismissed.

Appeal dismissed.

Johnson and Ruffin, JJ., concur.


author: Andrews, Judge.

text:
    A95A2037.
    COPHER v. MACKEY.
    (467 SE2d 362)
   Andrews, Judge.

We granted defendant Copher’s application for interlocutory appeal to consider two discovery orders in this automobile accident suit. The trial court concluded that the limit of 50 interrogatories set out in OCGA § 9-11-33 was a “per set” and not cumulative limit and that a statement given by Copher to his own insurance company was not work product. We disagree.

Copher and Mackey were involved in a wreck in 1993, as a result of which Mackey sued Copher. During the litigation, Mackey served three separate sets of interrogatories, no set of which totaled over 50, including subparts. The three sets together, however, totaled 81. Copher answered the first two sets which together totaled less than 50, but sought a protective order as to the third set, which was denied.

1. OCGA § 9-11-33 (a) (1) provides that “[a]ny party may serve upon any other party written interrogatories to be answered by the party served. . . . Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party; provided, however, that no party may serve interrogatories containing more than 50 interrogatories, including sub-parts, upon any other party without leave of court upon a showing of complex litigation or undue hardship incurred if such additional interrogatories are not permitted.” (Emphasis supplied.) The emphasized portion was added to the statute by Ga. L. 1980, p. 938. The caption of that act stated that its purpose was to amend the civil procedure provisions “so as to restrict the use of interrogatories to parties.”

The Civil Practice Act was originally enacted in 1966. Ga. L. 1966, p. 609 et seq. As stated in the first section of that act, “[t]his chapter shall be construed to secure the just, speedy, and inexpensive determination of every action.” OCGA § 9-11-1. Section 33 of the 1966 act stated, with regard to interrogatories, “[t]he number of interrogatories or of sets of interrogatories to be served is not limited except as justice requires to protect the party from annoyance, expense, embarrassment, or oppression.” Ga. L. 1966, p. 646.

The 1972 revision of the Civil Practice Act, Ga. L. 1972, p. 510 et seq., rewrote Section 33 and, while there was no reference made to the number of interrogatories or sets, as recognized in Carter v. Tatum, 134 Ga. App. 345, 346 (1) (212 SE2d 439) (1975), “[p]rior to the 1972 amendment the scope and usage of such interrogatories was much broader. [Cit.]”

2. In interpreting statutes, “the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). “ ‘To ascertain the intention of the legislature, after examining the words of the Act itself, it is necessary to take into view every fact and circumstance that influenced its passage. We must consider what the law was before; the mischiefs against which the law did not provide; the nature of the remedy proposed; the true reason of the remedy.’ ” McGuire v. McGuire, 228 Ga. 782, 785 (187 SE2d 859) (1972); City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991).

3. “ ‘(I)t is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it; that they are to be construed in connection and in harmony with the existing law; and that their meaning and effect will be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and the decisions of the courts.’ [Cits.]” Wigley v. Hambrick, 193 Ga. App. 903, 905 (4) (389 SE2d 763) (1989).

4. The Georgia Constitution prohibits the passage of a bill which refers to more than one subject matter or contains matter different from that expressed in the title of the bill. Ga. Const., Art. Ill, Sec. V, Par. III; Lutz v. Foran, 262 Ga. 819, 820 (3) (427 SE2d 248) (1993).

In construing legislation, “[n]othing ... is more pertinent, towards ascertaining the true intention of the legislative mind in the passage of the enactment, than the legislature’s own interpretation of the scope and purpose of the act, as contained in the caption. The caption of an act of the legislature is properly an index to the contents of the statute as construed by the legislature itself, — a summarizing of the act, made right at the time when the discussion of every phase of the question is fresh in the legislative mind.” Wimberly v. Ga. Southern &c. R. Co., 5 Ga. App. 263, 265 (2) (63 SE 29) (1908); Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130, 131 (105 SE 629) (1921).

5. So considering the evolution of OCGA § 9-11-33 (a) (1), we conclude that, without leave of court, a party may not serve a total of more than 50 interrogatories. To conclude otherwise would negate the legislative intent to “restrict the use of interrogatories.” If the limit were only per set of interrogatories, there would, realistically, be no restriction. The statute provides for more than 50 with leave of court in complex litigation or if undue hardship will be encountered if not allowed.

Such a conclusion is supported by the fact that, during the legislature’s consideration of Senate Bill 60, which became the 1980 amendment, the Senate Special Judiciary Committee amended the bill to raise the proposed limit on interrogatories from 25 to 50. 1980 Journal of the Senate, Vol. I, p. 1098.

Therefore, the court’s order denying the motion for protective order is reversed and remanded to the trial court for consideration in light of this opinion.

6. The remaining enumeration is that the court erred in its order directing Copher to produce a copy of his statement given to his insurer USAA.

Copher had given a statement to his insurer USAA on March 19, 1993, which was recorded. Copher’s statement was taken two days after Mackey’s statement was given to USAA, in which she claimed the accident and her injuries were the result of Copher’s negligence.

Decided January 31, 1996.

Saveli & Williams, Robert E. Mulholland, Vincent A. Toreno, for appellant.

Aaron Towns, for appellee.

Copher asserted below and here that his statement was not subject to production without the requisite showing of necessity because it was work product under OCGA § 9-11-26 (b) (3). That section provides that a party may “obtain discovery of documents and tangible things otherwise discoverable . . . and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, . . . insurer, . . .) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” (Emphasis supplied.)

The trial court, in ruling on Mackey’s motion to compel discovery, which sought production of the Copher recording, held only that “the Defendant’s recorded statement is not privileged.”

The statement of a party or other witness to an accident, if taken by an insurer in anticipation of a claim being filed against its insured, is considered “work product” under the statute, even if taken before litigation is filed. Dept. of Transp. v. Hardaway Co., 216 Ga. App. 262, 263 (2) (454 SE2d 167) (1995); Howell v. United States Fire Ins. Co., 185 Ga. App. 154, 158 (4) (363 SE2d 560) (1987); Warmack v. Mini-Skools, Ltd., 164 Ga. App. 737, 738 (2) (297 SE2d 365) (1982); see Ford Motor Co. v. Hanley, 128 Ga. App. 311, 313 (1) (196 SE2d 454) (1973).

We therefore reverse this portion of the trial court’s order compelling discovery and remand it for consideration of the second step of the procedure under OCGA § 9-11-26 (b) (3), i.e., whether Mackey can show a substantial need for or would be under a hardship in development by other means of the information sought.

Judgment reversed.

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

       We do not address the issue of whether submitting the issue of physical damage to automobiles to a neutral arbitrator, as required by an agreement between USAA and Geico, Mackey’s insurer, including Copher’s statement, was a “waiver” of the work product rule, since the trial court did not address this issue.


author: Smith, Judge.

text:
    A95A2586.
    BROOKS v. YOUNG.
    (467 SE2d 230)
   Smith, Judge.

Vicky Young filed a complaint against Charity Dawn Brooks, a minor, on November 12, 1993, for injuries arising out of an automobile accident that occurred November 13, 1992. The summons and complaint, served only on Brooks, named only Brooks as a defendant and did not recite that she was a minor. Neither of her parents was served with a copy of the summons and complaint, she was not under the control of a guardian, and no guardian ad litem was appointed to represent her. On March 14, 1994, Brooks reached majority. The statute of limitation expired on November 13, 1994. OCGA § 9-3-33. On December 19, 1994, three days after Brooks filed a motion to dismiss or for summary judgment, Brooks was again served with a summons and complaint. Young dismissed the action on January 18, 1995 and refiled the action on January 27, 1995. Brooks filed a motion to dismiss or for summary judgment on the ground that service was not perfected on Brooks in the first action, and consequently, no valid prior action existed that could be dismissed and refiled pursuant to the renewal statute, OCGA § 9-2-61. The trial court denied the motion, finding the prior action to be voidable rather than void ab initio. According to the trial court, service on Brooks after she reached majority allowed renewal pursuant to OCGA § 9-2-61. We granted Brooks’s application for interlocutory appeal, and we reverse.

At issue here is the construction of two statutes, the renewal statute, OCGA § 9-2-61 (a), and the statute regarding service on a minor, OCGA § 9-11-4 (d) (3). The former provides that an action dismissed by a plaintiff may be refiled either within the original statute of limitation or within six months after dismissal, provided the action was originally commenced within the applicable limitation period. The renewal “privilege” afforded by this statute, does not extend to void cases but may be used if the prior action is merely voidable. Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994). Young argues, relying in large part on Hobbs, that the original suit was merely voidable and can be renewed. Young ignores the focus of Hobbs: diligence in serving a renewed complaint. The Supreme Court stated in that case that diligence in a renewal action “must be measured from the time of filing the renewed suit” and added that “delay in service in a valid first action is not available as an affirmative defense in the renewal action.” (Emphasis supplied.) Id. at 360-361.

Here, however, we are not asked to determine the diligence of a plaintiff when serving a renewed action. Instead, we must determine whether service was perfected in the prior suit and hence whether the suit was a valid action. A suit is valid only if “the declaration filed in the first instance [was] served upon the defendant.” (Citations and punctuation omitted.) Osborne v. Hughes, 200 Ga. App. 558, 559 (409 SE2d 58) (1991). If service is never perfected in the original suit, that suit is void, because “the filing of a complaint without perfecting service does not constitute a pending suit.” 264 Ga. at 360.

Decided January 31, 1996

Bentley, Karesh & Seacrest, Gary L. Seacrest, Jeffrey P. Raasch, for appellant.

Murphy, Murphy & Garner, Stephen E. Garner, for appellee.

OCGA § 9-11-4 (d) (3) provides that service on a minor be made by delivering the summons and complaint to the minor personally, “and also to his father or his mother or his guardian or his duly appointed guardian ad litem.” When serving a minor, strict compliance with the statute is required, “since notice is the very bedrock of due process.” (Citations and punctuation omitted.) Lanier v. Foster, 133 Ga. App. 149, 152-153 (2) (210 SE2d 326) (1974). Brooks, a minor at the time of the accident and at the time the summons and complaint were delivered to her, was the only defendant identified in the summons and complaint; neither of her natural parents was served, and no guardian ad litem was appointed to represent her.

Although Brooks was served the second time on December 19, 1994, after she reached majority, this service fell outside the limitation period. We find no authority to support any contention that her reaching majority and being served again after the statute of limitation expired somehow cured the defective service on her as a minor. Clearly, strict compliance with OCGA § 9-11-4 (d) (3) did not occur, and service was not perfected prior to expiration of the statute of limitation. Hence, the first suit was void. 264 Ga. at 360. No “valid” prior action existed which was renewable.

Finally, any suggestion that Brooks had “notice” because she had “knowledge” of the lawsuit is meritless. The language of OCGA § 9-11-4 (d) (3) is as “plain and unambiguous” as that found in subsection (d) (7), discussed in Bible v. Bible, 259 Ga. 418, 419 (383 SE2d 108) (1989). As in Bible, we find “no authority to dispense with the clear requirements of [OCGA § 9-11-4 (d) (3)] merely because the defendant may otherwise obtain knowledge of the filing of the action.” Id.

No valid prior suit existed that Young could renew, because service was not perfected on Brooks within the applicable statute of limitation. The trial court therefore erred in denying Brooks’s motion to dismiss or for summary judgment.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A2731.
    CRUCE v. KENNINGTON.
    (467 SE2d 227)
   Birdsong, Presiding Judge.

Trespassing on appellant Randall Cruce’s property, plaintiff’s nine-year-old son Joseph Wade Willis climbed to the second floor of Cruce’s barn and lifted a board, thereby uncovering a hole through which the boy fell. Plaintiff Sarah Kennington filed suit to recover for the boy’s injuries. We granted interlocutory appeal to determine whether the trial court erred in denying summary judgment to Cruce on the issue whether his barn constituted an “attractive nuisance.” Plaintiff contends that Cruce’s barn was on wooded property and was not visible from the apartment complex where she lived with Joseph, but was accessible from a path between the apartment complex and a shopping center. She contends Cruce knew this path was commonly used by children. Kennington contends the barn “drew” children and thus constituted an attractive nuisance or “artificial conditions highly dangerous to trespassing children” under the standards set in Gregory v. Johnson, 249 Ga. 151, 154 (289 SE2d 232), and that Cruce “ ‘fail[ed] to exercise reasonable care to eliminate the danger or otherwise protect the children.’ ” Id. at 155. Held:

1. Appellee did not respond to Cruce’s application for interlocutory appeal, and in violation of Court of Appeals Rule 18, she has filed a single-spaced brief.

2. The injury in this case was caused not merely by the child’s entry onto Cruce’s property, but by his falling from a height after he climbed to the second story of Cruce’s barn and removed a board, thus uncovering the hole through which he fell. Using the standards set forth in Gregory, supra, for determination whether an “artificial condition” constitutes an attractive nuisance, we find at the threshold that a barn, used or not used, is not an “artificial condition” on land. Further, as noted in Gregory at 154, the rule of attractive nuisance “generally does not apply to dangers of fire, falling from heights, and water.” (Emphasis supplied.) Such dangers are said to be “normally understood by children[,] absent other factors creating additional risks of harm or foreseeable dangers.” Id. No such “other factors creating additional risks of harm or foreseeable dangers” exist in this case.

Even assuming a barn may be an “artificial condition” on land, and assuming that under standard “a” (Gregory at 154), the possessor of the barn may have known or had reason to know children were likely to trespass in it, nevertheless under standard “b” the barn and the covered hole on the second floor did not involve “an unreasonable risk of death or serious bodily harm” to trespassing children. (Emphasis supplied.)

Therefore, the remaining three standards set out in Gregory do not render Cruce liable for an attractive nuisance. The flooring in the second floor of the barn was not itself an attractive nuisance, nor does it create an “unreasonable” risk of death or serious bodily injury merely because there was a hole covered by a board.

Decided January 31, 1996.

Saveli & Williams, Elmer L. Nash, Silvia L. Simpson, for appellant.

The implications of a finding to the contrary by a jury in the ordinary case would be so obviously burdensome and troublesome to all landowners of this state as to require no explanation. At the very least, such a finding would make every landowner a guarantor of every trespassing child’s safety. No special facts in this case would except this barn and its owner’s use (or non-use or ill-repair) of it from the general freedom of landowners to build and maintain and use, or choose not to use, buildings on their property. No special condition existed in this case which was not common to many barns (including the debatable ease of removing flooring or protective covering on the floor), and none existed which created an unreasonable risk of death or serious bodily harm to trespassing children. To rule otherwise would virtually destroy the law of trespass, and would require every owner of a building either to use it constantly or to board it up to an impregnable state so as to guarantee its inaccessibility to the youngest, most determined or most illiterate child. This ruling is wholly consistent with our rulings in Bowers v. Grizzle, 214 Ga. App. 718 (448 SE2d 759); Knutzen v. O’Leary, 210 Ga. App. 590 (437 SE2d 347); Walker v. Daniels, 200 Ga. App. 150 (407 SE2d 70).

3. As the child was a trespasser on property which was not an attractive nuisance, the owner’s duty to the trespasser was not to injure the child wilfully and wantonly. Gregory, supra at 155. No such failure of duty appears in the facts of this case cited to us. There was no hidden defect in this case; the danger of falling through a hole created if one removes flooring board is open and obvious, and neither the barn nor the flooring was a pitfall or mantrap. Bowers, supra at 720. “Regardless of the age or capacity of the injured or deceased person, in the absence of a bréach of some legal duty toward such person by the [defendant], there can be no liability.” Id.

Even if the child had not been a trespasser, a landowner is not required to provide against remote or improbable injuries to children playing upon his land (Knutzen, supra at 592), as was the injury in this case.

Judgment reversed.

Johnson and Smith, JJ., concur.

Holly L. Neyman, for appellee.


text:
    A95A2459.
    LAUFFER v. BROOKS.
    (467 SE2d 345)
   Andrews, Judge.

Brooks sued the John Doe driver of a vehicle left stalled in the middle of Interstate 85 and Lauffer, the driver of another car, claiming they jointly caused a multi-car accident in which he was injured. We granted Lauffer’s application for an interlocutory appeal from the trial court’s denial of his motion for summary judgment.

Brooks alleged in his complaint that “Defendant Lauffer and Defendant Doe, concurrently, operated their respective motor vehicles in a negligent or reckless manner on Interstate 85 (northbound) adjacent to the exit for Buford Highway, in Fulton County, Georgia, when Defendant Doe left a dark colored vehicle without lights or emergency flashers stalled in the middle of Interstate 85 at night so [as] to force the Plaintiff’s car into an adjacent lane of travel in which a collision ensued between the Plaintiff’s car and Defendant Lauffer’s van.” The record shows that Brooks was traveling north on Interstate 85 near the Buford Highway exit in Atlanta. At that point, Interstate 85 was composed of four lanes in each direction divided by a concrete barrier. To facilitate a description of the accident, the far left northbound lane will be referred to as lane 1, and the remaining three northbound lanes from left to right as lanes 2, 3 and 4.

Brooks testified in his deposition that he was traveling north in lane 2 at about 11:25 p.m. going about 55 to 60 mph. He unexpectedly came upon an automobile stalled in lane 2 with no lights, flashers or other warning signals. He testified that he did not see the stalled car until he was about one car length away from it. Brooks testified he immediately hit his right turn signal and swerved right into lane 3 to avoid hitting the stalled car. He did not recall if he had time to check on whether any car might have been behind him in lane 3 prior to swerving. He also testified that he looked in his rearview mirror as he swerved and did not see a car to his rear. Immediately after swerving into lane 3, Brooks hit his brakes to avoid hitting the rear of another car that was cutting in front of him from lane 4 into lane 3. Immediately upon swerving into lane 3 and hitting his brakes, Brooks testified he was hit in the rear. He testified that it all happened so quickly that he did not know what hit him.

An eyewitness to the accident was also deposed. In his deposition, O’Keefe testified that, just prior to the accident at issue as he was traveling north on Interstate 85, he screeched to a stop and barely avoided hitting the rear of the stalled vehicle in lane 2. After another vehicle behind him swerved to avoid rear-ending him and crashed into the barrier dividing the northbound and southbound lanes of traffic, O’Keefe pulled his car into the emergency lane up against the concrete barrier just north of the stalled car. As he was standing behind his car, he saw Brooks traveling in lane 2 approaching the stalled car and Lauffer approaching in lane 3. He testified that, as Brooks approached the stalled car in lane 2, Brooks made a sudden lane change from lane 2 into lane 3 and “cut off the van [driven by Lauffer] with no room to spare.” Although O’Keefe stated that he saw no attempt by Lauffer to stop or turn away when Brooks cut in front of him, he testified that, when Brooks swerved into lane 3, the distance between Brooks and Lauffer was “as close as two cars can come” and that they struck each other immediately after the abrupt lane change. He further testified that when the impact occurred, Lauffer tried to stop and started skidding sideways across lanes 3 and 4. O’Keefe also testified that the general flow of traffic at the time was approximately 70 mph and that Brooks appeared to be traveling with the flow of traffic. However, he stated he did not know how fast Brooks was traveling when he made the abrupt lane change, and he did not know how fast Lauffer was traveling at the time of the accident.

Lauffer provided an affidavit in support of his motion for summary judgment. In his affidavit, Lauffer averred that he was driving within the 55 mph speed limit while pulling a trailer with his van in lane 3 when Brooks suddenly cut into his lane in front of him and hit his brakes. Lauffer stated that, due to traffic conditions, he was unable to swerve out of lane 3 to avoid Brooks, and that “[d]ue to the sudden move of Mr. Brooks and the lack of distance between my vehicle and Mr. Brooks’ vehicle, I was unable to slow my vehicle in time to avoid hitting the rear of Mr. Brooks’ vehicle.”

The only evidence before the trial court on summary judgment was the affidavit from Lauffer and the depositions of Brooks and O’Keefe. In his response to Lauffer’s motion for summary judgment and on appeal Brooks argued that a factual issue exists as to whether Lauffer had an opportunity to slow or otherwise avoid colliding with the rear of his car and that Lauffer’s negligent failure to exercise due care to avoid the accident concurred with the negligence of Defendant Doe as the proximate cause of the accident.

“All drivers of vehicles using the highways are held to the exercise of due care. A leading vehicle has no absolute legal position superior to that of one following. Each driver must exercise ordinary care in the situation in which he finds himself. The driver of the leading vehicle must exercise ordinary care not to stop, slow up, nor swerve from his course without adequate warning to following vehicles of his intention so to do. The driver of the following vehicle, in his turn, must exercise ordinary care to avoid collision with vehicles, both those in front and those behind him.” (Citation and punctuation omitted.) Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 450 (224 SE2d 25) (1976). Whether or not the following vehicle in a rear-end collision case has exercised ordinary care to avoid the collision is usually a jury question. “Just how close to a vehicle in the lead a following vehicle, ought, in the exercise of ordinary care, be driven, just what precautions a driver of such a vehicle must in the exercise of ordinary care take to avoid colliding with a leading vehicle which slows, stops, or swerves in front of him, just what signals or warnings the driver of a leading vehicle must, in the exercise of due care, give before stopping or slowing up of his intention to do so, may not be laid down in any hard and fast or general rule.” Id. However, where the undisputed facts establish liability or the lack thereof such that reasonable minds may not differ, such a case may be decided as a matter of law. Id. at 450-451; compare Bartja v. Nat. Union Fire Ins. Co. &c., 218 Ga. App. 815, 816 (463 SE2d 358) (1995) (disputed facts in rear-end collision case created jury question).

There is nothing in the record which could form the basis for even an inference that Lauffer failed to exercise due care to avoid hitting the rear of Brooks’ car. In response to the motion for summary judgment, the burden was on Brooks to come forward with some evidence to establish a question of fact. Brooks never saw Lauffer’s car before the accident, so he could not say where Lauffer’s vehicle was when he swerved into lane 3, nor could he say how fast Lauffer was going, or whether Lauffer was in a position to have avoided the accident. Brooks admitted he hit his brakes immediately upon swerving into Lauffer’s lane to avoid rear-ending a car cutting into the same lane in front of him, and he stated he was hit from the rear as soon as he cut into Lauffer’s lane. The undisputed testimony of an impartial eyewitness established that Lauffer was in lane 3 when Brooks abruptly changed lanes and cut in front of Lauffer, leaving virtually no space between the front and the rear of the vehicles and no opportunity for Lauffer to stop or take evasive action. The eyewitness testified that the impact between the two cars occurred immediately upon Brooks’ abrupt lane change. Lauffer’s affidavit confirmed the testimony of the eyewitness, and stated that he was not speeding, that he had no time to stop, and that because of other traffic he could not swerve out of lane 3 to avoid Brooks.

On the present record, there is no evidence upon which a jury could reasonably conclude that Lauffer failed to exercise ordinary care to avoid the collision. Accordingly, this is a case where the undisputed facts establish that Lauffer was not liable and was entitled to summary judgment in his favor. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided January 19, 1996

Reconsideration denied February 1, 1996.

Chambers, Mabry, McClelland & Brooks, James T. Budd, Sandra G. Kirk, for appellant.

Parkerson & Shelfer, William S. Shelfer, Jr., Morris L. Rich-man, Steven K. Leibel, for appellee.

Judgment reversed.

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


text:
    A95A1974.
    COULTAS v. DUNBAR et al.
    (467 SE2d 373)
   McMurray, Presiding Judge.

Plaintiff Michael A. Coultas brought this action against the individuals David H. Dunbar, Peggy Thomas, Mary Ann Alsobrook, who are employees of the Georgia Department of Human Resources, Office of Regulatory Services. Also named as defendants are Meadowbrook Management, Inc. (“Meadowbrook”), HCP III Hartwell, Inc., d/b/a Hart Care Center (“Hart Care”), and Angel Care of Cahokia, Inc., d/b/a Cahokia Health Care Center (“Cahokia Care”). According to the amended complaint, plaintiff, formerly “the Administrator of Defendant Meadowbrook’s Hart Care Center . . . and/or the Administrator of Defendant Meadowbrook’s Cahokia Health Care, [in] Cahokia, Illinois,” was wrongfully discharged as a result of interference by the individual defendants with plaintiff’s contractual rights and relations with defendant Meadowbrook. Specifically, defendants Dunbar and Thomas, in their official capacities with the Office of Regulatory Services, abused their authority when they allegedly “threatened to sanction the nursing facility [where plaintiff was administrator] because of Plaintiff’s attempts to make the facility a no smoking facility.” Further, “[a]ll . . . defendants [allegedly] agreed to work together to bring about the discharge of the Plaintiff from his employment with Defendant Meadowbrook, ... [in a] conspiracy for the intentional interference with the contractual rights and relations between Defendant Meadowbrook and Plaintiff.”

Defendants David H. Dunbar, Peggy Thomas, and Mary Ann Alsobrook jointly answered and denied the material allegations but admitted that “on November 26, 1991, the Georgia Department of Human Resources inspected the Hart Care Center and noted that the facility’s no smoking policy violated state law and regulations.” These defendants further averred that “Plaintiff and the facility submitted several plans of correction which did not correct the deficiency, but ultimately submitted a satisfactory plan of correction.” In its answer, defendant Meadowbrook denied that plaintiff was ever employed by Meadowbrook, contending instead that “Plaintiff was formerly employed as the Administrator of the Hart Care Center . . . and subsequently was the Administrator of Cahokia Care Center in Cahokia, Illinois.” Hart Care admitted that “Plaintiff was its employee.” Cahokia Care admitted that plaintiff “subsequently was employed by this Defendant as the Administrator of Cahokia Care Center in Cahokia, Illinois.”

After a period of discovery, defendants David H. Dunbar, Peggy Thomas, and Mary Ann Alsobrook moved to dismiss the complaint, as against them, for plaintiff’s “failure to follow the notice provisions of the Georgia Tort Claims Act[, OCGA § 50-21-26, and also because the] subject matter of the complaint falls within the exceptions to the Tort Claims Act[, under OCGA § 50-21-24 (7)].” By affidavit, David H. Dunbar, Peggy Thomas, and Mary Ann Alsobrook each deposed that he or she was acting “within the scope of . . . employment [. . . and] in good faith to enforce Georgia’s Bill of Rights for Long[-]Term Care Residents.” See OCGA § 31-8-100 et seq., the Bill of Rights for Residents of Long-term Care Facilities.

In response to this motion, plaintiff “admitted] that he has not complied with the notice requirements of the Georgia [Tort Claims] Act[, . . . and that] Plaintiff would be specifically prohibited from proceeding against either the [individual] Defendants or the [S]tate,” for conduct undertaken in the course of their employment. Rather, plaintiff characterizes this action as one against the defendants “ ‘individually’ ” and outside the scope of official immunity, per OCGA § 50-21-25 (a). He submitted his affidavit, deposing that during October 1991, he instituted a no smoking policy at Hart Care; that, after being informed by the individual defendants that a no smoking policy was allegedly a violation of Georgia law, he revised the no smoking policy four times, but was nevertheless threatened by defendant Peggy Thomas with numerous inspections of all of Meadowbrook’s 22 other nursing homes in Georgia; that a complaint survey or inspection was performed at Hart Care in March 1992, yielding many significant problems identified by surveyors even though there were no changes in the operation of the facility since the prior annual survey of September 1991; that one of the deficiencies would be resolved by changing the nursing facility administrator (namely, plaintiff), whereupon on March 30, 1991, plaintiff was discharged as the Hart Care administrator immediately after completion of the complaint survey and was rehired by Meadowbrook three days later and sent to Illinois; and that, after meeting with Georgia Department of Human Resources Commissioner James Ledbetter to explore the no smoking policy, plaintiff opted to submit his resignation from Cahokia Care in exchange for severance pay rather than be discharged.

In a separate motion, defendants Meadowbrook, Hart Care, and Cahokia Care jointly moved for summary judgment on the ground that plaintiff was an employee at will who could be terminated at any time. In response, plaintiff did “not contend that he was not an employee at will with no definite and certain contract of employment subject to discharge ... at any time.” Rather, plaintiff contended that “he would not have been discharged by these Defendants [Meadowbrook, Hart Care, and Cahokia Care] but for the wrongful and illegal interference . . .” of defendants with his contractual relations. In his deposition, plaintiff conceded that he had no “written contract ...” with either Hart Care or Cahokia Care. He had “no specific term of . . . employment at the Hart Care facility[, . . . and no writing] promising [him] a certain length of time or period of employment [as administrator of Cahokia Care].” In support of his contention that the individual defendants abused their authority and conspired to bring about his wrongful termination, plaintiff testified that on Friday, February 7, 1992, his supervisor “Jewell Austin got in touch with me by telephone and she said, ‘Peggy Thomas is livid.’ She said, Peggy Thomas has threatened to fill [plaintiff’s] facility with so many surveyors[, i.e., inspectors] that even if you do survive, there are 22 others [that Meadowbrook has] got to be concerned about.” Because “Meadowbrook was having financial problems . . . they were having to work with the State Department of Human Resources[.]” Plaintiff also affirmed that Jewell Austin also told him “that she had been told by Peggy Thomas that [plaintiff’s] latest [restricted smoking] plan was not sufficient].]” Jewell Austin directed plaintiff to submit to the Department of Human Resources a smoking policy with which he did not personally agree, defendants’ Exhibit 7, and which he believed was not required under state law. Plaintiff responded, “ ‘You sign it and I’ll live with it.’ ” Jewell Austin replied, “ ‘You have to sign this,... we need an administrator to sign off on it.’ ” Plaintiff felt “my job was threatened, that if I did not sign that, . . . they were going to have to have someone sign that. My continued employment dealt with my signing off on this cover sheet [to the revised smoking policy].” Jewell Austin did not specifically say, “ ‘If you don’t sign it, you’re going to be fired[.]’ ” Rather, “she said, ‘The administrator’s going to sign this. You’re going to sign it or you’re not going to sign it.’ What it boiled down to, my option, if I wanted to stay on board I . . . signed it. . . . Either I signed and kept the job or I didn’t sign and I was fired.” Plaintiff signed the cover sheet to the revised smoking policy, which was submitted to the Department of Human Resources by telefacsimile on February 10, 1992. Plaintiff affirmed that he received “notice from the State saying you[, i.e., Hart Care] have been certified, you have complied with the inspection^]” Nevertheless, near the end of March 1992, “Jewell Austin terminated [plaintiff].” This was allegedly as a result of a “survey where the predetermined outcome was the removal of [plaintiff as] administrator of Hart Care Center.” Jewell Austin told plaintiff “it’s in the best interest of everyone because the State of Georgia is not going to allow this facility to be in compliance as long as [plaintiff is] the administrator and that [plaintiff] had to resign — no, she said [plaintiff] had to go ... , not resign, [but] had to go.” Plaintiff identified defendants’ Exhibit 8 as the survey. There, deficiencies were noted under the operational goal that a facility “must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental and psychological well-being of each resident.” In response, the provider’s plan of correction informed the Department of Human Resources that a “change in administration was made effective 3/30/92.” Plaintiff acknowledged there is nothing “anywhere in this document [where] it say[s] that the State was demanding, in order [for the Hart Care facility] to come into compliance, that [plaintiff] be terminated[.]” He testified, however, “[w]ith the attitude that the Department of Human Resources had, during the few days that I was fired [before accepting employment with Cahokia Care in Illinois,] through my networking I was able to establish that no nursing home corporation in the state of Georgia could hire me for fear of reprisal from the Department of Human Resources.”

The trial court granted summary judgment to each defendant and this appeal followed. Plaintiff complains of that summary judgment only with respect to the individual defendants and does not appeal the grant of summary judgment as to Meadowbrook, Hart Care, and Cahokia Care. Held:

OCGA § 50-21-25 (a) provides in part that nothing in the Georgia Tort Claims Act “shall be construed to give a state officer or employee immunity from suit and liability if it is proved that the officer’s or employee’s conduct was not within the scope of his or her official duties.” Plaintiff’s sole enumeration of error contends the trial court erred “in concluding that [the individual defendants] Dunbar, Thomas and Alsobrook were acting within the scope of their employment,” with the Georgia Department of Human Resources. He argues in his brief that defendants “were acting outside their scope of employment when they took action against the [plaintiff] through his employer ... to bring about his discharge from his lawful employment.” In support of this argument, plaintiff relies on alleged threats communicated to Jewell Austin that government inspections would be made of all Meadowbrook’s nursing home facilities in Georgia “if Meadowbrook did not promptly discharge [plaintiff].”

Plaintiff’s affidavit evidence in support of his claim of threats amounting to intentional interference with his contractual relations is hearsay. OCGA § 24-3-1 (a). Such evidence is inadmissible to prove that, when Jewell Austin related conversations to him, the threats plaintiff perceived had in fact been made by any of the defendants. See Fuller v. Charter South, 216 Ga. App. 211, 213 (2) (453 SE2d 754). Plaintiff conceded there is no documentary evidence that any Department of Human Resources’ official made the government’s certification of Hart Care contingent upon plaintiff’s discharge. The direct evidence is that defendants acted at all times in their official capacities and in good faith to enforce OCGA § 31-8-112 (c), which provides: “Unless contradictory to written admission policies of which the resident... is informed prior to admission, each resident shall be permitted to use tobacco and to consume alcoholic beverages, subject to the facility’s policies and safety rules and applicable state law, if the resident does not interfere with the rights of others.” Whatever disagreements plaintiff and the defendants might have had over the interpretation and application of this particular Code section, the objective facts show that defendants acted only in pursuit of their official duties to apply and enforce the Georgia Bill of Rights for Residents of Long-term Care Facilities. There is a prima facie presumption in favor of the good faith of a public officer and that he has done his duty. Scocca v. Wilt, 243 Ga. 2, 3 (252 SE2d 401). “ ‘The record in the present case is utterly devoid of any conduct by ([defendants David H. Dunbar, Peggy Thomas, and Mary Ann Also-brook]) which could remotely be construed as being sufficient to lift the shield that protects public officers acting colore officii.’ Partain v. Maddox, 131 Ga. App. 778, 785 (206 SE2d 618) (1974). . . . Merely styling a suit against a public officer as one brought against him personally does not deprive him of any immunity to which he might otherwise be entitled for his official acts [under the Georgia Tort Claims Act]. Hennessy v. Webb, [245 Ga. 329, 331 (264 SE2d 878)].” McDay v. City of Atlanta, 204 Ga. App. 621 (1), 622 (420 SE2d 75). The allegations that the individual defendants conspired with those entities which had an absolute right under OCGA § 34-7-1 to terminate plaintiff’s indefinite tenure as the administrator of Hart Care and Cahokia Care add nothing of substance. Ga. Power Co. v. Busbin, 242 Ga. 612, 614 (3) (250 SE2d 442). “In order to state a claim under a theory of intentional interference with business relations, it is necessary to show, in part, that the alleged intermeddler acted improperly and without privilege. Nilan’s Alley v. Ginsburg, 208 Ga. App. 145, 146 (2) (430 SE2d 368) (1993).” Russell Corp. v. BancBoston Financial Co., 209 Ga. App. 660, 663 (4) (434 SE2d 716). OCGA § 50-21-25 (a) provides that the Georgia Tort Claims Act “constitutes the exclusive remedy for any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.” There is no competent evidence in the case sub judice that defendants David H. Dunbar, Peggy Thomas, and Mary Ann Alsobrook acted in any capacity other than their official capacity. The trial court correctly granted summary judgment to the individual defendant employees and officers of the Georgia Department of Human Resources.

Decided February 1, 1996.

William R. Sotter, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Mary F. Russell, Senior Assistant Attorneys General, Harman, Owen, Saunders & Sweeney, Perry A. Phillips, for appellees.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2316.
    OKONGWU v. THE STATE.
    (467 SE2d 368)
   McMurray, Presiding Judge.

Defendant and co-defendant Tolbert were charged, in two counts of a multi-count indictment, with conspiracy to sell and distribute cocaine (Count 1), and with possession of cocaine with intent to distribute (Count 2). Defendant was charged separately in two other counts of the indictment with possession of cocaine with intent to distribute (Counts 3 and 5). Defendant was also charged with obstruction of a law enforcement officer (Count 4). Another count of the indictment, charging defendant with theft by receiving stolen property (Count 6), was withdrawn.

The evidence adduced at a jury trial reveals that all of the above charges arose after November or early December 1991, when defendant moved a mobile home or trailer onto a lot in an area of Tifton, Georgia, known for illegal drug activity. Co-defendant Joiner moved into the trailer in early 1992 and law enforcement officers raided the mobile home, pursuant to a search warrant, on August 21, 1992. Upon entry, the officers found defendant and co-defendant Tolbert standing in a hallway near the trailer’s bathroom. Defendant froze, but co-defendant Tolbert dashed into the bathroom and shut the door. Another suspect ran to a bedroom. Moments later, an officer found co-defendant Tolbert hiding in the shower, behind a curtain. He also discovered 17.8 grams of cocaine and some off-white powder (which was not tested) in the shower’s soap dish. United States currency was found in the commode.

On October 8, 1993, law enforcement officers went to defendant’s mobile home with another search warrant and observed defendant and two other suspects just outside the trailer, sitting on a picnic table. As the law officers approached, an officer shouted, “ ‘Sheriff’s Department, search warrant.’ ” Defendant froze, waited a couple of seconds and then bolted. So did the other suspects. The investigating officers found crack cocaine on the picnic table in the spot where defendant had been sitting. They also discovered other items consistent with illegal drug activity near the picnic table, and United States currency was found stashed in a television inside defendant’s mobile home.

On November 4, 1993, law enforcement officers saw defendant standing next to the picnic table outside his mobile home with Henry Bailey, an admitted drug addict. This time, one of the officers observed defendant hand something to Bailey. When the officers moved in to investigate, defendant announced that police officers were approaching and Bailey responded by discarding a dose of crack cocaine that he had just purchased from defendant. Bailey then waited, but defendant did not. He fled across the street and ducked behind a vacant house. A pursuing officer followed and found 25.3 grams of cocaine and defendant’s sandals (which were not conducive for running) abandoned behind the vacant house.

Defendant was found guilty on all five counts of the indictment. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant first challenges the sufficiency of the evidence with regard to his conviction for conspiracy to sell and distribute cocaine, arguing that the State failed to prove that he was in possession of cocaine during the search of his trailer on August 21, 1992, or that he entered into an agreement with co-defendant Tolbert to sell and distribute cocaine between the dates alleged in the indictment, i.e., after January 1, 1992, and prior to August 21, 1992. This contention is without merit.

“A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” OCGA § 16-4-8. “ ‘ “The question of the existence of a conspiracy is ultimately for the jury to determine.” ’ Boatwright v. State, 193 Ga. App. 141, 142 (1) (387 SE2d 386). While mere presence at the crime scene is not sufficient to convict one of being a party to a crime, criminal intent may be inferred from conduct before, during, and after the commission of the crime. Sands v. State, 262 Ga. 367, 368 (2) (418 SE2d 55). ‘ “Presence, companionship and conduct before and after the commission of the alleged offense(s) may be considered by the jury and are circumstances which may give rise to an inference of the existence of a conspiracy.” ’ Stroud v. State, 154 Ga. App. 852 (2) (270 SE2d 69). Further, *(f)light is circumstantial evidence of consciousness of guilt; the weight to be given such evidence is for the jury to decide.’ Green v. State, 206 Ga. App. 42, 44 (3) (424 SE2d 646). ‘It is not necessary to prove an express agreement between two (or more) co-conspirators in order to prove the existence of a conspiracy. The state need only prove that two or more persons tacitly came to a mutual understanding to accomplish or to pursue a criminal objective. (Cit.) Conduct of co-conspirators, i.e., conduct which discloses a common design, may give rise to an inference of a conspiracy.’ Duffy v. State, 262 Ga. 249, 250 (1) (416 SE2d 734). Conspiracy may be proven by direct or circumstantial evidence. See Harris v. State, 255 Ga. 500, 501 (2) (340 SE2d 4). ‘(W)hen individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one or more of the conspirators is in legal contemplation the act of all.’ (Citations and punctuation omitted.) Boatwright, supra at 142 (1).” Guerra v. State, 210 Ga. App. 102 (1), 103 (435 SE2d 476).

. In the case sub judice, the State proved that defendant moved a mobile home into an area of Tifton, Georgia, known for illegal drug activity in late November or early December 1991; that defendant did not use this trailer as his primary residence; that co-defendant Tolbert moved into the trailer during the early part of 1992, and that defendant and co-defendant Tolbert (as well as another suspect who was found to be in possession of a controlled substance) were caught in the trailer on August 21, 1992, with 17.8 grams of cocaine. This evidence, and proof that defendant fled from law enforcement officers (on at least two occasions after the police raid on August 21, 1992) when officers caught him engaged in illegal drug activities at the trailer, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of conspiring with co-defendant Tolbert after January 1, 1992, and prior to August 21,1992, to use the trailer as a base for selling and distributing cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Next, defendant contends that the evidence is insufficient to authorize his convictions for possession of cocaine with intent to distribute, as alleged in Counts 2 and 3 of the indictment. Count 2 of the indictment is based upon the August 21, 1992, incident where law enforcement officers discovered 17.8 grams of cocaine in the soap dish at defendant’s trailer. And Count 3 is based upon the incident on October 8, 1993, where a dose of crack cocaine was found on a picnic table just outside defendant’s trailer. With respect to both charges, defendant asserts that his presence just before the cocaine was discovered at his trailer on August 21, 1992, and October 8, 1993, is insufficient to authorize a finding that he possessed the cocaine or that he intended to distribute the drug in violation of Georgia’s Controlled Substances Act. This argument is without merit.

There is not only proof that defendant was present when the police raided his trailer on August 21, 1992, there is proof that he was standing next to co-defendant Tolbert just before she fled into the bathroom and stashed 17.8 grams of cocaine in the shower’s soap dish. There is also proof that defendant was monitoring local police activity, via use of an electronic scanning device, just before the police entered defendant’s trailer on August 21, 1992. Further, the State proved that defendant fled when police officers appeared outside his trailer on October 8, 1993, and that a dose of crack cocaine was found abandoned at the very spot where defendant was sitting just before the officers appeared. This evidence, and proof that defendant had just consummated an illegal drug transaction when police arrived at his trailer on October 8, 1993, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of possession of cocaine with intent to distribute as charged in Counts 2 and 3 of the indictment. Jackson v. Virginia, 443 U. S. 307, supra; Stevens v. State, 210 Ga. App. 355 (1) (436 SE2d 82). As to Count 5, the trial court sentenced defendant to 20 years probation. On appeal, defendant has not enumerated as error the conviction and sentence on Count 5.

3. In his fourth enumeration, defendant contends the evidence is insufficient to authorize the jury’s finding that he obstructed law enforcement officers in violation of OCGA § 16-10-24 (a). This charge is based on proof that defendant fled after one of the officers who appeared at defendant’s trailer on October 8, 1993, shouted, “ ‘Sheriff’s Department, search warrant.’ ”

Contrary to defendant’s assertions, flight or attempted flight from an officer, while the officer is executing his official duties, may constitute misdemeanor obstruction of an officer. See Tankersley v. State, 155 Ga. App. 917, 919 (4A) (273 SE2d 862). In the case sub judice, the State presented undisputed proof that defendant bolted after a law enforcement officer warned him that Sheriff’s deputies were approaching the premises to execute a search warrant. This proof, and evidence that defendant was observed by an officer handing something to another person just before the police raid, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of hindering or obstructing the officers’ search of defendant’s trailer in violation of OCGA § 16-10-24 (a). Jackson v. Virginia, 443 U. S. 307, supra.

4. Defendant contends the trial court erred in permitting the State to offer, as similar transaction evidence, proof of an incident in 1988 where he was caught transporting a quarter-pound of cocaine from Miami, Florida. Defendant argues that the circumstances surrounding this 1988 incident were not sufficiently similar to the crimes charged.

On December 14, 1988, Captain Gene Terry, Jr., of the Sumpter County, Florida, Sheriff’s Department observed a vehicle with an inoperable tag light traveling north on the Florida Turnpike extension. When Captain Terry signaled for the vehicle to stop, the driver of the suspect vehicle took evasive action. He headed off the road, crossed a grassy area and maneuvered close to a wooded swamp. A passenger in the suspect vehicle then tossed an object into the woods and the driver moved back toward the road. Another patrol officer joined the chase, however, and forced the driver of the fleeing vehicle to stop. Meanwhile, Captain Terry retrieved the object that was thrown into the woods and discovered that it was a quarter-pound of cocaine. Captain Terry testified that defendant was operating the suspect vehicle and that two females were his passengers. Defendant explained (at trial) that he was on his way from shopping at a Miami flea market when the police stopped him on the Florida Turnpike extension.

“ ‘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. Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.’ (Citations and punctuation omitted.) Faison v. State, 199 Ga. App. 447, 448 (1) (405 SE2d 277) (1991). . . . [And to this extent, the] trial court’s findings on questions of similarity will not be disturbed on appeal unless clearly erroneous. Cantrell v. State, 210 Ga. App. 218 (2) (435 SE2d 737) (1993).” Spead v. State, 218 Ga. App. 547 (1), 548 (462 SE2d 635).

In the case sub judice, the trial court found that the 1988 incident in Florida was relevant to show defendant’s intent, common scheme or bent of mind toward committing the crimes charged in Counts 1, 2, 3 and 5 of the indictment, i.e., conspiracy to sell and distribute cocaine and three separate incidents involving possession of cocaine with intent to distribute. We find no abuse in this finding. First, the amount of cocaine discharged from the car defendant was driving on December 14, 1988, is consistent with use of the drug for illegal distribution, rather than consumption. Second, the State’s proof indicated that defendant distanced himself from the illegal drug activities that were transpiring at his trailer on August 21, 1992, October 8, 1993, and November 4, 1993, by either providing an accomplice time to stash the contraband or by fleeing and then discarding the contraband himself. Defendant did the same during the 1988 incident on the Florida Turnpike. He evaded capture, maneuvered to a secluded area and then attempted to dispose of the evidence by tossing the contraband out the car window. With these similarities, we cannot say the trial court erred in finding that evidence of defendant’s part in the 1988 incident on the Florida Turnpike extension was admissible to show defendant’s intent, common scheme or bent of mind toward planning and conspiring to sell and distribute cocaine and possessing the drug for the purpose of distribution. See Faison v. State, 199 Ga. App. 447 (1), supra.

Decided February 1, 1996

Reconsideration dismissed March 27, 1996

Landrum & Eidson, Timothy L. Eidson, for appellant.

C. Paul Bowden, District Attorney, Gary C. McCorvey, Assistant District Attorney, for appellee.

5. The trial court did not err in allowing the State to present, as similar transaction evidence, proof that defendant gave a former police officer cocaine for money and an electrical appliance. This transaction took place at defendant’s trailer on September 10, 1993, and is relevant to prove defendant’s intent, common scheme or bent of mind toward planning and conspiring to sell and distribute cocaine from his trailer and possessing cocaine for the purpose of distribution. See Faison v. State, 199 Ga. App. 447 (1), supra.

6. The trial court did not err in denying defendant’s motion for a mistrial after Henry Bailey, an admitted drug addict, testified that a woman purchased cocaine from defendant just before Bailey purchased cocaine from defendant on November 4, 1993. Defendant was charged in Count 5 of the indictment for possession of cocaine with intent to distribute. This charge is based on proof that defendant sold cocaine to Henry Bailey on November 4, 1993. Consequently, evidence that defendant sold cocaine to another person moments before he sold cocaine to Henry Bailey was admissible as part of the res gestae. See Bundrage v. State, 265 Ga. 813, 815 (5) (462 SE2d 719).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2396.
    HULSEY v. THE STATE.
    (467 SE2d 610)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with a single violation of the Georgia Controlled Substances Act, in that she did unlawfully “acquire and obtain possession of a controlled substance, to wit: DARVOCET/N-100 (DEXTROPROPOXPHENE [sic], SCHEDULE IV) by misrepresentation, fraud, forgery, deception, and subterfuge by ALTERING A PRESCRIPTION. . . .” At defendant’s jury trial, her neurosurgeon; Carl Joseph Herring, M. D., testified he prescribed controlled substances for her, including four prescriptions “for Darvocet N-100.” Dr. Herring described Darvocet N-100 as a pain reliever that is addictive. “I would say mild to medium.” “Darvocet N-100 implies a certain strength of propoxyphene,” and Dr. Herring prescribed 40 pills at a time. His prescriptions were issued several months apart from each other. Dr. Herring “never prescribed 90 units of Darvocet N-100.” The most he has prescribed at one time is “60.” Dr. Herring identified his assistant’s handwriting on the prescription at issue, authorizing 40 Darvocet N-100 units with “zero refills[, . . . to which Dr. Herring] affixed [his] signature to the . . . completed prescription.” Dr. Herring then identified State’s Exhibit 2 as “the original of the prescription from May 2nd, 1994, with several alterations on it. It’s been cut in half, I believe, and spliced together. There’s a stamp on it that says approved . . . and there’s — the quantity appears now to read ‘90.’ ” Dr. Herring confirmed that this did not “match either the number or the writing on [his duplicate] original.” Defendant did not request Dr. Herring to increase the number of units prescribed and Dr. Herring did not authorize anyone to alter the number prescribed. Charles Q. Blackwell, the licensed pharmacist with the Floyd County Medical Center, identified State’s Exhibit 2 as a prescription for Darvocet N-100 for which he attempted to verify the quantity, because it “appearfed] to have been altered.” He was informed that the correct quantity was 40. Acting on the instructions of his supervisor and also the Rome City Police, Charles Q. Blackwell “actually put 90 units of the Darvocet N-100 tablets into a container[.]” This was done with the understanding that, if defendant returned to claim the prescription, “she was to be detained by security.” The label of that prescription as filled and made out by Charles Q. Blackwell reads: “PROPOXY-N/APAP 100-650 TAB.” Defendant did come back to pick up the prescription, and Charles Q. Blackwell summoned the police. “[W]hen she turned to go down the hall, . . . they were right there with her.” Charles Q. Blackwell testified that Darvocet N-100 “has propoxyphene and it also has acetaminophen in it.” With regard to dextropropoxyphene, he specified that “Propoxyphene Napsylate is the generic name.” Officer Chris Arrington of the Rome City Police Department responded to the alert that defendant had returned to the medical center. He “allowed the transaction to go ahead and take place, and . . . waited down the hallway. And when [defendant] walked away from the pharmacy area,” he arrested her. She had the filled prescription on her person.

The jury found defendant guilty. Her motion to “set aside the jury verdict . . .” was denied and this appeal followed. Held:

Decided February 1, 1996.

Steven Bennett, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

In her sole enumeration of error, defendant contends the trial court erred in denying her motion for directed verdict of acquittal “due to the State’s failure to link the drug listed in the Indictment (Darvocet) with the actual listed Schedule IV drug (Dextropropoxyphene).” We disagree.

Defendant correctly argues that mere proof of a trade name for a controlled substance is insufficient evidence to sustain a conviction under the Georgia Controlled Substances Act. Elrod v. State, 143 Ga. App. 331 (2) (238 SE2d 291). OCGA § 16-13-28 (a) (9) specifies “Dextropropoxyphene” as a Schedule IV controlled substance, and that is the controlled substance alleged in this indictment. Dorland’s Illustrated Medical Dictionary (24th ed. 1965) defines propoxyphene as “dextropropoxyphene.” For purposes of the Georgia Controlled Substances Act, dextropropoxyphene and propoxyphene are chemically identical analgesics. In the case sub judice, the evidence showed that Darvocet N-100 is propoxyphene with acetaminophen and dextropropoxyphene is “Propoxyphene Napsylate.” In the absence of any countershowing, this circumstantial evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s determination that the 90 Darvocet N-100 tablets defendant fraudulently obtained were in fact the controlled substance dextropropoxyphene as alleged in the indictment, beyond any reasonable doubt. The enumeration of the general grounds is without merit.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.