author: Birdsong, Presiding Judge.

text:
    A96A2359.
    LOFTIN v. GULF CONTRACTING COMPANY et al.
    (480 SE2d 604)
   Birdsong, Presiding Judge.

Appellant/plaintiff John A. Loftin appeals the order of the superior court granting appellees/defendants’ second renewed motion for sanctions and dismissing appellant’s complaint and pleadings with prejudice.

Appellant Loftin and plaintiff Roger Swilley (referred to jointly as appellant and Swilley) brought suit for damages against appellees/defendants Gulf Contracting Company, P. R. Wood, and Laura Ann Wood for breach of implied contract, fraud, slander, libel, defamation, emotional distress, conversion, breach of fiduciary duty and negligence. Appellees filed various counterclaims.

On August 15, 1995, appellees initiated discovery and served a first request for production of documents (OCGA § 9-11-34) and notice to produce at trial (OCGA § 24-10-26). On September 15, 1995, appellant and Swilley filed their response to this request. The response stated inter alia that notwithstanding the objections to appellees’ request to produce, appellant and Swilley “have available at the [law office of their attorney], for copying, all documents in their possession with regard to the above-requested discovery.” Supplemental discovery answers were filed, in which appellant and Swilley in essence asserted they had furnished all requested documents in their possession or had listed in their response where such documents could be obtained, except for documents protected by the work product doctrine and attorney-client privilege. These latter documents were broadly identified as consisting of certain personal notebooks of appellant Loftin, certain credit card statements, and certain checkbook stubs belonging to the personal checking account of appellant Loftin — all of which allegedly had been prepared in contemplation of litigation. Appellees filed a motion for sanctions (OCGA § 9-11-37 (d)) to strike and dismiss plaintiffs’ complaint and pleadings with prejudice, an alternative motion to compel document production (OCGA § 9-11-37 (a)) and an application for attorney fees (OCGA § 9-11-37 (d)). In this motion, appellees averred their original request for production had been hand-delivered to appellant and Swilley’s counsel and the response thereto was untimely, vague, evasive and incomplete. Appellees also averred that, while some of the requested documents had been produced untimely, “substantively all of the documents [e.g., banking records, check registries, cancelled checks, tax returns, ledgers, memos] sought by [appellees], have not been produced.” Appellees contended that appellant and Swilley’s failure to answer timely and to respond properly to the document production request was wilful or with conscious disregard for appellees’ discovery rights. This motion was accompanied by a supporting affidavit of appellees’ counsel; therein the attorney states the motion to produce was hand-delivered to plaintiffs’ attorney, and that appellant’s response was not received until Monday, September 18, 1995. Appellees’ counsel also stated that on September 21, 1995, appellant produced “a few of the documents sought,” and stated that the balance would not be produced based on the objections asserted in their response to the production request. Further appellees’ counsel stated that during a prior Uniform Superior Court Rule 6.4 (B) conference, appellant and Swilley’s attorney stated he would stand on the objections to discovery and would not produce any further material sought, notwithstanding being informed that the response was untimely and contained improper objections. Appellant and Swilley filed their response to appellees’ motion for sanctions and a motion for a protective order (OCGA § 9-11-26 (c)). A hearing was held on this motion and an order was filed on February 12, 1996. The trial court’s order reflects that appellant’s and Swilley’s counsel stated in open court that complete photocopies of all documents sought had been produced and provided to appellees’ counsel, except for the following three categories of documents withheld under claim of privilege, to wit: bank account checkbook stubs pertaining to the áccount of appellant Loftin, credit card statements, and personal notebooks of appellant Loftin. The trial court ordered Bates-numbering of the documents produced and directed that any further identification, production and/or attempted use by appellant and Swilley of any documents, otherwise sought by appellees in their request for production of documents, other than the materials subsequently identified in the order, and any documents that may thereafter be properly produced by appellant and Swilley under their duty to supplement their document production under appellees’ requests to produce (served upon appellant and Swilley by hand-delivery on August 15, 1995), “may be brought to the court’s attention by [appellees], for the imposition of appropriate sanctions” against appellant and Swilley. The order then identified the three categories of documents as those to which appellant and Swilley had asserted a claim of attorney-client privilege or work product exception. As to these documents appellant and Swilley had asserted that, pursuant to the instructions of appellant’s prior attorney, appellant had made certain written comments on some of the materials in contemplation of litigation. The trial court deferred ruling on the legitimacy of the privilege/work product claim and directed the taking of the deposition of the former attorney to determine what instructions, if any, had been provided appellant. In the event that no such instructions were given by the attorney, appellant and Swilley were ordered to produce immediately the originals of the documents to which the privilege/work product claim had been asserted; any controversy surrounding the instruction could be brought to the court’s attention for an appropriate hearing. The trial court did not rule at this time upon the merits of appellant and Swilley’s motion for protective order. The deposition of appellant’s former attorney was taken; the attorney testified she had given appellant Loftin general instructions, among which was that he needed to make notes, memoranda, records or recordings so that he could refresh his memory when testifying at a deposition or before a jury. The attorney, however, did not expressly testify that she had instructed appellant to make these notations on any of the existing documents in his possession.

Subsequently, appellees filed a renewed motion for sanctions to strike and dismiss with prejudice the complaint and pleadings of appellant Loftin. This motion asserted the existence of and purported to identify a substantial number of documents which had been withheld by appellant and had not been previously produced. Appellees asserted in their motion that appellant’s conduct constituted either a wilful refusal to participate in discovery or conscious indifference to the discovery process. In a supporting affidavit, appellees’ counsel stated that during the course of appellant’s deposition (which subsequently was adjourned), appellant identified a number of documents which had not been produced and also some handwritten notes. Appellant claimed that check registers, deposit slips, credit card statements, and diaries in his possession had been retained pursuant to the trial court’s order of February 12, 1996; however, he also stated that these documents would be introduced at trial. Appellees’ counsel further stated in his affidavit that appellant testified as to the existence of approximately 15 inches of documents retained by him, and that less than two-and-one-half inches of Bates-numbered documents had been produced by appellant. Following a hearing as to this motion, an order and judgment was filed on April 5, 1996, directing appellant to produce, no later than April 12, 1996, “all” of the documents at issue. The order further directed that the materials shall be produced “at a time convenient to counsel for [appellees], so that the aforesaid materials may be reviewed, inventoried and copied” by appellees’ counsel.

On April 16, 1995, appellees filed a second renewed motion for sanctions, citing OCGA § 9-11-37 (a) (3), (b) (2) (C), and (d), and asserting appellant had wilfully failed and refused to comply with the trial court’s order of April 5, 1996; this motion was supported by the affidavits of appellees’ counsel and his paralegal. The supporting affidavits reflect that at about 9:40 a.m. on Friday, April 12, 1996, the paralegal received a phone call from appellant’s co-counsel who wanted to speak with appellees’ attorney who was then out of the office; appellant’s co-counsel stated that documents were ready to be produced and an intern was being sent with the documents. At about 10:45 a.m., the intern arrived carrying one large banker box and one shoe box filled with documents. Appellees’ counsel was contacted by his paralegal and advised of the situation. Appellees’ counsel stated he was informed and believes that approximately 4,000 documents were produced which had not previously been produced in discovery. The office staff of appellees’ counsel photocopied documents for approximately five hours without stopping for lunch. At approximately 3:40 p.m., the intern who had brought the documents stated she had been instructed by appellant’s counsel to leave and take all of the original documents regardless of whether they had been copied. At approximately 4:05 p.m., despite objections to the removal of the documents, the intern departed with all the documents notwithstanding that only approximately 2,000 documents had been photocopied. Apparently on the following Monday, appellant’s counsel offered to return the documents for further photocopying. At the motion hearing appellees’ counsel stated this offer was unacceptable as every document would have to be checked to determine if it had been copied. The trial court granted the motion for sanctions and dismissed both appellant’s complaint and pleadings and appellees’ counterclaim with prejudice. Held:

1. Appellees have failed to file a brief; accordingly, they must stand on the strength of the record before us, as the contents thereof are interpreted by this Court, and without benefit of any written appellate brief or oral argument. Ga. Const, of 1983, Art. VI, Sec. I, Par. IV (court’s exercise, of judicial power necessary to protect and effectuate its judgments); see Court of Appeals Rule 26 (b).

2. Appellant filed his initial response to appellees’ first request for production of documents and notice to produce 31 days after service of the request. Contrary to appellant’s contention, the record affirmatively reflects, as determined by the trial court, that the request for production was served by personal delivery to appellant’s attorney and not by mail. Accordingly, appellant was not entitled to the three-day additional time allotted after service by mail. See generally OCGA § 9-11-6 (e).

OCGA § 9-11-34 (b) (2) pertinently provides that “[t]he party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. . . . The party submitting the request may move for an order under subsection (a) of Code Section 9-11-37 with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.” (Emphasis supplied.) We find that appellant’s response to the notice to produce was untimely. OCGA § 9-11-34 (b) (2). However, we need not address whether such an untimely response would result in waiver of the right to object (see generally Drew v. Hagy, 134 Ga. App. 852 (216 SE2d 676)) subsequent to the production of any attorney-client privileged or work product documents. Compare the majority and dissenting opinion pertaining to discovery and waiver in Jones v. Abel, 209 Ga. App. 889 (434 SE2d 822); see generally OCGA § 9-11-26 (b) (1); see also Smith v. Nat. Bank &c., 182 Ga. App. 55, 57 (2) (354 SE2d 678); Danger v. Strother, 171 Ga. App. 607, 608 (1), 609 (2) (320 SE2d 613). As the trial court did not dismiss appellant’s complaint due to the untimely response to the notice to produce but issued additional discovery-related orders, resolution of the discovery issue depends upon whether appellant failed to obey such orders to provide or permit discovery, in a manner authorizing the trial court to strike their answers pursuant to OCGA § 9-11-37 (b) (2) (C). See Hernandez v. State of Ga., 200 Ga. App. 368, 369-370 (408 SE2d 160) (whole court).

3. Appellant, relying primarily on Strejc v. MARTA, 197 Ga. App. 88 (397 SE2d 501); Holt v. Brown, 177 Ga. App. 823 (341 SE2d 486); and Thornton v. Burson, 151 Ga. App. 456 (260 SE2d 388), contends it was error for the trial court to dismiss his complaint and pleadings with prejudice in the absence of a showing that he totally failed to respond to appellees’ discovery requests or, in the case of partial and evasive discovery answers, in the absence of a previous order requiring him to provide more complete discovery. The cases cited by appellant are distinguishable from the facts currently developed in this appellate record. The record before us contains evidence from which the trial court could conclude appellant was wilfully or consciously circumventing the trial court’s order to produce timely the documents in question.

“ As a general rule, the trial court should attempt to compel compliance with its orders through the imposition of lesser sanctions than dismissal. “(T)he drastic sanctions of dismissal and default cannot be invoked under (OCGA § 9-11-37) except in the most flagrant cases — where the failure is wilful, in bad faith, or in conscious disregard of an order.” However, “ ‘(a) very broad discretion is granted judges in applying sanctions against disobedient parties. . . . This applies to the disobeying of an order to produce. Historically, it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of its discretion in absence of abuse. This policy is applicable to a trial judge’s exercise of the broad discretionary powers authorized under the discovery provisions of the Civil Practice Act.’ ” ’ ” (Citations omitted.) Hernandez, supra at 369. How-' ever, violation of a trial court’s discovery order is not self-executing; before the ultimate sanction of dismissal or default judgment can be imposed, “the court must first make a determination, following notice and an opportunity for hearing, that the failure to comply with the order was wilful.” Id. at 370. Implicit within the trial court’s order of April 5 was the denial of appellant’s protective motion. We see no reason why the trial court should have to reorder appellant to produce that which he ordered produced at a given time and place. See also Joel v. Duet Holdings, 181 Ga. App. 705 (353 SE2d 548). However, “ ‘[t]here is no requirement that the plaintiff display and the trial court find actual wilfulness. The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful.’” (Citation omitted.) Stolle v. State Farm &c. Ins. Co., 206 Ga. App. 235, 236 (3) (424 SE2d 807) (whole court); accord Washington v. South Ga. Med. Center, 221 Ga. App. 640, 641 (1) (472 SE2d 328).

In this case, at the hearing on the motion for sanctions, the trial court tersely terminated the hearing and denied appellant’s request to “make an offer of proof” regarding the matter under consideration. “Sanctions may be imposed only after a motion, notice, and a hearing provided to the party against whom sanctions are sought. ‘This means affording (the party against whom sanctions are sought) an opportunity to explain the [relevant] circumstances.’ ” (Citations omitted.) Kemira, Inc. v. Amory, 210 Ga. App. 48, 51 (1) (435 SE2d 236). The trial court committed error harmful to appellant by denying him the opportunity to explain at the hearing. Schrembs v. Atlanta Classic Cars, 197 Ga. App. 450 (398 SE2d 712) is distinguishable. Accordingly, the order and judgment of the trial court is vacated and the case remanded to afford appellant a meaningful opportunity to explain. Kemira, Inc., supra. The trial court should enter findings as to the manner in which appellant violated the discovery process, including the means, if any, by which appellant violated discovery orders, and whether such violation either was actually wilful or constituted a conscious failure to act within the meaning of Stolle, supra, and Washington, supra.

Decided January 8, 1997.

Ronald C. Conner, Monica K. Gilroy, for appellant.

Gulf Contracting, Inc., pro se.

R R. Wood, pro se.

Laura A. Wood, pro se.

Judgment vacated and case remanded with direction.

Beasley and Blackburn, JJ, concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A96A2503.
    GATES v. THE STATE.
    (480 SE2d 263)
    Decided January 8, 1997

      Glen A. Cheney, for appellant.

      Wensley Hobby, Solicitor, for appellee.
   Blackburn, Judge.

Corey Gates appeals his conviction by a jury of simple battery based on the insufficiency of the evidence to support the conviction. The standard of review is that set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), with the evidence construed most strongly in favor of the verdict.

The evidence showed that while an inmate at Georgia State Prison, Gates intentionally flooded his cell by stopping up the toilet. Gates then threw a cup of feces and liquid through an opening in the cell door and into the chest of a guard. Although Gates argues that his conviction must be reversed because the State failed to show by scientific evidence that the material was feces, no such expert analysis was required. The corrections officer testified he recognized that material because of its color and bad smell, and his common knowledge of this material sufficiently identified it to the jury under the circumstances of this case. See Wright v. State, 220 Ga. App. 233, 234 (2) (469 SE2d 381) (1996) (lay identification of blood); Faucette v. State, 71 Ga. App. 331 (3) (30 SE2d 808) (1944) (lay identification of whiskey). Accordingly, the evidence sufficiently supports the verdict, and the trial court did not err in failing to direct a verdict for Gates or in denying his motion for new trial. See Howe v. State, 202 Ga. App. 462 (414 SE2d 748) (1992).

Judgment affirmed.

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


text:
    A96A1764.
    CARTER v. THE STATE.
    (480 SE2d 266)
   Birdsong, Presiding Judge.

Sebastian Carter appeals his conviction of two counts of sale of cocaine. Appellant contends the evidence was insufficient to support the conviction inasmuch as it showed only presence at the scene of a crime. He also complains of the trial court’s failure to strike a juror for cause.

The evidence showed that after an undercover agent was led to a house on Mason Drive and asked for “Poochie,” appellant’s sister Barbara Carter stated that Poochie was not home but that she would lead the agent and confidential informant to Poochie. Carter led the agent and informant to a church, where the agent told appellant he wanted to buy a $100 slab of cocaine. Appellant told the agent to meet him back at the Mason Drive location in 20 minutes. The agent did so, and appellant sold the agent the cocaine, using his sister as intermediary. Before the sister handed over the cocaine to the agent, she asked appellant, “You said $100, didn’t you?” Appellant nodded his head, indicating ‘Tes.” A second sale occurred in a similar manner, with appellant actively participating in the sale and agreeing to the sale but using his sister as intermediary. Held:

1. We have reviewed the evidence and find it more than sufficient to show appellant’s active participation in the sale of cocaine on two occasions and to thereby allow a rational trier of fact to find appellant guilty of the sale of cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The evidence showed more than mere presence, beyond a reasonable doubt.

2. The trial court did not err in refusing to strike for cause a juror who stated that she knew a law enforcement officer who might be a witness. Georgia law imposes a strict basis for juror disqualification for favor because the defense and prosecution are allowed peremptory strikes to excuse jurors who they feel may have bias. Jordan v. State, 247 Ga. 328, 340 (276 SE2d 224). The mere fact that a juror expressed some doubt as to her bias is not conclusive. The question is whether that bias is so fixed and definite that it would not be changed by the evidence or charge of the court. Gilstrap v. State, 199 Ga. App. 223 (404 SE2d 629), rev’d on other grounds, 261 Ga. 798, 799 (410 SE2d 423). On questioning, this juror stated that it would be difficult to put aside her bias but that she would try, and that she could not say how she would vote before hearing the evidence. See Garland v. State, 263 Ga. 495 (435 SE2d 431). The trial court did not abuse its discretion (Gilstrap, supra) in refusing to strike this juror for cause.

Judgment affirmed.

Blackburn, J, and Senior Appellate Judge Harold R. Banke concur.

Decided January 9, 1997.

Hagler, Hyles, Adams & McKenna, Richard C. Hagler, for appellant.

J. Gray Conger, District Attorney, William D. Kelly, Jr., Assistant District Attorney, for appellee.


author: Blackburn, Judge. Beasley, Judge,

text:
    A96A2017.
    MULLINS v. THE STATE.
    (480 SE2d 264)
   Blackburn, Judge.

A Fulton County jury convicted Larry Mullins of aggravated assault (OCGA § 16-5-21 (a) (2)) after he attacked the supervisor of his road crew with a metal pipe. He appeals from that conviction and a three-year prison sentence. We affirm.

1. In his first enumeration of error, Mullins contends the trial court erred by denying his motion for new trial without a hearing. The record reflects that motion was filed on May 9, 1995, and denied on July 3, 1995. At no time before the court denied the motion did Mullins file a rule nisi or other request for a hearing. In the absence of a timely request from one of the parties, the trial court had no duty to initiate a hearing. Wilkins v. State, 220 Ga. App. 516, 518 (3) (469 SE2d 695) (1996); see also Peyton v. Peyton, 236 Ga. 119, 120-121 (223 SE2d 96) (1976). This enumeration is without merit.

Mullins’ request for hearing was untimely because it was made after the trial court ruled on the motion for new trial. Nonetheless, because Mullins’ counsel apparently did not receive a copy of the order denying her motion for new trial and subsequently filed a request for hearing several months after the court had ruled, the trial court scheduled a hearing though not required to do so. At Mullins’ specific request, the trial court then entered another order denying the motion for new trial nunc pro tunc to the date of the original order so that Mullins could file this appeal. Accordingly, Mullins can show no error or harm in the trial court’s actions.

2. In his second enumeration of error, Mullins claims the trial court prevented him from testifying about prior threats or acts of violence he had seen the victim display on the job site toward other employees. This matter was apparently discussed during an unreported bench conference. If the trial court excluded such testimony, the record does not fully reflect its reasons for doing so. Because the record contains no order excluding the subject testimony or a transcript of the hearing thereon, we are precluded from reviewing this issue on appeal. See Clay v. State, 209 Ga. App. 266, 269 (2) (433 SE2d 377) (1993) (requirement of showing error by the record); Holloway v. State, 201 Ga. App. 204, 205 (2) (410 SE2d 799) (1991) (requirement of proffer as a prerequisite for appellate review).

Pretermitting whether Mullins adequately preserved this claimed error, however, the trial court did not err by excluding the testimony. The record shows Mullins made no effort to give the trial court prior notice of his intent to produce this testimony, as required by Uniform Superior Court Rules 31.1 and 31.6, and Chandler v. State, 261 Ga. 402, 408 (3) (405 SE2d 669) (1991). This claim therefore is without merit.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Beasley, J, concurs specially.

Beasley, Judge,

concurring specially.

1. I agree that Mullins’ first enumeration of error is without merit, but for a different reason. Mullins contends the denial of his motion for new trial without a hearing constituted an abuse of discretion by the trial judge, who was a different judge from the one who had presided at trial.

Mullins’ counsel did not know the court had ruled on the motion on July 5, 1995, when she sought a rule nisi setting a hearing in March 1996. Apparently the court was also unaware of the previous order when it set a hearing for March 22. No hearing was held because it was discovered that the order had been entered.

Instead, on April 23, 1996, Mullins filed a motion to set aside the July 5, 1995 order because the time to appeal had expired, and he sought a new order so he could file a timely appeal. He did not ask for a hearing on the motion for new trial. The court granted the motion to set aside and entered a new order on May 15, thereby affording Mullins precisely what he sought, the opportunity to appeal. The next day he filed his notice of appeal.

Since Mullins did not seek a hearing, and none is required absent a request, Wilkins v. State, 220 Ga. App. 516, 518 (3) (469 SE2d 695) (1996), he cannot complain that the court abused its discretion in not holding one.

I note that Mullins sought, and the court granted, a nunc pro tunc order. We have, rightly, ignored that aspect of the order. Nunc pro tunc means “Now for then. ... A phrase applied to acts allowed to be done after the time when they should be done, with a retroactive effect, i.e., with the same effect as if regularly done.” Black’s Law Dictionary (rev. 6th ed. 1996). The purpose of the order of May 15, 1996, would be defeated if it were given effect on July 3, 1995, because the appeal period had long expired when the order was actually entered. For this reason, the Court does not consider the appeal untimely.

Decided January 9, 1997.

Cathy M. Alterman, for appellant.

Lewis R. Slaton, District Attorney, Phyllis M. Burgess, John C. Culp, Assistant District Attorneys, for appellee.

2. As to the second enumeration, I agree that we cannot review the issue on appeal because we do not know upon what basis the court excluded the evidence or even whether it made a ruling. The State did not give the ground for its apparent objection on the record, and the record does not show whether the court ruled or whether Mullins withdrew the line of questioning. It was Mullins’ obligation to assure that the bench conference at which this matter apparently was addressed was reported. Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779) (1980); Ivory v. State, 199 Ga. App. 283, 284 (1) (405 SE2d 90) (1991). See also OCGA § 5-6-41 (d) and (f). I do not join in the further ruling.


author: Ruffin, Judge.

text:
    A96A2305.
    RESIVENTURE, INC. et al. v. NATIONAL LOAN INVESTORS, L.P.]
    (480 SE2d 212)
   Ruffin, Judge.

National Loan Investors, L.P. (“NLI”) sued Resiventure, Inc. (“Resiventure”), Gary Wallace and Rollin Rockett to collect on a promissory note. The trial court granted NLI’s motion for summary judgment, and Resiventure, Wallace and Rockett appeal. For reasons which follow, we reverse.

In July 1988, Resiventure borrowed $550,897 from Habersham Federal Savings Bank. Resiventure was required to satisfy the note by July 1989. According to the note, no payments were due until that time. Wallace and Rockett personally guaranteed payment of the note.

Less than a month before the note matured, the Federal Savings & Loan Insurance Corporation (“FSLIC”) was appointed as receiver for Habersham Federal Savings Bank. When the FSLIC investigated the bank’s records, it found that no payments had been received on the note. Based on the results of its investigation, the FSLIC issued a bank statement to appellants demanding immediate payment of a principal balance of approximately $525,000, as well as a $72,000 payment for interest accrued through August 31, 1989. Appellants did not contact the bank to dispute the statement.

Thereafter, principal and interest payments were submitted by appellants. The FSLIC’s successor, the Resolution Trust Corporation (“RTC”), released the property securing the note as payments were submitted. However, $25,449.30 in principal remained owing.

In March 1993, NLI purchased the note and personal guarantees from the RTC. The RTC provided appellants with documentation regarding the payment history of the note. In addition, NLI sent a letter to appellants informing them of the outstanding balance on the note. NLI also provided appellants with records showing the outstanding balance and offered to adjust the balance if appellants could present evidence of further payment. Appellants failed to respond with any evidence, and NLI filed suit in March 1994 to collect the indebtedness.

Resiventure, Wallace and Rockett answered NLI’s complaint and admitted executing the note and personal guarantees. Payment was not asserted as an affirmative defense in their answers.

During discovery, NLI requested evidence of payment. Four months later and nearly one year after NLI first requested evidence of payment, appellants presented seven checks which were not drawn on appellants’ account and did not specify payment to any account. According to appellants, these payments were drawn on the account of Kyvest, Ltd., a company operated by Rockett, which was working with Resiventure. After investigating the checks, NLI moved for summary judgment in April 1995. In August 1995, appellants amended their answers to raise payment as an affirmative defense.

The trial court granted NLI’s motion for summary judgment, ruling that appellants waived the payment defense and were without excuse or justification in failing to assert the defense until 17 months into the litigation. The trial court alternatively ruled that appellants’ payment defense was barred by 12 USC § 1823 (e).

1. In their first enumeration of error, appellants contend the trial court erred in failing to allow them to assert the affirmative defense of payment. We agree.

Pursuant to OCGA § 9-11-8 (c), payment is an affirmative defense which must be set forth in the responsive pleading. However, OCGA § 9-11-15 (a) provides that “[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” In addition, OCGA § 9-11-15 (c) provides that when the defense asserted in an amended pleading arises out of the transaction set forth in the original pleading, the amendment relates back to the date of the original pleading. Based on these statutes, we have previously held that “[pjayment, one of the affirmative defenses itemized at OCGA § 9-11-8 (c), may be raised by amendment.” (Citation and punctuation omitted.) Abdalla v. DDCB, Inc., 216 Ga. App. 667, 669 (455 SE2d 598) (1995) (physical precedent only).

In the present case, appellants amended their answers, adding the following as a seventh defense: “The Defendants assert that the obligation which Plaintiff alleges is owed by Defendants has been paid in full.” The record further shows that no pretrial order had yet been filed in the case. Thus, appellants were permitted to amend their answers to include this defense without leave of court. Accordingly, the trial court erred in failing to consider appellants’ affirmative defense of payment. However, the question remains whether this defense was barred as a matter of law pursuant to 12 USC § 1823 (e) and D’Oench, Duhme & Co. v. Fed. Deposit Ins. Corp., 315 U. S. 447 (62 SC 676, 86 LE 956) (1942).

2. The D’Oench doctrine prohibits the maker of a promissory note from asserting a defense based on any agreement that would tend to deceive the FDIC. In D’Oench, the petitioner sold bank bonds which later defaulted. Although the petitioner subsequently executed a note so that the bank could avoid showing a loss on its books, both parties agreed that the bank would not require payment of the note. When the FDIC acquired the note as collateral for a loan to the bank, it sued the maker of the note for payment. The Supreme Court held that because the maker of the note “was responsible for the creation of the false status of the note in the hands of the bank[,]” he was estopped from asserting defenses that would defeat federal policies designed to protect the FDIC. Id. at 461.

Similar to the D’Oench doctrine, 12 USC § 1823 (e) was enacted to afford greater protection to the FDIC. Pursuant to this statute, the maker of a note may not assert a defense based on any agreement that does not clearly appear in a bank’s records. This statute “ensures that federal and state examiners can rely on a bank’s records when evaluating the bank’s assets. [Cit.]” Bufman Organization v. Fed. Deposit Ins. Corp., 82 F3d 1020, 1025 (6) (11th Cir. 1996).

While the reach of D’Oench and 12 USC § 1823 (e) is broad, courts have recognized that some claims fall outside the scope of their bar. “That § 1823 (e) (1) does not apply to every conceivable defense is evident from the terms of the statute, which applies only to claims or defenses that are based on an agreement that does not meet the requirements of that section.” Bufman, supra at 1029 (13). For example, the bar “does not apply to the defense that an asset is invalid due to events unrelated to any unrecorded side agreement, or to the defense that no asset existed for the FDIC to acquire. [Cit.]” Id.

In the present case, we find that appellants’ claim of payment is not based on any agreement not evident from the bank’s records. NLI has failed to establish the existence of any undisclosed agreement between appellants and the bank. Rather, appellants contend that summary judgment was inappropriate because their note was paid in full and extinguished as a matter of state law. Since the payment defense is independent of any side agreement, the trial court erred in applying 12 USC § 1823 (e) and D’Oench to bar appellants’ payment defense.

Decided December 16, 1996

Reconsideration denied January 10, 1997

Wood, Odom & Edge, Arthur B. Edge TV, for appellants.

Parker, Johnson, Cook & Dunlevie, Sonya Y. Ragland, R. Wayne Bond, for appellee.

Accordingly, nothing in these authorities precluded appellants from asserting the payment defense, and summary judgment should not have been granted on that ground.

We note that this holding in no way addresses the merits of appellants’ claim of payment.

Judgment reversed.

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


text:
    A96A2362.
    TRUDEWIND v. THE STATE.
    (480 SE2d 211)
   Ruffin, Judge.

Steven Trudewind was convicted of driving under the influence of alcohol and driving on the wrong side of the road. In response to Trudewind’s pretrial motion to suppress, the trial court ruled that Trudewind’s roadside sobriety tests were admissible. Trudewind appeals this ruling, and we affirm.

1. Trudewind asserts the trial court erred in denying his motion to suppress and in allowing the arresting officer to testify as to the roadside tests and his opinion based on those tests. Specifically, Trudewind argues that he was never read his Miranda warnings prior to taking the sobriety tests.

In Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), the United States Supreme Court held that a person taken into official police custody or otherwise deprived by police of their freedom of action in any significant way must be advised of their constitutional rights. The test for whether a person is “in custody” was later addressed in Berkemer v. McCarty, 468 U. S. 420, 442 (104 SC 3138, 82 LE2d 317) (1984), where the Court held that a person is “in custody” if “a reasonable person in the detainee’s position would have thought the detention would not be temporary. [Cit.]” State v. Pastorini, 222 Ga. App. 316, 317 (1) (474 SE2d 122) (1996). The Supreme Court further held that the Miranda safeguards become applicable only after a person’s “freedom of action is curtailed to a degree associated with formal arrest.” (Citations and punctuation omitted.) Id. at 317. “The rationale behind the holding is that although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee’s exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights.” Id.

Applying this rationale, we have consistently held that “[t]he fact that an officer retains a detainee’s license for a short period during the course of an investigation does not necessarily mean that the detainee is in custody, even if at that point, by leaving, the detainee could be arrested for violating State law. [Cit.]” Id.

In the present case, the record shows that Officer Speck observed Trudewind’s vehicle weaving, crossing over into the oncoming lane of traffic and driving onto the shoulder of the roadway. The officer initiated a traffic stop and requested Trudewind’s license and proof of insurance. As Trudewind produced the items, the officer detected a strong odor of alcohol on Trudewind’s breath and noticed that his eyes were bloodshot.

To further investigate Trudewind’s conduct, Officer Speck asked him to perform a series of field sobriety tests. The Horizontal Gaze Nystagmus test suggested Trudewind was under the influence of alcohol. In order to make a more conclusive determination, the officer asked Trudewind to perform the one leg stand, and Trudewind was completely unable to maintain his balance. Although we recognize that one may be unable to maintain his balance for reasons not associated with inebriation, we are bound to construe the trier of fact’s factual findings in a light most favorable to support the verdict unless clearly erroneous. McLarty v. State, 176 Ga. App. 433, 435 (2) (336 SE2d 273) (1985). Based on his observations of Trudewind’s driving ability and his performance on the field sobriety tests, the officer then placed Trudewind under arrest. “ ‘Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.’ [Cits.]” Lipscomb v. State, 188 Ga. App. 322 (372 SE2d 853) (1988).

Based on the foregoing, we conclude the trial court did not clearly abuse its discretion in refusing to suppress the results of Trudewind’s field sobriety tests.

2. Trudewind also asserts as error the trial court’s denial of his motion for new trial. However, Trudewind has failed to address this enumeration by citation of authority or argument pursuant to Court of Appeals Rule 27 (c) (2). Therefore, to the extent that Trudewind was asserting any claim other than the one addressed in Division 1, we deem his claim abandoned.

Decided December 6, 1996

Reconsideration denied January 10, 1997.

Donald R. Donovan, for appellant.

James R. Osborne, District Attorney, Cari A. Kaplan, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A95A2344.
    WARNOCK v. DAVIS.
    (481 SE2d 7)
    Decided January 10, 1997.

      Richard Phillips, for appellant.

      Salter & Shook, Mitchell M. Shook, Jason A. Craig, for appellee.
   Smith, Judge.

In Warnock v. Davis, Case No. A95A2344 (decided November 1, 1995) (unpublished), this Court affirmed the trial court’s judgment in favor of appellee and imposed a penalty for frivolous appeal of ten percent of the amount of the judgment pursuant to OCGA § 5-6-6.

The Supreme Court granted certiorari, and in Warnock v. Davis, 267 Ga. 336 (478 SE2d 124) (1996) affirmed this Court’s judgment but reversed the imposition of the penalty for frivolous appeal. Accordingly, this Court’s judgment imposing the penalty is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A96A2114.
    GRIFFIN v. THE STATE.
    (480 SE2d 608)
   Beasley, Judge.

Griffin appeals his convictions of rape (OCGA § 16-6-1), battery (OCGA § 16-5-23), and false imprisonment (OCGA § 16-5-41).

At the time of the commission of the crimes, Griffin and the victim were married, but they were going through a divorce that became final approximately seven months later. The parties’ minor daughter, who was not yet two, was visiting Griffin.

The victim testified as follows. Griffin called her that afternoon, told her he had to go out of town, and asked her to come to his residence for the child. Although he was not supposed to be there, he appeared when the victim arrived. He said the child was in the bedroom asleep. When the victim went to the bedroom, she found a pillow placed under the bed cover and attempted to leave, but he prevented her from doing so.

When she refused his request that she disrobe, he produced a gun, shot it in the air, and beat her with it. After hitting her in the mouth and breaking two front teeth, he held the gun to her head and threatened to kill her. He choked her and dragged her to the bed, where he forcibly performed oral sodomy and rape. He agreed to take her to the hospital afterward, but she jumped out of the car as they were leaving because she feared that he would cause additional harm. She ran to a neighbor’s house and called 911.

Medical testimony and photographs taken at the emergency room showed bruises, scratches, and cuts all over the victim’s body, including her vaginal area, and broken teeth.

Griffin testified that on the day in question, the victim appeared at his residence to retrieve some items. According to him, they argued about issues in the divorce proceeding but then made up and had consensual sexual intercourse. Afterward, she said she thought she was pregnant, to which he responded, “Whose is it?” As a result, they argued. She then sought a physical confrontation, and he told her “to get her bastard child that she was carrying out of my house.” She went into a rage, slapped him, and scratched his face. A fight ensued, during which he hit her, and she fell on her face.

1. Griffin first contends that the court erred in holding that he could not cross-examine the victim regarding legal disputes that occurred after the date of the rape. He argues that these disputes may have affected the victim’s motives, biases, and interests in testifying.

During defense counsel’s cross-examination of the victim, he sought to question her concerning Griffin’s then-present relationship with the parties’ child. The court sustained the State’s objection and instructed counsel that “we’re not going to try the divorce case.” Outside the jury’s presence, defense counsel argued that the disputes in the parties’ divorce action were relevant to establish the victim’s motive in prosecuting. The court ruled that counsel could show those disputes which occurred prior to the alleged rape but not subsequent to it.

Counsel argued that the latter, specifically a motion to revoke Griffin’s bond because of his violation of a restraining order and a contempt petition for nonpayment of child support, established that her past motive continued into the present and affected her credibility. In order to place some limits on the scope of Griffin’s inquiry into matters relating to the divorce, the court ruled that disputes such as the bond revocation hearing and contempt citation regarding child support could not be admitted.

Griffin was not prohibited from presenting evidence and cross-examining the victim concerning the contested issues in the divorce proceeding such as child custody. The court did not abuse its discretion in ruling that the two disputes arising after the date of the alleged crimes were of such marginal relevance to her credibility that Griffin’s extensive cross-examination of the victim should not extend to their collateral subjects. The jury was already well aware of the discord between the estranged couple, whose divorce was final by the time of trial. “[T]he right to cross-examine is not absolute and ... a trial court may impose reasonable limits to take account of such factors as ‘ “ . . . interrogation that (would be) repetitive or only marginally relevante)” [Cit.]’ [Cit.]” Gibbs v. State, 196 Ga. App. 140, 142 (3) (395 SE2d 387) (1990); compare Boggs v. State, 195 Ga. App. 605 (394 SE2d 401) (1990). “ ‘The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court.’ ” (Citation omitted.) Hines v. State, 249 Ga. 257, 260 (2) (290 SE2d 911) (1982).

2. Griffin next contends that the court erred in applying the Rape Shield Statute to prohibit him from cross-examining the victim regarding her relationship with the chief assistant district attorney. Griffin argues that this relationship may have affected her motives, biases, and interests in testifying.

At a pretrial hearing, romantic involvement between the victim and the chief assistant district attorney, the prosecuting attorney in this case, came to light. As a result, the district attorney recused himself and his assistants, and the Attorney General was appointed to represent the State.

The new prosecuting attorney made an oral motion in limine to prohibit the defense from introducing matters concerning any sexual conduct between the victim and other men, including the recused prosecuting attorney. After extensive discussion, the court ruled that the victim could be questioned as to what was said by her and the appellant at the time of the alleged rape, but that under the Rape Shield Statute evidence as to her sexual behavior with other men would not be admitted unless she opened the door to such evidence. See Reece v. State, 192 Ga. App. 14 (383 SE2d 572) (1989).

“The Georgia Rape Shield Statute, OCGA § 24-2-3, prohibits the admission of evidence relating to the past sexual behavior of the complaining witness, except where that behavior directly involved the participation of the accused and the evidence at issue supports an inference that the accused could have reasonably believed that the witness consented to the conduct complained of in the prosecution.” Green v. State, 221 Ga. App. 436 (472 SE2d 1) (1996). “The Rape Shield Statute limits inquiries or suggestive innuendoes concerning the sexual background of the rape victim absent compliance with its terms. It represents ‘the exclusive means for admitting evidence relating to the past' sexual behavior of the complaining witness. . . [Cits.]” Gibbs, supra at 141 (1).

Decided January 10, 1997

Hollberg, Weaver & Kytle, George M. Weaver, Hugh W. Rowling, Jr., for appellant.

Michael J. Bowers, Attorney General, Terry L. Lloyd, Assistant Attorney General, for appellee.

The evidence the defense sought to introduce did relate to other sexual behavior of the complaining witness. Compare Smith v. State, 259 Ga. 135, 136 (1) (377 SE2d 158) (1989); George v. State, 257 Ga. 176 (1) (356 SE2d 882) (1987); Villafranco v. State, 252 Ga. 188, 193-195 (1), (2) (313 SE2d 469) (1984); Lemacks v. State, 207 Ga. App. 160 (427 SE2d 536) (1993); Raines v. State, 191 Ga. App. 743, 745 (2) (382 SE2d 738) (1989). See 81 ALR4th 1076, 1081, § 4 (inadmissibility of sexual conduct after offense). That behavior did not directly involve the participation of the accused, and it did not support an inference that he could have reasonably believed that the complaining witness consented to the conduct at issue. Consequently, under the Rape Shield Statute, evidence of such behavior was inadmissible. See Green, supra (holding that under the Rape Shield Statute the defendant could not question the 13-year-old victim concerning her possible pregnancy as a result of consensual sexual activity with other men, in order to establish a motive for her making a false allegation that she had been raped). Evidence concerning a romantic relationship between the victim and the recused prosecuting attorney would not have contributed materially to the guilt or innocence of the accused as to the incident at issue but rather would have injected irrelevant and prejudicial matter. Green, supra; Lemacks, supra.

Judgment affirmed.

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


text:
    A96A2433.
    THE STATE v. LOWE.
    (480 SE2d 611)
   Beasley, Judge.

In two counts of a four-count indictment, Lowe and Gaskins were charged with possession of marijuana with intent to distribute, and Lowe was charged with obstruction of an officer. The State appeals from the trial court’s grant of Lowe’s motion to suppress marijuana found during an inventory search of his car.

In support of the ruling, the evidence showed the following. Gas-kins was the subject of outstanding arrest warrants. The Narcotics Unit of the Bibb County Sheriff’s Office received notice from the Fugitive Warrants Unit that Gaskins and an unknown individual were using a U-Haul truck to move out of a certain apartment in Macon. When narcotics officers arrived at the apartment around noon, they observed Lowe walking toward the truck and Gaskins standing in the doorway of the apartment. An officer stopped Lowe, informed him that he was there to serve warrants on Gaskins, and asked if the individual in the doorway was Gaskins. He said no. Shortly thereafter, Gaskins identified himself, and Lowe admitted he was aware of Gaskins’ identity. As a result, Lowe was arrested for obstruction of a police officer, and Gaskins was arrested on the outstanding warrants.

A car owned by Lowe and bearing an Atlanta license plate was found next to the U-Haul truck. The car was legally parked, but the windows were partially down and the doors were unlocked. The officers immediately impounded the car and conducted the inventory search, during which they found marijuana and a gun. The officers testified that the car was impounded because it is department policy to do so unless a reliable driver is available to take charge of the vehicle. One of the officers testified that an arrestee’s vehicle is never left where it is parked because of potential departmental liability. Because it is also department policy to relinquish possession of a commercial vehicle to the owner, the U-Haul truck was not impounded. Instead, the officers called the U-Haul company and asked that the truck be retrieved.

“In the interests of public safety and as part of what the Court has called ‘community caretaking functions,’ [cit.], automobiles are frequently taken into police custody.” South Dakota v. Opperman, 428 U. S. 364, 368 (96 SC 3092, 49 LE2d 1000) (1976). “The state may inventory the contents of a car that has been lawfully impounded.” (Emphasis supplied.) Sams v. State, 265 Ga. 534, 535 (3) (459 SE2d 551) (1995). Justification of an inventory search is thus premised upon the validity of the impoundment. Martin v. State, 201 Ga. App. 716, 718 (1) (a) (411 SE2d 910) (1991). The police may not use an impoundment or inventory as a medium to search for contraband. See Dunkum v. State, 138 Ga. App. 321, 325 (9) (226 SE2d 133) (1976). “ ‘(T)he individual’s right of privacy is superior to the power of police to impound a vehicle unnecessarily. . . .’ [Cits.]” Strobhert v. State, 165 Ga. App. 515, 516 (301 SE2d 681) (1983).

“ ‘Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. [Cit.]’ [Cit.]” Martin, supra. “In each instance, the ultimate test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment.” (Emphasis omitted.) Jones v. State, 187 Ga. App. 421, 424 (370 SE2d 784) (1988). The existence of a department policy is relevant but not determinative. See Martin, supra at 717. The question thus presented is whether the impoundment of Lowe’s car was reasonably necessary. See State v. Crank, 212 Ga. App. 246, 250 (441 SE2d 531) (1994).

In Dunkum, supra, disapproved in part in Mooney v. State, 243 Ga. 373, 376 (254 SE2d 337) (1979), we held that the impounding of the defendant’s car was unauthorized and the search unlawful where the defendant was arrested for sale of marijuana in one location; his car was safely parked in another location; and two days after his arrest, marijuana was found in the trunk of his car during an “inventory” search.

In State v. Creel, 142 Ga. App. 158, 159 (2) (235 SE2d 628) (1977), cited approvingly in Sams at 536, n. 4, we held that “ ‘the trial court was authorized, though not required, to find from the totality of the circumstances that the impounding of (the defendant’s) car . . . pursuant to an arrest unrelated to the car was not required for traffic safety or to protect (the defendant’s) property.’ [Cit.]” Creel, supra at 158-159 (2). Creel’s car was legally parked a half block away from where he was arrested, although it was located in a high crime area with the windows down and the keys inside.

“This court has previously adopted the view that when a driver is arrested and a reliable friend is present who may be authorized and capable of removing the vehicle, or where the arrestee expresses some preference for a private towing service, the rationale for impoundment does not exist. [Cits.]” Strobhert, supra; see State v. King, 191 Ga. App. 706 (382 SE2d 613) (1989); Whisnant v. State, 185 Ga. App. 51, 52 (2) (363 SE2d 341) (1987).

Conversely, we have found impoundment of a car authorized where the sole occupant was arrested for driving with a suspended or invalid license, and he had no companion or other person capable of removing the car in a timely manner, Pierce v. State, 194 Ga. App. 481 (1) (391 SE2d 3) (1990); Gooden v. State, 196 Ga. App. 295 (395 SE2d 634) (1990); where all the occupants of the car were arrested, Evans v. State, 216 Ga. App. 21, 22 (2) (453 SE2d 100) (1995); where the arresting officer testified he would have permitted a reasonable request for alternate disposition of the car, but the defendant made no such request, Williams v. State, 204 Ga. App. 372, 373 (419 SE2d 351) (1992); where a lawful custodial arrest of the car’s sole occupant rendered reasonable the search of the passenger compartment both as a contemporaneous incident of the arrest and as a routine inventory of its contents, Jones v. State, 187 Ga. App. 421, 424 (370 SE2d 784) (1988); where the car did not bear a valid tag, Garner v. State, 154 Ga. App. 839, 841 (1) (269 SE2d 912) (1980); and where the car was parked at a business and the owner of the business requested that it be moved, Fitzgerald v. State, 201 Ga. App. 361, 364 (3) (411 SE2d 102) (1991). See also Gibson v. State, 193 Ga. App. 450 (388 SE2d 45) (1989) (physical precedent only).

Decided January 10, 1997.

Charles H. Weston, District Attorney, Nancy S. Malcor, Laura D. Hogue, Assistant District Attorneys, for appellant.

Debra G. Gomez, for appellee.

In Mitchell v. State, 178 Ga. App. 244, 245-246 (3) (342 SE2d 738) (1986), however, we held that there was no showing that impoundment, of appellant’s car was reasonably necessary after noting that “[tjhere was no evidence of any connection between the car and appellant’s arrest, no evidence that the car was illegally parked or was a hazard to traffic, or that appellant was consulted regarding alternate disposition of the vehicle.”

The trial court granted Lowe’s motion to suppress after finding that the misdemeanor offense for which he was arrested was in no way related to the vehicle; the vehicle was legally parked in a safe and secure place on private property; the owner of the private property did not request that the vehicle be removed; and Lowe was not asked if there was anyone who could retrieve the vehicle. Based on these findings, the court concluded that the impoundment and inventory search of the car were pretextual and improper. Applying cases such as Mitchell, supra, and Creel, supra, to the evidence, the trial court was authorized though not required to reach this conclusion.

Judgment affirmed.

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


author: Pope, Presiding Judge.

text:
    A96A1643.
    DEPARTMENT OF TRANSPORTATION v. SCOTT et al.
    (480 SE2d 272)
   Pope, Presiding Judge.

The Department of Transportation (“DOT”) appeals the jury’s condemnation award for a strip of land consisting of 1.692 acres lying south of Georgia Highway 16 in Spalding County. The land taken was part of a 96-acre tract owned by condemnee, C. Marion Scott, lying north and south of the highway. Condemnee Ison Nursery & Vineyards, Inc. is the lessee of the 60 acres lying south of the highway from which the strip was taken.

At the time of condemnation, Ison had growing on the strip of condemned property approximately 950 muscadine grape plants, referred to as “mother plants,” which were taken and destroyed in the condemnation. These “mother plants” were not grown to bear fruit or be sold, rather they were used to produce the plants, or cuttings, which were sold by the nursery. Ison grows many different varieties of muscadines some of which have been patented in its name. The “mother plants” for two of the patented varieties, as well as other non-patented varieties, were located on the condemned property. Moving or transplanting the “mother plants” was not possible because of their age and maturity and their extensive root system development. Although the replacement cost of the patented “mother plants” was only $14,623, evidence at trial showed that the destruction of the plants taken would result in loss of sales of approximately 60,000-65,000 plants per year with a resulting business loss of $214,000 over the three-year period of time required to replace the taken “mother plants” with new ones.

DOT contended $4,738 was just and adequate compensation for the value of land, and $6,083 was just and adequate consideration for the muscadine plants. However, the jury awarded Scott $12,000 as just and adequate compensation for his property, and awarded Ison $100,000. DOT appeals, raising ten enumerations of error.

1. DOT first argues the trial court erred in permitting the property owner to testify as to his opinion of value of the condemned property without first laying a proper foundation for such testimony.

“Generally, the competency of a witness to testify concerning an opinion of value is a matter for the trial court’s discretion. [Cit.] An owner of condemned property is permitted to give such testimony, provided that he can first establish his ‘knowledge, experience or familiarity with the value of improvements or real estate generally or of those values in the vicinity in particular.’ [Cits.]” Dept. of Transp. v. Into, 219 Ga. App. 311 (1) (464 SE2d 886) (1995). Prior to giving his opinion as to the value of the condemned property, Mr. Scott testified that he owned the condemned property since 1947, that he researched sales of other property in Spalding County, and that he formed his opinion as to the value of the condemned property based upon these comparables. We find the trial court correctly determined that a proper foundation was laid for Mr. Scott’s opinion testimony.

We also find that Mr. Scott’s testimony was not improper because his opinion was based upon the sale value of one-acre tracts in Spalding County rather than valuing the property as a whole. “The comparability of the other property is a matter going to the weight of the expert’s testimony, not its admissibility. [Cits.]” Dept. of Transp. v. Ballard, 208 Ga. App. 474, 475 (1) (430 SE2d 848) (1993). See also Dept. of Transp. v. Kanavage, 183 Ga. App. 143 (358 SE2d 464) (1987).

2. DOT also argues the trial court erred by allowing the property owner’s appraiser to testify as to his opinion of value of the condemned property by using one-acre tracts as comparables as opposed to valuing the property as a whole. As discussed in Division 1, the comparability of the other property went to the weight of the expert’s testimony, not its admissibility. Dept. of Transp. v. Ballard, 208 Ga. App. 474. The jury was entitled to consider not only the present use but also reasonable potential uses of the property being taken, including the taken property’s highest and best use. See Bland v. Bulloch County, 205 Ga. App. 317, 318 (2) (422 SE2d 223) (1992). There was no error.

3. DOT next argues it was improper for the trial court to permit the property owner’s appraiser to give a separate valuation for the trees growing on the condemned property. Although we agree with DOT that the cost of replacing lost trees on condemned property is not a separate element of damages that a property owner is entitled to recover (see generally Dept. of Transp. v. Willis, 165 Ga. App. 271, 272 (2) (299 SE2d 82) (1983)), the existence of the trees on the land taken was certainly a factor to be considered in determining its value. Dawson v. Dept. of Transp., 203 Ga. App. 157 (1) (416 SE2d 163) (1992).

Our review of the record reveals that the testimony concerning the value of the trees taken was not offered as proof of an independent element of recoverable damages, but merely as a factor which illustrated the value of the property taken as enhanced by the lost trees. In this context, the testimony was admissible. See generally Dept. of Transp. v. Adams, 193 Ga. App. 866, 868 (2) (389 SE2d 343) (1989).

4. In its next three enumerations of error, DOT relies on OCGA § 24-9-69 to support its claim that the trial court erred in admitting into evidence a corporate financial statement and various summaries of information abstracted from the books and records of Ison by its bookkeeper. Although DOT objected at trial to the admission of each of these documents, the transcript shows these objections were based solely on the grounds that proper foundations were not laid for the admissibility of the evidence. “Where evidence is admitted over objection and, on appeal, new grounds for objection are raised for the first time, those new grounds for inadmissibility are not reviewable.” (Citations and punctuation omitted.) Myers v. Myers, 195 Ga. App. 529, 530 (3) (394 SE2d 374) (1990).

5. DOT next argues the trial court erred in permitting testimony about Ison’s business losses without evidence having first been introduced to show that the property was unique.

“Post-taking business losses can be recovered as a separate element in instances when the business belongs to a separate lessee or when the business belongs to the landowner and there is a total taking of the business. In either event, business losses are recoverable as a separate item only if the property is ‘unique’ and the loss is not remote or speculative. Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10) (1980).” Dept. of Transp. v. Acree Oil Co., 266 Ga. 336 (1) (467 SE2d 319) (1996).

“ ‘[I]n the absence of a showing of a special or unique value to the owner, mere business losses caused by a partial taking of the land on which the business is located are not a separate element for compensation. Evidence of such losses may be submitted to the jury only to help establish the market value of the property taken? [Cits.]” Dept. of Transp. v. 2.953 Acres of Land, 219 Ga. App. 45, 49 (4) (463 SE2d 912) (1995).

In the case at hand, Ison did not seek to recover its business losses as a separate element of damages, so we need not consider on appeal whether sufficient evidence was presented establishing the uniqueness of the condemned property. Instead, Ison submitted evidence of lost business profits for the purpose of showing the diminution in value of its business resulting from the loss of the approximately 950 muscadine vines taken in the condemnation.

“If the business has suffered damage because of the taking of the real property upon which it is carried on, the correct measure of damages would be the difference in market value prior to and after the taking. While various elements, such as loss of profits, loss of customers or possibly what might be termed a decrease in the earning capacity of the business may all be considered in determining the decrease in value of the business, they represent no separate element of damage. Evidence of any business losses which result in a diminution of value of a condemnee’s business is admissible.” (Citations, punctuation and emphasis omitted.) Fulton County v. Dangerfield, 195 Ga. App. 208, 210 (2) (393 SE2d 285) (1990), rev’d on other grounds, 260 Ga. 665 (398 SE2d 14) (1990). See also Richmond County v. 0.153 Acres of Land, 208 Ga. App. 208, 210-211 (2) (430 SE2d 47) (1993); Buck’s Svc. Station v. Dept. of Transp., 259 Ga. 825, 827 (2) (387 SE2d 877) (1990).

Thus, evidence as to Ison’s projected losses was admissible in this instance to help establish the diminution in value of the nursery’s business resulting from the loss of the muscadine plants located on the condemned property. Accordingly, the trial court did not err in allowing this evidence without a prior showing that the property was unique.

6. In its next enumeration of error, DOT argues the trial court erred in charging the jury that Ison can recover for business losses without the necessity of proving there existed a unique relationship between Ison and the condemned property.

Decided January 13, 1997

Michael J. Bowers, Attorney General, Sanders, Haugen & Sears, C. Bradford Sears, Jr., for appellant.

Peek & Whaley, J. Corbett Peek, Jr., James G. Peek, for appellees.

As discussed in Division 5, Ison did not attempt to recover its business losses as a separate element of damages, nor did the trial court charge the jury that Ison was entitled to additional compensation for its business’ losses. The charge DOT complains of was “a charge on damage to the business as it affected the market value of the property. This evidence of damage to the business does not depend on the uniqueness of the property and is offered to help determine the market value of the property taken.” Dept. of Transp. v. 2.953 Acres of Land, 219 Ga. App. at 49. There was no error.

7. Next DOT argues the trial court erred by failing to include a jury charge on uniqueness after allowing testimony on business losses. Although the question as to whether or not property is unique is usually for jury determination (Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. at 315), as discussed above, jury instructions on uniqueness were not warranted by the evidence submitted at trial. Business loss evidence was presented at trial only to help establish the market value of the property taken, not to establish a separate claim for lost profits. Therefore, it was not error for the trial court to refuse to give DOT’s requested charge. See generally Armstrong Transfer &c. Co. v. Mann Constr., 217 Ga. App. 538 (5) (458 SE2d 481) (1995).

8. Finally, DOT argues the trial court erred in denying its motion for new trial. In view of our discussions and holdings in the previous divisions of this opinion, we find no merit to this argument.

Judgment affirmed.

Andrews, C. J., and Smith, J., concur.


author: Judge Harold R. Banke.

text:
    A96A1837.
    CLINE v. THE STATE.
    (480 SE2d 269)
   Judge Harold R. Banke.

James Cline was convicted of cruelty to children and two counts of child molestation. On appeal he enumerates four errors.

The evidence, viewed in the light most favorable to the verdict, revealed the following. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). At trial, three females testified that Cline had fondled them. Two were the young victims of the convictions at issue. The third, a similar transaction witness, was Cline’s adult niece who testified that when she was between the ages of six and eight Cline fondled her breasts and made her touch his penis.

The first victim was an eight-year-old neighbor who often played with Cline’s daughter. She testified that the first incident of molestation occurred while she, Cline, and his daughter were watching television. After the daughter left the room, the victim climbed onto Cline’s lap and he touched her vaginal area beneath her clothing. She testified that he fondled her on at least one other occasion as well. The victim related these incidents to her teacher and her mother after a class on “good touch, bad touch.” Both corroborated her testimony. A Department of Family & Children Services (“DFCS”) worker also talked with the victim and subsequently videotaped an interview with her which was admitted at trial.

The second victim, the 13-year-old child of family friends, testified that Cline first touched her on the breast and vagina when she was in the sixth grade. She stated that he touched the inside of her vagina with his hand and his penis. She also testified that he locked her in his bedroom to watch a pornographic video and then touched her with his hand and penis. In addition, she described a similar transaction which occurred in the sleeper of Cline’s semi-truck during a trip to Louisiana when she was 11 or 12 in which he touched her breasts and vagina with his hand and penis. Held:

1. We reject Cline’s contention that the State failed to prove the element of intent necessary to uphold his child molestation convictions. The pertinent elements of child molestation are (1) commission of an immoral or indecent act; (2) to or in the presence of or with any child under the age of 16; (3) with the intent to arouse or satisfy the sexual desires of either the child or the perpetrator. OCGA § 16-6-4 (a).

Both victims’ testimony indisputably satisfies the first two elements. Cline’s intent may be inferred from his actions. Andrew v. State, 216 Ga. App. 427, 428 (454 SE2d 542) (1995). Moreover, the 13-year-old victim’s testimony that Cline told her he had an injury to his penis and his doctor told him to have sex with younger people so he could get hard also provides evidence of intent. We conclude that the evidence was sufficient for a rational trier of fact to find all the essential elements of the crimes. Jackson v. Virginia, 443 U. S. at 319-320. The statute does not require proof of actual arousal; thus, Cline’s assertion that he did not have an erection is irrelevant.

2. Cline argues that the trial court’s denial of his motion for mistrial after a DFCS employee testified that she found one of the vietims “credible” during a pre-trial interview requires reversal of Count 3, the charge relating to the eight-year-old victim. We disagree.

The offensive testimony was an unresponsive answer to the State’s inquiry as to whether the DFCS worker noticed anything “out of the way” about the victim’s physical demeanor or mannerisms during their interview. The DFCS worker responded, “Not out of the way. What I remember documenting was that at the time I felt she was very credible.” Cline’s counsel immediately objected and moved for a mistrial. The trial court sustained the objection and denied the motion. Cline’s counsel did not request a curative instruction and none was given.

This testimony was clearly improper. Lagana v. State, 219 Ga. App. 220, 221 (1) (464 SE2d 625) (1995) (“ Tn no circumstance may a witness’ credibility be bolstered by the opinion of another ... as to whether the witness is telling the truth.’ ”); Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994). However, reversal is not required because Cline admitted he touched the eight-year-old’s vaginal area on several occasions. See Stamey v. State, 194 Ga. App. 305, 306 (1) (a) (390 SE2d 409) (1990) (physical precedent only, Court of Appeals Rule 33 (a)) (finding that social worker’s bolstering did not usurp jury’s authority because she also recited “to exhaustion” the criteria for determining the truthfulness of children); see also Moss v. State, 216 Ga. App. 711, 714 (5) (455 SE2d 411) (1995) (defense not prejudiced by failure to object to bolstering testimony). Although he denied touching the eight-year-old beneath her underwear, such proof is not required to establish the offense and the indictment only charged him with fondling the child’s vaginal area without mentioning her garments. Bragg v. State, 217 Ga. App. 342, 343 (2) (457 SE2d 262) (1995). Cline’s admission, the fact that the State in no way elicited the gratuitous and unresponsive testimony, and the amount of evidence supporting the conviction distinguish Flowers v. State, 220 Ga. App. 814, 815 (2) (468 SE2d 199) (1996).

3. We decline to reach Cline’s argument that the trial court erred in giving a charge on the similar transaction evidence which limited its application to show state of mind or to corroborate the testimony of witnesses. Cline waived the purported error by failing to object to the charge. Penaranda v. State, 203 Ga. App. 740, 741 (1) (417 SE2d 683) (1992). Nor did he file a proper written request to charge on this issue. Compare Moore v. State, 202 Ga. App. 476, 480 (3) (414 SE2d 705) (1992).

4. Cline failed to satisfy his burden of proving ineffective assistance of counsel. To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). We need not inquire into counsel’s alleged deficiency absent a showing of prejudice. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995).

Decided January 13, 1997.

Richard E. Hicks, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

Cline argues that his counsel was unprepared because he failed to interview the State’s witnesses and did nothing when told that after one of the victims testified, she asked a DFCS worker, “Did I say what you wanted me to?” Cline presented no evidence, argument, or authority demonstrating how either of these alleged errors prejudiced his defense. Brown v. State, 257 Ga. at 278 (2); see Court of Appeals Rule 27 (c) (2). Having reviewed the trial and amended motion for new trial transcripts, we cannot say the trial court clearly erred in rejecting Cline’s claim of ineffectiveness. Maner v. State, 221 Ga. App. 826, 828 (1) (b) (472 SE2d 716) (1996).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Cline was charged with molesting a third child, the eight-year-old sister of one of the other victims, but he was acquitted of that charge.


author: Andrews, Chief Judge.

text:
    A95A1400.
    ALEXANDER v. GENERAL MOTORS CORPORATION.
    (481 SE2d 7)
    Decided January 14, 1997.

      Kenneth F. Dunham, Dovre C. Jensen, Jr., Margaret N. Patón, L. Lynn Hogue, for appellant.
   Andrews, Chief Judge.

In Alexander v. Gen. Motors Corp., 219 Ga. App. 660 (466 SE2d 607) (1995), we affirmed the trial court’s grant of partial summary judgment in favor of General Motors Corporation. In Alexander v. Gen. Motors Corp., 267 Ga. 339 (478 SE2d 123) (1996), the Supreme Court reversed our decision. Accordingly, the prior decision of this Court is vacated, the decision of the Supreme Court is made the decision of this Court, and the trial court’s grant of partial summary judgment in favor of General Motors Corporation is reversed.

Judgment reversed.

McMurray, P. J, Birdsong, P. J, Pope, P. J., Beasley, Johnson, Blackburn, Smith and Ruffin, JJ., concur.

Lord, Bissell & Brook, Terry R. Howell, Corliss L. Worford, for appellee.


text:
    A96A1648.
    UPSHAW v. HALE INTERMODAL TRANSPORT COMPANY et al.
    (480 SE2d 277)
   Smith, Judge.

Henry Upshaw, the owner-operator of an 18-wheel tractor-trailer, leased both his truck and his services as a driver to Hale Intermodal Transport Company. He was seriously injured in a vehicular accident on Interstate 20 after being dispatched to Charleston, South Carolina, by Hale. He applied for workers’ compensation benefits, which were denied on the basis that Upshaw was an independent contractor and not an employee of Hale. The ALJ, the appellate division of the Workers’ Compensation Board, and the superior court affirmed the denial. We granted Upshaw’s application for discretionary appeal to clarify the status of owner-operators of leased vehicles as to workers’ compensation benefits in light of recent changes in both state and federal law.

Georgia law defines an “owner-operator” as “an equipment lessor who leases his vehicular equipment with driver to a carrier.” OCGA § 40-2-87 (19). In 1991, OCGA § 34-9-1 was amended to provide, in pertinent part, that “[flor purposes of this chapter, an owner-operator as such term is defined in Code Section 40-2-87 shall be deemed to be an independent contractor.” OCGA § 34-9-1 (2). It is clear, therefore, that under Georgia law, Upshaw is not entitled to workers’ compensation benefits from Hale because he is not Hale’s employee but an independent contractor. See generally State of Ga. v. Goolsby, 191 Ga. App. 161 (381 SE2d 299) (1989).

Relying upon Dove v. National Freight, 138 Ga. App. 114 (225 SE2d 477) (1976), however, Upshaw contends that federal law provides to the contrary and preempts Georgia law on this issue. In Dove, this Court held that an owner-operator would be deemed an employee rather than an independent contractor. At the time Dove was decided, a federal statute then in effect, 49 USCA § 304 (a) (3), provided that the Interstate Commerce Commission (ICC) was authorized to promulgate rules to ensure that motor carriers would have full direction and control of owner-operator leased vehicles and would be fully responsible for their operation as if they were the owners of the vehicles. Id. at 115 (1).

In addition to the change in the Georgia statute since Dove, several changes have occurred in the federal law. 49 USCA § 11107 superseded 49 USCA § 304, and provided that the ICC could require motor carriers using owner-operator leased vehicles to employ written leases and to have control of and responsibility for operating those vehicles as if the vehicles were owned by the motor carriers, in accordance with requirements prescribed by the Secretary of Transportation. 49 USCA § 11107 (a). Regulations were promulgated requiring the written leases to provide that the carrier has exclusive possession, control, and use of the equipment and assumes complete responsibility for its operation for the duration of the lease. 49 CFR § 1057.12 (a), (c) (1). In 1992, the regulations were also amended to provide specifically that “[njothing in the provisions required by paragraph (c) (1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee. An independent contractor relationship may exist when a carrier lessee complies with 49 U.S.C. 11107 and attendant administrative requirements.” 57 Fed. Reg. 32905 (1992) (codified at 49 CFR § 1057.12 (c) (4)).

49 CFR § 1057.12 (c) (4) was in effect at all times pertinent to Upshaw’s claim. Under its unambiguous provisions, it is clear that contrary to Upshaw’s contention the federal law was not intended to, and did not, preempt the clear Georgia law embodied in OCGA § 34-9-1 (2). Upshaw was driving under a written lease that complied in all respects with the provisions of the federal statute and regulations. He also signed an “Independent Contractor Release From Workers’ Compensation Claims,” in which he acknowledged that he was an independent contractor. Consequently, Upshaw was an independent contractor and was not entitled to workers’ compensation benefits.

Effective January 1, 1996, the ICC Termination Act of 1995 (the Act) abolished the ICC. Pub. L. No. 104-88, 109 Stat. 803, § 101. Governance of interstate motor carriers was transferred to the newly established Surface Transportation Board within the Department of Transportation. 49 USCA §§ 701, 702; see Pub. L. No. 104-88, 109 Stat. 803, § 201; 61 Fed. Reg. 1842 (1996). The Act’s saving provision provides, inter alia, that all regulations that were in effect on the date of the transfer of functions “shall continue in effect according to their terms until modified, terminated, superseded, set aside, or revoked in accordance with law by the Board, any other authorized official, a court of competent jurisdiction, or operation of law.” Pub. L. No. 104-88, 109 Stat. 941, § 204 (a) (2) (1995).

Former 49 USCA § 11107 has been reenacted substantially unchanged as 49 USCA § 14102, except that the Code section now refers to the authority of “the Secretary [of Transportation]” instead of “the [Interstate Commerce] Commission.” Id. To date, the applicable regulation, 49 CFR § 1057.12, has not been modified, terminated, superseded, set aside, or revoked. Under the authority of the Act’s saving provision, therefore, the old regulation continues in effect and governs our analysis. Because nothing in the federal law contradicts the declaration in OCGA § 34-9-1 (2) that an owner-operator shall be deemed an independent contractor, Upshaw is not entitled to workers’ compensation benefits, and we affirm the judgment below.

Decided January 14, 1997.

Van C. Wilks, for appellant.

Lowendick, Speed & Donahue, Lesli R. Seta, for appellees.

Judgment affirmed.

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


text:
    A96A2395.
    BROWN v. THE STATE.
    (480 SE2d 276)
   Judge Harold R. Banke.

Antonio Brown was convicted of kidnapping with bodily injury, burglary, and aggravated assault. On appeal, he challenges the denial of his motions for directed verdict and new trial, the sufficiency of the evidence, and a jury charge.

The evidence, viewed in the light most favorable to the verdict, revealed the following. Sims v. State, 266 Ga. 764, 765 (1) (470 SE2d 886) (1996). A police officer spotted a stolen red Mustang parked at a telephone booth. Two black males sat in the car, waiting while a third made a telephone call. The officer followed when the Mustang pulled away. At a red light, the officer pulled next to the Mustang and recognized its occupants, one of whom was Brown. He also identified the driver as Brown’s brother and co-defendant, Wesley Stewart. A high speed chase ensued, culminating when the Mustang ran off the road. Its occupants fled into some nearby woods.

Eventually Brown and Stewart separated from the other passenger and ran to a residential subdivision, with police from several jurisdictions, a law enforcement helicopter, and an armed private citizen in pursuit. After entering a home in the subdivision, Brown and Stewart discovered the victim reading a newspaper while her two young daughters played a game. One of the men demanded that the victim give him her keys. He then grabbed her around the neck and walked toward her bedroom. The victim screamed, which alarmed her husband who was showering. The husband got his gun, discovered his wife’s situation, and demanded that Brown and Stewart leave. The man holding the victim threatened to kill her, and backed toward the kitchen door, released the victim, and exited. A police officer standing outside apprehended both men. Held-.

Decided January 14, 1997.

James P. Brown, Jr., for appellant.

Tommy K. Floyd, District Attorney, Kelley S. Powell, Assistant District Attorney, for appellee.

1. Notwithstanding Brown’s argument to the contrary, the evidence is sufficient to support each of the offenses charged. Assuming without deciding that Brown was not the man who grabbed the victim, the record shows that, in any event, he acted as a lookout and warned his brother of the husband’s gun. See Thompson v. State, 210 Ga. App. 655, 656 (1) (436 SE2d 799) (1993). Thus, no proof that Brown actually touched the victim was necessary to support the kidnapping with bodily injury charge because by intentionally aiding and abetting the commission of the crime he became a party to it. See OCGA § 16-2-20; Bullard v. State, 263 Ga. 682, 685 (1) (436 SE2d 647) (1994). As a party to the crime, he was fully accountable. Thaxton v. State, 184 Ga. App. 779 (1), 780 (362 SE2d 510) (1987).

We reject Brown’s contention that no evidence of intent to commit theft supported the burglary count. The record shows that after the fleeing men entered the house they demanded the victim’s keys. This evidence entitled the jury to infer that the men intended to steal the victim’s car. OCGA § 16-7-1 (a); see Lloyd v. State, 168 Ga. App. 5 (308 SE2d 25) (1983). This same evidence supports the intent to commit robbery charged in the aggravated assault count. See Lucas v. State, 197 Ga. App. 347, 348 (2) (398 SE2d 417) (1990). Because a rational trier of fact could have found each of the essential elements of the offenses charged, the denial of Brown’s motions for directed verdict and new trial was appropriate. Lankford v. State, 204 Ga. App. 405, 407 (3) (419 SE2d 498) (1992).

2. The trial court did not err in charging the jury on party to a crime. As noted, the evidence supported the charge. See Capers v. State, 220 Ga. App. 869, 871 (1) (b) (470 SE2d 887) (1996).

Judgment affirmed.

Beasley and Blackburn, JJ, concur.

       Neither the victim nor her husband could remember whether Brown or Stewart grabbed the victim.


text:
    A96A1759, A96A1760.
    WEAVER v. THE STATE (two cases).
    (480 SE2d 286)
   Ruffin, Judge.

Boyd Weaver appeals from the trial court’s denial of his plea of former jeopardy. We reverse.

The record shows that on August 22, 1995, Weaver was arrested for speeding, driving under the influence of drugs and endangering a child while driving under the influence. Weaver was charged by accusations filed in the State Court of Stephens County for endangering a child while driving under the influence and for driving under the influence. Both accusations were signed by solicitor James E. Corn-well, Jr. Weaver’s speeding citation was also filed with the court in lieu of an accusation. Weaver entered not guilty pleas to all three charges and served Cornwell with copies of the pleas. On the same day Weaver entered his pleas, he filed and served Cornwell with several motions and discovery demands for each of the three charges. Cornwell also served Weaver with a Notice of Intention to Proffer Certificate of Scientific Reports. Significantly, the notice provides in part that “[t]he solicitor hereby gives notice that it intends to introduce [the certificate described in the notice] and its attached test results in the above-referenced criminal action.” The notice expressly describes all three charges and refers to their respective docket numbers.

Thereafter, Weaver changed his plea on the speeding charge to nolo contendere. Cornwell signed the plea as a witness, and that same day the trial judge sentenced Weaver on the speeding charge. Weaver subsequently filed his motion in autrefois convict and plea of former jeopardy. He argued that prosecution of the charges for driving under the influence of drugs and endangering a child while driving under the influence was barred because his nolo contendere plea and sentence for the speeding charge constituted a prosecution under OCGA § 16-1-7 (b). The trial court denied Weaver’s motion, finding that his nolo contendere plea did not constitute a prosecution because a jury was not empaneled and sworn. We believe that the trial court erred.

OCGA § 16-1-7 (b) requires the State to prosecute crimes in a single prosecution if the crimes (1) arise from the same conduct, (2) are known to the proper prosecuting officer at the time of commencing the prosecution, and (3) are within the jurisdiction of a single court. Griffin v. State, 266 Ga. 115, 117 (2) (464 SE2d 371) (1995). A second prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for crimes which should have been brought in the first prosecution under OCGA § 16-1-7 (b). McCannon v. State, 252 Ga. 515, 518 (315 SE2d 413) (1984).

A second prosecution in this case was barred by OCGA § 16-1-8 (b) (1). It is clear that Weaver’s plea of nolo contendere on the speeding charge followed by the court’s sentencing constituted a prosecution. See id. Accordingly, we must determine only whether the other two charges meet the requirements of OCGA § 16-1-7 (b).

Decided January 15, 1997.

Timothy P. Healy, for appellant.

James E. Cornwell, Jr., Solicitor, for appellee.

The record shows, and it is not disputed, that all three charges arose from Weaver’s driving misconduct on August 22, 1995. It is also clear and undisputed that all three crimes were within the jurisdiction of the State Court of Stephens County. The State argues in its brief, however, that there is no evidence showing that all three offenses were known to Cornwell, the proper prosecuting officer, at the time Weaver entered his nolo contendere plea. We disagree.

Although the State correctly points out that OCGA § 16-1-7 (b) applies only to crimes actually known to the prosecutor at the time he or she commenced the first prosecution, the record here shows such actual knowledge. See Smith v. State, 190 Ga. App. 246, 247 (378 SE2d 493) (1989). As shown above, prior to entering his nolo contendere plea, Weaver served Solicitor Cornwell with not guilty pleas and numerous motions and discovery demands for all three charges. Even if Cornwell could argue that he did not know of all three charges after receiving those documents, Cornwell must have actually known about all three offenses when he served Weaver with the Notice of Intention to Proffer Certificate of Scientific Reports. That notice clearly shows Cornwell intended to use various scientific reports in prosecuting all three charges. As this Court found in Smith, “[tjhese documents constitute conclusive circumstantial evidence that the [solicitor] had actual knowledge of all the offenses arising from the same conduct and the pendency of both prosecutions, [cits.], but chose to proceed separately as to each.” Id. Because jeopardy attached when Weaver entered his nolo contendere plea and was sentenced for the speeding charge, the state is barred from subsequently prosecuting him for the other two charges which arose from the same conduct. See id.; McCannon, supra. Accordingly, the trial court erred in denying Weaver’s plea of former jeopardy. McCannon, supra; Smith, supra.

Judgment reversed.

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


text:
    A96A1793.
    CHAMBERS v. THE STATE.
    (480 SE2d 288)
   Judge Harold R. Banke.

William Richard Chambers was convicted of two counts of aggravated assault and possession of a firearm during the commission of a felony. Following the denial of his motion for new trial, Chambers enumerates four errors.

On appeal, the evidence must be viewed in the light most favorable to the verdict. Rigenstrup v. State, 197 Ga. App. 176, 181 (4) (398 SE2d 25) (1990). Viewed in that light the State’s evidence was as follows. Robert R Atwater testified that several hours after an earlier confrontation, Chambers and his co-defendant, Kenneth E. Dyers, returned with weapons to the property of James Scott. After Atwater called out to Chambers by name, Chambers began firing at them and Atwater spontaneously hit the ground. Atwater testified that he saw Chambers fire his gun. Between barrages of gunfire, Scott managed to place a 911 call providing police with a description of Chambers’ truck. Shortly after Chambers was arrested based on the 911 information, a Gwinnett County police officer discovered five spent .22 shell casings near Scott’s driveway. A bullet hole in Chambers’ windshield had been created from inside his truck. A firearms examiner testified that the shell casings found at the scene of the shooting matched test fires from the .22 Ruger rifle taken from Chambers’ truck at the time of his arrest. Held:

1. Chambers’ contention that the State failed to prove the chain of custody of the spent .22 shell casings lacks merit. Officer Troy Cook identified the five shell casings as the ones he personally found during a search of Scott’s yard. Cook testified that the spent casings appeared to be in the same condition as when he discovered them. Unlike fungible items, distinct physical objects which can be identified upon observation require no custodial proof for their admission. Hanvey v. State, 186 Ga. App. 690, 693 (6) (368 SE2d 357) (1988). See Harper v. State, 251 Ga. 183, 185 (1) (304 SE2d 693) (1983).

2. We find no merit to Chambers’ contention that the trial court erred in admitting an audio tape of the 911 call on the ground that the State did not prove its authenticity. See Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207, 211-212 (3) (88 SE2d 167) (1955); compare Gambrel v. State, 260 Ga. 197, 200 (2) (391 SE2d 406) (1990).

Prior to offering a copy of the 911 recording, the State presented the testimony of Melanie Woodall, the 911 dispatcher who processed the call, and James Scott, Chambers’ victim, who initiated the call. Woodall’s contemporaneous notes which described and corroborated the underlying facts were admitted as a separate exhibit. Woodall testified that as she handled the emergency call, she heard the sound of gunshots being fired in the background. Both Woodall and Scott listened to the tape in its entirety, and attested that the copy was an accurate reproduction without any changes, additions, or deletions.

Despite the State’s evidentiary foundation, Chambers argues that the trial court erred in admitting a copy not made from the original reel-to-reel recording but created from a duplicate tape. Notwithstanding Chambers’ argument to the contrary, we find that the State’s foundation under these circumstances was sufficient to establish the recording’s authenticity. Lee v. State, 204 Ga. App. 283, 284 (4) (418 SE2d 809) (1992); Bennett v. State, 169 Ga. App. 85, 87 (2) (311 SE2d 513) (1983).

3. Chambers alleges.that two ex parte discussions between the trial court and the prosecutor amounted to judicial comment on the evidence and bolstered the State’s credibility. He asserts that the trial court erred by failing to give curative instructions regarding those conversations. The transcript shows that near the end of the trial, Chambers’ counsel voiced a concern about the possible appearance of judicial impropriety based on the fact that the trial court in the presence of the jury had twice called the prosecutor to the bench to participate in ex parte conferences. Counsel raised an objection and requested a curative instruction. After the trial court clarified that the brief discussions were unrelated to the trial and pointed out that the jury might react negatively to a curative instruction, Chambers’ counsel then stated, “Well, Judge, I can live with ignoring it, if it doesn’t happen again.” No curative instruction was then sought or motion made.

Assuming the issue was not waived by counsel’s subsequent statement, OCGA § 17-8-57 reaches only remarks made before the jury. Here, there were none. Dukes v. State, 186 Ga. App. 773, 774 (3) (369 SE2d 257) (1988). Because the trial court made no comments to the jury, there was no violation of OCGA § 17-8-57 and no need for a curative instruction. See Jones v. State, 250 Ga. 498, 499-500 (4) (299 SE2d 549) (1983). In light of a defendant’s paramount right to a fair trial which is the foundation of OCGA § 17-8-57, the better practice would be to avoid all ex parte conversations of this nature.

4. The evidence was sufficient to satisfy the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Atwater and Scott both testified that Chambers shot at them. Atwater identified Chambers in court. Ballistics testing matched the shell casings found at the crime scene to Chambers’ rifle. The 911 call corroborated Scott’s version of the events. This evidence was sufficient to enable a rational trier of fact to find Chambers guilty beyond a reasonable doubt of two counts of aggravated assault and possession of a firearm during the commission of a felony. See id.

Judgment affirmed.

Andrews, C. J, and Smith, J., concur.

Decided January 15, 1997.

Michael R. Hauptman, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.