author: Phipps, Judge.

text:
    A00A1468.
    FOWLER v. THE STATE.
    (538 SE2d 869)
   Phipps, Judge.

David Fowler appeals his conviction of theft by taking on the ground that the evidence was insufficient to prove his guilt beyond a reasonable doubt. We find that there was sufficient evidence and affirm.

Viewed in the light most favorable to the verdict, the evidence authorized the jury to find as follows. On the evening of March 20, 1998, Fowler approached William Gordon at a RaceTrac gas station. Fowler told Gordon that his wife had just divorced him, that she had taken everything, and that he needed some help. Gordon agreed to give him a ride and to let him stay at his home for a few days. On the morning of March 22, Gordon found that Fowler was gone and that his car was missing from his garage, which was accessible only from inside his house because the garage door was closed. Gordon reported the missing car to the Whitfield County Sheriff’s Office. He provided a description of the car, the vehicle identification number, and paperwork Fowler had left behind containing personal information. The sheriff’s office filed a report with the National Crime Information Center, declaring Gordon’s car stolen.

On March 26 around midnight, Officer David Wade of the Garland, Texas, Police Department noticed Gordon’s car in a motel parking lot because it did not have a front license plate as required in Texas. Upon further investigation, Wade found that the car had no tags on it. The car was parked in front of Room 8 at the motel. The motel manager told Wade that a man had rented the room under the name Charley Henry. Wade went to Room 8, and Fowler answered the door. Fowler told Wade that the car belonged to a friend; however, he would not say where the friend was. When asked for identification, Fowler showed Wade a temporary Texas driver’s license in the name Charley Alexander Henry.

Wade called in the VIN to his dispatcher and learned that the car had been stolen in Whitfield County, Georgia. He placed Fowler under arrest. Inside the car, Wade found a birth certificate in the name Charles A. Henry, Fowler’s picture identification, and a photograph of Fowler. He also found property belonging to Gordon in the car and in the motel room.

Decided September 6, 2000.

Jerry W Moncus, for appellant.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

Fowler asserts that the evidence was insufficient to prove beyond a reasonable doubt that he stole Gordon’s car. When determining whether there is sufficient evidence to support a conviction, we do not weigh or evaluate the evidence or resolve conflicts concerning the evidence. Instead, we determine if a rational trier of fact could have found the accused guilty beyond a reasonable doubt.

Based upon the above-stated facts, we find that a reasonable jury could have found that Fowler stole Gordon’s car. To the extent that the evidence was circumstantial, it excluded every reasonable hypothesis except the guilt of the accused. Accordingly, the conviction is affirmed.

Judgment affirmed.

Johnson, C. J., and Smith, P. J, concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       Gordon had purchased the car approximately five days before it was stolen.

        Walton v. State, 242 Ga. App. 639, 641 (2) (530 SE2d 531) (2000).

       Id.

       See generally OCGA § 24-4-6.


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A00A1754.
    POWELL v. THE STATE.
    (538 SE2d 857)
   Smith, Presiding Judge.

We granted the application of Eric Demetrius Powell for interlocutory review after denial of his motion to suppress. In this appeal, we are called upon to consider the scope of the search allowed by OCGA § 17-5-1 (a), authorizing a search incident to arrest. After review of the relevant law and the facts established at the hearing on Powell’s motion to suppress, we conclude that the arresting officers’ search of the bedroom in which Powell was arrested was reasonable under the circumstances presented here. We therefore affirm the trial court’s denial of the motion to suppress.

As a result of testimony that Powell and another man, Sims, had made terroristic threats while attempting to obtain firearms from a third man, an officer of the Moultrie Police Department obtained arrest warrants for both Powell and Sims. The officers entered premises where Powell and Sims were sharing a bedroom. When the police entered the bedroom, they found Powell, Sims, and an unidentified woman occupying the room. While Powell and Sims were cooperative and did not offer any resistance, other occupants of the house became “pretty irate, yelling and screaming.”

Powell and Sims were arrested, and the officers testified that they searched the room “for our safety,” “to be sure that there were no weapons or any other people, someone hiding or anything like that.” The other officer agreed that “there was a closet in the room that anybody could have been hiding in. And for our safety the room was searched.” According to one officer, he was in the process of searching the room as Powell and Sims were taken downstairs. The officers looked under the bed, through the dressers, and in a closet. They searched only the room where the men were arrested and did not search any other portion of the house. They did not find any other persons hidden in the room, but one of the officers discovered a rifle on a shelf in the bedroom closet. He could not recall whether the closet door was open or closed, but stated, “I believe it was closed but I’m not sure.” The rifle proved to be stolen, and this prosecution for theft by receiving stolen property followed.

A police officer may search both a person arrested and the area within that person’s “immediate presence” for the purpose of protecting the officer from attack, preventing the person’s escape, or discovering fruits of the crime for which the person is arrested or items which might have been used in that crime. OCGA § 17-5-1.

Powell contends the officers’ search exceeded the scope of a search incident to arrest under OCGA § 17-5-1. He argues that the police had no authority to search the room once he and Sims were arrested and removed and that no “protective sweep” was authorized because the police had no reason to believe that anyone else was hiding in the room. We disagree.

Powell relies on our recent decision in Brannon v. State, 231 Ga. App. 847 (500 SE2d 597) (1998), but the facts of this case distinguish it from Brannon. First of all, Brannon involved the purely administrative task of serving an out-of-county bench warrant on a charge unrelated to drugs that were found during the search incident to arrest. In contrast, the officers involved in Powell’s arrest were investigating the underlying case, and one of them obtained the warrant. Moreover, the underlying crime involved threatening a person in an attempt to obtain firearms. Police concerns that Powell and Sims had succeeded in arming themselves by some other means therefore would have had some validity. These concerns would justify a search of their bedroom for weapons and any accomplices or other persons who might pose a danger to the officers, particularly since at least one other person was found in the room at the time of their arrest and others, who were angry and screamed at the officers, were present in the house.

Brannon forbids a search of the closets and drawers in a bedroom only “when the arrest occurred in the kitchen. [Cit.]” Id. at 851. Brannon also excepts from its scope a search of closets or drawers “necessary as part of a protective sweep of a residence for additional persons so as to ensure an officer’s safety.” Id. at 851, n. 4.

The facts of this case more closely resemble those in State v. Camp, 175 Ga. App. 591 (333 SE2d 896) (1985), a decision distinguished by Brannon, supra at 849. We first note that Camp involved a warrantless arrest occurring after a drug sale to an undercover police officer. While in this case no crime was committed immediately before the arrest, the officers were proceeding under an arrest warrant and were equally authorized to “secure” the area by “discovering the presence of all occupants and eliminating the possibility of harm to the officers and the destruction of evidence.” (Citations and punctuation omitted.) Camp, supra at 594 (2). This was true even though the defendants were removed from the site of the arrest before the search began. Id. at 592.

Also, in Brannon, supra, the police officers’ ongoing investigation provided “no reason to believe” that items or persons directly related to the underlying investigation were concealed in the room. Id. at 849. The same is not true here. The officers testified to a concern for their safety, and the underlying investigation involved terroristic threats and firearms. We therefore cannot say as a matter of law that it was unreasonable for the officers to be concerned that items or persons involving these charges may have been concealed in the room and that they might pose a danger to the officers. This testimony would support not only a finding that the search was for the purpose of protecting the officers from attack under OCGA § 17-5-1 (a) (1), but also for the purpose of “[discovering or seizing any instruments, articles, or things which are being used or which may have been used in the commission of the crime for which the person has been arrested.” OCGA § 17-5-1 (a) (4). These factual findings were a matter for determination by the trial court, after weighing the credibility of the witnesses and their testimony.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

Decided September 6, 2000.

Allen & Forehand, Jon V. Forehand, for appellant.

J. David Miller, District Attorney, Andrew W. Pope, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Daniels v. State, 222 Ga. App. 29, 31 (3) (473 SE2d 239) (1996).

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


author: Andrews, Presiding Judge.

text:
    A00A0937.
    YOUNG v. THE STATE.
    (538 SE2d 487)
   Andrews, Presiding Judge.

Clifford Edward Young appeals from denial of his motion for new trial following his conviction by a jury of aggravated assault and simple battery against Marylou Young, his wife. Young was acquitted by the jury of false imprisonment.

Young contends that he did not knowingly and voluntarily choose to represent himself; that he never validly waived his right to seek appointed counsel; and that, if he was not indigent, the trial court erred in failing to specifically delineate the role of standby counsel prior to trial, thereby violating Young’s right to represent himself and his right to counsel.

Young was arrested on a warrant in September 1997. On September 17, 1997, he filed his Affidavit for Indigent Assistance but was found financially ineligible. With the assistance of retained counsel obtained with a loan from his parents, Young posted an appearance bond on October 3, 1997. After indictment on December 3, 1997, Young, with a number of other defendants awaiting trial, appeared before the court on June 15, 1998.

The court addressed them and delineated their responsibilities if they desired appointed counsel or if they were attempting to retain private counsel. After advising the group that their cases would appear on trial calendars scheduled for July 6 or 13 or August 10 or 31, 1998, the court advised them to make arrangements for retained counsel or to begin keeping written records regarding their income, expenses, and unsuccessful attempts to retain counsel if they wished to be considered for appointed counsel.

Young’s case appeared on the August 10 calendar and was called for trial on August 13. The court inquired if Young intended to represent himself, and Young stated, “I just — I couldn’t afford a lawyer at the time.” Young acknowledged that, although he had been advised by the court of the steps he needed to take to be considered for appointed counsel, he had not brought copies of any job applications, lists of income and expenses, or notes regarding attempts to hire counsel. Attorney Willis, who was present in the courtroom, was directed by the court to sit with Young to instruct him and advise him during the trial, and the court stated that both Willis and Young would be allowed to participate in the case. In fact, except for Young making his own opening statement in which he denied the allegations, Willis conducted the remainder of the trial.

1. Young first asserts that he did not knowingly and voluntarily choose to represent himself, as required by Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975) and Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) (1981).

These cases, however, are not dispositive. Here, Young did not, in fact, represent himself, but was provided and took advantage of the services of attorney Willis, although the court specifically allowed both Young and Willis to participate in the proceedings.

Further, an accused may be required to represent himself if his failure to obtain counsel is attributable to his own lack of diligence which amounts to a waiver of counsel. McQueen v. State, 240 Ga. App. 15 (522 SE2d 512) (1999); Smith v. State, 231 Ga. App. 68 (1) (498 SE2d 561) (1998), overruled on other grounds, Mullins v. State, 270 Ga. 450 (511 SE2d 165) (1999); Flanagan v. State, 218 Ga. App. 598 (462 SE2d 469) (1995). A trial court’s decision on this issue is subject to reversal only for manifest abuse of discretion. McQueen, supra at 17. Here, unlike in Flanagan, relied upon by Young, and pretermitting the fact that Young had the benefit of counsel at trial, the trial court did make a determination that Young had failed to use diligence in obtaining counsel and there was no manifest abuse of discretion shown. Compare Hasty v. State, 210 Ga. App. 722, 723 (1) (437 SE2d 638) (1993).

2. Young’s second enumeration, that he never validly waived his right to seek appointed counsel, is rendered moot by the fact that Young was provided with counsel who conducted all phases of the trial except the opening argument.

Also, Young has failed to show any harm as a result of any such error, especially in light of the fact that he was acquitted on one charge. Here, as in Brooks v. State, 243 Ga. App. 246, 250 (1) (b) (532 SE2d 763) (2000), the evidence consisted of the testimony of Marylou Young and officers who responded to the incidents. These officers were able to contribute only what they were told by the victim and their observations of her physical condition, including her inebriation, which was used by trial counsel in Young’s defense.

Decided August 18, 2000

Reconsideration denied September 7, 2000

Whitmer & Law, George H. Law III, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

There is no reasonable possibility that error, if one, contributed to the conviction. Brooks, supra at 252.

3. As to Young’s argument that the trial court failed to properly delineate the role of standby counsel, this is not a situation where an accused unequivocally demanded self-representation and was appointed standby counsel over his objections, as in Potts v. State, 259 Ga. 812, 815 (4) (388 SE2d 678) (1990) and Merritt v. State, 222 Ga. App. 623 (475 SE2d 684) (1996), relied on by Young. Instead, Young accepted the services of Willis and allowed him to conduct all of the proceedings .except the opening argument. Given the opportunity to supplement Willis’ questioning of witnesses and his closing argument, Young declined.

Again, even assuming error, no harm has been shown, and the trial court did not err in denying Young’s motion for new trial on these grounds. Brooks, supra; see McDowell v. State, 239 Ga. App. 667, 669 (1) (522 SE2d 44) (1999).

Judgment affirmed.

Ellington, J., concurs. Ruffin, J., concurs in judgment only.

       The two had a marriage license, but Marylou Young testified that Young had a previous undissolved marriage.


text:
    A00A0988.
    PRUITT v. THE STATE.
    (538 SE2d 874)
   Phipps, Judge.

Randall Pruitt was charged by accusation with theft by taking a motor vehicle and theft by taking jewelry worth over $500, both felonies. He was convicted on both counts, but the jury found that the jewelry was worth less than $500, which reduced that count to a misdemeanor. On appeal, Pruitt argues that (1) he was improperly charged by felony accusation instead of by indictment, (2) the evidence was insufficient to support his conviction for theft of a motor vehicle because the State failed to prove venue beyond a reasonable doubt, and (3) there was a fatal variance between the accusation and the proof at trial regarding venue. Because we find that the State had authority to proceed to trial on the accusation and that venue was properly proven, we affirm.

In August 1997, Pruitt began subletting an apartment leased to David Vogelpohl, who was incarcerated at the time. Vogelpohl owned a 1991 pickup truck, which he left with his girlfriend. When their relationship ended, Vogelpohl asked her to take the truck to his apartment, where Pruitt was living, and leave it there. When she delivered the truck, she instructed Pruitt not to drive it because it was not insured.

Subsequently, Neal Armstrong moved into the apartment with Pruitt. Armstrong wrecked Pruitt’s car one night. After that, Pruitt obtained liability insurance on Vogelpohl’s truck and began driving it. Pruitt drove Armstrong in Vogelpohl’s truck to a pawnshop twice and helped him pawn gold necklaces. Pruitt claims that he later discovered that the necklaces probably belonged to Vogelpohl. Vogelpohl testified that he last saw his necklaces at his apartment in June 1997. The pawnshop receipts, which bore Pruitt’s signature, described necklaces similar to the ones Vogelpohl owned.

On February 16, 1998, Pruitt was driving Vogelpohl’s truck in Gwinnett County and was involved in a one-vehicle accident. Contrary to Pruitt’s claim, Vogelpohl testified that he had not given Pruitt permission to drive his truck.

The State brought charges by felony accusation against Pruitt for theft of Vogelpohl’s truck and jewelry. Pruitt subsequently moved for either indictment or dismissal of the charges. Before trial, the judge determined that Pruitt could be tried on the accusation. Based on the jury’s verdict, the judge imposed a felony sentence for the motor vehicle theft and a misdemeanor sentence for the jewelry theft. Pruitt’s motion for new trial was denied, and he appeals.

1. Pursuant to OCGA § 17-7-70.1, the district attorney has the authority to prefer accusations in felony cases involving violations of certain Code sections, including OCGA § 16-8-2 (theft by taking), in which defendants have either been bound over to the superior court or have expressly waived a commitment hearing. Pruitt waived his right to a commitment hearing when he posted bond. Therefore, the State was authorized to proceed to trial on the accusation despite Pruitt’s objection.

Pruitt argues that the trial court should have conducted a hearing to determine the applicability of OCGA § 17-7-70.1. Relying on Chadwick v. State, he also argues that the trial court’s failure to make that determination meant that he could be convicted only of a misdemeanor. We find no merit in either argument.

Decided September 7, 2000.

Leo E. Benton, Jr., for appellant.

The trial court properly found that OCGA § 17-7-70.1 was applicable to Pruitt’s felony case. Pruitt’s reliance on Chadwick is misplaced because it involved a felony not listed in OCGA § 17-7-70.1, for which an accusation could not be brought without the assent of the accused. Based on the jury’s verdict, the trial court properly sentenced Pruitt as a felon.

2. Pruitt contends the evidence was insufficient to support his conviction for theft of a motor vehicle because the State failed to prove venue in Hall County beyond a reasonable doubt. He claims that the only evidence of his wrongful appropriation of Vogelpohl’s truck was the wreck in Gwinnett County and that his possession of the truck in Hall County was lawful.

To determine venue in a prosecution for theft by taking a motor vehicle, “the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.” Pruitt testified that he lived in Vogelpohl’s Hall County apartment and that he obtained insurance on Vogelpohl’s truck in Hall County. Pruitt also testified that he had driven Vogelpohl’s truck to a pawnshop about three miles from the apartment to help Armstrong pawn the jewelry. Before Pruitt began driving the truck, it was parked outside the apartment in Hall County. Pruitt clearly exercised control over the truck in Hall County when he drove it away from the apartment.

3. Pruitt claims there is a fatal variance between the accusation and the proof at trial regarding venue of the charge for theft of a motor vehicle. Given our determination that venue in Hall County was properly proven, no such variance exists.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

Lydia J. Sartain, District Attorney, Jason J. Deal, Assistant District Attorney, for appellee.

        Lynn v. State, 236 Ga. App. 600, 601 (1) (512 SE2d 695) (1999).

       See McNair v. State, 240 Ga. App. 324 (1) (523 SE2d 392) (1999).

       236 Ga. App. 199, 202 (3) (511 SE2d 286) (1999).

       See Hood v. State, 223 Ga. App. 573 (479 SE2d 400) (1996) (trial court not required to sentence defendant for a misdemeanor simply because the State used an accusation instead of an indictment).

       OCGA § 16-8-11; Parrott v. State, 190 Ga. App. 784, 786 (4) (380 SE2d 343) (1989).


text:
    A00A1000.
    GREY et al. v. MILLIKEN & COMPANY.
    (539 SE2d 186)
   Andrews, Presiding Judge.

Donovan Grey appeals from the grant of summary judgment to Milliken & Company on his claim for failure to provide a safe workplace after he was injured while working at a construction site owned by Milliken. Milliken contended it was entitled to summary judgment on Grey’s claim because it had relinquished control of the property to the independent contractor, Fluor Daniel, during the period of construction and, therefore, it was Fluor Daniel’s responsibility to provide Grey with a safe working environment. We agree and affirm.

This case arose when another Fluor Daniel employee hit a bull pin with a hammer in an effort to dislodge it. The bull pin fell some 60 feet and struck Grey, who was installing conduit below.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (503 SE2d 581) (1998).

“Generally, a property owner who has surrendered full possession and control of the property to an independent contractor is not liable for any injuries sustained on the property.” Englehart v. OKI America, 209 Ga. App. 151 (1) (433 SE2d 331) (1993). An employer is, however, liable for the negligence of a contractor if the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create a relation of master and servant or so that an injury results which is traceable to his interference. OCGA § 51-2-5 (5).

The test is whether the owner retained such a right of supervision that the contractor is not entirely free to do the work in his own way. Englehart, supra at 152.

In this case, the evidence consisted solely of the affidavit of James Whitten, the vice president of operations at Fluor Daniel, and the deposition of Bernard Bledsoe, the project manager for Milliken. The testimony of both witnesses was that Fluor Daniel was in possession and control of the premises at the construction site, that no Mil-liken personnel were used in the construction, and that Fluor Daniel supplied all the labor and materials and was responsible for requiring each construction subcontractor to have an appropriate safety program.

1. Grey argues that because there was no written contract, Milliken could not relinquish control to Fluor Daniel. This is a mischaracterization of the evidence. When asked whether there were any documents which reflected the agreement between Fluor Daniel and Milliken regarding construction, Bledsoe replied that this was not his area and he had no knowledge of that issue. Whitten, however, stated in his affidavit that “[a] letter of intent with a referenced contract document between Milliken & Company and Fluor Daniel was exchanged and signed by both parties.”

In any event, Grey cites to no authority for this proposition, and we find none. Indeed, case law is to the contrary. Whether the agreement between the owner and contractor is oral or in writing is immaterial. See Braswell v. Walton, 208 Ga. App. 610, 611 (431 SE2d 417) (1993).

2. Grey also argues that during the construction process there were teams of people working in various areas at the plant and these teams consisted of some Milliken employees and some Fluor Daniel engineers. But, the evidence was that the Milliken employees were present not to direct the work, but rather to plan what work needed to be done. In addition, Bledsoe testified that even though there were Milliken employees on site, Fluor Daniel had sole responsibility and control over the site, had their own safety plan, and everyone on the site, including Milliken associates or guests, had to conform to Fluor Daniel’s safety plan.

3. Grey also contends that Milliken did not relinquish complete control of the premises because it was to receive a report of all job site injuries, Bledsoe ensured security by daily inspections, and Bledsoe had authority to require Fluor Daniel to correct any security issue problems. We find no authority in the record for Grey’s contention that “Bledsoe had the authority to correct any security issue on the premises by requiring Fluor Daniel to correct the perceived problem.” In any event, the right to inspect, the right to receive reports, and the right to prescribe alterations do not show that the owner retained control of the workplace. Kraft Gen. Foods v. Maxwell, 219 Ga. App. 211, 212 (464 SE2d 639) (1995).

Decided September 7, 2000.

Cummins & Kneidel, Timothy W. Kneidel, Donald J. Sharp, for appellants.

Lewis, Taylor, Todd & Dixon, John M. Taylor, Alex L. Dixon, for appellee.

4. Likewise, that Milliken employees staffed the guardhouse and controlled access to the site is immaterial. Grey does not contend and there is no evidence that the guardhouse or perimeter fence was part of the workplace.

5. Grey’s contention that if a Milliken employee saw an unsafe condition, that employee was responsible for bringing it to someone’s attention is misleading. The record shows that Bledsoe stated that a Milliken employee had that responsibility “because safety is everybody’s activity.”

6. Contrary to Grey’s argument, Bledsoe did not state that he was the safety liaison between Milliken and Fluor Daniel. He denied that there was any Milliken employee responsible for overseeing' safety procedure. Bledsoe stated that he was assigned to the site to make sure that security and environmental concerns were met. Bledsoe did say that if a Milliken employee were to see a safety violation, that employee would probably tell Bledsoe because he was assigned to the site. Bledsoe said if that were to happen he would inform Fluor Daniel’s safety people.

In light of the evidence above, we conclude that Milliken surrendered the premises to Fluor Daniel and Fluor Daniel alone was responsible for the manner in which the work was carried out. The rights retained by Milliken did not amount to control over the manner in which Fluor Daniel did the work, such that Milliken and not Fluor Daniel was responsible for providing a safe workplace. See Kraft, supra at 212; Bryant v. Village Centers, 167 Ga. App. 220, 222 (305 SE2d 907) (1983). Accordingly, there was no issue of material fact as to control of the premises, and the trial court correctly granted Milliken’s motion for summary judgment.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       Grey’s wife also sued for loss of consortium.

       Traveler’s Insurance Company, Fluor Daniel’s workers’ compensation carrier, filed a Motion to Intervene, which was granted. Traveler’s did not, however, file a response to Milliken’s motion for summary judgment.


author: Blackburn, Presiding Judge.

text:
    A00A1255.
    ELLIS v. THE STATE.
    (539 SE2d 184)
   Blackburn, Presiding Judge.

Stacy Lopez Ellis appeals from his conviction of aggravated battery, contending that the evidence was insufficient to support his conviction. Ellis also contends the trial court erred by failing to charge on the definition of malice and by failing to charge on the duty to retreat. Because we find that the evidence was sufficient and that the jury was properly charged, we affirm.

On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to support the verdict, and [Ellis] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Ryals v. State; see Jackson v. Virginia.

So viewed, the evidence at trial showed that on May 9, 1998, defendant Ellis and Tammy Brownlee spent the day together, eating fish and drinking. In the evening of May 9, 1998, the two decided to stay at Ellis’ apartment. While they were in bed, another girl whom Ellis had been dating called. Brownlee became angry and decided to go home. Ellis and Brownlee struggled while she was dressing. When Brownlee attempted to leave by the front door, Ellis shut the door and told her she could not go home. The two continued to argue. Eventually, Brownlee left the apartment and went to her car. Ellis followed her to the car and, as Brownlee attempted to start it, snatched the keys from the ignition. Brownlee jumped out of the car, yelling at Ellis, “What are you going to do, hit me?” Whereupon, Ellis hit her. Brownlee suffered a broken jaw which had to be surgically repaired.

1. Pursuant to OCGA § 16-5-24,

[a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.

The evidence here is sufficient to authorize the jury’s verdict that Ellis is guilty beyond a reasonable doubt of aggravated battery upon Brownlee. See Jackson, supra.

2. Ellis contends the trial court erred in failing to give a jury charge on the definition of “maliciously” as it applies to aggravated battery. “Maliciously” has such common understanding that there is no need to define it in the jury charge. Webb v. State; see Green v. State. The trial court properly instructed the jury on the elements of the offense of aggravated battery, intent, and the State’s burden to prove each element beyond a reasonable doubt. There was no error in the court’s failure to charge the jury on the definition of “maliciously.”

3. Ellis also contends the trial court erred in the charge by failing to instruct the jury on the lack of duty to retreat, despite Ellis’ failure to request such a charge. See Jackson v. State. In Johnson v. State, the Supreme Court observed that OCGA § 16-3-21 (a) is silent as to the duty to retreat in self-defense cases. However, under the common law, a defendant claiming self-defense had no duty to retreat if he was not the aggressor. Glover v. State. Finding that the silence of the Code was not intended to eliminate this principle, the Court held: “where self-defense is the sole defense, and the issue of retreat is raised by the evidence or placed in issue, the defense is entitled to a charge on the principles of retreat as set forth in Glover.” Johnson, supra at 39. See also Bracewell v. State (addressing the standard for justification under the common law and the Code).

In Johnson, supra, the defendant and the victim were involved in an argument in a bar. The victim assaulted the defendant and pushed her into a booth. The defendant then shot the victim when he approached her with a bar stool. The defendant claimed self-defense. At trial, the State countered this defense by arguing that the defendant could have run away and questioned the defendant on cross-examination why she did not leave. Under those facts, the Supreme Court found it was error not to charge the jury on the affirmative defense of the defendant’s lack of a duty to retreat.

Similarly in Jackson v. State, supra, the trial court’s failure to charge the jury on the lack of a duty to retreat was reversible error because the issue of retreat had been raised by the State. In that case, Jackson was confronted inside an apartment by another man who was angry with Jackson over some clothes. The evidence at trial showed that Jackson did not want to fight and that even after Jackson showed the man a gun, the man persisted and would not back off. After the man who lived in the apartment ordered the two outside, Jackson shot the angry man, who was unarmed. Jackson claimed self-defense. To counter the claim of self-defense, the prosecutor asked Jackson, “Did it ever occur to you that all you had to do was run away from an unarmed man?” In closing argument, the prosecution argued that Jackson could have avoided shooting the man simply by running away.

Decided September 7, 2000.

Emmett J. Arnold TV, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Lalaine A. Briones, Assistant District Attorneys, for appellee.

Here, unlike Johnson or Jackson v. State, Ellis’ claim of self-defense was not countered by an assertion that he could have avoided the confrontation. Thus, whether Ellis could have or should have retreated was not placed in issue by either the State or the defendant.

Moreover, this case also differs from Johnson and Jackson v. State in that there is no evidence that the victim Brownlee attacked Ellis before he punched her. Ellis testified that, as Brownlee was leaving in her car, he turned to return to the apartment. Brownlee then got out of her car yelling, “What are you going to do, hit me?” Ellis further testified that he turned around to face Brownlee, saw her raised arms, and hit her in a reflex reaction.

Since the issue of retreat was not raised by the evidence or placed in issue, the trial court did not err in failing to charge the jury on the duty to retreat. Thompson v. State.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Ryals v. State, 238 Ga. App. 578 (519 SE2d 505) (1999).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Webb v. State, 228 Ga. App. 624-625 (1) (492 SE2d 312) (1997).

        Green v. State, 266 Ga. 550, 551 (2) (468 SE2d 365) (1996).

        Jackson v. State, 237 Ga. App. 746 (516 SE2d 792) (1999).

        Johnson v. State, 253 Ga. 37 (315 SE2d 871) (1984).

        Glover v. State, 105 Ga. 597 (31 SE 584) (1898).

       The Johnson opinion observed that OCGA § 16-3-21 (a) is silent as to the duty to retreat in self-defense cases.

        Bracewell v. State, 243 Ga. App. 792 (534 SE2d 494) (2000).

        Thompson v. State, 181 Ga. App. 832, 833 (3) (354 SE2d 20) (1987).


text:
    A00A1432.
    GILBERT v. THE STATE.

      (539 SE2d 506)
   Blackburn, Presiding Judge.

Following a jury trial, Varrick Gilbert appeals his conviction for trafficking in cocaine, contending that the trial court erred by denying his motion to suppress 28 grams of crack cocaine found in a car in which he was a passenger. Because Gilbert was a mere passenger in the car, asserted no ownership interest in the car or its contents, and had no expectation of privacy in the car, we find that Gilbert lacked standing to argue that the vehicle was improperly searched and affirm the conviction.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations omitted.) Morgan v. State.

Viewed in the light most favorable to the verdict, the record shows that the police stopped Santeba Walker, Gilbert’s girlfriend, for driving erratically. After a drug dog indicated the presence of illegal drugs, the police searched Walker’s car and discovered 28 grams of cocaine. Gilbert contends that the search exceeded the scope of the traffic stop and was improper.

Even if we were to agree with Gilbert that the search in this case was inappropriate, we would, nonetheless, be required to affirm the trial court because Gilbert, as a mere passenger, had no standing to contest the search of the vehicle.

“(A) mere passenger who asserts an interest in neither the car nor the property found in it has no standing to object to the search of the automobile. Rakas v. Illinois, 439 U. S. 128 (99 SC 421, 58 LE2d 387) (1978).” McGhee v. State, 253 Ga. 278, 279 (1) (319 SE2d 836) [(1984)]. In the case sub judice, [Gilbert] “‘asserted neither a property nor a possessory interest in the automobile, nor an interest in the [contraband] seized.’ (Cits.)” Mecale v. State, 186 Ga. App. 276, 278 (367 SE2d 52) [(1988)]. Consequently, he held no legitimate expectation of privacy which was infringed by the traffic stop.

Ballard v. State.

Gilbert’s argument that he cannot be considered a mere passenger because the searched car belonged to his girlfriend does not change this result, as Gilbert never asserted any property interest of bis own in the car or its contents. Rakas, supra. We decline to accept Gilbert’s contention that his status as the car owner’s boyfriend automatically gave him an expectation of privacy in the vehicle. Moreover, we have found a passenger’s dating relationship with the car owner irrelevant to cases such as this in the past. See Meyer v. State.

Decided September 7, 2000.

Cramer & Peavy, Timothy C. Cramer, for appellant.

Richard G. Milam, District Attorney, James L. Moss, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

        Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

        Ballard v. State, 216 Ga. App. 315, 316 (454 SE2d 200) (1995).

        Meyer v. State, 150 Ga. App. 613 (258 SE2d 217) (1979).


text:
    A00A1581.
    MOSS v. THE STATE.
    (538 SE2d 876)
   Smith, Presiding Judge.

Henry Moss was charged with theft by taking, theft of services, two counts of harassing phone calls, two counts of telephone communication for indecent purposes, and obstruction of an officer. He was tried before a jury, which found him guilty of theft by taking, two counts of harassing phone calls, and two counts of telephone communication for indecent purposes. The jury was unable to reach a unanimous verdict as to the charge of theft of services and found him not guilty of obstruction of an officer.

Moss appeals from the conviction and sentence entered on the jury’s verdict, raising the general grounds. He also complains of the trial court’s actions in denying his motion to sever offenses and in sentencing him on both harassing telephone calls, OCGA § 16-11-39.1, and using telephone communication for indecent purposes, OCGA § 46-5-21. Finding no reversible error, we affirm.

1. Moss contends the evidence was insufficient to authorize the jury’s finding of guilt as to any of the offenses.

(a) The charge of theft by taking arose out of an incident that occurred in July 1997, when Moss took his chainsaw to a lawn and garden shop in Albany to have it repaired. He was told the repair would take two weeks, and he left his saw at the shop. Moss testified that after leaving the saw, he found an old friend who would repair the saw for him immediately. Because he had been told that the lawn and garden shop would take two weeks to repair it, he believed his saw had not yet been repaired, and he returned the next day to retrieve it. After looking for someone to help him and failing to find anyone, Moss noticed a saw that appeared identical to the one he had dropped off — an Echo brand orange chainsaw with a bow. He took that saw, placed it in his car, and left. He took the saw to be repaired quickly by an old friend.

Later that day, Moss returned a message left on his answering machine from the lawn and garden shop. According to Moss, he was asked if he had taken someone else’s saw by mistake, and he replied: “Not that I know of.” But after thinking about it, he called back and inquired whether his saw was still there, and he was told that it was. He intended to return the other saw, but before he could return it he was arrested. He then arranged for his girlfriend to take the saw back to the lawn and garden shop and pay for the repair to his saw. Moss testified that he never intended to steal anyone’s saw or to have his saw repaired without paying for the repair. He simply picked up an identical saw by mistake.

According to the shop owner’s son, however, he made the telephone calls seeking to locate the missing saw. He talked with Moss, and Moss told him he had not been to the shop to pick up the saw.

Moss’s saw did not have a serial number when it was left for repair. Although the other saw had a serial number on it when it was brought in by its owner for repair, when Moss’s girlfriend brought that saw back to the shop, its serial number had been forcibly removed.

Moss argues that both theft charges required proof of a specific intent and that this was not proved. On the contrary, given that Moss denied having returned to the shop at all, that the shop owner testified that Moss’s girlfriend returned the saw and paid for it only after Moss was arrested, and that the serial number on the returned saw had been forcibly removed, the evidence was inconsistent with an innocent mistake, and it showed the necessary specific intent. It was sufficient to authorize the jury to find Moss guilty of theft by taking and theft of services under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(b) The other charges arose out of incidents that occurred several months later. Moss repeatedly called the district attorney’s office, speaking to a prosecutor and to an investigator. In his first call to the prosecutor, he demanded that she drop the charges against him, used obscene language, and threatened her. He then called back three more times, each time continuing to use foul language and calling her names, until the prosecutor decided not to accept any more phone calls from Moss. Moss then continued his barrage of profanity and obscene language to an investigator, who was assisting in handling phone calls that day. He made these calls repeatedly until giving up and going to the district attorney’s office in person.

This evidence was sufficient to authorize the jury to find Moss guilty of making harassing telephone calls and using the telephone for obscene purposes under the standard set forth in Jackson v. Virginia, supra.

2. Moss contends the trial court erred in denying his motion to sever offenses. He argues that the offenses arose from different incidents, occurred approximately nine months apart, and were not related. He claims great risk of prejudice from their joinder.

Offenses may be joined for trial if they are based on the same or similar conduct, so that they show a common scheme or plan. They must be severed if joined solely because they are of the same or similar character; severance is discretionary if the trial court considers it appropriate to ensure a fair determination of the defendant’s guilt or innocence on each offense. In exercising this discretion, the trial court considers whether the trier of fact can distinguish the evidence and apply the law intelligently as to each offense, given the number of offenses charged and the complexity of the evidence. Smith v. State, 225 Ga. App. 553-554 (1) (484 SE2d 515) (1997).

In this case, it is clear that the offenses were not joined solely because they are of the same or similar nature, and severance therefore was not mandatory. Nor did the trial court abuse its discretion in denying the motion to sever. If the telephone call charges were tried separately, evidence of the theft charges would be admissible to explain why Moss was making the calls. The reverse is true, as well. In any separate trial on the theft charges, evidence of the phone calls and obstruction would be admissible, because “[e]vidence of an act by an accused, intended to obstruct justice or avoid punishment for the crime for which he or she is on trial, is admissible if the act constitutes an admission by conduct.” (Citations and punctuation omitted.) Larocque v. State, 224 Ga. App. 92, 93 (479 SE2d 450) (1996), rev’d on other grounds, State v. Larocque, 268 Ga. 352 (489 SE2d 806) (1996). See also Bain v. State, 239 Ga. App. 696, 699 (2) (521 SE2d 832) (1999); Payne v. State, 152 Ga. App. 471, 473 (3) (263 SE2d 251) (1979). When evidence of one crime is admissible in the trial of another crime, a trial court does not abuse its discretion in denying a motion for severance. Dennis v. State, 263 Ga. 257, 259-260 (6) (430 SE2d 742) (1993).

3. Moss maintains the trial court erred in sentencing him on both telephone charges. He argues that OCGA § 16-1-7 (a) (2) applies, because the two crimes differ only in that one is defined to prohibit a designated kind of conduct generally while the other prohibits a specific instance of such conduct. We do not agree.

Both crimes require proof of a specific type of conduct. Under OCGA § 16-11-39.1, one commits the offense of harassing phone calls if one telephones another person repeatedly “for the purpose of annoying, harassing, or molesting another person.” No requirement exists that any conversation take place. In contrast, OCGA § 46-5-21 (a) (1), with which Moss was also charged, requires the actual communication of comments that are “obscene, lewd, lascivious, filthy, or indecent.”

Decided September 7, 2000.

Herbie L. Solomon, for appellant.

Kenneth B. Hodges III, District Attorney, Richard E. Thomas, Robert E. Perrine, Jr., Assistant District Attorneys, for appellee.

The two crimes require different elements. Moss made repeated calls, to harass and annoy both the prosecutor and the investigator. He was therefore guilty of violating OCGA § 16-11-39.1. He also communicated obscene, filthy, and indecent language to both women. The content of his calls violated OCGA § 46-5-21 (a). Neither crime was included in the other under OCGA § 16-1-7 (a) (1) or (2). The trial court did not err in sentencing Moss on both offenses.

Judgment affirmed.

Johnson, C. J., and Mikell, J., concur. Phipps, J., disqualified.


text:
    A00A1589.
    CHAMBERS v. GREEN.
    (539 SE2d 181)
   Phipps, Judge.

Robert Chambers sued Michael Green, the former leasing and management agent for certain rental units owned by Chambers. Chambers sought an accounting for all security deposits, damages for Green’s failure to maintain a separate trust account, and the return of a $380 security deposit. On the eve of trial but before the entry of a pre-trial order, Green raised a statute of limitation defense. Relying upon evidence showing that Chambers’s claims were, in fact, time-barred, the trial court granted Green’s motion for involuntary dismissal.

Chambers contends that the trial court erred in dismissing his complaint by incorrectly calculating the proper time for filing his action and by overlooking conflicting evidence. We disagree and affirm.

At the pre-trial motion hearing, the dispositive issue was the timeliness of Chambers’s claims and whether they were foreclosed as a matter of law. On an unwritten contract, OCGA § 9-3-26 provides “four years from the accrual of the right of action” to file suit. For suit for conversion, the action also must be brought within four years. “The statute of limitations begins to run on a cause of action on the date that suit on the claim can first be successfully maintained. [Cits.]”

Chambers stated that he had retained Green in August 1991 to find prospective tenants, lease the rental units, and perform minor maintenance. Green worked for Chambers under an oral agreement. A few years later, in either 1993, 1994, or 1995, the central factual question in issue, Green’s employment with Chambers ceased. Chambers, however, did not file the underlying lawsuit until May 11, 1998.

The evidence deviated widely on the exact date that Green’s employment ceased. In his complaint, Chambers alleged that “on or about April 1995, Defendant was released as agent for Plaintiff.” In a deposition of Chambers taken on February 17, 1998, in an unrelated case, Chambers testified that Green was the property manager and rental agent until “when my brother came in 1995.” When asked, “[c]an you be any more specific about the time that that occurred?”, Chambers responded, “I really don’t remember, no.” But during the pre-trial hearing, appearing pro se, Chambers stated in open court that “[Green] was employed by approximately September 1991 and he continued in that capacity until approximately December 1994.” Yet, in an affidavit directed to the Georgia Real Estate Commission, dated December 12, 1997, Chambers attested to a much earlier date. Green’s counsel directed the court’s attention to a document titled “REQUEST FOR INVESTIGATION” that Chambers had filed with the Commission seeking a probe of Green. On this form, Chambers had stated under oath: “Mr. Green’s services were terminated in 1993, and I am still waiting for the return of the last $385.” Noting that a 1993 date for the ending point of Green’s employment “was submitted in a complaint form with the Georgia Real Estate Commission before any lawsuits were filed,” the trial court construed this document against Chambers and found his lawsuit against Green time-barred.

Chambers contends that the trial court erred in calculating the time for filing suit. He claims that he could not have filed suit until after he discovered Green’s fraud in 1997 or 1998. He further asserts that the trial court applied the wrong standard of review and should have construed the evidence in his favor, and that in light of the conflicting evidence, a jury should resolve the inconsistencies. We disagree.

Decided September 7, 2000.

Donald R. Donovan, for appellant.

Hughes & Kaplan, Robert W. Hughes, Jr., for appellee.

An involuntary dismissal under OCGA § 9-11-41 (b) differs considerably from the grant of summary judgment. A dismissal under OCGA § 9-11-41 (b) does not require a trial court to construe the evidence most favorably toward the nonmovant. In addition, because a trial court determines the facts as well as the law, an involuntary dismissal may be warranted despite the fact that a plaintiff established a prima facie case. In ruling on a motion for involuntary dismissal, the trial court can decide whether essential facts have not been proven. As the trier of fact, the trial court’s determination will be reversed only when the evidence demands a contrary finding.

In this case, although there was obvious discrepancy as to when Green’s employment ceased, it was up to the trial court to weigh the evidence and to decide which evidence to find more credible. As to any claim for breach of contract or conversion, relying on the form that Chambers had filed with the Georgia Real Estate Commission, the trial court resolved the conflicting evidence adversely to Chambers. Mere ignorance of the facts constituting a cause of action does not prevent the running of a statute of limitation. Whether Chambers presented sufficient proof to suggest that he had been debarred or deterred from filing suit earlier so as to toll the statute of limitation under OCGA § 9-3-96 was an issue of fact which the trial court implicitly resolved adversely to him. Because the evidence did not demand a finding to the contrary, we affirm.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

       OCGA § 9-3-32.

        Limoli v. First Ga. Bank, 147 Ga. App. 755, 756-757 (250 SE2d 155) (1978).

       Chambers, a licensed attorney, had been renting various properties in Atlanta since 1978.

       Inexplicably, in his appellate brief, Chambers states that he terminated Green in 1994.

        Smith v. Ga. Kaolin Co., 269 Ga. 475, 476 (1) (498 SE2d 266) (1998).

       See id.

        Ivey v. Ivey, 266 Ga. 143, 144 (1) (465 SE2d 434) (1996).

        Comtrol, Inc. v. H-K Corp., 134 Ga. App. 349, 352 (2) (214 SE2d 588) (1975).

        Barrow v. Gen. Motors Corp., 172 Ga. App. 287, 288 (2) (322 SE2d 900) (1984).

        Ross v. A Betterway Rent-A-Car, 213 Ga. App. 288, 289 (1) (444 SE2d 604) (1994).

       See OCGA §§ 9-3-32; 9-3-26.

        Limoli, supra, 147 Ga. App. at 757.

       See Dunn v. Towle, 170 Ga. App. 487, 488 (2) (317 SE2d 266) (1984) (unless plaintiff exercises due diligence in discovering the fraud, statute of limitation is not tolled).

        Smith, supra, 269 Ga. at 475 (1).


text:
    A00A1734.
    A00A1735.
    TESTAMENTARY TRUST OF MOSELEY et al. v. BARNES. MOSELEY v. BARNES.
    (538 SE2d 873)
   Blackburn, Presiding Judge.

In this case involving animal liability, the Testamentary Trust of T. H. Moseley, Sr. and its trustees (collectively referred to herein as the “Moseleys”) appeal the trial court’s denial of their motion for summary judgment, contending that they had no knowledge that a. domesticated bull on the Moseley farm had any dangerous propensities prior to the time it attacked Dale Barnes. For the reasons set forth below, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewed in this light, the record shows that, on November 2, 1998, Richard Clay Moseley and Barnes went to a farm owned by the Testamentary Trust to look at some cows. While there, they patted cows and discussed hunting and fishing. Then, they entered a field inhabited by Bullwinkle, a ten-year-old bull raised by Richard Moseley from the time that he was a calf. Bullwinkle approached Barnes, knocked him down, and injured his leg. Following the incident, Richard Moseley’s immediate response to Barnes was that “[Bullwinkle’s] never done that before ”

Each of the Moseleys testified that they had never witnessed Bullwinkle act aggressively prior to his attack on Barnes. In fact, Richard Moseley testified that, prior to the attack, Bullwinkle was treated like a family pet and was always gentle, even allowing children to scratch his head. One of Bullwinkle’s handlers testified that “he never was rough with us at all” and that “he was so gentle that he was always the first one in the pen.” Furthermore, in his deposition, Barnes testified that he was not contending that Richard Moseley had any knowledge that Bullwinkle was dangerous prior to the attack.

Decided September 7, 2000.

Coleman, Talley, Newbern, Kurrie, Preston & Holland, Richard R. Coleman, Edward F Preston, for appellants (case no. A00A1734).

As an initial matter, bulls, like other livestock, are not considered to be statutorily vicious animals. Therefore, as a bull is a domestic animal, a bull owner must have some knowledge of the animal’s vicious or dangerous character before he can be held liable for an attack by that animal. Taft v. Taft.

In Taft, we explained:

Bulls generally are strong and some bulls are vicious notwithstanding their classification as domestic farm animals. Nevertheless, it cannot be said as a matter of law, or that it is judicially known, that bulls, as a class, are dangerous. . . . Bulls are more dangerous than cows and steers; stallions are more dangerous than mares or geldings; rams are more dangerous than ewes and lambs. However, these animals have been kept for stud purposes from time immemorial so that the particular danger involved in their dangerous tendencies has become a normal incident of civilized life. The virility which makes them dangerous is necessary for their usefulness in performing their function in the socially essential breeding of livestock, and justifies the risk involved in their keeping. Therefore the law has not regarded bulls, stallions and rams as being abnormally dangerous animals.

(Citations and punctuation omitted.) Id. at 500 (1). Accordingly, we held that a livestock owner is liable to “one who sustains injury as a result of the vicious or dangerous tendency of the animal only in the event the owner knows of its vicious or dangerous character.” (Punctuation omitted.) Id.

In this case, the only evidence before the trial court was that Bullwinkle had never acted aggressively toward anyone, that he was, to the contrary, uncommonly gentle, and that the Moseleys had no knowledge of any aggressive behavior by Bullwinkle. Moreover, this point was conceded by Barnes. Therefore, the trial court erred in failing to grant summary judgment to the Moseleys.

Judgments reversed.

Eldridge and Barnes, JJ, concur.

Alexander & Vann, William C. Sanders, for appellant (case no. A00A1735).

John D. Holt, for appellee.

       The appellants in this case include the Testamentary Trust of T. H. Moseley, Sr., Richard Clay Moseley, individually and as co-trustee, Anne H. Moseley, as co-trustee, and T. H. Moseley, Jr., as co-trustee.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Taft v. Taft, 209 Ga. App. 499, 500 (433 SE2d 667) (1993).


text:
    A00A1737.
    HONEYCUTT v. THE STATE.
    (538 SE2d 870)
   Blackburn, Presiding Judge.

Following a jury trial, Ricky Honeycutt appeals his convictions of two counts of child molestation, contending that the evidence was insufficient to support the convictions. Honeycutt also contends that the trial court erred by: (1) denying his request for a complete copy of the files from the Department of Family & Children Services (DFACS); (2) denying his request that preliminary jury instructions be given to the jury at the commencement of trial; and (3) prematurely giving an Allen charge to the jury. For the reasons discussed below, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Honeycutt] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Ryals v. State. See Jackson v. Virginia.

1. The evidence at trial showed that Long County DFACS received an allegation that nine-year-old S. J. had been molested by Honeycutt, her aunt’s boyfriend. S. J. testified that, while she was living in Long County, Honeycutt made her touch his penis on several occasions. S. J. further testified that Honeycutt had touched the vaginal area of both her and her sister on one occasion while the girls were napping. Her sister, L. L. J., also testified that Honeycutt had touched her vaginal area on several different occasions and that he had made her touch his penis.

The uncorroborated testimony of a victim of child molestation is sufficient to authorize a conviction of the offense under Jackson, supra. Atkins v. State. Thus, this evidence is sufficient to authorize the jury’s finding that Honeycutt was guilty, beyond a reasonable doubt, of the offenses of child molestation. OCGA § 16-6-4.

2. Prior to trial, Honeycutt requested a complete copy of the DFACS file, and he contends that the trial court’s denial of his request was erroneous. The trial court did not err.

The DFACS records concerning the reports of child abuse are confidential, OCGA § 49-5-40 (b), and access to such records is limited by OCGA § 49-5-41, which gives such access to:

[a] court, by subpoena, upon its finding that access to such records may be necessary for determination of an issue before such court; provided, however, that the court shall examine such record in camera, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then before it and the record is otherwise admissible under the rules of evidence.

OCGA § 49-5-41 (a) (2). In the present case, the trial court conducted an in camera inspection in accordance with the statute and determined that the records contained nothing exculpatory. Although Honeycutt claims he is nonetheless entitled to the files pursuant to Brady v. Maryland, “the trial court’s prior examination in camera of the [file] was an adequate in camera inspection to satisfy the requirements of Brady and its progeny.” (Punctuation omitted.) Lane v. State (defendant’s access to videotaped interview of child molestation victim not required under Brady, in camera inspection by trial court satisfied Brady); Stewart v. State (trial court’s in camera inspection of videotaped interview of child molestation victim which found nothing exculpatory satisfied the requirements oí Brady). This procedure balances the public’s interest in protecting the confidentiality of such records and the due process rights of the defendant. Ga. L. 1975, pp. 1135, 1136; Davidson v. State (“This procedure comports with the requirements of due process”); see Pennsylvania v. Ritchie (holding a similar procedure protects the public’s interest and does not violate the due process rights of a defendant). Moreover, because the videotape was not included in the appellate record, Honeycutt has not shown that any of the withheld information was material and exculpatory, so this enumeration is without merit. Lane, supra; Stewart, supra.

Decided September 7, 2000.

Murl E. Geary, for appellant.

J. Thomas Durden, Jr., District Attorney, James S. Archer, Assistant District Attorney, for appellee.

3. Honeycutt raises as error the denial of his request for the trial court to give the requested charges from the Suggested Pattern Jury Instructions at the commencement of trial. However, OCGA § 5-5-24 requires only that the trial court instruct the jury in the law at the close of evidence. See Little v. State (Trial court’s failure to reiterate after closing arguments its preliminary charge on the standard of proof and definition of “beyond a reasonable doubt” was reversible error). It is within the discretion of the trial court whether to give preliminary instructions at an earlier time during trial. OCGA § 5-5-24; see id. Moreover, Honeycutt has not shown how the failure to give the preliminary instructions was detrimental to his case. Harm and error must be shown to authorize reversal. O’Neal v. State (Error in the jury charge would have benefitted the defendant, so judgment was affirmed). This enumeration of error has no merit.

4. The trial court did not abuse its discretion in giving the Allen charge after the jury had deliberated for two hours, even though there was no indication that the jury was deadlocked and unable to reach a verdict. Hawkins v. State. The decision to give an Allen charge does not require that the jury be deadlocked. Id. It is within the discretion of the trial court whether and when to give the Allen charge, and we find no abuse of that discretion. Epps v. State.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896).

        Ryals v. State, 238 Ga. App. 578 (519 SE2d 505) (1999).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Atkins v. State, 243 Ga. App. 489 (1) (533 SE2d 152) (2000).

        Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

        Lane v. State, 223 Ga. App. 740, 742 (4) (479 SE2d 350) (1996).

        Stewart v. State, 210 Ga. App. 474, 475 (3) (436 SE2d 679) (1993).

        Davidson v. State, 183 Ga. App. 557 (359 SE2d 372) (1987).

        Pennsylvania v. Ritchie, 480 U. S. 39 (107 SC 989, 94 LE2d 40) (1987).

        Little v. State, 230 Ga. App. 803, 805 (2) (498 SE2d 284) (1998).

        O’Neal v. State, 237 Ga. App. 51, 54 (2) (513 SE2d 50) (1999).

        Hawkins v. State, 260 Ga. 138, 140-141 (10) (390 SE2d 836) (1990).

        Epps v. State, 168 Ga. App. 79, 80-81 (3) (308 SE2d 234) (1983).


author: Miller, Judge.

text:
    A00A0921.
    NOWLIN v. DAVIS et al.
    (538 SE2d 900)
   Miller, Judge.

Valesta Faye Nowlin contracted to sell certain land to Pamela Davis for $24,000 with the transaction to close on or before March 13, 1996. On March 8, Davis called Nowlin and offered to bring over the money immediately to close the transaction, but Nowlin adamantly refused, claiming (despite Davis’s protests) that the contract had already expired. Thereafter Nowlin refused to take Davis’s calls. A jury awarded Davis specific performance, and judgment was entered accordingly. Nowlin enumerates the denial of her motion for new trial, arguing that the contract was indefinite and that tender was not waived. We disagree and affirm.

1. A party seeking specific performance of a real estate contract must show that the terms of the contract are definite and specific as to subject matter, purpose, parties, and consideration, and even as to the time and place of performance where these are essential. Although the written contract here was definite and specific as to all essential elements, Nowlin argues that because Rob Williams, Sr. was added to the suit as a plaintiff, the contract thereby became indefinite as to parties. The procedural act of adding a plaintiff to the suit did not in any way change the terms of the contract at issue.

Moreover, Williams was added as a result of Nowlin asserting the affirmative defense that Williams was an indispensable party, pursuant to which Nowlin moved to dismiss the suit at trial. To resolve the issue, Davis moved to amend the complaint to add Williams as a party, which the court permitted. “[A] party will not be heard to complain of error induced by his own conduct, nor to complain of errors expressly invited by him during the trial of the case.”

2. Nowlin next claims that Davis never formally tendered the $24,000 to her nor showed that she had the money in hand. It is true that to be entitled to specific performance on a real estate contract, the purchaser must make an unconditional tender of the purchase money due. This tender is excused or waived where the seller, by conduct or declaration, proclaims that if a tender should be made, acceptance would be refused. The law does not require a futile tender or other useless act. Here Davis testified that she had the money and that she told Nowlin she wanted to bring it to Nowlin; Nowlin refused, adamantly declaring that the contract had expired. A formal tender was thereby waived or excused.

Nowlin further claims that Davis failed to show that she had the money available for tender at the time of trial. This means nothing. Once the right to acquire the real property is established by the tender waiver, no additional tenders need be shown to preserve that right. Moreover, Davis showed at trial that the money was still available.

Decided September 8, 2000.

Glenville Haldi, for appellant.

Giddens, Davidson & Mitchell, Earl A. Davidson, Regina E. McMillan, for appellees.

3. In her final enumeration of error, Nowlin claims that the court erred in failing to rule on her post-trial motion to terminate Davis’s right to purchase the property. In that motion Nowlin claimed Davis failed to tender the money within the 30 days following the verdict, as required by the judgment. Although Nowlin filed this motion simultaneous with other post-trial motions, at the post-trial motions hearing she failed to raise the issue. It was the duty of her counsel to invoke a final ruling, and counsel’s failure to do so precludes our review.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Williams v. Manchester Bldg. Supply Co., 213 Ga. 99, 101 (1) (97 SE2d 129) (1957).

       Williams was the real estate agent signing for the broker in the contract at issue.

       (Citations and punctuation omitted.) Clark v. Stafford, 239 Ga. App. 69, 72 (2) (522 SE2d 6) (1999).

        Smith v. Standard Oil Co., 226 Ga. 339, 340 (1) (175 SE2d 14) (1970).

       Id.; Holden v. Smith, 236 Ga. App. 205, 208-209 (511 SE2d 569) (1999).

        Jackson v. Southern Pan &c. Co., 260 Ga. 150, 151 (1) (b) (390 SE2d 393) (1990).

       Cf. Gallogly v. Bradco, Inc., 260 Ga. 311 (1) (392 SE2d 529) (1990).

        McGuire v. Norris, 180 Ga. App. 383, 385 (2) (349 SE2d 261) (1986).


text:
    A00A0974, A00A0975.
    STEPHENS v. THE STATE (two cases).
    (538 SE2d 882)
   Andrews, Presiding Judge.

John and Dwayne Stephens appeal from the judgment entered after a jury found them guilty of hijacking a motor vehicle. Because we conclude the trial court erred when it charged the jury that it was “not bound to believe incredible, impossible or inherently improbable” testimony, we reverse.

The evidence at trial, taken in the light most favorable to support the verdict, was as follows. Herman McCladdie and Mike Eubanks left Club Hollywood on the night in question and drove to Eubanks’s house. They were driving a friend’s car that had custom rims, hydraulic lifts and special paint. As they got out of the car, they noticed another car pull up. McCladdie and Eubanks had seen the car shortly before in the parking lot at Club Hollywood. Dwayne Stephens got out of the car and began talking with McCladdie and Eubanks, whom he knew from school. Shortly after, John Stephens, Dwayne’s brother, got out of the car along with another man. The men talked for a little while, and then another man got out of the car and pointed a sawed-off shotgun at McCladdie and Eubanks and told them to give up their car keys. In addition to the friend’s car they had been driving, Eubanks’s car was also parked nearby. The four men took the keys to the two cars, Dwayne Stephens got in Eubanks’s car, one of the other men got in McCladdie’s friend’s car and John Stephens and the man with the shotgun got back in their car. After the three cars drove off, McCladdie and Eubanks ran to Eubanks’s house, told his mother they had been robbed and got in his mother’s car to chase the stolen cars. They saw a police officer at a gas station and told him of the theft.

The officer testified that he was at the gas station when McCladdie and Eubanks pulled in, jumped out of their car, ran up to him and told him their cars had been stolen. They said they thought the cars were headed south toward Florida on Highway 25 and described the three cars. The officer got in his car, another deputy followed him and both rode south on Highway 25. They overtook the three cars close to the Burke County line. The officers blocked the two stolen cars, but the third car went around the patrol cars and kept going.

John Stephens testified in his own defense and stated that he and his brother drove up from Florida to visit. They started talking to McCladdie and Eubanks and asked for a ride to where they were staying. Stephens said McCladdie and Eubanks loaned them the cars for the evening and they were to return them the next morning. He said the two other men who were with them were going on to Atlanta and he and his brother each borrowed one of the cars to drive to where they were staying for the night. Stephens denied any knowledge of a gun and said no one threatened McCladdie and Eubanks and no one stole either car.

1. The evidence was sufficient to support the verdict.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] 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)].

Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995).

2. Appellants argue that the hijacking statute was enacted to prevent the crime of taking an occupied motor vehicle, not a parked vehicle. They cite to no authority for this proposition, and we find none. In addition, the wording of the statute does not support this argument. OCGA § 16-5-44.1 (b) provides that:

A person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.

The statute does not require that the person be in the motor vehicle. Here, the evidence was that the cars were taken from the “presence of” the victims, and that was sufficient to prove the elements of the crime.

3. In their next enumeration of error, appellants contend the trial court erred in allowing the prosecutor to cross-examine John Stephens about drugs. Defense counsel did not object to this testimony at trial, and, therefore, appellants have waived any objection on appeal. Allen v. State, 272 Ga. 513, 515 (530 SE2d 186) (2000). Moreover, it was defense counsel who first introduced the subject by asking the victims whether they were smoking pot or using other drugs and in whose car the police found the marijuana; when in fact, the officer testified that there was no controlled substance recovered from either of the stolen cars.

4. Next, appellants argue that the trial court erred in charging the jury that “juries are not bound to believe testimony as to facts incredible, impossible or inherently improbable.” Appellants contend that there was nothing in John Stephens’s testimony that was improbable or incredible and, therefore, this charge was not warranted by the evidence. They also contend that this charge was an impermissible comment on the evidence. We agree.

In Patton v. State, 117 Ga. 230 (43 SE 533) (1903), the Supreme Court held:

Courts and juries are not bound to believe testimony as to facts incredible, impossible, or inherently improbable. Great physical laws of the universe are witnesses in each case, which can not be impeached by man, even though speaking under the sanction of an oath.

Id.

In Patton, the case turned on whether a witness could have recognized the defendant from the sound of his voice. The witness barely knew the defendant, and the voice came from a considerable distance. Id. at 233. The court held that, under these circumstances, the evidence was insufficient to support the verdict. Id.

The high court explained that when testing the sufficiency of the evidence, an appellate court cannot consider the credibility of witnesses, except that the court may hold that a witness’s testimony is to be accorded no value under this circumstance, i.e., when it is not in accord with natural laws, or is improbable, incredible, or seeks to establish facts which are impossible, or which, if not impossible, must in their very nature be uncertain, vague, indefinite, and insufficient to remove reasonable doubts.

(Punctuation omitted.) Brandon v. State, 241 Ga. App. 887, 889 (2) (528 SE2d 809) (2000). In Brandon, as in this case, the defendant testified and told an improbable story in light of the evidence against him. Id. at 888.

“We have held that this exception applies in only extraordinary cases,. . . and only for statements which run contrary to natural law and the universal experience of mankind.” (Citation and punctuation omitted.) Brandon, supra at 889 (2). Moreover, this charge tends to discredit a witness’s testimony in the eyes of the jurors and can “confuse the jury as to the real issues.” Dixie-Ohio Express v. Brackett, 106 Ga. App. 862, 874 (128 SE2d 642) (1962).

In this case, there was nothing about Stephens’s story that ran contrary to the “great physical laws of the universe.” Although the story may have been improbable, it was not impossible. Brandon, supra at 889 (2). Moreover, because Stephens’s testimony was the sole defense at trial, and the erroneous charge discredited this testimony, the error was not harmless. Id. at 890. The charge was harmful error as to both defendants, and the judgments in both cases are reversed and the cases are remanded for a new trial.

5. We address the remaining enumerations of error to the extent they raise issues likely to recur on retrial. Appellants also claim the court erred in charging the jury on several inapplicable points of law. In one example, the court told the jury they could find the defendants guilty of “an attempt to commit a robbery, or any other charge in the indictment,” without defining criminal attempt.

But, as the State points out, there was no evidence of the lesser included offense of attempt to commit a crime. The jury could either find the defendants guilty or believe the testimony of John Stephens, which was that they borrowed the cars. Although the charge was inapplicable, we fail to see how the appellants were harmed.

6. Appellants also point to several other instances where the court charged inapplicable points of law. Again, they can show no harmful error. The evidence at trial was not complicated or confusing, and the jury was charged on all of the elements necessary to find the defendants guilty of the crimes charged in the indictment. Therefore, we cannot say that these references to irrelevant matters could have misled the jury and affected the verdict. See Barr v. State, 216 Ga. App. 554, 556 (455 SE2d 99) (1995).

7. In Case No. A00A0974, John Stephens contends that he was improperly resentenced. Stephens was sentenced to the maximum twenty years under the recidivist provisions of OCGA § 17-10-7 (a), with ten of the twenty years to be served on probation. The State moved to set aside this sentence, arguing that under OCGA § 16-5-44.1 (d) the “punishment prescribed by subsection (c) of this Code section shall not be deferred, suspended, or probated.” Although the repeat offender statute does provide that the trial court may probate or suspend the maximum sentence prescribed for the offense, it also states that the trial court may do this “unless otherwise provided by law.” The hijacking statute, OCGA § 16-5-44.1, does provide otherwise, and the trial court correctly resentenced John Stephens under this provision.

8. In Case No. A00A0975, Dwayne Stephens claims the trial court erred in denying his motion to sever. Stephens argues that during cross-examination of his brother, the prosecutor brought up the issue of illicit drug deals and this reflected adversely on him.

The factors a trial court must consider in exercising its discretion in regard to a motion to sever are (1) whether the number of defendants will create confusion as to the evidence and the law applicable to each, (2) whether there is a danger that evidence admissible against one defendant will be considered against the other despite the court’s instructions, or whether the strength of the evidence against one defendant will engulf the other with a “spillover” effect, and (3) whether the defendants’ defenses are antagonistic to each other or to each other’s rights. Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975); Redding v. State, 239 Ga. App. 718, 721 (521 SE2d 840) (1999). The burden is on the defendant requesting a severance of trials to make a clear showing of prejudice and denial of due process. Cain, supra.

In this case, the evidence against both defendants was substantial. Moreover, this was not a case where the strength of the evidence against one defendant would engulf the other with a “spillover” effect. See Cain, supra; Martin v. State, 162 Ga. App. 703, 704 (292 SE2d 864) (1982). The prosecutor’s questions about drug trafficking were harmless in light of the clear and substantial evidence against both defendants. Thus, Dwayne Stephens has not shown that the trial court’s denial of his motion to sever amounted to a violation of his due process rights.

Judgments reversed.

Ruffin and Ellington, JJ, concur.

Decided September 8, 2000.

Peter D. Johnson, for appellants.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


author: Barnes, Judge.

text:
    A00A1100.
    WHITE v. SUNTRUST BANK.
    (538 SE2d 889)
   Barnes, Judge.

Kenneth E. White III appeals the probate court’s order denying his motions for recusal based on the probate judge’s ownership of stock in one of the parties. He also appeals the probate court’s grant of motions to dismiss by SunTrust Bank, the executor of his grandmother’s estate. We conclude that the probate judge erred in finding that White’s motion to recuse was untimely and further erred in concluding that her stock ownership in SunTrust would not disqualify her even if White’s motion were timely. We therefore reverse the order denying the motion to recuse, vacate the final judgment, and remand this case for further proceedings.

1. We find no merit in SunTrust’s argument that we should not consider White’s appeal of the probate court’s order denying his motion for disqualification because it was not timely. In support, SunTrust cites Jabaley v. Jabaley, 208 Ga. App. 179 (430 SE2d 119) (1993). However, the opinion in Jabaley addresses the timeliness of a de novo appeal from probate court to superior court. The case before us, on the other hand, involves an appeal from an August 9, 1999 opinion and order that is final because the case is no longer pending in the court below. OCGA § 5-6-34 (a) (1); see Herring v. Herring, 143 Ga. App. 286 (1) (238 SE2d 240) (1977). Further, no issue is presented that the order was final under OCGA § 9-11-54 (b). Therefore, White’s September 8, 1999 appeal encompasses not only the final order, but the probate court’s previous orders denying White’s motion to recuse. OCGA § 5-6-34 (d); Pierce v. Wendy’s Intl., 233 Ga. App. 227, 228 (1) (504 SE2d 14) (1998).

2. White filed three motions to recuse. In the first, filed on July 6, 1999, he asserted as grounds that the probate court judge would not disclose whether she owned stock in SunTrust, among other reasons. In a boilerplate order, the judge denied the motion on July 12, 1999. In his second motion to recuse filed July 12, 1999, White asserted that the judge should recuse herself because she owned stock in Sun-Trust, as evidenced by the financial disclosure form she filed on July 1, 1999. The judge denied the motion on July 19, 1999, holding that the motion was untimely. The order provides:

With regard to the timeliness of Petitioner’s motion, Petitioner appears to rely in large part upon the State of Georgia Ethics in Government Act Financial Disclosure Statement (a public record) dated June 30, 1999, and apparently filed with the appropriate authority on July 1, 1999. Since the face of the record discloses affirmatively that the document upon which Petitioner relies was available to him no later than July 1, 1999, and that Petitioner filed his motion on July 12, 1999, it appears affirmatively from the face of Petitioner’s motion and his supporting documentation that Petitioner’s motion was filed more than five days after the date upon which Petitioner knew or should have known of the alleged grounds for disqualification. See Baptiste v. State, 229 Ga. App. [691,] 698, 494 S.E.2d [530,] 537 [(1997)]. Therefore, the Court finds Petitioner’s motion to be untimely.

White filed his third motion to recuse on July 19, 1999, alleging the probate court judge should be disqualified because she holds stock in SunTrust but said in her July 12, 1999 order that “recusal would not be warranted.” The probate court judge denied the motion on July 20, 1999, in another boilerplate order that again found White’s motion untimely.

Uniform Probate Court Rule 19.1, which is patterned after Uniform Superior Court Rule 25.1, provides that “[fliling and presentation to the judge [of the motion to recuse] shall be not later than 5 days after the affiant first learned of the alleged grounds for disqualification. . . .” Nothing in the rule provides that the motion must be filed within five days after the affiant “should have known” of the alleged grounds. In his affidavit supporting the motion, White avers that he or his former attorney had several times asked the court to disclose its ownership in SunTrust, and the record is replete with documents showing White’s efforts to establish whether the probate court judge held stock in SunTrust.

In other cases in which we have affirmed a trial court’s ruling that a motion to recuse was not timely, the motions were based on actions by the party bringing the motion, such as filing a suit against the judge, or actions that occurred during trial, such as finding an attorney in contempt. Quarterman v. Quarterman, 268 Ga. 807, 808-809 (4) (493 SE2d 146) (1997); Foody v. State, 200 Ga. App. 230 (407 SE2d 469) (1991). This court has found no cases holding that the five-day limit begins to run on the day the petitioner “should have known” a fact. Furthermore, to refuse disclosure and then hold that White’s motion was untimely because he “should have known” that the probate judge filed a disclosure statement several days earlier would be an injustice.

3. The probate court further held that, even if White’s motion for recusal had been timely, his affidavits failed to set forth the facts upon which the allegations were based, and even if alleged facts were assumed true, they did not show that the judge had “a direct pecuniary or property interest in the subject matter of the litigation.”

OCGA § 15-1-8 (a) (1) provides that no judge of any court shall sit “in any case or proceeding in which he is pecuniarily interested.” Judicial Qualifying Commission Op. No. 76 (December 6, 1985) provides that a judge who holds stock in a corporation that is a party to a suit should recuse herself from the case. “A stockholder has a property interest in the corporation and the judge would, therefore, have a pecuniary interest and would be disqualified in any case to which the corporation was a party.” Id.

SunTrust argues that, “[e]ven if the Probate judge has a share of stocks in SunTrust Bank affiliates, such facts would not warrant her disqualification in this case, as SunTrust has no financial interest in the outcome of the proceedings,” citing Estate of Norton v. Hinds, 182 Ga. App. 35 (354 SE2d 663) (1987). However, the opinion in Norton does not support this proposition of law. Rather, the Norton court held that one cannot sue “an estate,” but must sue “in the name of a personal representative — an executor, administrator, etc.” Id. at 36. It does not stand for the proposition that the executor of an estate has no financial interest in the outcome of the proceedings, but for the proposition that an executor is a “party.” See Adams v. McGehee, 211 Ga. 498, 499 (3) (86 SE2d 525) (1955); Ga. Power Co. v. Watts, 184 Ga. 135, 141 (2) (190 SE 654) (1937). Because the will itself provides that SunTrust will be compensated for acting as executor, it is technically not accurate for SunTrust to assert that it has no financial interest in this case. If White prevails, another bank will serve as executor and will receive the compensation that would otherwise go to SunTrust. The record clearly shows that the probate court judge in this case owns more than $20,000 worth of stock in SunTrust, a party. Therefore, the judge was disqualified from hearing the matter pursuant to OCGA § 15-1-8 (a) (1) and should have granted the motion to recuse.

4. Moreover, the probate court misconstrued its responsibilities in this matter. “A judge should disqualify [herself] in any proceeding in which [her] impartiality might reasonably be questioned. [Cit.]” (Emphasis in original.) In re Complaint against Broome, 245 Ga. 227, 228 (264 SE2d 656) (1980). The Code of Judicial Conduct provides a broader rule of disqualification than that contained in OCGA § 15-1-8. Stephens v. Stephens, 249 Ga. 700, 701 (292 SE2d 689) (1982).

Decided September 8, 2000.

Kenneth E. White III, pro se.

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., John M. Sheftall, Carter R. Page, J. Barrington Vaught, Joseph L. Waldrep, for appellee.

A conflict of interest such as is present in this case should be resolved by the court itself through disqualification rather than requiring a party to move to recuse the judge. More significantly, however, judges are required to avoid not just impropriety, but the appearance of impropriety in their activities. Canon 2, Code of Judicial Conduct. “This is so because public confidence in and respect for the judiciary must be maintained.” In the Matter of Inquiry Concerning a Judge No. 97-61, 269 Ga. 425 (499 SE2d 319) (1998).

Moreover, Canon 3 requires that “|j]udges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where: . . . the judge ... is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding.” (Emphasis supplied.) Canon 3 (E) (1) (c) (iii), Code of Judicial Conduct. Thus, even if the judge believed that in this case she could proceed notwithstanding her financial interest in SunTrust, the judge was required to inform the parties of her financial interest and ask them whether they wanted to waive the disqualification. She was not authorized to keep such information private and proceed to try the case.

After considering these canons in light of JQC Op. No. 76, discussed above, we find that, even without a motion to recuse, the probate judge should have volunteered to disqualify herself or, at a minimum, disclosed her interest to the parties. Her failure to do so, particularly when White sought this very information, is inexcusable.

The probate court judge’s rulings in this case are reversed, the final judgment is vacated, and the case is hereby remanded to the Probate Court of Muscogee County for further proceedings not inconsistent with this opinion.

Judgment vacated and remanded.

Blackburn, P. J., and Eldridge, J., concur.