author: Eldridge, Judge.

text:
    A97A2151.
    JORDAN v. ATLANTA REPLEX CORPORATION.
    (492 SE2d 536)
   Eldridge, Judge.

' On January 8, 1995, Willie Jordan, the plaintiff and appellant, went with her family to the defendant’s ice skating rink to skate. When plaintiff arrived, the rink was in use for a hockey practice which was running late, and plaintiff had to wait to skate. No one was allowed on the ice to skate until the hockey team finished their practice; at that time, the public, including the plaintiff, was allowed on the ice. Plaintiff had never ice skated prior to that day. Plaintiff began skating as soon as the ice rink was opened to the public shortly after 6:45 p.m. Plaintiff’s injury occurred around 7:30 p.m., after plaintiff had been skating about 30 minutes.

While skating, plaintiff felt her foot jerk, causing her to fall. Plaintiff described the fall as her toe catching and being grabbed and twisted around.

Aaron Jordan and William Pelham looked for the cause of plaintiff’s fall and found a hole in the ice about two or three feet from her. The hole was grayish-white, ragged edges, two or three inches in diameter, about an inch in depth, and had a jagged ice skate mark coming out of the hole, which was filled with mushy ice and water; the hole had slush built up around the edges as if someone had skated into the hole, knocking slush out. Ice was stuck in the front tip of plaintiff’s skate. Unless someone was looking for the hole in the ice, it was not readily observable. Aaron Jordan stated his opinion that, based on the size of the hole, position of the hole and the plaintiff, and the ice in the toe of her left skate, plaintiff had tripped in the hole.

At the time of plaintiff’s injury, Salim Barday was working at the ice rink as assistant manager. After plaintiff’s fall, he inspected the ice in the area of the fall and did not find any hole in the ice. However, Mr. Jordan testified that he showed the hole to a skate monitor, who then covered the hole with a warning cone.

The plaintiff’s family testified that the general condition of the ice surface was poor, in that there were a number of tiny little holes or divots in the surface and slushy areas. After the plaintiff was removed from the ice, the ice then was resurfaced.

Barday and Robinson (the manager) testified that the ice rink surface is resurfaced just before each new skating session. The ice surface is about five to five and one-half inches of frozen sand with about two to two and one-half inches of ice on top. A skate guard or ice monitor continuously looks for holes or rink defects. Prior to resurfacing the ice, the surface is inspected by walking the rink and any “snow,” i.e., shaved ice on the rink surface, is removed by running the Zamboni over it; if any big holes in the ice are found, then the hole is packed with snow. A hole an inch deep and two inches across is considered a small hole and can be easily repaired with a snow packing. A hole more than an inch deep would be very unusual. To resurface, the surface is shaved, watered, and allowed to freeze. To resurface and inspect takes only about ten minutes. The normal resurfacing schedule is after about 20 minutes for public or hockey sessions, in the middle of a session, and every 40 minutes for figure skating. A resurfaced ice rink allows skaters to glide better and is safer.

Barday does not recall if the rink was resurfaced between the hockey session and the public session, which would have been the normal thing to do. However, if the hockey practice ran late, then the ice is inspected only, and if the surface is deemed satisfactory, then the resurfacing is delayed. Barday does not remember inspecting the ice immediately prior to plaintiff’s fall. An employee of the defendant told the family immediately after the fall that the ice rink had not been inspected or resurfaced after the hockey practice, because the practice had run late. Such inspection could have been done by the ice monitor after the rink had been cleared of the hockey team, which inspection would take five minutes to do. There are two ice monitors on the ice at all times who control conduct and look for debris and holes.

Stacey Kingry was the employee of the defendant who filled out an accident report for plaintiff based upon what the plaintiff and plaintiff’s family told her. She never saw the hole in the ice or looked for it and was not told by any other employee that there was a hole.

On January 8, the rink would normally have been resurfaced prior to the start of hockey practice at 5:00 a.m.; from opening until 12:45 p.in., the resurfacing would be on the request of the user, the. Georgia Amateur Hockey Association. Between 12:45 and 1:00 p.m., the rink would be resurfaced before public use, which ran from 1:00 until 3:00 p.m. with a resurfacing occurring at 1:55 p.m. Between 3:00 and 3:30, the ice would again be resurfaced, and again around 4:25, 5:30, and 6:40 p.m. Between 5:40 and 6:20 or 6:30 p.m., introductory hockey was held, when children were taught to play ice hockey. From 6:40 to 8:30 p.m. was a public session, when the public could skate and no figure skating or ice hockey practice took place at the same time. From 8:40 until 10:30 p.m. was the Co-ed Hockey League, when adults could play ice hockey.

Charles Robinson worked as the assistant manager of the Mountain Ice Chalet at Stone Mountain Memorial Association Park, which qualified him as an expert witness by experience on the operation and maintenance of an ice rink. He was working for the defendant as manager at the time of plaintiff’s injury. According to Robinson, it is common and standard practice to inspect and resurface the ice after a hockey practice and prior to public admission. The reason to resurface the ice is to make the surface smooth and safe for skating. A rink should be resurfaced after a hockey practice and every hour to maintain a smooth surface.

At the time when plaintiff fell, the ice rink was crowded with between 200 and 300 skaters. Plaintiff was not looking at the ice in front of her while she skated and never saw the hole in the ice, because she could not skate while looking down, and with the number of skaters on the ice, she had to look out for other skaters.

Plaintiff sued defendant for injuries caused by the fall. Defendant answered and filed a motion for summary judgment. The trial court granted summary judgment. Plaintiff filed a timely notice of appeal.

Plaintiff’s enumeration of error is that the trial court erred in granting summary judgment. We agree.

Under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), on motion for summary judgment, the trial court must give the plaintiff the benefit of all reasonable, favorable inferences, and the burden to produce evidence does not shift to the plaintiff unless or until the defendant pierces the allegations of plaintiff’s complaint by producing evidence that either shows that the facts alleged are not true, i.e., negates such essential elements, or shows that the plaintiff can produce no evidence to demonstrate the existence of such essential elements. OCGA § 9-11-56 (e). “Summary judgment is appropriate [in trip and fall cases] when the court, viewing all the evidence and drawing reasonable inférences in a light most favorable to the non-movant [plaintiff], concludes that the evidence does not create a triable issue as to each essential element of the case. [Lau’s Corp., supra.]” Jenkins v. Bi-Lo, 223 Ga. App. 735 (479 SE2d 14) (1996).

(a) This is a negligent maintenance case, because this case. involves the alleged failure of the defendant to properly maintain its ice rink’s surface in a condition that is safe and free of holes in the ice. “Because the defendant [deferred resurfacing the ice] or authorized the [failure to resurface the ice, it] is presumed to have knowledge of [the ice surface’s condition]. See American Nat. Bank [of Brunswick] v. Howard, 117 Ga. App. 834 (161 SE2d 838) (1968). In this type of case, the plaintiff [made] out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of [her] injury[, and when the defendant raised an affirmative defense and made out the elements of the prima facie defense, the plaintiff showed that she] could not have . . . avoided [such negligence] . . . through the exercise of ordinary care. See Hogg v. First National Bank [of West Point], 82 Ga. App. 861 (62 SE2d 634) (1950). The weight of authority in cases where the plaintiff slips and falls, allegedly due to the defendant’s negligence in maintaining a [dangerous ice surface], is that proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence. [Cits.] . . . What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the [ice rink] safe as a good business man is in such matters accustomed to use. [Cits.] Thus the plaintiff must, at a minimum, show that the defendant was negligent either in the materials [it] used in treating the [ice rink] or in the [failure to resurface the rink]. . . . Defendant introduced testimony of [the assistant manager] who had examined the [ice rink surface some time] after plaintiff’s fall and who found [no hole in the ice] nor any other defect in the [ice]. Defendant also introduced evidence that the [ice rink] had been [resurfaced prior to the hockey practice at 4:50 p.m.] prior to plaintiff’s fall and had been trafficked [from 5:00 until 7:30 p.m.] by other [skaters]. Defendant’s evidence was sufficient to pierce the pleadings of the plaintiff and to shift the burden to her to produce issuable evidence or suffer judgment. See Meade v. Heimanson, 239 Ga. 177 (236 SE2d 357) (1977).” (Punctuation omitted.) Alterman Foods v. Ligon, 246, Ga. 620, 624-625 (272 SE2d 327) (1980).

While both Barday and Robinson testified that it was normal to inspect and resurface the ice for safety reasons between the hockey practice and the public session, they had no knowledge of whether or not it had been done on January 8 between the sessions at 6:45 p.m. They testified that the ice surface needed to be resurfaced about every 20 to 40 minutes, but if the hockey session ran late, then the resurfacing would be deferred until later, after a standard inspection had been made for holes. They had no knowledge of whether or not such inspection had, in fact been made, and none of the skating monitors testified. In his deposition, Barday testified that he could not recall whether or not the ice rink had been resurfaced between 5:30 and 6:45 p.m. If the last resurfacing of the ice was done at 5:30 and the fall occurred at 7:30 p.m., then the delay in resurfacing exceeded the time period set by the defendant by 80 to 100 minutes.

However, in his affidavit, Robinson, who was not at the rink at the time of the fall testified that “Mr. Barday and Stacey Kingry indicated to me that they believed the ice had in fact been resurfaced prior to the free skate.” (Emphasis supplied.) Such statements are hearsay and lay opinions without a factual predicate, which required the trial judge to disregard this testimony on summary judgment. OCGA § 24-9-65; O’Kelley v. State, 175 Ga. App. 503, 507 (3) (333 SE2d 838) (1985); Leonard v. State, 157 Ga. App. 37, 38 (1) (276 SE2d 94) (1981).

Barday testified both by affidavit and by his deposition that, upon inspection, he could not find the hole that plaintiff allegedly tripped in. Since the plaintiff, herself, did not know why she fell and never saw the hole, then this shifted the burden of producing evidence to the plaintiff.

If the plaintiff did not know the cause of her fall and could not present evidence to create a material issue of fact as to the cause of her fall and demonstrate that such cause was the consequence of a breach of duty of the owner/occupier, then the grant of summary judgment to the defendant would be appropriate. See Alterman Foods v. Ligon, supra at 624; see also Boyd v. Garden Center, 197 Ga. App. 198, 200-201 (3) (397 SE2d 626) (1990); Brown v. RFC Mgmt., 189 Ga. App. 603, 605 (376 SE2d 691) (1988); Key v. J. C. Penney Co., 165 Ga. App. 176, 177 (299 SE2d 895) (1983); Food Fair v. Mock, 129 Ga. App. 421, 423 (199 SE2d 820) (1973); Lewis v. Drake, 116 Ga. App. 581, 582 (158 SE2d 266) (1967).

Plaintiff met her burden of producing evidence that created material issues of fact for the jury to decide. See OCGA § 9-11-56 (e). First, the testimony of plaintiff’s witnesses described her prone position on the ice as being three feet beyond a three inch wide hole, one inch deep, in the ice; skate marks that went through the hole; slush that had been knocked out of the hole and around the edge; and ice found in the left toe of plaintiff’s ice skate, which was consistent with catching the skate in the hole. Mr. Jordan, a lay witness, after stating the foundational facts upon which his opinion was based, stated his opinion that the plaintiff had tripped on the hole. Plaintiff’s testimony that something seemed to grab her left leg as she was skating and caused her body to twist around so that she fell on her back is consistent with catching the toe of the skate in the hole. These facts created a jury question as to the existence of the defect, a hole in the ice, and causation of the injury. Second, the testimony of plaintiff’s family as to the existence of the hole in the ice created a conflict of material fact with Barday’s testimony that he could not find a hole. Third, the plaintiff’s family testified that there had been no resurfacing of the ice from the time of their arrival after 6:00 and their being allowed on the ice after 6:45 p.m., and that the condition of the ice at that time was poor. This evidence created material issues of fact as to defendant’s lack of proper maintenance and the proximate cause of plaintiff’s fall.

Finally, testimony as to the defendant’s usual, normal, or customary practice regarding inspection and resurfacing is not evidence that such maintenance actually occurred on January 8. Such evidence was a form of opinion testimony as to what possibly occurred. Absent testimony that the delay in resurfacing was, in fact, preceded by an inspection of the ice for holes by the ice monitors, such evidence, is merely an inference of fact based upon custom and practice. Such favorable inference cannot be made for the defendant as all inferences drawn must be favorable to the plaintiff, as the non-movant. The reasonable inference, therefore, would be that no inspection was made, based on the existence of the hole and other defects in the ice.

The trial judge erred in granting summary judgment on the basis that plaintiff failed to produce evidence creating a material issue of fact as to breach of defendant’s duty and causation of plaintiff’s fall. The trial judge cannot make findings of fact on a motion for summary judgment by picking and choosing which evidence he will believe and by deciding that there is no evidence showing causation, when there is contrary evidence in the record; the jury must make a determination of weight and credibility as to disputed facts, as well as to opinion evidence. There was evidence creating jury issues as to breach of duty and causation. Union Camp Corp. v. Daley, 188 Ga. App. 756, 758 (374 SE2d 329) (1988); Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675 (5) (278 SE2d 100) (1981).

(b) Since review of summary judgment is de novo, then we must determine whether defendant is entitled to summary judgment for any affirmative defense asserted, even though the trial court did not grant the motion on such basis. The defendant has the burden of proof of an affirmative defense at trial as well as on summary judgment. To prevail on summary judgment, the defendant must prove each and every essential element of such defense before the burden to produce evidence shifts to the plaintiff. See Continental Research Corp. v. Reeves, 204 Ga. App. 120, 127 (419 SE2d 48) (1992); Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984); Pound v. Augusta Nat., 158 Ga. App. 166, 167 (279 SE2d 342) (1981); Hunt v. Thomasville Baseball Co., 80 Ga. App. 572, 573 (56 SE2d 828) (1949).

(c) 1. Contributory negligence.

Under the evidence presented by the plaintiff, the hole was white or grayish-white and looked much like the ice. Prior to the slush being knocked out, the hole was filled with slush and water so that it may be reasonably inferred that there was no depression in the ice which would indicate the presence of a hole beneath the slush. Both of these facts and reasonable inferences made thereon indicate that the hole was riot readily discoverable; the witnesses found the hole only after searching for it. Following plaintiff’s fall, the hole was discoverable, because the slush had been knocked up on the sides of the hole when plaintiff had skated across it. The hole was so difficult to discover that Barday, the assistant manager, never found it, even after the area was pointed out to him. Furthermore, the ice rink was crowded with between 200 and 300 people; skating faster than a walk made observing the ice ahead difficult to do, particularly with that number of people on the ice. The presence or absence of the hole is a jury question, because there exists a conflict in the evidence between the evidence of the plaintiff and the evidence of the defendant, which cannot be decided by either this Court or the trial court as was done by the trial court and which creates a material issue of fact for jury determination, because the trier of fact must decide the weight and credibility to give to the evidence to determine whether or not a hole existed in the ice. There are several reasonable inferences that may be drawn from the testimony of Barday: (1) that there was no hole; (2) that he did not make a thorough search to discover the presence of the hole; or (3) that the ice monitor who placed the cone over the hole came back and repaired the hole by filling it with shaved ice to repair the hole prior to resurfacing the ice before Bar-day made his search. The trial court and this Court on de novo review must make the inference most favorable to the plaintiff, Lau’s Corp., supra at 491, which would require the denial of the motion for summary judgment.

The defendant presented no evidence that plaintiff failed to exercise ordinary care for her own safety so that she could have avoided the hole; the hole was camouflaged by slush and by its color. Leonardson v. Ga. Power Co., 210 Ga. App. 574, 576 (436 SE2d 690) (1993); Edwards v. Trammel, 187 Ga. App. 22, 24 (369 SE2d 288) (1988); Whatley v. Henry, 65 Ga. App. 668, 673-674 (6) (16 SE2d 214) (1941). For plaintiff to be held to be contributorily negligent, plaintiff must have had an opportunity to avoid the result of the defendant’s negligence, which means plaintiff knew or should have known of the danger and failed to avoid it when given the opportunity to avoid. Nelson & Budd, Inc. v. Brunson, 173 Ga. App. 856, 857 (3) (328 SE2d 746) (1985); Moore v. Price, 158 Ga. App. 566, 568-570 (2) (281 SE2d 269) (1981). There has been no evidence which shows that plaintiff knew of or could have reasonably discovered the hole, or that she had the opportunity to avoid it; therefore, summary judgment on this basis would have been error.

Decided September 17, 1997

Reconsideration denied October 2, 1997.

David L. Whitman, for appellant.

Gorhy & Reeves, Michael J. Gorby, Amanda H. Burri, for appellee.

(c) 2. Assumption of the risk.

As a first time ice skater, plaintiff may be inferred to have been aware of at least two dangers from the common experience of a reasonably prudent person: (1) the slipperiness of the ice surface; and (2) danger of collision with other skaters. There was no evidence in the record that a first time skater should have known that the ice skating surface of the rink, if not timely resurfaced, would contain cracks, holes, pits, or defects in the surface or that a first time user would know to look for such defects and appreciate subjectively the danger of such defects. The record shows that she had no actual or subjective knowledge of the danger of tripping on holes in the ice. Absent evidence establishing plaintiff’s actual and subjective knowledge of the danger, appreciation, of the danger, and a conscious decision to take the known risk of injury, the affirmative defense of assumption of the risk has not been established. Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996). Thus, summary judgment could not be granted on this affirmative defense.

Judgment reversed.

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

       Atlanta Replex Corporation d/b/a Atlanta Ice Forum d/b/a Atlanta Ice Plex.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A0891.
    POST REALTY ASSOCIATES, INC. v. DSL ASSOCIATES et al.
    (492 SE2d 600)
   Johnson, Judge.

Post Realty Associates, Inc. sued DSL Associates and its partners (hereinafter collectively referred to as “DSL”) for brokerage commissions allegedly due on a commercial lease contract. The case was tried by the court without a jury, and judgment was entered in favor of DSL. Post Realty appeals, and, for reasons which follow, we affirm.

The record shows that Post Realty procured Seven Oaks Academy, Inc. as a tenant for one of DSL’s properties. DSL and Seven Oaks entered into a lease agreement for a five year term, “unless sooner terminated by the parties.” The lease provided that it would automatically renew for two additional five year terms “[pjrovided Tenant is not in default. . . .” Pursuant to the lease, “[a]t the beginning of the third year of the lease, and on each anniversary year thereafter including any renewals and extensions of the terms hereof, the Base Annual Rental shall be adjusted by an additional charge equal to the product of the annual rental hereunder times the most recently published annual Consumer Product Index (CPI) rate as set by the United States Bureau of Labor Statistics, such increase not to be less than three percent (3%) nor more than six percent (6%) per year.”

The commission paid under the lease was an amount equal to the first month’s rent plus five percent of all rentals thereafter paid by Seven Oaks under the lease. According to the lease, “[i]f the term of this Lease is extended, or if a new Lease is entered into between [DSL] and [Seven Oaks] covering the leased Premises, or any part thereof, or covering any other premises as an expansion of, or substitute for, the premises herein leased,” DSL agreed to pay commission payments equal to five percent of all rentals paid under such extension, amendment or new lease. The commission was to be divided evenly between Post Realty and Lavista Associates, Inc., the listing agent for DSL.

The evidence at trial showed that the lease commenced in September 1987 and expired on September 9, 1992. In August 1992, Post Realty received $205 in commission for Seven Oaks’ May 1992 rent. This was the last commission payment received by Post Realty. Warren Post, secretary/treasurer for Post Realty, believed the lease was in default. Seven Oaks went into bankruptcy, by order of the bankruptcy court the lease was rescinded, and DSL was required to forgive $49,752 in rent. The bankruptcy judge then directed DSL to execute a new lease excluding the five percent commission payments. DSL acknowledged that a new lease was executed in approximately February 1993 and that Seven Oaks is still a tenant and still occupying the same space as described in the lease contract. DSL also acknowledged that it allowed Seven Oaks to occupy the premises for an unspecified period of time without paying rent.

The trial court entered judgment in favor of DSL, finding that Post Realty failed to introduce sufficient evidence to establish the amount of its damages, if any. Post Realty appeals.

1. Post Realty contends the trial court erred by not awarding damages in the amount of $205 per month since June 1992. We disagree.

It is axiomatic that Post Realty, as plaintiff, had the burden to prove the amount of any alleged damages with reasonable certainty. See Spencer v. Kyle Realty Co., 225 Ga. App. 203, 205 (3) (483 SE2d 639) (1997); Wipo, Inc. v. Cook, 187 Ga. App. 7, 8-9 (1) (369 SE2d 306) (1988). Thus, while Post Realty contends DSL failed to produce any evidence of the bankruptcy action and failed to produce the alleged new lease, the trial court correctly ruled that it was Post Realty’s obligation to show the court the amount of rent DSL received from Seven Oaks.

According to the lease, Post Realty was entitled to one-half of “five percent (5%) of all rentals thereafter paid by [Seven Oaks] under this Lease.” (Emphasis supplied.) In addition, if a new lease was entered into or the original lease was extended or amended, Post Realty was entitled to one-half of “five percent (5%) of all rentals paid to [DSL] by [Seven Oaks] under such extension, amendment, or new Lease.” (Emphasis supplied.)

Taking into consideration the possibility of a default, the lease specifically provided that the commission would be paid to Post Realty only when payment was collected from Seven Oaks. “It was thus necessary that [Post Realty] prove that [DSL] had been paid in order to show [its] entitlement to commissions. . . . The burden is on [Post Realty] to show both the breach and the damage, and this must be done by evidence which will furnish the [trier of fact] data sufficient to enable [it] to estimate with reasonable certainty the amount of damages. It cannot be left to speculation, conjecture ánd guesswork.” (Citations and punctuation omitted.) Wipo, supra.

Although Post Realty claimed in its complaint that DSL owed it “2.5% of the monthly rental” and indicated that the amount due Post Realty “shall be determined at trial,” an amount was not proven to a reasonable degree of certainty at trial. At trial Post Realty submitted a statement it prepared, which the court refused to enter as evidence, showing it was due $9,225, representing a commission payment of $205 per month. This evidence was in conflict with testimony at trial that there were months during which Seven Oaks did not pay rent and with lease provisions requiring annual rent increases in conjunction with the annual CPI rate. Furthermore, in an attachment to its brief, which this Court cannot consider, Post Realty indicates an amount due of $11,685 and an additional $2,133 in interest.

While Post Realty may have shown the trial court the basis for its calculations, it failed to take into account the fact that Seven Oaks failed to make some rent payments and that DSL had to write off a substantial amount of rent. Even though this evidence of default was introduced, Post Realty offered no evidence as to what payments were made to DSL by Seven Oaks. In addition, Post Realty admitted it believed Seven Oaks had defaulted, but objected to any evidence of bankruptcy and failed to show whether the default occurred prior to the automatic renewal provision. Contrary to Post Realty’s contention, it was not DSL’s obligation to produce evidence showing Post Realty’s damages.

In his ruling, the trial judge correctly concluded that damages had not been proven with specificity sufficient to support a judgment in Post Realty’s favor. Post Realty’s reliance on Life. Chiropractic College v. Carter & Assoc., 168 Ga. App. 38 (308 SE2d 4) (1983), is misplaced. In Life Chiropractic College, the college purchased the building it was leasing and contended it no longer owed commission payments because it could not pay rent to itself. The issue was not whether rent payments had been made. Here, evidence established that Seven Oaks failed to make certain rent payments. Under the lease, DSL was only obligated to make commission payments on rentals paid by Seven Oaks.

Post Realty further argues that speculation of a new lease cannot eliminate its commission due under the original lease and that “it was incumbent upon appellee DSL to show a new contract existed for a lesser amount in order to decrease or mitigate the amount of damages of the breach.” However, as stated above, it was Post Realty’s burden to prove its damages in this case. The record shows that DSL introduced evidence that Seven Oaks was in default and that DSL was ordered by the bankruptcy court to write off an amount of rent due and to enter into a new lease with Seven Oaks. It was incumbent upon Post Realty to provide the trial court with figures which would enable the trial court to calculate Post Realty’s damages with reasonable certainty. Whether these figures were ascertained through discovery prior to trial, through examination of witnesses from DSL or Seven Oaks, or through the introduction of bankruptcy court records, it was Post Realty’s duty, not DSL’s duty, to provide this evidence to the trial court.

Decided October 2, 1997.

James Mercier, pro se.

Philip M. Castro, for appellees.

In addition, contrary to Post Realty’s argument, the record does not show that DSL “voluntarily acquiesced” the monthly rent. The trial court could properly have found from evidence in the record that Seven Oaks was in default and that the bankruptcy court ordered DSL to write off an unspecified amount and to enter into a new lease with Seven Oaks. The trial court did not err by allowing one of the námed defendant partners to testify regarding the bankruptcy action filed by Seven Oaks. This original evidence was admissible to explain the conduct of DSL in writing off and accepting lower rent payments from Seven Oaks. See Commercial Union Ins. Co. v. Smith, 179 Ga. App. 734 (1) (347 SE2d 701) (1986). Moreover, the absence of bankruptcy court documentation goes to the weight and credit to be given the witness’ testimony, not its admissibility. Furthermore, even if DSL did forgive any rent, DSL was not obligated to show the amount or duration of any non-payment of the rent. Once again, it was Post Realty’s burden to prove its damages with reasonable certainty.

Inasmuch as Post Realty failed to prove its damages with reasonable certainty, the trial court did not err in entering judgment in DSL’s behalf. See Spencer, supra. Furthermore, since Post Realty was not entitled to damages for the reasons stated above, the trial court did not err by refusing to award pre-judgment interest to Post Realty.

2. Post Realty contends the trial court erred by not striking the answer of DSL and by not granting Post Realty a default judgment because only one of DSL’s partners, who were named as defendants in the action, appeared at trial and he did not have any knowledge regarding the affairs of DSL and Seven Oaks. However, the record does not reveal that Post Realty ever made a motion to strike DSL’s answer or any other motion relating to this issue. This is a court for correction of errors below. In the absence of a ruling by the trial court, this Court has nothing to review. Ware v. Fidelity Acceptance Corp., 225 Ga. App. 41, 42 (1) (482 SE2d 536) (1997). In addition, Post Realty fails to cite any authority supporting its contention. See Court of Appeals Rule 27 (c) (2). Accordingly, we find this enumeration to be without merit.

Judgment affirmed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.

       Attachments or exhibits contained in an appellate brief which do not appear in the transcript or record cannot be considered by this Court and cannot afford the basis for reversal of a trial court’s judgment. See, e.g., Crotty v. Crotty, 219 Ga. App. 408, 410 (2) (465 SE2d 517) (1995).


text:
    A97A0950.
    GRIGSBY et al. v. WHITE.
    (492 SE2d 603)
   Johnson, Judge.

Carl and Margaret Grigsby sued Wesley Scott White to recover for injuries allegedly sustained by Carl Grigsby in an automobile collision which occurred on October 19, 1991. At the time of the collision, White had liability insurance under a policy with State Casualty Insurance Company. The Grigsbys carried an uninsured motorist policy with Allstate Insurance Company with limits of $15,000 per person, $30,000 per incident, and $10,000 available in property damage coverage. It is undisputed that White’s liability coverage was equal to or greater than the Grigsbys’ uninsured motorist coverage. It is further undisputed that the Grigsbys filed the present lawsuit prior to the expiration of the statute of limitation and that White’s insurance company had not been declared insolvent when the lawsuit was filed.

On January 6, 1994, nearly three months after the statute of limitation expired, White’s insurance carrier was declared insolvent. The Grigsbys did not serve Allstate Insurance Company as a potential uninsured motorist carrier prior to the expiration of the statute of limitation and, in fact, have never served Allstate as an uninsured motorist carrier.

White moved for summary judgment, contending the Grigsbys could not recover a judgment from him without first subtracting the amount of the uninsured motorist coverage which would have been available had Allstate been notified of the claim within the statute of limitation. The trial court granted White’s motion, and the Grigsbys appeal. For reasons which follow, we reverse and vacate the trial court’s judgment.

Once again, we are faced with an uninsured motorist case where the defendant’s insurance carrier does not become insolvent until after the statute of limitation expires. In two enumerations of error, the Grigsbys contend the trial court erred in granting White’s motion for summary judgment because the issue of set-off is not ripe until a judgment is entered and because White is not entitled to a set-off as a matter of law.

OCGA § 33-36-14 (a) states as follows: “Any person . . . having a claim against a policy or an insured under a policy issued by an insolvent insurer, which claim is a covered claim and is also a claim within the coverage of any policy issued by a solvent insurer, shall be required to exhaust first his rights under such policy issued by the solvent insurer. The policy of the solvent insurer shall be treated as primary coverage and the policy of the insolvent insurer shall be treated as secondary coverage and his rights to recover such claim under this chapter shall be reduced by any amounts received from the solvent insurers.” According to White, this statute requires the Grigsbys to first exhaust any benefits to which they may be entitled prior to obtaining a judgment on a jury verdict against White.

Decided October 2, 1997.

Howard E. Alls, for appellants.

Howard, Carswell & Bennett, Kenneth R. Carswell, for appellee.

Under the circumstances of this case, however, we need not decide whether the Grigsbys’ failure to serve Allstate within the statute of limitation does or does not evince a failure to “exhaust” their rights under their own policy as contemplated by OCGA § 33-36-14 (a). The Grigsbys are correct in their assertion that this issue is not yet ripe since a judgment has not yet been rendered against White. “Regardless of the legal effect that [the Grigsbys’ failure to serve Allstate] might otherwise have under the Georgia Insurers Insolvency Pool Act, that [failure] does not provide [White] with a personal defense so as to bar [the Grigsbys’] pursuit of [their] tort action against [White]. [Cit.] It follows that the trial court erred in granting summary judgment in favor of [White]. [The Grigsbys’] compliance or non-compliance with [OCGA § 33-36-14 (a)] will only become a relevant inquiry if and when [they] obtain[ ] a judgment against [White].” Lee v. Fulton Concrete Co., 195 Ga. App. 348, 349 (393 SE2d 449) (1990). See also Reid v. U. S. Fidelity &c. Co., 223 Ga. App. 204, 207 (2) (477 SE2d 369) (1996). Accordingly, we reverse the trial court’s decision and vacate the judgment entered by the trial court.

Judgment reversed and vacated.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.

       For the benefit of the parties and the trial court, we direct their attention to G & MSS Trucking v. Rich, 224 Ga. App. 130 (1) (479 SE2d 761) (1996), as instructive on this issue.


author: McMurray, Presiding Judge.

text:
    A97A1290.
    MILLEN FERTILIZER SALES, INC. v. BROWN.
    (492 SE2d 593)
   McMurray, Presiding Judge.

Millen Fertilizer Sales, Inc. (“Millen”) filed an appeal to the Supreme Court of Georgia challenging a Jenkins County Superior Court order which cancelled a Jenkins County State Court default judgment and enforced a settlement agreement wherein Millen agreed with Ralph Brown to satisfy the default judgment in exchange for $9,000. The Supreme Court of Georgia transferred the case to this Court, finding that “[t]he primary question for review is whether the doctrine of res judicata applies to the enforceability of a judgment of the State Court of Jenkins County.” We reverse because a Jenkins County State Court order (denying Brown’s traverse to a subsequent garnishment proceeding initiated to enforce the default judgment) resolved enforceability of the settlement agreement and thereby constitutes the final adjudication of the matters which are the basis of Brown’s action in the Jenkins County Superior Court.

Brown filed an action against Millen in the Jenkins County Superior Court to enforce a settlement agreement the parties executed to satisfy a default judgment Millen acquired against Brown in the Jenkins County State Court. Brown also sought to restrain and enjoin enforcement of the default judgment, alleging Millen breached the settlement agreement by refusing to accept a $9,000 check he tendered in discharge of his obligation under the settlement agreement. Millen opposed this action claiming that Brown breached the settlement agreement by failing to deliver the settlement check to its attorney within the 60-day period prescribed by the parties’ settlement agreement. After conducting a hearing, the trial court directed cancellation of the default judgment and ordered Millen to accept Brown’s settlement payment because time .was not specified “of the essence” in the settlement agreement and Brown’s attorney delivered the settlement check in a timely fashion, via mail, under OCGA § 9-11-6 (e). The trial court’s order includes the following undisputed findings of fact:

“On December 12, 1989 [Brown] executed a promissory note in favor of [Millen] in the amount of $17,858.45, due November 1, 1990.

“On February 2, 1994 [Millen] sent a collection letter to [Brown], in it was recited that a note for $7,000.00 had become due. It was furthermore recited that the indebtedness referred to was created when, in February 1993, [Brown] paid [Millen] $8,000.00; [Millen] charged off $10,061.33 of [Brown’s] indebtedness; and, [Brown] executed a promissory note in favor of [Millen] in the amount of $7,000.00.

“On January 3, 1995 [Millen] filed a complaint on a promissory note in Jenkins State Court, alleging [Brown’s] indebtedness under an instrument in the amount of $17,858.45 plus interest, dated December 12, 1989.

“On March 1,1995 default judgment for [Millen] against [Brown] was entered in Jenkins State Court, in the principal amount of $25,929.45, interest at $8.80 per day after December 20, 1994, and $2,617.95 in attorney’s fees.

“On March 31, 1995 a motion to open default on behalf of [Brown], and order staying the default until show cause hearing on April 24, 1995, were entered in Jenkins State Court.

“The Jenkins State Court order staying default was continued and hearing rescheduled for May 22, 1995.

“On May 20,1995 [Millen’s] counsel wrote to [Brown’s] counsel a letter memorializing a settlement agreement under which [Brown] was to pay $9,000.00 to [Millen] within sixty (60) days of said letter. It was acknowledged that this agreement would be submitted to the Jenkins State Court by [Brown’s] counsel on May 22, 1995, and same would conclude all claims between the parties.

“On July 21, 1995 [Brown’s] counsel transmitted by mail the $9,000.00 settlement agreement payment to [Millen’s] counsel. Said payment was received by [Millen’s] counsel on July 24, 1995, but was rejected as being untimely.

“On July 26, 1995 [Millen] filed a garnishment action in Jenkins State Court by seeking attachment of [Brown’s] bank funds to satisfy the default judgment. This garnishment action was filed attaching thereto the garnishment affidavit of [Millen’s] counsel which was dated July 20, 1995.

“On July 28, 1995 [Brown] filed a traverse to garnishment and a motion to set aside judgment in Jenkins State Court.

“On September 6, 1995 the Jenkins State Court entered an order finding that the settlement agreement had not been complied with by [Brown], denying the motion to open default, denying the motion to set aside judgment, and denying the traverse to garnishment.

“On October 6, 1995 [Brown] filed a notice of appeal of the judgment of Jenkins State Court entered September 6, 1995.

“On November 1, 1995 the Court of Appeals of Georgia entered an order dismissing [Brown’s] appeal for failure to follow the procedure required for discretionary review of denial of the motion to set aside judgment.

“On November 27, 1995 remittitur was entered in the Jenkins State Court upon the order of the Court of Appeals of Georgia.” Held:

1. “ ‘(Res judicata) will bar a plaintiff’s action if the plaintiff has brought another action based on the same subject matter, the plaintiff had a full and fair opportunity to litigate the other action, the other action resulted in an adjudication on the merits, and the other action was against the same defendant or its privy.’ Sorrells Constr. Co. v. Chandler Armentrout &c., P.C., 214 Ga. App. 193, 194 (447 SE2d 101) (1994).” (Emphasis omitted.) Garrett v. Life Ins. Co., 221 Ga. App. 315, 317 (1) (471 SE2d 262). Since the enforceability of the settlement agreement in question in the case sub judice was resolved adversely to Brown in his previous state court traverse to Millen’s garnishment proceeding, and since that ruling was unsuccessfully challenged on appeal, the issue regarding the enforceability of the settlement agreement is res judicata, and Brown is bound by the Jenkins County State Court’s judgment. Brown’s Superior Court action to enforce the settlement agreement is thereby precluded and the Jenkins County Superior Court erred in holding otherwise.

Decided October 2, 1997.

Matthew L. Waters, for appellant.

Grady K. Reddick, Robert S. Lanier, Jr., for appellee.

2. In light of our holding in Division 1 of this opinion, it is unnecessary to address Millen’s remaining enumeration of error.

Judgment reversed.

Beasley and Smith, JJ., concur.


text:
    A97A1430.
    WALLACE v. THE STATE.
    (492 SE2d 595)
   Johnson, Judge.

A jury found Ronald Wallace guilty of child molestation and statutory rape. Wallace appeals from the judgment of conviction and the denial of his motion for new trial. We affirm.

1. Wallace claims the evidence was insufficient to support his convictions for statutory rape and child molestation. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Ogles v. State, 218 Ga. App. 92, 93 (2) (460 SE2d 866) (1995). Viewed in this light, the evidence shows the victim’s mother regularly worked as a nursing assistant from 11:00 p.m. to 7:30 a.m. She left her four children home during her shift, under the supervision of her oldest daughter, who was seventeen years old during the events in question. The victim was 12 years old at the time.

The victim’s mother testified she returned home from work on December 2, 1994 and found cigarette butts in a cup in her kitchen. The victim’s mother confronted her children about the cigarette butts because neither she nor any of the children smoked, but none of her children responded. Later that day, the victim’s mother eavesdropped on a telephone conversation during which the victim told a man they almost “got caught” because he left his cigarette butts in the kitchen. The victim’s mother confronted her children again, and the victim then admitted she and “Ronald” had been “doing it” in the back bedroom of the apartment. The victim’s mother called the police immediately.

At trial, the victim’s mother testified that when the police arrived and questioned the victim in her presence, the victim told them the older man was the victim’s boyfriend and that they had been sleeping together since August or September 1994. A detective testified that later that day the victim gave a signed statement indicating she had had sexual intercourse with Ronald once in October 1994, once in November 1994, and once on December 1, 1994, the night before her statement. While the victim was unsure of the man’s last name, she did state that the man was blind. It is undisputed that Wallace is, indeed, blind.

The victim’s older sister testified the victim told her she had intercourse with Wallace on the night of December 1-2,1994. The victim testified she and Wallace had sex on another date in December 1994. In addition, a DeKalb County assistant district attorney testified the victim told her she had sex with Wallace in December 1994 and on other occasions and that she had recanted during trial to protect Wallace.

By April 1995 Wallace was free on bond after being charged in the first case involving the victim, and the victim’s mother had moved her family to Fulton County. On April 10, 1995, the victim’s mother discovered the victim and Wallace in her home, engaged in the act of sexual intercourse. She called the police again, and Wallace was again arrested and his bond revoked. This April 1995 case was pending in Fulton County and was introduced as a similar transaction. Wallace does not allege error connected with the introduction of this evidence.

The above evidence was sufficient to enable a rational trier of fact to find Wallace guilty beyond a reasonable doubt of the offenses charged. See Ogles, supra; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Wallace contends that under OCGA § 24-3-16 and Gregg v. State, 201 Ga. App. 238 (3) (411 SE2d 65) (1991), the trial court erred in admitting into evidence out-of-court statements allegedly made by the victim to her mother and law enforcement officers.

OCGA § 24-3-16 provides: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” Gregg set out ten factors which a court may consider in determining whether indicia of reliability are sufficient. Id. at 240-241 (3) (b). An appellate court may consider evidence subsequently introduced at trial, not just evidence before the trial court at the time it admitted the out-of-court statements. See Gregg, supra at 239-240 (3) (a). With these principles in mind, we proceed to examine the indicia of reliability which “spring from the circumstances” of the challenged out-of-court statements.

The trial court found the following indicia of reliability regarding the victim’s statement to her mother that she and Wallace were “doing it”: The language of the statement was appropriate for the victim’s age; there was no coaching by the mother; the statement was against the victim’s interest; there was no evidence of force or threats by the mother; and the statement was consistent with the cigarette butts found by the mother and the victim’s telephone call, which the mother had overheard. Regarding out-of-court statements made to others, the trial court indicated that it would make a reliability finding after the testimony was given.

In support of his argument that these indicia of reliability were insufficient, Wallace points to other factors tending to undermine confidence in the victim’s statement: The statement was not spontaneous, but in response to stern questioning by the mother about the cigarettes; the victim may have been high on marijuana when she made the statements; the victim laughed and acted nonchalant and silly when she made the statements; and the trial court allowed the defense to introduce evidence that the victim had previously accused other men of molesting her because it found a reasonable probability the previous accusations had been false.

Examination of the transcript establishes a sufficient showing of indicia of reliability as to all out-of-court statements made by the victim and testified to by witnesses in the presence of the jury. While the victim may have lied on previous occasions and the trial court ruled the jury could learn of this fact, Wallace has not offered any evidence that the victim’s accounts of events in question as told to her mother, her sister, police officers, and the district attorney were not consistent. “Moreover, the factors set forth in Gregg . . . are not intended to be mechanically applied as some sort of magic formula; the trial court has broad discretion in determining the admissibility of evidence.” Tidwell v. State, 219 Ga. App. 233, 234 (1) (b) (464 SE2d 834) (1995).

In addition, the record shows the victim testified at trial and was subject to examination and cross-examination. “Thus, [Wallace] had every conceivable opportunity to examine and cross-examine the child in the presence of the jury, regarding the child’s memory of and the circumstances surrounding [her] making of each of the out-of-court statements in question, and had the opportunity to allow the jury to judge the child’s demeanor in response to any examination or cross-examination about the alleged making and veracity of these previous statements. This procedure provided an additional safeguard to [Wallace’s] right of fair trial, and provided [Wallace] full opportunity for confrontation.” Gregg, supra at 241 (3) (c). We find no abuse of discretion in the admission of this evidence.

3. Wallace contends it was error for the trial court to admit evidence of his 1987 conviction for aggravated assault as a similar transaction. The trial court found this conviction admissible to show course of conduct, bent of mind, and lustful disposition. During Wallace’s trial, the 1987 victim testified that in the prior incident, which occurred when she was 14 or 15, Wallace attempted to rape her at knifepoint but she succeeded in escaping.

Evidence of a separate offense is admissible only if: (a) the state offers it for a proper purpose, not merely to impugn the defendant’s character; (b) the defendant was the perpetrator of the other crime; and (c) the independent act was sufficiently similar to the act for which the defendant is on trial that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). “ ‘The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses. [Cit.]’ ‘In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. . . . There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.’ [Cit.]” Stine v. State, 199 Ga. App. 898, 899 (2) (406 SE2d 292) (1991).

Wallace does not challenge the purposes for which the state offered evidence of the 1987 aggravated assault and does not contend he did not commit the 1987 crime. Rather, he claims the 1987 crime was not sufficiently similar to the offenses charged in the present case and that any possible relevance was outweighed by its prejudicial effect. Wallace asserts this incident was not sufficiently similar because it occurred eight years earlier, involved a stranger who had attained the age of consent, and involved a weapon.

We are satisfied that there exists a sufficient similarity or connection between the prior independent crime and the offenses charged. “The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible.” (Citation and punctuation omitted.) Id. Moreover, Wallace’s argument regarding the lapse of time between the two incidents is not wholly determinative. Nichols v. State, 221 Ga. App. 600, 601-602 (3) (473 SE2d 491) (1996); Hall v. State, 204 Ga. App. 469, 471 (1) (419 SE2d 503) (1992). Though there are some dissimilarities, both incidents involved Wallace attempting to have intercourse with young adolescent females, either with or without their consent. Accordingly, the trial court did not err in admitting evidence of the previous offense. See Brown v. State, 173 Ga. App. 640, 641 (3) (327 SE2d 515) (1985).

4. Wallace also contends the trial court erred in denying his request for a new trial based on ineffective assistance of counsel because his attorney failed to properly investigate and call witnesses suggested by Wallace. After a hearing during which trial counsel testified, the court determined that trial counsel was effective. We agree.

“In order to prevail on a claim of ineffective assistance of counsel, [Wallace] must show (1) that defense counsel’s performance was deficient, and (2) that the defense was prejudiced by the deficient performance, i.e., show a reasonable probability that but for the trial counsel’s professional errors, the result of the proceeding would have been different. [Cit.] There is a strong presumption that defense counsel’s conduct fell within the broad range of reasonable professional conduct. [Cit.]” Etheridge v. State, 210 Ga. App. 96, 97 (435 SE2d 292) (1993). In addition, the trial court’s determination that Wallace was not denied effective assistance of trial counsel will be affirmed on appeal unless that determination is clearly erroneous. Lindo v. State, 218 Ga. App. 756, 758 (2) (463 SE2d 148) (1995).

With regard to trial counsel’s alleged failure to interview the witnesses, Wallace’s trial counsel testified that he has worked in the criminal law field for approximately 20 years and was currently in the DeKalb County Public Defender’s Office. He became involved in Wallace’s case in late 1995 and was assisted throughout the case by the public defender who represented Wallace in the April 1995 Fulton County case involving the same victim. Both attorneys spoke with Wallace on several occasions. In addition, the two attorneys had open-file discovery from both the DeKalb and Fulton County District Attorneys’ offices. According to trial counsel’s recollection and his file, he listed four of the six individuals named by Wallace on a list of defense witnesses which he filed. He attempted to contact some of the witnesses prior to trial and spoke with some of the witnesses during the course of the trial. In fact, Wallace’s attorney noted that Wallace “actually had the benefit of two attorneys having investigated the two cases.” We find no deficiency of performance in this regard.

Concerning trial counsel’s failure to call certain individuals as witnesses, trial counsel testified that he did not call any of these witnesses at trial because he did not believe they would be helpful to the case and he did not want to lose closing argument. In addition, he specifically recalled that he determined Wallace’s daughter would not make a good witness. “The determination as to which defense witnesses will be called is a matter of trial strategy and tactics. Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result.” (Citations and punctuation omitted.) Etheridge, supra at 98. In the present case, trial counsel articulated valid reasons for not calling the potential witnesses, and that strategy did not constitute ineffective assistance. Accordingly, the trial court did not err by denying Wallace’s claim of ineffective assistance of counsel.

Decided October 2, 1997.

Virginia W. Tinkler, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Sheila A. Connors, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Senior Appellate Judge Harold R. Banke concur.

       This is a proper procedure under Gregg and is not argued as error by Wallace.

       Before July 1, 1995, OCGA § 16-6-3 defined statutory rape as sexual intercourse with a female under the age of 14. After July 1, 1995, the age was raised to 16. Ga. L. 1995, p. 957, § 3.


text:
    A97A1461.
    VINCENT v. THE STATE.
    (492 SE2d 604)
   McMurray, Presiding Judge.

Defendant Vincent appeals his conviction of the offense of driving under the influence of alcohol (to the extent that it was less safe for the accused to drive). Held:

1. The first enumeration of error maintains that the trial court erred in admitting certain breath test results because the State had failed to comply with defendant’s discovery request for any written scientific reports pursuant to OCGA § 17-16-23. There was conflicting evidence concerning whether the prosecutor had served the intoxilyzer test results upon defense counsel. Nonetheless, there was uncontroverted testimony from the arresting officer that he had provided defendant with a copy of the test results at the time the tests were administered. As defendant had already been provided with a copy of the test results, he was not harmed by any failure by the State to provide the same pursuant to discovery. Starnes v. State, 196 Ga. App. 262 (1) (395 SE2d 603); Johnson v. State, 194 Ga. App. 501 (3) (391 SE2d 132). See also Harmon v. State, 224 Ga. App. 890, 892 (3) (a) (482 SE2d 730).

2. Next, defendant contends that the trial court erred in admitting evidence of an alcosensor test without requiring any foundation to be laid. However, defendant’s objection on the ground of lack of foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal. Gordon v. State, 206 Ga. App. 450, 454 (4) (b) (425 SE2d 906); Newman v. State, 239 Ga. 329, 330 (236 SE2d 673).

3. The trial court did not err in allowing the jury, when watching a videotape of the traffic stop and arrest of defendant, to hear the actual numerical test result obtained from an alcosensor test which was given to defendant’s passenger, whose blood alcohol concentration was not in issue. Ayers v. City of Atlanta, 221 Ga. App. 381, 383 (3) (471 SE2d 240). The jury was allowed to hear that the passenger tested at .13 and that this indicated that she had consumed more alcohol in relation to her body weight than had defendant. However, contrary to defendant’s argument, nothing was stated which characterized the passenger’s result as a “little worse” than defendant’s. Insofar as this evidence related to defendant’s level of blood alcohol concentration, it served only to suggest a ceiling to defendant’s degree of intoxication and therefore was not harmful to him.

4. In his final enumeration of error, defendant contends that the trial court erred in allowing the introduction of the certification, pursuant to OCGA § 40-6-392 (f), of the intoxilyzer upon which his breath was tested without requiring any testimony to establish the veracity of the document. Under OCGA § 40-6-392 (a) (1) (A), the State was required to establish a foundation that the Intoxilyzer 5000 with which defendant’s breath was tested was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order. OCGA § 40-6-392 (f) provides that a certificate in the provided form is self-authenticating, admissible in any court, and satisfies the requirements of OCGA § 40-6-392 (a) (1) (A).

At trial the State tendered into evidence certificates of inspection of the Intoxilyzer 5000 on which defendant’s breath had been tested based on two foundations, their self-authenticating character and also under the business records exception to the hearsay rule. Relying on Miller v. State, 266 Ga. 850 (472 SE2d 74), defendant maintains that the statutory certificates are inadmissible hearsay the admission of which violates the confrontation clauses of the Federal and State Constitutions. However, the issues raised by defendant in this enumeration of error have been decided adversely to him by the Supreme Court of Georgia in Brown v. State, 268 Ga. 76 (485 SE2d 486), holding that a certificate issued pursuant to OCGA § 40-6-392 (f) may be admitted upon proper foundation under the business records exception to the hearsay rule without infringing upon a defendant’s rights under the confrontation clauses of the Federal and State Constitutions.

Judgment affirmed.

Beasley and Smith, JJ, concur.

Decided October 2, 1997

Jerry L. Webb, Jr., for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, William F. Bryant, Assistant Solicitors, for appellee.


author: Blackburn, Judge.

text:
    A97A1735.
    HAGOOD v. THE STATE.
    (492 SE2d 606)
   Blackburn, Judge.

Cleveland Hagood appeals his conviction by a jury of felony possession of a controlled substance. Hagood contends that the trial court erred in allowing hearsay evidence before the jury and that the evidence was insufficient to support his conviction. For the reasons set forth below, we affirm Hagood’s conviction.

At trial, Corporal Jackson with the Savannah Police Department testified that he was in the area of 248 Fellwood in response to a call regarding a group of males and possible drug dealings. Jackson stated that as he pulled up he saw Hagood pull a plastic bag from his right pants pocket and drop it onto the ground. The bag contained 22 rocks of crack cocaine.

1. In his first enumeration of error, Hagood contends that the trial court erred in allowing Jackson to testify as to the unidentified call he received regarding a group of males and possible drug dealings. Hagood contends the evidence was inadmissible hearsay warranting reversal of his conviction.

“Under OCGA § 24-3-2, conversations had in the course of a legal investigation may be admitted as original evidence to explain the conduct of a law enforcement official provided the conduct involves a matter relevant to the issue on trial. . . . Matthews v. State, 194 Ga. App. 386, 387 (2) (390 SE2d 873) (1990). See also Dawson v. State, 205 Ga. App. 394 (2) (422 SE2d 280) (1992). Our Supreme Court has held that the facts and circumstances surrounding a defendant’s arrest are relevant and admissible during the trial of a criminal case. Clements v. State, 226 Ga. 66 (1) (172 SE2d 600) (1970); Ivester v. State, 252 Ga. 333 (2) (313 SE2d 674) (1984). While the statement of the out-of-court declarant would not have been admissible as evidence of [Hagood’s] guilt of the offense charged, it was nevertheless relevant and admissible to establish the events leading to the arrest. . . . Aaron v. State, 203 Ga. App. 658, 659 (1) (418 SE2d 66) (1992). Accordingly, we find no error in the trial court’s admission of this testimony. See also Evans v. State, 201 Ga. App. 20, 26 (4) (410 SE2d 146) (1991).” (Punctuation omitted.) Thompson v. State, 210 Ga. App. 655, 657 (2) (436 SE2d 799) (1993).

Decided October 2, 1997.

William O. Cox, for appellant.

Spencer Lawton, Jr., District Attorney, Ian R. Heap, Jr., Assistant District Attorney, for appellee.

Hagood’s argument that the trial court did not limit the jury’s consideration of the hearsay statement with a jury instruction is without merit in the absence of any request for such an instruction. See Payne v. State, 163 Ga. App. 276, 277 (1) (293 SE2d 483) (1982).

2. In his second enumeration of error, Hagood contends that the evidence was insufficient to support his conviction.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant ... no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) [(1991)]; King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) [(1994)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311) [(1976)]. Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130) [(1995)]. [Furthermore,] [t]he testimony of a single witness is generally sufficient to establish a fact. OCGA § 24-4-8.” (Citations and punctuation omitted.) Grisson v. State, 225 Ga. App. 816, 817-818 (484 SE2d 802) (1997).

In the present case, the arresting officer positively identified Hagood as the person who dropped the plastic bag containing crack cocaine. Although Hagood denied possessing the drugs, the jury resolves conflicts in the evidence and weighs witness credibility. Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Hagood guilty beyond a reasonable doubt of possession of cocaine. See Jackson v. Virginia, supra.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A97A1770.
    EDMOND v. THE STATE.
    (492 SE2d 583)
   Judge Harold R. Banke.

Darrell Edmond was convicted of violation of the Georgia Controlled Substances Act and possession of a drug related object. He enumerates two errors on appeal, challenging the trial court’s failure to charge on actual and constructive possession and the effectiveness of counsel.

This case arose after the arresting officer received reports of a stolen car and an ensuing fight between the complainant and the alleged thief. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). At the scene, the officer encountered Edmond kneeling on the ground with three individuals standing around him. The officer arrested Edmond for auto theft and placed him in the patrol car. He then completed his report and transported Edmond to the county jail. On the way, the officer noticed Edmond moving around. Once Edmond exited the car, the officer searched it and found a crack pipe under the back seat. Subsequent analysis revealed cocaine residue on the pipe. Held:

1. We reject Edmond’s contention that the trial court’s failure to give unrequested charges on actual and constructive possession requires reversal. Generally, OCGA § 5-5-24 (b) imposes a duty upon criminal defendants to request any desired jury instructions. This duty dissipates only “ fin those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt .or innocence.’ [Cit.]” Westfall v. State, 185 Ga. App. 687, 688 (3) (365 SE2d 527) (1988).

Here, the evidence showed that the arresting officer had searched his car prior to coming on duty and Edmond was his first arrest. Further, another officer remained next to the patrol car after Edmond’s apprehension while the arresting officer investigated the incident. Under these circumstances, the unrequested charges were not necessary in order to provide the proper guidelines for the verdict. Sullivan v. State, 204 Ga. App. 274, 276 (2) (418 SE2d 807) (1992); compare Ancrum v. State, 197 Ga. App. 819, 822 (2) (399 SE2d 574) (1990) (reversing for refusal to give requested possession charge where contraband was found under a seat accessible to several defendants).

2. We reject Edmond’s contention that his trial counsel was ineffective for allowing the admission of his booking photograph. The photograph was admitted to discredit any argument that Edmond had rolled around in the back seat due to injuries. See O’Toole v. State, 258 Ga. 614, 615-616 (2) (373 SE2d 12) (1988). Because the record shows that the jury was told the photograph was taken the night of Edmond’s arrest, the photograph’s admission did not suggest that Edmond was guilty of any previous crime or otherwise inflame the jury. Blige v. State, 208 Ga. App. 851, 853 (4) (432 SE2d 574) (1993); Farmer v. State, 180 Ga. App. 720, 721 (2) (350 SE2d 583) (1986).

Decided October 2, 1997.

Danny W. Crabbe, for appellant.

Tambra P. Colston, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

We likewise reject Edmond’s claims that the failure to request jury charges on equal access, possession and constructive possession constituted ineffectiveness. Because the evidence did not support the equal access charge, counsel was not deficient in failing to request it. As to the possession instructions, we held in Division 1 that the failure to give the charges, even if requested, would not have constituted reversible error. In the absence of a deficiency, Edmond cannot establish ineffectiveness. 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).

Judgment affirmed.

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


author: Pope, Presiding Judge.

text:
    A97A1798.
    LOCKLIN v. THE STATE.
    (492 SE2d 712)
   Pope, Presiding Judge.

A Fulton County jury convicted Vernico Locklin of robbery by force. We find the evidence sufficient but must reverse the conviction because Locklin was not present during a recharge the trial court gave in response to the jury’s question.

1. We apply the principles set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to Locklin’s challenges to the sufficiency of the evidence. Construed in favor of the verdict, the evidence showed Locklin, a cook at a fast-food restaurant, told the cashier he planned to take money from the cash register. The cashier, a small woman, was in charge of the register and was personally responsible for any money missing from it. When she expressed surprise at Locklin’s plans, the much larger Locklin grabbed her arm, moved her out of the way, took money from the register, and left the store. Locklin admitted taking the money from the register but denied using force against the cashier.

(a) Locklin first claims the State failed to prove the allegations of the indictment that he forcibly took money “from the person and immediate presence” of the cashier. This claim has no merit. OCGA § 16-8-40 (a) (1) allows the State to prove robbery by force upon a showing that the defendant, “with intent to commit theft, . . . [took] property of another from the person or the immediate presence of another . . . [b]y use of force.” (Emphasis supplied.) When an indictment alleges that a crime was committed in more than one of the separate ways specified by the statute, the State need only prove the rime was committed in one of those separate ways. Stander v. State, 226 Ga. App. 495, 497 (1) (486 SE2d 712) (1997); see also Hathcock v. State, 214 Ga. App. 188, 190 (4) (447 SE2d 104) (1994). The evidence presented allowed the jury to find, beyond a reasonable doubt, that Locklin took the cash from the register in the cashier’s immediate presence.

(b) Locklin also contends the evidence does not support a finding that he used force against the cashier. In support of his argument, he cites the cashier’s testimony that she did not resist him or try to prevent him from taking the money. But “[i]t is not necessary to show a suggestion of force or violence on the part of a person robbed. . . . The force which differentiates robbery from [theft by taking] is the force employed by the criminal. . . .” Merritt v. State, 139 Ga. App. 171, 172 (1) (228 SE2d 149) (1976). Here, the jury could conclude beyond a reasonable doubt that Locklin used sufficient physical force to move the victim out of his way and to allow him to enter the cash register. The State’s evidence was sufficient to support the verdict. See Lockett v. State, 147 Ga. App. 102 (1) (248 SE2d 177) (1978) (defendant forcibly took money from victim’s hand and pushed her away from cash register, from which he took additional money); Merritt, 139 Ga. App. at 172 (2) (defendant exerted enough force to stop pedestrian victim and spin him around).

2. Locklin seeks a new trial because he was not present when the trial court recharged the jury in response to a question regarding the robbery statute’s “force” requirement. Under the circumstances of this case, we are constrained to agree with Locklin’s argument. “The rule is well established in this state, that the defendant on trial must be present when the court takes any action materially affecting his case.” (Citation and punctuation omitted.) Collins v. State, 191 Ga. App. 289, 290 (2) (381 SE2d 430) (1989). This Court has held that recharges and colloquies between the court and jury are such “critical” portions of the trial. Id. at 290-291 (recharge); Seay v. State, 111 Ga. App. 22, 25 (3) (140 SE2d 283) (1965) (colloquy). Here, the recharge contained substantive additional instructions not included in the court’s original charge. Compare Scott v. State, 219 Ga. App. 798, 799 (2) (466 SE2d 678) (1996), finding no error where the court responded to jurors’ questions in defendant’s absence but gave jurors no substantive information. The record shows Locklin was not present during the recharge. Compare Hollis v. State, 201 Ga. App. 224 (1) (411 SE2d 48) (1991), in which the record did not establish the defendant’s absence. Although Locklin’s counsel was present during the recharge and did not object to his client’s absence until after the jury rendered its verdict, “[a] defendant’s right to be present during all phases of the trial is guaranteed by our [state] constitution and counsel’s ability to waive it is limited. . . . [S]uch right can be waived where done so by his attorney in the defendant’s presence, by the defendant’s express authority, or by subsequent acquiesence of the defendant.” (Citation and punctuation omitted.) Stewart v. State, 210 Ga. App. 474 (1) (436 SE2d 679) (1993). See Ga. Const. 1983, Art. I, Sec. I, Par. XII. Nothing in the record shows Locklin acquiesced in the waiver or gave his attorney permission to waive his presence. Compare Parker v. State, 220 Ga. App. 303, 311-312 (12) (469 SE2d 410) (1996), in which the record established that counsel told the defendant of proceedings which occurred in his absence, and the defendant’s failure to object at that time allowed this Court to find the defendant acquiesced in the waiver. Therefore, despite the attorney’s failure to raise this issue until after the jury returned its verdict, we must reverse the conviction. See Goodroe v. State, 224 Ga. App. 378, 380-381 (1) (480 SE2d 378) (1997); Seay, 111 Ga. App. at 25.

Decided October 2, 1997.

John R. Mayer, for appellant.

Paul L. Howard, Jr., District Attorney, Juliette O. W. Scales, Assistant District Attorney, for appellee.

3. Our disposition of this case makes it unnecessary to review Locklin’s remaining enumerations.

Judgment reversed.

Johnson and Blackburn, JJ., concur.


author: Birdsong, Presiding Judge. Eldridge, Judge,

text:
    A97A1809.
    WILLIAMS v. THE STATE.
    (492 SE2d 708)
   Birdsong, Presiding Judge.

Following a bench trial in the State Court of Troup County, Walter Lee Williams was convicted of misdemeanor obstruction of a police officer. Appellant challenges the sufficiency of the evidence to support his conviction.

The evidence of record shows inter alia that at 1:00 a.m. on October 18, 1996, LaGrange Police Officer J. Bradshaw responded to an emergency 911 call reporting a simple battery. Over the telephone, the victim provided the location of the offense and a description of the perpetrator. One block from the incident location, the officer spotted appellant standing with a group of men, who were all conversing loudly; appellant closely fit the description given by the victim. Bradshaw stopped his patrol vehicle, exited, and called appellant away from the group in order to talk to him about the simple battery; the appellant went to the officer’s patrol car as directed but only after engaging in boisterous conduct toward the officer. Appellant’s speech was slurred, he was unsteady on his feet, and a strong smell of alcohol emanated from his person. When the officer noticed that appellant was intoxicated, he arrested appellant for public drunk. Appellant attempted to walk away. Officer Bradshaw reached out to stop him, and appellant put his fists up in a threatening manner, shouting, “I’m not going to stop, spray me, spray me, spray me.” The officer utilized his pepper spray. The officer and the appellant wrestled, and after a backup patrol unit arrived, appellant was also charged with obstruction.

During the bench trial, the trial court granted a directed verdict as to the offense of public drunkenness based upon the State’s failure to introduce a local ordinance proving the offense. See, e.g., Mayor &c. of Savannah v. TWA, Inc., 233 Ga. 885, 887 (214 SE2d 370). Appellant was convicted of misdemeanor obstruction.

Appellant contends that his arrest for public drunk was without probable cause and was thus unlawful; appellant posits that since his arrest was unlawful, he had a right to resist it by shouting at the . officer and attempting to walk away; therefore, appellant argues, the evidence was insufficient to support his conviction for obstruction. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737).

2. Appellant was charged, by accusation, with the offense of misdemeanor obstruction; the charge pertinently averred that appellant did “unlawfully hinder Officer Bradshaw [the arresting officer] by shouting at the officer and walked away from Officer Bradshaw] contrary to the laws of said State, the peace, good order, and dignity thereof.” To sustain appellant’s conviction of misdemeanor obstruction, the State was required to prove as an essential element of the offense that the obstruction occurred while the officer was in the lawful discharge of his official duties. Woodward v. State, 219 Ga. App. 329, 330 (1) (465 SE2d 511). “An essential element of the offense of obstruction of an officer is that the State prove beyond a reasonable doubt that the obstruction occurred while the officer was in the lawful discharge of his official duties. A police officer is not discharging his lawful duty when he arrests an individual without reasonable or probable cause. If there is probable cause to believe a person committed a crime, if a crime is committed in the officer’s presence or within his knowledge, or if there is a likely failure of justice, an arrest without a warrant is authorized; otherwise it is not.” (Citations, punctuation and emphasis omitted.) Id.

The State failed to prove that appellant had committed the crime of public drunkenness in violation of a municipal ordinance, as the existence and elements of the ordinance were not proved. Compare Woodward, supra at 331. However, the evidence of record is legally sufficient to establish that, prior to his arrest, appellant had committed the offense of public drunkenness in the arresting officer’s presence in violation of OCGA § 16-11-41. Such public drunkenness would provide the officer with legitimate grounds lawfully to arrest appellant. OCGA § 17-4-20 (a).

OCGA § 16-11-41 (a) pertinently provides: “A person who shall be and appear in an intoxicated condition in any public place . . . , which condition is made manifest by boisterousness, by indecent condition or act, or by vulgar, profane, loud, or unbecoming language, is guilty of a misdemeanor.” (Emphasis supplied.) This Court has held that being loud and boisterous in addition to being drunk in public prior to arrest is sufficient probable cause for a warrantless arrest. Young v. State, 155 Ga. App. 598, 599 (2) (271 SE2d 731) (mad tone of voice; not shouting but loud enough so anyone in the parking lot could have heard her if they had listened). The arresting officer testified that he determined appellant was intoxicated from his manner of walking, slurred speech, and the strong smell of an alcoholic beverage emanating from his person. Prior to his arrest, appellant created a disturbance when he was temporarily detained (that is, when he was initially stopped) so he could be questioned about the simple battery by becoming “loud and boisterous, stating that he was not going to stop and attempted to walk away from [the arresting officer].” Although, the arresting officer also initially made a broad statement on direct examination that he placed appellant under arrest for public drunk to hold him at the scene and “that’s when he became loud and boisterous and combative,” he thereafter clarified what had occurred prior to appellant’s arrest during the following cross-examination colloquy: “[Appellant’s counsel] At the time you initially saw him was he loud and boisterous at the time when you first saw him? [Arresting Officer] Yes. He was walking . . . with a group of other . . . males and they were — he was loud, yes, some of the others were doing the same thing, but he was loud and just talking very loud. [Counsel] What was he saying in a boisterous manner. . . ? [Officer] Boisterously, he was just talking with the other men loudly. [Counsel] Then you’re saying to me that by talking loud he was being boisterous? [Officer] No. What I meant he was boisterous to me when I told him to come over to the vehicle so I could stop and interview him as a possible suspect. [Counsel] So then it’s true then at the time you initially saw him before you ever had him come to you, he was not violating the law, was he? [Officer] Not at that time.” (Emphasis supplied.)

This testimony, when viewed sequentially in a light most favorable to supporting a verdict, establishes that the arresting officer observed appellant, who appeared to match the I.D. of the battery suspect who had been described by the 911 caller with a group of men and that appellant and a few others were talking very loudly; appellant was then told to come over to the officer’s vehicle (which would have resulted in appellant’s temporary detention based on the officer’s articulable suspicion); appellant at this point in time, however, became loud and boisterous and directed remarks toward the officer, stating that he was not going to stop and walking away; the officer then attempted lawfully to arrest appellant for public drunkenness and the appellant engaged in the obstruction of the officer who was in the lawful discharge of his official duties. Thus, a review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Suffice it to re-emphasize that cardinal appellate principle, applicable in the review of all criminal cases, that “[o]n appeal the evidence must be viewed in a light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” Grant v. State, supra at 464. All that is required for an officer to make a lawful warrantless arrest is for him to have the requisite probable cause. Thus, if at the time of arrest the officer had a reasonable belief that the person he was arresting had committed a crime in his presence or within his knowledge, the officer would have probable cause for the arrest. Woodward, supra. The fact that the trial court granted a directed verdict of acquittal as to the charge of public drunk is immaterial to a probable cause analysis; an arrest may still be lawful even though an accused may subsequently be found not guilty of the charge for which he was arrested. Brooks v. State, 166 Ga. App. 704, 706 (305 SE2d 436). Moreover, the inconsistent verdict rule does not apply in criminal cases in this state. Milam v. State, 255 Ga. 560 (2) (341 SE2d 216). (Incidentally, the trial court also denied the motion for a directed verdict of acquittal as to the obstruction of an officer charge.) In concluding that the evidence in this case was sufficient, we have considered the totality of the officer’s testimony. There exists ample evidence from which a rational trier of fact (the trial judge in this bench trial) could conclude that the officer had probable cause to arrest appellant for being drunk in public and to find beyond a reasonable doubt that appellant was guilty of misdemeanor obstruction. The analysis of the dissent notwithstanding, this Court declines to weigh the relevant evidence of record or to determine witness credibility, as that is not the function of this appellate body. Rather, we have examined the record to determine whether the evidence was sufficient, within the standard of Jackson v. Virginia, supra, to support the verdict of guilty and conclude that it was when it is viewed, as this Court is required by law to do, in the light most favorable to support the verdict of the trier of fact.

Judgment affirmed.

Andrews, C. J, Pope, P. J., Johnson, Blackburn and Ruffin, JJ, concur. Eldridge, J., dissents.

Eldridge, Judge,

dissenting.

The majority’s analysis regarding probable cause to arrest appellant for public drunk is irrelevant because resisting arrest for public drunk was not the basis upon which the trial court found appellant guilty of obstruction. In fact, the trial court never arrived at the conclusion fashioned solely by the majority in upholding appellant’s conviction for misdemeanor obstruction.

At trial the prosecutor conceded, “I think he’s entitled to a directed verdict as to the public drunk charge because the officer did testify that he didn’t see any of the behavior that would be the foundation for an arrest on a public drunk charge.” The police officer’s testimony and the failure to prove the municipal ordinance forced the State to concede that probable cause to arrest appellant for public drunk did not exist.

Rather than lose on the obstruction charge, however, the prosecution changed its tactics and argued that the basis for the obstruction was not the public drunk arrest, but was appellant’s failure to cooperate with the police investigation of the 911 call: “I don’t think you can distinguish and say, well, because he didn’t have probable cause to arrest him for public drunk, he therefore didn’t have probable cause to arrest him for obstruction. This case is not four squares on point with the case that Mr. Patterson [defense] is citing and in fact Officer Bradshaw had every right, not just right, obligation to detain Mr. Williams and talk to him long enough to find out what was going on whether or not, in fact, there was a basis for looking into him as a suspect on the simple battery call that he was responding to.” The prosecutor argued to the court that the obstruction charge arose “not because he was resisting a public drunk arrest. . . as I’ve pointed out Officer Bradshaw had other good and valid and legal grounds to detain and question Mr. Williams ... he was attempting to detain this individual and discuss a 911 call that he’d been dispatched to, he broke away from him, he raised his fist in an aggressive manner, he had to be physically restrained by two police officers in order to effect an arrest and that’s clearly obstruction.”

The trial court agreed with this revised basis for the obstruction charge: “I’m going to find the defendant guilty of the obstruction of an officer along the lines of the argument that Mr. Kirby [prosecutor] just made in closing.”

Despite the State’s concession that the officer did not have probable cause to arrest appellant for public drunk, and despite the trial court’s finding that the obstruction arose not from appellant’s arrest on public drunk, but from his refusal to be detained for police questioning, the majority decides herein that, “There exists ample evidence from which a rational trier of fact (the trial judge in this bench trial) could conclude that the officer had probable cause to arrest appellant for being drunk in public and to find beyond a reasonable doubt that appellant was guilty of misdemeanor obstruction.” Since the rational trier of fact never reached such a conclusion, the majority’s analysis is immaterial to the sufficiency of the evidence issue raised by appellant.

This is not a “throw away” case. A misdemeanor criminal conviction is entitled to the same sufficiency of the evidence analysis afforded to a more “serious” offense or to a civil dispute. In conducting such analysis, it must be. recognized at the outset that the evidentiary basis for a jury verdict is usually unknown to this Court; thus, if there is some evidence of record sufficient to support the verdict, we will affirm it. Myers v. State, 184 Ga. App. 618, 619 (362 SE2d 92) (1987). Herein, however, this Court is privy to the basis upon which the trier of fact found appellant guilty of obstruction and must search for some evidence of record to support the trial court’s ruling in order to affirm the verdict based thereon. We are not free to substitute our analysis of the evidence for the trier of fact’s conclusions.

Decided October 2, 1997.

Jackie G. Patterson, Yasma Patterson, for appellant.

Louis J. Kirby, Solicitor, for appellee.

In this case, the accusation charged appellant with obstruction of an officer in that appellant “shout[ed] at the officer and walked away.” At trial, the only witness to the obstruction offense, Officer Bradshaw, testified that the conduct which gave rise to the obstruction as alleged in the accusation occurred when appellant resisted arrest for public drunk. The majority has determined from this evidence that the conduct which comprised the obstruction offense occurred when appellant resisted a “lawful” arrest for public drunk. The evidence of record precludes the trial court’s conclusion that the conduct alleged in the accusation occurred as a result of appellant’s refusal to be “detained” for police questioning; detained? According to the officer, appellant was already under arrest for public drunk when the conduct giving rise to the obstruction charge occurred. Accordingly, there is insufficient evidence for a rational trier of fact to find appellant guilty of obstruction beyond a reasonable doubt on the grounds expressed by the trier of fact.

Although appellant’s conviction may be for only a misdemeanor, and although the prosecutor’s failure to introduce the ordinance may benefit a possibly “undeserving” defendant, this Court’s responsibil-' ity to conduct a fair analysis of the sufficiency of the evidence in all-cases obligates me to dissent.

       The State'did not bother to file a brief in this case.

       The testimony of the police officer on direct examination was clear: “I was attempting to — at first he was a suspect for the simple battery and then I noticed he was drunk, so I placed him under arrest and told him he was under arrest for public drunk to hold him at the scene, that’s when he became loud and boisterous and combative.” The requisite element of “boisterous” conduct necessary to support an arrest for the offense of public drunk under OCGA § 16-11-41 did not occur until after the officer had already arrested appellant for public drunk, presumably under the municipal ordinance which did not require the additional manifestation of boisterous conduct. See, e.g., Goldstein v. City of Atlanta, 141 Ga. App. 701 (234 SE2d 344) (1977). Even the prosecutor recognized that all of the evidence of “boisterousness” cited by the majority occurred after the arrest and was in reaction thereto, and that the State’s failure to introduce the municipal ordinance at trial proved fatal to the establishment of probable cause to arrest for public drunk. Woodward v. State, 219 Ga. App. 329 (465 SE2d 511) (1995). That is why the prosecutor, and thus the trial court, abandoned the issue.

       “[Q:] The basis of the obstruction of an officer charge is what? [A:] When I physically-put my hands on him to stop him from leaving the crime scene and then placing him under arrest for public drunk, he pulled away, shook his fist[.] [Q:] Officer, you’ve stated that you had already arrested him for public drunk before you charged him with obstruction, is that correct? [A:] This is true. [Q:] And you testified that the basis of the obstruction charge was because you arrested him for public drunk and he refused to stop walking away from you, is that correct? [A:] That, and lifted his hand in a threatening manner, yes. [Q:] [Y]ou charged him with obstruction after you arrested him for public drunk? [A:] This is true.”